Plea at your own risk….
May 6, 2011 2 Comments
I do not practice criminal law, so I rarely even read the criminal law cases that come down from our appellate courts. Despite that, the case of Conwill v. State of Mississippi, 2010-IA-0228SCT caught my eye this week. The majority dismissed Conwill’s interlocutory appeal and Presiding Justice Dickinson joined by Chief Justice Waller, Justice Kitchens and Justice Chandler issued a sharp objection to the majority. Take a look:
DAVID E. CONWILL
STATE OF MISSISSIPPI
DICKINSON, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH
SEPARATE WRITTEN STATEMENT:
¶1. David Conwill – who previously had received a ticket for driving under the influence
(“DUI”) – was arrested in Madison County and charged with possessing cocaine found in his
car. At a hearing, Conwill swore the drugs were not his; later the Madison County Sheriff’s
Department recorded a telephone call in which Conwill admitted the drugs were his.
¶2. The Madison County District Attorney sent Conwill’s attorney a letter, pointing out
the recorded admission, and offering a deal for Conwill to plead guilty to both the cocaine
charge and the DUI. Conwill did plead guilty and was sentenced to five years, with four
years suspended and one year to serve.
¶3. After Conwill began serving his sentence, the Madison County District Attorney
returned to the Madison County grand jury and obtained an indictment against Conwill for
perjury, related to Conwill’s initial denial that the cocaine was his. Because Conwill had
pleaded guilty on the cocaine and felony DUI charges, the perjury indictment charged
Conwill as a habitual offender.
¶4. Conwill filed a motion to dismiss the indictment, claiming in essence that his
negotiations with the district attorney, and his guilty plea, prohibited a prosecution for
perjury, because the false statement was made in connection with the cocaine charge to
which the district attorney negotiated a plea. The trial judge denied the motion to dismiss,
and Conwill filed an application for an interlocutory appeal, which we initially granted.
Because, for reasons I am unable to comprehend, the Court now dismisses the interlocutory
appeal, I respectfully dissent.
¶5. When the district attorney negotiated the plea, he knew all the facts and circumstances
that led to the later perjury prosecution, and those facts and circumstances arose out of the
same case. By persuading Conwill to plead guilty – which required him to swear in court
that he was guilty – the district attorney assured himself of a perjury conviction, since
Conwill’s two sworn statements contradicted each other.
¶6. The Court’s decision today raises serious questions about fairness and due process;
and it stands as a dangerous precedent. I would order the indictment dismissed.
WALLER, C.J., KITCHENS AND CHANDLER, JJ., JOIN THIS SEPARATE
So you offer a guy a plea deal which causes him to testify in conflict with what he has previously testified. He is sentenced on the plea and then you charge him with perjury? My dad was a career law enforcement officer, and I suspect even he would have a problem with this. The prosecutor has to be thinking “gotcha sucker.”
It would appear for the time being that the prudent course of action in future cases is to make dang sure all plea agreements incorporate potential perjury charges. Dismissing the interlocutory appeals means that Conwill is headed back for a trial. Once that trial in completed, look for this case to end back up before the MSSC.