The Volokh Conspiracy

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Free Speech

Maryland High Court Upholds 8½-Year Sentence for Perjurious Claim of Unwanted Sexual Touching

The defendant swore a Verizon store employee "cupped her breast and touched her inner thigh," but surveillance video showed otherwise.


Maryland Rule 8-131(c)

From State v. McGagh, decided unanimously Friday by the Maryland high court (always a good excuse for showing The Court Of The Red Robe, see above):

… Karen McGagh was tried … for falsely accusing Glenn Trebay [a Verizon store employee] of sexually assaulting her while patronizing a Verizon store. McGagh stated to a police officer and in a sworn criminal complaint that Trebay cupped her breast and touched her inner thigh. During a bench trial, the State admitted a surveillance video from the Verizon store that did not show Trebay touching McGagh as she claimed {though it showed Trebay briefly touching McGagh at various points throughout the encounter}.

The trial court convicted McGagh of perjury and making a false statement to police officer. McGagh received a sentence of ten years' incarceration for the perjury conviction, all but eight years suspended, with five years' supervised probation. McGagh also received a consecutive sentence of six months for the false report conviction….

The trial court found no evidence to support McGagh's accusations. The trial court convicted McGagh of perjury and giving a false statement to police:

"I find beyond a reasonable doubt that Ms. McGagh perjured herself and that she gave a false statement to Officer Heims. I find that she intentionally lied. And not about everything, that is a many page statement of charges. Many of the things in the statement are true, but the essential, critical facts are untrue. It is completely and totally untrue that Mr. Trebay cupped Ms. McGagh's breast. It, it's not even a close call. He didn't cup her breast, he didn't brush her breast, he did not touch her breast or her chest in any way. He never got close to her upper inner thigh. I can't say, having looked at two plus hours of video, that I know where his hands were all the time, but my, I feel like they were, he's a, as he said, a garrulous guy, he talks with his hands and I saw his hands in the air a lot but,

"I'll tell you this, he wasn't in a position to reach across from where he was and rub her or touch her upper inner thigh on the left hand side, which is what Ms. McGagh told Officer Heims happened. I saw it as she showed him on the video, the body camera, I guess is what I mean to say. And I don't believe that she was confused about what happened. It's far more likely that she wanted Mr. Trebay fired and the story started and was sort of like that proverbial snowball going down the hill, it just got more ingrained and more elaborate, but it was false. And so, that's my decision." …

The trial court based the sentence on an examination of the evidence, McGagh's behavior before and during proceedings, and a pattern of disregarding the law:

"I don't think any one of us has ever seen a case like this before and I'm sure [defense counsel] will agree, we've never, as [the prosecutor] mentioned, never seen a pre-sentence investigation like this or a psyche evaluation like this. I obviously need to consider, in my decision making, rehabilitation, punishment and public safety….

"[T]his would include her history of deceitfulness, consistent irresponsibility to honor financial obligations and lack of remorse. … During this investigation, she continued to make statements minimizing her own actions and instead, blaming the victim, the Judge and her own attorney. … [T]he pre-sentence investigation, again, … indicates that it's been suspected that Ms. McGagh continues to drive on a suspended license. I was shocked by the number of just traffic violations, just a, just a consistent unrelenting inability or disregard [ ] for the law. As though it just does not apply to her … Ms. McGagh has been involved in criminal and traffic proceedings in which she has benefited from lenient dispositions.8 Regardless of these privileges, she has continued to avoid hearings by numerous failing to appears and not fulfilling her financial obligations in paying fines and costs, as well as financial liens against her.

{In October 2015, McGagh was convicted for theft after the court found her "to be not telling the truth." Before this proceeding, McGagh was on probation and had an outstanding restitution balance of $13,000.}

The trial court found that falsehoods reflected in McGagh's background followed "a lifelong pattern of deceitfulness, manipulative behavior and a narration of depicting herself as the victim." The trial court highlighted a revealing moment of intentional deceit when McGagh told Dr. Kohn, the doctor assigned to her pre-sentence psychiatric evaluation, that "she knows how to play the game and what to say." The court explained that Mr. Trebay was not the only victim in this case:

"I believe that the police officer who was pulled away from his work and summonsed to the home and lied to, he was very sympathetic to what Ms. McGagh was telling him. And offered her options. … [w]ouldn't he think the next time he's called to someone's house and there's the complaint of a sexual assault, won't he remember Ms. McGagh. … The next person who actually makes a complaint to the police, they're victims and I will tell you the justice system is a victim. We only, this delicate, fragile system only works because we depend on people to have their word mean something. … I have no doubt that had there not been video, Mr. Trebay would be in jail because a jury would say why would she lie about this? … So, I think, not only Mr. Trebay, not only the Commissioner, not only the police officer … but the entire system brought to its knees because we, as a system, may have failed Mr. Trebay if there wasn't that video."

