The Power of Words. Sex, lies and the courts: perjury charges are rare

10.6.98
Sex, lies and the courts: perjury charges are rare

By TRACY BRETON
Journal Staff Writer

       This summer, as a federal grand jury in Washington sat waiting for the president of the United States to answer prosecutors' questions about his sex life, the president, his lawyers and many supporters were crying foul.
       No one, they complained, had ever been criminally investigated for lying in a civil case about what seems to many to be a private matter — their sexual conduct.
       Many citizens have blamed the media and Independent Counsel Kenneth Starr for beating up on President Clinton for things that no one else would be prosecuted for.
       "I challenge you or any of the pundits on the air to find me a case of civil perjury that has been pursued criminally at the federal level in the last 100 years," Monica Lewinsky's former lawyer, William H. Ginsburg, said in February on NBC's Today.
       Just last week, in the New Republic, University of Chicago Prof. Jonathan Lear said, "It has become clear that, in the name of treating him like everyone else, (Starr) is treating the president like nobody else. No prosecutor, after all, would pursue an ordinary citizen in similar circumstances or with such zeal."
       A search of legal cases — as well as interviews with prosecutors, defense lawyers and judges — turned up only two cases in recent years where people were prosecuted for lying about sex in a civil case. And lawyers say that lying about sex under oath is a daily occurrence in divorce courts all over our nation.
       But there can be very big consequences for people who lie.
       Meet psychiatrist Barbara A. Battalino and former clergyman Lloyd R. Davis.
       Both now have criminal records. Both were prosecuted for lying under oath about sex in separate civil cases.
       The Davis case was prosecuted by the State of Illinois. But guess who prosecuted Dr. Battalino earlier this year for obstruction of justice?
       The U.S. Justice Department, which is headed by Atty. Gen. Janet Reno — the same person who gave the go-ahead for Starr's expanded investigation of President Clinton.
       Mr. Clinton may face impeachment for lying about his relationship with Monica Lewinsky in a sworn deposition he gave in the Paula Corbin Jones sexual harassment case. Most likely, the worst he faces is losing his job, though technically, he could be prosecuted after he left office — unless he were pardoned.
       But Barbara Battalino and Lloyd Davis both lost their freedom after lying about sex in civil cases.
       And there are parallels to the Clinton case — especially the Battalino prosecution.
       Mr. Clinton, Battalino and Davis all held positions of trust — Clinton as the chief executive and top elected official of the most powerful nation in the world; Battalino as a psychiatrist at the U.S. Veterans Administration Hospital in Boise, Idaho, and Davis as a minister, in Illinois.
       The kind of sex at the center of the Clinton and Battalino cases are the same: oral sex.
       In the Battalino case, there were allegations that Dr. Battalino had tried to get the veteran she had had sex with to change his story — something that Independent Counsel Starr investigated regarding the President and Lewinsky.
       And then there are the tapes. Starr's investigation into what some in the media have referred to as "Monicagate" began after Linda Tripp surreptitiously tape-recorded phone conversations with her friend Lewinsky.
       And that's what Ed Arthur, the Vietnam vet who was under Battalino's care, did to bolster his case against her. All together, Arthur taped about 25 hours of conversations with Battalino. And the prosecutor who handled the case says that without those tapes, Battalino probably never would have been prosecuted.
       Jonathan F. Mitchell was the lawyer in the fraud section of the Justice Department's criminal division who prosecuted the case against Battalino. Now an assistant attorney general in Massachusetts, he says that while "lying carries different levels of moral turpitude for people . . . perjury cases are very important to bring. The proper function of criminal justice rests, in large part, on the assurance that witnesses are telling the truth. One way to ensure that is to, from time to time, punish people who don't tell the truth.
       "You'd see more people lying on the witness stand if perjury cases weren't brought," says Mitchell. "The justice system has to be confident it is getting correct information before making decisions."
       Mitchell said he pushed for the indictment against Battalino because, to him, the case against the 52-year-old psychiatrist was "crystal clear."
       In May 1991, Battalino was put in charge of reviewing medications for Ed Arthur, a recipient of two Purple Hearts and a Bronze Star, who was suffering from posttraumatic stress disorder. Arthur had served two tours of duty in Vietnam spanning 4 1/2 years.
       On June 27, 1991, Battalino asked Arthur to come to her office at the Veterans Administration hospital, announced she had "feelings" for him and performed oral sex on him — an act she denied for years.
       She then began a four-month intimate relationship with Arthur. But after her boss found out about the relationship — which violates psychiatric ethics — she was allowed to quietly resign. According to the Boise Weekly — the only media outlet that followed the case closely — Battalino was given $16,000 upon her departure in remaining salary payments.
       In 1992, Arthur sued Battalino and the VA in U.S. District Court in Idaho, alleging, among other things, that Battalino had committed medical malpractice and sexually abused him, when she engaged in oral sex with him in her hospital office.
       Battalino requested, through the U.S. attorney for the District of Idaho, that the United States "certify" her under the Federal Tort Claims Act, which provides that the government will substitute itself as a defendant in a civil suit brought against a federal employee when the alleged conduct occurred within the scope of the defendant's employment.
       This would have let Battalino off the hook for any monetary damages that might be awarded in Arthur's case.
       In December 1992, lawyers for the U.S. attorney's office interviewed Battalino about Arthur's allegations. She denied to them that she had engaged in oral sex with Arthur in her office on June 27, 1991, saying her relationship with Arthur did not begin until after she had left the VA.
       Based on that denial, the U.S. attorney decided to certify Battalino for her conduct through June 27, 1991.
       In July 1995, a federal magistrate-judge conducted a hearing in the malpractice suit to determine the scope of Battalino's employment at the VA.
       Battalino was asked: "Did anything of a sexual nature take place in your office on June 27, 1991?"
       "No, sir," Battalino replied.
       She had also lied in answering written questions about the incident, posed to her in the pretrial stage.
       Battalino got caught because of the secret tape recordings Arthur had made of their conversations. According to Mitchell, Arthur's lawyer turned the tapes over to prosecutors in late 1996.
       In one conversation, the Boise Weekly reported, the psychiatrist told Arthur that he shouldn't have told his therapist that the oral sex had occurred between them back in June 1991. ("Oh ED!" she says on the tape. "No, the thing was that we were supposed to not have had sex until after . . . I can't believe you would divulge that.")
       On April 14, Battalino, who declared bankruptcy after the tapes came to light and moved to California, was charged by Reno's Justice Department with obstruction of justice for lying under oath about having oral sex with Arthur. She pleaded guilty the same day.
       On July 20, she was sentenced to six months of home detention and is now wearing an electronic monitoring device. She was also fined $3,500.
       Her medical career is ruined by virtue of her new status as a convicted criminal. In recent years, she has obtained a law degree, Mitchell says. But with her conviction, she can't — at least for now — pursue that line of work either.

