Barry Moore
Confusion about one word, "knowingly," might have caused an Alabama jury yesterday to acquit State Rep. Barry Moore (R-Enterprise) on all four counts against him.Moore faced two counts of perjury and two counts of providing false statements, in the first trial to grow from a Lee County grand-jury investigation of State House corruption. That Moore was charged with two distinct crimes, and the relevant statutes treat the "knowingly" element in radically different ways, probably created enough confusion to give Moore not-guilty verdicts on all four counts.
In retrospect, prosecutors probably would have been better off to charge Moore only with perjury. That's because the second charge, providing false statements to any matter under investigation, probably caused the confusion that let Moore go free.
If jurors were confused, they were not alone. Some members of the press also appeared to be confused. Consider this from an al.com report on Wednesday about the trial:
Moore testified today that he did not willingly or knowingly tell the grand jury anything that was untrue, a required element for the charges.
We can find only one problem with that sentence--it isn't true; in fact, it's a flatly inaccurate statement of the law.
All reporter Mike Cason had to do was check the indictment to get an accurate read on the law. Apparently he didn't do that. The indictment correctly states that "knowingly" was an element of the charge under Counts One and Three (providing false statements), but it was not an element under Counts Two and Four (perjury).
A quick look at the relevant statutes shows a difference in the crimes. This is from the key portion of Code of Alabama 36-15-62.1:
Section 36-15-62.1
Providing false statements relating to any matter under investigation; penalties.
(a) Any person who knowingly commits any of the following in any matter under investigation by the Attorney General, or a prosecutor or investigator of his or her office, upon conviction shall be guilty of a Class C felony.
You can see that the word "knowingly" plays a prominent role in describing the offense. Now. let's take a look at the key section of Code of 13A-10-101:
Section 13A-10-101
Perjury in the first degree.
(a) A person commits the crime of perjury in the first degree when in any official proceeding he swears falsely and his false statement is material to the proceeding in which it is made.
(b) Perjury in the first degree is a Class C felony.
You can see that the word "knowingly," contrary to what al.com reported, is not an element of perjury. The offense is straightforward--you make a materially false statement in an official proceeding, and you have committed perjury. It doesn't matter whether the statement was knowingly
made or not.
That's important because Moore admitted on the stand that he gave at least one answer that was false related to a phone call with Josh Pipken, who wound up being Moore's primary opponent. From the al.com report:
Prosecutors say the recordings show that Moore was not truthful with the grand jury. Defense attorneys disputed that.
Moore acknowledged during his testimony today that one answer he gave during his testimony was wrong, but said it was because he didn't fully remember the phone call with Pipkin from seven months earlier.
Moore then proceeded to tell the jury that he did not willingly or knowingly tell the grand jury anything that was untrue. His reference to the grand jury means he was referring specifically to the perjury counts; the providing false statements counts involve statements made to investigators for the attorney general's office.
In other words, Moore told jurors that he did not knowingly commit perjury. But "knowingly" is not an element of the offense; it only applies to the false statements counts. And Moore's own words show he did make a materially false statement in an official proceeding.
What does it all mean? Moore probably presented a valid defense to the false statements charges, and the not-guilty verdicts on those might be proper. But based on our review of the relevant law and press reports on this week's trial, Moore offered no legitimate defense to the perjury charges. In fact, he appears he admitted to committing perjury in at least one instance.
