Should Judge go to Prison for Perjury?

February 26, 2009 in Social/Political Commentary by pacejmiller

Does this man deserve to go to prison?

Does this man deserve to go to prison?

I’ve been struggling with this one.

Judge guilty of perjury

Former Australian Federal Court Judge, Marcus Einfeld, is currently in a sentencing hearing regarding perjury charges.  On 8 January 2006, Einfeld’s car was caught on a speed camera.  It’s an offence that attracts a meager AU$77 fine and a few demerit points (leaving him with just one point left).  Big deal.  But inexplicably, Einfeld gave a statement to police that another person, an American academic by the name of Dr Teresa Brennan, was the one behind the wheel.  The thing is, Dr Brennan died three years ago.  The truth was discovered and caused a media storm.  What started off as really a trivial offence has turned into guilty pleas for perjury and perversion of the course of justice, leading to potential jail time for Einfeld.

The question is, does he deserve to go? 

Arguments For Prison

First and foremost, the crimes of perjury and perverting the course of justice usually attract a full-time custodial sentence.  If other people who commit the same crime have to go to prison, then why not Einfeld?  If anything, it could be said that Einfeld’s situation was much worse because he is a person familiar with the law after having practiced for many years at the bar, and knew exactly what he was doing.  [It’s actually quite devious because by blaming it on a person in an outside jurisdiction, he avoids the fine and demerit points and no one else gets it.]

As the prosecution put it: “He was a person who actually sat in judgment on other persons who had committed a similar, analogous offence and sentenced people to prison for their criminality.”  In 2001, in a judgment Einfeld delivered, he called perjury a crime that was “at best arrogant, and at worst a complete rejection of law and order”.  So how can a person who sent people to jail for perjury now ask the Court to not send him to jail for the same crime?

Further, according to the prosecution, when Einfeld attended court to contest the driving offence, his lawyer purposely referred to him as “Justice” Einfeld, even though he wasn’t a judge anymore.  The object of this, they claim, was to impress the magistrate using his former judicial position.  He also used the media to profess his innocence, hiring a public relations officer and issuing a statement from his chambers which was untrue.  Moreover, he only pleaded guilty to the charges a few days before the start of the trial, suggesting a possible lack of contrition.

Another thing that came to light was the fact that Einfeld still received over AU$200,000 a year in pension payments for being a former judge.  Since the perjury revelations, Einfeld has also been accused of various other things which discredit his character, such as padding his CV, purchasing doctorates from US diploma mills and plagiarism.

Arguments Against Prison

Einfeld’s defence said there should be “flexibility” in deciding whether or not to send the former judge to jail.  They put forward a string of mitigating circumstances and reasons why he should be spared a prison sentence, including:

  • he has been serving the community for the majority of his working life as a judge;
  • he has done substantial good in the community, including: serving as Austcare embassador for refugees and UNICEF embassador for children, being awarded the UN Association of Australia Founders’ Award for contribution to justice and human rights, and has been a spokesperson for Jewish and Israeli causes (including positions in various Jewish organisations) and other minority groups;
  • he has already suffered through the intense media scrutiny and his reputation has been completely ruined;
  • he has been struck off the roll of legal practitioners and there are intentions to strip him of his Order of Australia;
  • as suggested by a psychiatrist, he is suffering from depression and is embarrassed about his loss of control over his bladder and bowel, and a custodial sentence could worsen the situation, including the potential for suicide; and
  • he is suffering from prostate cancer.

Einfeld’s attorney claims that: “Mr Einfeld has done more for his fellow man than anyone I know or have ever met.”  He asks the court to consider the crime against the good he had done his entire life.

Thoughts

Putting aside the legal arguments (which I am not entirely across), does Einfeld deserve to go to prison from a moral perspective?  Should he go to jail as a matter of justice?

In the beginning, I was all for Einfeld going to prison.  A man who supposedly dedicated his life to justice ought to be punished for the way he blatantly disregarded the law, knowing perfectly well that what he was committing was a very serious crime that could lead to jail time.  His actions stunk of arrogance, thinking that it would be easy to get off by pushing the offence onto someone who wasn’t in the country (and dead).  His former life as a judge only aggravates the crime.

So what if his life is ruined by media scrutiny?  He wouldn’t be the first, and in this case, it was completely his own doing.  So what if he suffers from depression?  50% of inmates in the prison system suffer from some form of mental illness, and depression is no doubt high on the list.  Furthermore, it’s not like he would be blocked from health care in prison, which still provides health services to sick inmates.

But on the other hand, you see a man who has, no doubt, done a lot of good in his life.  Various groups, including Palestinians, Soviet Jews, Solomon Islanders and Australia’s Aborigines testified as to the things Einfeld did to make their lives better.  Moreover, he would not be the first to lie about a traffic camera offence.  Hundreds of people do it every year, shifting the demerit points to their partners, parents, children, siblings and friends.  They see it as no big deal, and the vast majority simply get away with it without fuss.  It doesn’t make what he did right, but perhaps he was just unlucky (and stupid for picking a dead person) – because if it were any other ordinary person, nothing might have happened.  Furthermore, his actions don’t harm anyone but himself – unless you consider undermining public confidence in the justice system a harm!

So what do you think?  Should Einfeld go to prison for perjury?  Should his former role as a judge mean a more lenient sentence, or does it justify a harsher one?

[Update: the hearing has been adjorned to 20 March 2009, by which time Justice James should have a decision on Einfeld’s sentencing.  There was a particularly damaging opinion piece in the Sydney Morning Herald written by Paul Sheehan that was singled out by Einfeld’s lawyers.  Read it, I think you will understand why.  It was described as a “nasty, vicious stunt”.  Some of it was probably unnecessary (for example, his apparent leniency towards immigrants), but it did reveal some more (of what I hope are) truths about the former judge (especially his past efforts to avoid traffic fines).]