       THE PERJURY CASE against Lloyd Davis was brought by the state's Attorney for Lake County, Ill., after Davis lied in a deposition in a libel case he had brought against a local newspaper, which had reported that he had engaged in homosexual acts with members of his congregation.
       The case was settled — with the newspaper paying Davis $50,000. But at the time of the settlement, prosecutors were investigating Davis for criminal acts involving young boys. Later, Davis, 63, was indicted on 27 counts of criminal sexual assault, aggravated criminal sexual abuse and child pornography. The same day, he was indicted separately on eight counts of perjury, relating to his false testimony in his libel deposition.
       Prosecutors in Illinois dropped the perjury charges about three years after Davis began serving a 32-year prison sentence on the sex charges — on the theory that it would be a waste of resources to try someone who was already serving what amounted to a life sentence, according to Lake County State's Attorney Michael J. Waller.
       But Waller said his office deemed the perjury issue — and future such cases — so important that it appealed a judge's pretrial decision to throw out Davis's perjury indictment.
       In ruling for the state, the Illinois Supreme Court said that a defendant can be convicted of perjury "based on statements which he made in (a) discovery deposition under oath, even though the case was eventually settled without a trial and (the) trial judge did not rely on any of the answers in making any of his rulings."
       "Our whole judicial system rests upon the assumption that sworn witnesses tell the truth," the court wrote. "A person who wilfully lies under oath should not escape punishment simply because the false statement is never actually submitted to a trier of fact."
       Adds Waller: "There's a cynical attitude out there that because everyone does it, it's okay. But that's not the case in Lake County, Illinois. When you have blatant lying under oath, it demands perjury prosecution, in my opinion." One of the prosecutors who handled the Davis perjury case is now on leave from Waller's office — on temporary loan, Waller says, to the Republicans on the House Judiciary Committee in Washington, in connection with the Clinton impeachment issue.

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