The Kwame Kilpatrick case

Is perjury in civil suits worth prosecuting?
Does a mayor have the same right to use his office to obstruct justice as a President?

I hadn’t been paying any attention to it, but the Kwame Kilpatrick story turns out to have some interesting twists and turns. Here’s the narrative, as best I can piece it together:

1. A couple of Detroit cops got fired.

2. They sued the city under a whistleblower law, claiming that they’d been fired for investigating whether other cops had been used to cover up the (married) Mayor’s romantic encounters with his (also married, but not to him) chief of staff.

3. Both the mayor and the CoS testified in the whistleblower suit that they weren’t having an affair.

4. But text messages between the two seem inconsistent with the idea that they weren’t canoodling.

5. The Mayor’s office pushed through a seven-figure settlement, apparently in an attempt to keep the text messages out of court.

6. The local news paper got them anyway under public-records laws.

7. The Mayor’s office allegedly has refused to provide, and in some cases has destroyed, evidence sought by the prosecutors.

8. The Mayor is playing the race card. It’s not inconceivable that elements of the Detroit PD had animus toward the Kilpatrick, on racial or other grounds. However, the State’s Attorney is also black.

9. The Mayor’s lawyer (a former U.S. Attorney) points out that people are virtually never prosecuted for perjury in civil (as opposed to criminal) cases. [He might have added that people are rarely prosecuted for lying on behalf of the prosecution, either.] He may be able to use privacy laws to keep the text messages out of evidence, though any juror who reads a newspaper will know of them. He also claims that there was enough wriggle room in the testimony to prevent perjury convictions.

This suggests a few thoughts:

* While it is true that perjury in civil cases is rarely prosecuted (as one judge told me years ago, “Both sides in every civil case present perjured testimony, and the prosecutors don’t want to re-litigate civil suits”), should it be true? Should it really be the rule that you can say whatever you like under oath in a lawsuit and not have to worry about criminal liability? (I was involved tangentially in a suit about an auto accident in which a car hit an SUV hard enough to cause a rollover, and the driver of the car testified he’d only been going 25 mph at the time of the crash.)

* On the other hand, it’s hard to imagine that the pattern of prosecutions in such cases wouldn’t track the social power of the litigants.

* Should the testimony of a public official defending a whistleblower case be treated as if it were merely testimony in a civil case between private parties, or should it be held to a stricter standard of accuracy?

* Kilpatrick’s arrogance is astounding: using public resources to cover up his misconduct, firing those who try to investigate his crimes, stonewalling document requests, and destroying evidence. Who does he think he is, the President of the United States?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com