The
Caruba judge, in the Chancery court, stated:
The alleged false testimony is set forth in the detail in the petition filed herein, but I deem it unnecessary to recite it here; suffice it to say that it constitutes the baldest and most flagrant piece of perjury that has ever come to my official notice in my more than a quarter of a century of service in the judiciary of this state. The testimony and its falsity were both admitted by the defendant at the hearing on the return of the order to show cause herein ... and, without going into unnecessary detail, I may say that the false testimony was quite material to the issues in the cause in which it was given. It also involved the partial destruction and mutilation of documentary evidence in the cause.
The false testimony referred to in the petition filed herein was given on April 2d and May 2d, 1946. It did not consist of an answer to a single question, but was made up of a series of deliberate falsehoods. [One issue was a $250 check, drawn to Caruba's order from funds of the corporation in which he was an officer.] The answers to at least a dozen of the questions concerning this check were admittedly false. [He was later examined regarding another check.] This examination, reproduced from the transcript of the stenographer's notes, occupies more than a dozen pages of transcript and is a tissue of lies. The answers to at least forty of the questions put to him during the course of the examination touching this check were deliberate falsehoods. All of this false testimony was given in a patent attempt to deceive the court and obstruct the course of justice.
139
N.J. Eq. at 405-406.
Caruba tried defending by claiming recantation, i.e., he had admitted his lying before the case was closed, and therefore he should have been acquitted of the contempt charges arising out of his perjury and obstruction of justice.
His argument suffered under some difficulty. As the court noted:
Perjury is an obstruction of justice; its perpetration may well affect the dearest concerns of the parties before a tribunal. Deliberate material falsification under oath constitutes a crime and the crime is complete once with a witness' statement has been made. It is argued that to allow retraction of perjured testimony promotes the discovery of the truth and, if made before the proceeding is concluded, can do no harm to the parties. The argument overlooks the tendency of such a view to encourage false swearing in the belief that if the falsity be not discovered before the end of the hearing it will have its intended effect but, if discovered, the witness may purge himself of crime by resuming his role as witness and substituting the truth for his previous falsehood. It ignores the fact that the oath administered to the witness calls on him freely to disclose the truth in the first instance and not put the parties to the disadvantage, hindrance and delay of ultimately extracting the truth by cross-examination, by extraneous investigation or other collateral means. [italics in original]
His counsel argued that the rule allowing acquittal for recantation was "...an inducement to a witness to tell the truth and, in effect, that the defendant should be rewarded for his retraction by an acquittal...."
The Court countered:
In my judgment the application of this rule would encourage perjury.... And there is nothing in the conduct of this defendant as a witness which calls for any reward. His recantation or retraction was not the result of contrition or repentance. It was not voluntary. It came only after a long period of relentless questioning by counsel and after the defendant witness had been driven into a corner, or cul de sac, from which there was no escape except by a confession of his iniquity. In one instance the false testimony was given on April 2d... and was not corrected until April 5th, three days later, when his confession was literally torn from him. In the other case he testified on May 2d and recanted the same day under like circumstances. And still there is no sign of repentance. He admits having tried to deceive the court, but claims that because of his confession he has done no wrong. The perjury was the result of a studied plan of defense, thought out long in advance of the trial in which committed. This is apparent from the admitted mutilation of the $250 check months before the trial. And yet he offers no apology. He is still arrogant. A confession of sin without repentance merits no reward of forgiveness, nor is it a key to salvation.
139
N.J. Eq. at 408-410.
Caruba was convicted, and appealed to the then-highest court in the state, the Court of Errors and Appeals. They disposed of his case in only two pages, with the kernel of their opinion being:
Caruba committed perjury in swearing willfully and falsely regarding a fact which we find was material to the issue. He was obstinate in clinging to his deliberately false story and, brazenly and without penitence, he acknowledged the truth only when broken down and forced to do so by the persistent and relentless examination of counsel. Was that intended to, and did it, impede the course of justice? We answer in the affirmative; and, that being so, it was obstructive.
140
N.J. Eq. at 564.
It bears noting that Errors and Appeals split, 7-6, for affirmance, even in the face of pretty solid evidence and reasoning....
Caruba was sentenced to 60 days in the Essex County Jail.
What does this mean for Scooter?
I don't know - if I could foretell the future, I'd spend that power on lotto numbers.
But, was he "...obstinate in clinging to his deliberately false story"?
Well, he had his "Russert told me" story and stuck to it, even though eight or nine other people testified to the contrary - that they'd told him or knew who (not Russert) did.
And, this is Mr. Crappy Memory, the same guy who memorized all 79 episodes of the orignal Star Trek, we're told by his college roommate. (I wish there was some way Fitz could have fit that in.)
Did he "...acknowledge the truth only when broken down and forced to do so by the persistent and relentless examination of counsel"? Not directly - though we're told his tone of voice in the tapes was pretty telling, like he just realized he'd been found out.
Was his conduct "...the result of a studied plan of defense, thought out long in advance of the trial in which committed"? From the liveblogs, it seems like "yes" to me.
Was his conduct "...intended to, and did it, impede the course of justice?" That's for the jury to call, though I think the answer is "yes".
"And yet he offers no apology. He is still arrogant. A confession of sin without repentance merits no reward of forgiveness, nor is it a key to salvation."
I don't know how this will turn out, but it will be interesting, however it does.