The trial court justified why its eight years and six months sentence exceeded the sentencing guidelines:

"Those [sentencing] guidelines do not take into account these facts and all of these victims and all of these lies and this history of dishonest and manipulative [ ] actions that show a complete and total disregard for the other humans that are walking this path…. I think this is one of the most serious and truly despicable crimes that I have witnessed, when you consider the ripples of the damage that [has] been caused."

{In the sentencing hearing, the State informed the court that Trebay would have faced up to eleven years' imprisonment for a second degree and fourth degree sexual assault.}

[Sufficiency of the evidence:] The two-witness rule [recognized under Maryland law] describes the minimum evidence needed to establish the falsity of a statement…. "The rule that testimony of a single witness is not sufficient to negative the alleged false oath is not merely technical, but is founded on substantial justice. There must either be two witnesses to prove such falsity, or one witness with material and independently established corroborative facts." … The two-witness rule applies only to the falsity element.

{The rule no longer requires two, actual witnesses…. "… It is enough that there is testimony of one witness and other independent corroborative evidence[.]" Independent corroborative evidence comes in the form of documents, video footage, or other circumstantial evidence.}

Here, and similar to Hourie, we "clearly" have sufficient evidence from Trebay's testimony, the Verizon surveillance video, and McGagh's admission in court for "any rational trier of fact" to find the falsity of McGagh's statements beyond a reasonable doubt. Trebay testified that he did not "recall" putting his hand on McGagh's breast or inner thigh. The Verizon surveillance video corroborated his testimony by also showing that the contact alleged by McGagh did not occur. McGagh also conceded during her colloquy with the trial court that the alleged touching did not occur [though she did not concede that she had deliberately lied about it]….

The Verizon surveillance video in this case also satisfies the purpose of the two-witness rule articulated in Brown. The two-witness rule prevents "oath against oath" by allowing the fact finder to observe and judge the credibility of witnesses offering competing recollections of events, while comparing the witness statements against independent, circumstantial evidence. The trial court here had the opportunity to judge and observe McGagh's and Trebay's testimony. The Verizon surveillance video provided independent corroboration of the pertinent factual dispute: whether Trebay cupped McGagh's breast and touched her inner thigh.

The Court of Special Appeals found that the surveillance video's lack of sound created too much ambiguity to prove the falsity of McGagh's claims, thereby adopting a too stringent reading of the two-witness rule. Evidence always contains some ambiguity, but the two-witness rule does not require circumstantial evidence to be perfect. "The test" for whether evidence satisfies the two-witness rule is "whether the evidence is of a quality to assure that a guilty verdict is solidly founded." If other evidence is of "equal weight" to testimony by a witness, it can satisfy the two-witness rule….

The State [also] provided sufficient evidence to satisfy the mens rea elements of McGagh's perjury and false statement convictions…. "[T]he false [statement] must be deliberate and not the result of surprise, confusion or bona fide mistake[.]"

Here, the trial court found that McGagh exhibited … deliberate behavior …: "I don't believe that [McGagh] was confused about what happened. It's far more likely that she wanted Mr. Trebay fired and the story started and was sort of like that proverbial snowball going down the hill, it just got more ingrained and more elaborate, but it was false." The trial court rejected the possibility that McGagh alleged sexual assault by mistake: "[I]t's not even a close call. He didn't cup her breast, he didn't brush her breast, he did not touch her breast or her chest in any way…. Which is, frankly, not an easy thing to do when one is wearing, a very downy fleece or down vest, which just, you know, it's thick and straight across your chest." The trial court further observed that "[Trebay] never got close to her upper inner thigh."

The trial court reasonably found that McGagh willfully and knowingly made a false statement when she alleged that Trebay sexually assaulted her by touching her breast and inner thigh.

