The Trouble with Lying

The list is still growing, but already it resembles a Watergate Who's Who--former Attorney General John Mitchell, former Commerce Secretary Maurice Stans, former White House Aides H.R. Haldeman, John Ehrlichman, Dwight Chapin, Herbert Porter and Gordon Strachan, and California Lieu tenant Governor Ed Reinecke. All have been accused of lying at one time or an other during Watergate-related investigations. Chapin and Porter have already been convicted and others are likely to meet the same fate. The Watergate prosecutors seem to be turning up a prevarication in every pot, and the irony of the situation is pain fully clear to the defendants.

It was Attorney General Mitchell and the Nixon Administration that persuaded Congress to add to the perjury laws four years ago so that prosecutions would be easier--thereby providing, said Mitchell, "a more realistic deterrent to giving false testimony." The current sheaf of charges is the first major result of that shift in attitude and regulations.

The new law uses the term "false declarations" rather than perjury and applies only to grand jury and other court-related proceedings. The original statute, which remains on the books, sweeps more broadly to include lying under oath during any federal proceeding. Each provides the same five-year maximum sentence. But whenever they have had the opportunity, the Watergate prosecutors have chosen to make use of the new charge of false declaration. Reason: Nixon's law offers substantial advntantages to the prosecution.

For one thing, if the Government can show that a defendant swore to two conflicting statements, it need no longer prove which one was false. Gone too is the stiff requirement that the testimony of a single witness who contradicts a defendant must be backed by a second witness or by other evidence. As a result, "a man can be convicted merely on the oath of another man," says Boston Defense Lawyer Paul T. Smith. "That's tragic. For instance [Presidential Lawyer Herbert] Kalmbach has tes tified in direct contradiction to [Bebe] Rebozo on the disposition of that $100,000 Hughes donation. One of them is lying. Basically, the prosecutor can simply decide which one to prosecute."

The prosecutors are also taking ad vantage of an old but little-used law that imposes a five-year maximum sentence for lying to a Government investigator, such as an FBI agent. The law was rarely enforced in the past in criminal investigations partly for fear that it would inhibit those being questioned. Nonetheless, in a few cases the charge has been added to others against Mitchell and his colleagues.

Despite their new advantages, prosecutors must still prove three things: that the defendant indeed lied, that he knew the statement was false, and that what he lied about was significant to the case. Further, the proof must be exceptionally precise. Last year the Supreme Court threw out the perjury conviction of Movie Producer Samuel Bronston. Asked by a creditor's lawyer if he had ever had a Swiss bank account, Bronston answered under oath: "The company had an account there." Though the answer seemed to imply-falsely-that Bronston himself had not had an account, the court held that "a wily witness" may escape "so long as the witness speaks the literal truth."

Cagey Weaseling. In practice, says former U.S. Prosecutor Gary Naftalis, the Government must also answer a question invariably in jurors' minds: "Why would a person he?" Usually the contention has been that the defendant was trying to conceal a criminal act. Consequently, most perjury charges are brought in conjunction with other criminal allegations. Such a coupling of charges can be a useful prosecution tactic. Quite often, the available evidence is not adequate to get a conviction for the original criminal act, but in front of the grand jury the defendant may have contradicted himself or others so much that he can be caught in a lie. Defense attorneys argue that the ploy is open to abuse because an aggressive investigator's questions can sometimes trap even an innocent suspect. "Witnesses often give unresponsive answers, often for very legitimate reasons," says Sheldon Elsen, who represented Bronston.

Nor can the person being questioned take sure refuge in familiar evasions like "I do not remember" or "to the best of my recollection." Cagey use of such weaseling can make a later prosecution for lying more difficult, but not impossible. Indeed one of the charges on which Dwight Chapin was convicted was for his claimed failure to remember details of his dealings with Political Saboteur Donald Segretti. The legal theory traces back to the Queen's case in 1820, in which a footman was suspected of having had a lengthy affair with Queen Caroline. Questioned about the matter, a fellow servant in a position to know claimed that he did not remember. The Lord Chancellor ruled he could be convicted of perjury if the court reasonably concluded he should have remembered. Thereupon his memory swiftly improved, and the principle was established.

Defending against a charge of lying presents obvious difficulties. It is usually not possible to deny that the statement in question was made. Instead, observes Chicago Defense Attorney Charles Bellows, "a man charged with lying ought to take the stand and explain either that his statement was true, that his answer was misunderstood or that he hadn't adequately prepared for the question" and so made an honest mistake. But while it may be necessary, taking the stand is a dangerous maneuver, particularly if a witness is nervous, or has an otherwise unfavorable demeanor. Observers at the Chapin trial felt that the defense was holding its own until he began testifying. His evasive manner and bad memory did not go over well with the jury.

Chapin also had trouble with what may be the classic dilemma for Watergate defendants. Character witnesses, as Bellows points out, are especially important when the issue is whether the defendant is a liar. But Chapin could find only two such witnesses. Most other potential supporters were themselves already involved in the Watergate scandal. Last week John Mitchell ran into a related problem and presented no character witnesses for fear they would be cross-examined about Mitchell's other imminent trial. Future Watergate defendants will probably have the same trouble Chapin and Mitchell did.

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