Lawyers: Perjury is hard to prove

Kim Smith

Wednesday, Aug. 28, 2002 | 11:07 a.m.

Whether it's on TV or in a real-life courtroom, it's a moment of great solemnity.

The witness takes the stand, raises his or her right hand and swears "to tell the truth, the whole truth and nothing but the truth" or suffer the pains and penalties of perjury.

When was the last time you saw anyone being tried for perjury on TV, though? Never? The same could almost be said of real-life courtrooms, too. At least in Clark County.

While no statistics exist showing how many people have been charged in Clark County with perjury, several longtime attorneys could think of only a handful of cases.

Chief Deputy District Attorney David Schwartz has prosecuted four such cases over the past 20 years. One witness provided a false alibi for a defendant, one admitted to an attempted murder to save her lover and another lied about his criminal history during his sentencing. One man denied being a hit man when he took the stand -- twice.

Schwartz said there are simply too many liars to pursue.

"In the big scheme of things, lying is one thing and shooting someone is something else," Schwartz said.

"In order for us to prosecute, number one, it's got to be real blatant. Number two, it's got to be about a material fact," Schwartz said. "A lot of times people will lie about superficial things, things that won't make or break your case."

Special Public Defender Phil Kohn doesn't disagree. Still, he's frustrated that prosecutors haven't filed perjury charges against one Las Vegas woman in particular.

Korinda Martin, a convicted robber, told jurors in May that Kirstin Lobato, 19, told her she beat Duran Bailey to death last year because he demanded sex from her in exchange for drugs.

Martin, who shared living quarters with Lobato at the Clark County Detention Center, was the only witness who hinted that Lobato was guilty of first-degree murder. All of the other state's witnesses testified Lobato told them she acted in self-defense.

Lobato was convicted of first-degree murder and received a 40- to 100-year sentence Tuesday. She also received a concurrent five to 15-year sentence for sexual penetration of a dead human body.

After the trial, Metro handwriting experts proved that Martin -- despite testifying otherwise -- had pretended to be someone else while writing a reference letter to the judge on her robbery case.

Had jurors known that Martin was a liar, Kohn believes jurors may have thought differently of Lobato's case.

District Judge Valorie Vega declined to grant Lobato a new trial last week, however, ruling the Martin issue a collateral one. Prosecutors also reneged on a promise to prosecute Martin.

"The reason why you don't see the prosecution of their witnesses for perjury is that it would stop snitches from coming forward," Kohn said. "Because they don't prosecute them, snitches have a green light. They're saying 'You can lie about anything you want to lie about,' and I think it's horrible.

"They used Korinda Martin to help them get a conviction, and what I find very troubling is that when it's proven that she perjured herself they do nothing about it."

It's not as though Martin may have perceived something differently than another witness, Kohn said. She told a baldfaced lie.

"People see and perceive things differently and that's why you don't see a lot of prosecutions for perjury," Kohn said. "They are difficult to prove, but you'll never see a more clear-cut case of perjury than in this case."

Defense attorney Tom Pitaro, who is also an adjunct professor at UNLV's Boyd Law School, said he has never seen a witness for the state charged with perjury. Those charged are always defense witnesses, he said.

"It is highly unlikely a person who testifies for the state will be prosecuted, no matter how egregious the testimony is," Pitaro said. "Therefore every jailhouse snitch knows that as long as they give the state what they want, they won't be charged."

Pitaro said that although he doesn't believe prosecutors knowingly put liars on the stand, he would like them refrain from using witnesses whose credibility is suspect.

"The American judicial system relies on the inherent belief that witnesses will tell the truth no matter how ugly the truth may be," but that often isn't the case, Pitaro said.

Clark County District Attorney Stewart Bell said perjury is committed "at some level" on every case.

Perjury charges aren't filed often because most of the time, jurors see through liars and justice is served, Bell said. And jurors often think perjury trials are a waste of time.

Bell said his office prosecuted a Henderson police officer who falsely incriminated a young man eight years ago. The young man was exonerated after spending several months in jail, the officer lost his job and the city of Henderson paid a financial settlement to the young man.

"The officer admitted what he had done and the jury still acquitted him," Bell said.

Jurors would rather prosecutors spend their time trying rapists, murderers and robbers, Bell said.

"We have so many cases and so little resources, we've got to keep our eyes on the ball and pursue cases where we can get the most return on the investment of our taxpayers' dollars," Bell said.

Bell said he is convinced Las Vegas resident Yehuda Sharon lied in the Margaret Rudin murder trial, but isn't sure a jury could find him guilty beyond a reasonable doubt.

As a result no charges have yet been filed against Sharon.

Prosecutors believe Sharon and Rudin conspired to kill Ronald Rudin in December 1994 and then disposed of his body. Sharon was given immunity from any murder charges in the hopes he would testify against Rudin during her 10-week trial last year.

Instead, Sharon said he rented a van the weekend Ronald Rudin died to pick up pallets of holy water -- not to dispose of Ronald Rudin's body.

Prosecutors say Sharon lied when he said he drove to Barstow, Calif., so he could account for the number of miles on the van. They said he went so far as to forge and backdate a 1996 gasoline receipt from a Barstow convenience store.

District Judge Joseph Bonaventure wouldn't allow the gas station owner to testify the receipt was an alleged forgery, however. He said the issue didn't go to the heart of the case.

Chief Deputy District Attorney Chris Owens, who successfully prosecuted Rudin, said the Sharon issue is still being investigated.

Owens noted that perjury is a relatively low-level crime, however. It's punishable by anywhere from probation to up to four years in prison and a $5,000 fine.

"It's the opinion of most prosecutors that once you've got the primary conviction, the extra work to get the perjury conviction may not be worth the payoff," Owens said.

Speaking generally, Owens said, it is just human nature for people to color the truth to help themselves.

"You get lies in every case," Owens said. "When a case goes to trial, by definition one side has to be lying."

In fact, Owens said, there's a certain level of tolerance in the system. Nevada's Supreme Court has frowned upon the prosecution of defendants for perjury, noting they are expected to lie.

"If everybody told the truth, most lawyers and judges would be out of jobs," Owens said.