The court also held that perjury convictions need not be reviewed de novo:

Maryland Rule 8-131(c) provides the standard for appellate review of bench trials: "When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses." …

Maryland appellate courts accordingly adopt a deferential standard when reviewing sufficiency of evidence that asks whether "any rational trier of fact could have found the elements of the crime beyond a reasonable doubt." … Maryland courts have always used the sufficiency of evidence standard to review perjury convictions. Perjury and false report convictions heavily depend on the fact finder's determination of credibility. The fact finder must intimately evaluate each party's story to assess who is telling the truth. The deferential standard of review recognizes trial courts' better position in making this determination. … "Having lived with the case, the trial judge views the situation in three dimension, up close and personal, not from a cold record; thus, having closely observed the entire trial, he or she is able to appreciate nuances, inflections and impressions never to be gained from a cold record." …

In some cases, this Court has supplemented the Jackson standard with a de novo review when a constitutional right is at issue. The independent examination ensures this Court's protection of fundamental rights. Our case law demonstrates the proper application of de novo review when the State, through action or statute, seeks to regulate or control protected speech [for instance, in disorderly conduct or obscenity cases]….

In Polk, the State charged the defendant with disobeying a lawful order after the defendant responded with a series of profanities to an officer's instruction to be quiet and leave the hospital. The case turned on whether the order attempted to control the content of her speech or her aggressive behavior at a hospital…. This Court conducted a de novo review to determine to what extent, if any, the officer's order violated the defendant's First Amendment right to free speech….

[But p]erjurious speech does not receive First Amendment protection. The Supreme Court explained in United States v. Alvarez:

"It is not simply because perjured statements are false that they lack First Amendment protection. Perjured testimony 'is at war with justice' because it can cause a court to render a 'judgment not resting on truth.' Perjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system."

Unprotected speech renders unnecessary an independent review of the record for First Amendment violations.

Here, McGagh's First Amendment rights were not implicated in this case, let alone violated. McGagh did not challenge the constitutionality of the perjury statute on its face or as applied to her. The Court of Special Appeals only suggested that the facts of the case "arguably" triggered a de novo review to evaluate First Amendment interests. The court reads too much of a First Amendment interest into the case. The case turns on whether the State presented sufficient evidence to prove the elements of perjury and false report; it does not turn on whether the State infringed upon her protected speech.

Unlike in Polk v. State (Md. 2003), where this Court needed to determine whether an officer's order infringed on the defendant's right to speak (albeit vulgarly), McGagh does not claim the perjury and false report statutes infringed upon her right to petition the government for redress. It would similarly be unnecessary for us to conduct a constitutional analysis here as this Court did in Polk. Respondent never voiced any deterred ability to make a criminal complaint by threat of perjury.

Even if McGagh had raised such concerns, the perjurious content of McGagh's speech also means it lacks First Amendment protection…. Our holding in no way departs from this Court's previously acknowledged important public policy objective of encouraging women, and all victims of sexual assault, to bring their truthful sexual assault allegations to light. It also does not abridge an individual's First Amendment right to truthfully and in good faith report a sexual assault without punishment or intimidation, even if the allegation is later shown to be mistaken, confused, or erroneous.

I don't think this appellate review analysis is quite spot on: It's true that perjury is unprotected speech, obscenity, libel, fighting words, and the like are unprotected speech, too. But decisions whether certain speech qualifies as obscenity, libel, or fighting words are generally reviewed independently by appellate courts (see PDF pp. 5-9 of this article), precisely to make sure that only unprotected speech gets punished.

Nonetheless, I think that the court may have gotten the result right as to the proper standard of appellate review. First Amendment independent appellate review generally applies to judgments whether certain facts satisfy the constitutional standard (e.g., whether a particular film lacks serious artistic value, what sort of subjective knowledge qualifies as reckless disregard of the truth, or whether certain words qualify as the sort of face-to-face insults that are likely to start a fight). It generally doesn't apply to witness credibility determinations, where the question is what actually happened, what was actually said, or whether the speaker knew it was false:

In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full. Although credibility determinations are reviewed under the clearly-erroneous standard because the trier of fact has had the "opportunity to observe the demeanor of the witnesses," the reviewing court must "'examine for [itself] the statements in issue and the circumstances under which they were made to see … whether they are of a character which the principles of the First Amendment … protect.'"

So deferring to the trial judge's judgment about the defendant's credibility might have been correct after all, though I'm open to being persuaded otherwise.