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Friday, August 21, 2009

Report: New York Assemblyman May Face Perjury Felony Charge (or, Why Lying in Open Court is a Really Bad Idea)

The New York Daily News ( reported this week that New York State Assemblyman Nelson Castro (D-Bronx) may be facing criminal felony charges of perjury arising from his allegedly perjurious testimony in a 2008 election law case.

Last year, Castro was accused by a political opponent of engaging in a form of election fraud involving allegedly false voter registrations. The genesis of this allegation was the discovery that nine people were registered to vote ... from one address. That's a lot. Given the notorious voter apathy in certain parts of the Bronx, that level of political awareness raised an eyebrow. Further eyebrows were raised when it turned out the address was a one-bedroom apartment. Even in tough times, jamming nine people in a one-bedroom is a stretch. Even for the Bronx. And to make matters worse for Castro, said address belonged to...Nelson Castro. So Mr. Castro had to explain who these other eight people were and probably some questions as to living arrangements.

Castro must have put his foot in his mouth. According to 2008 press reports, he said something to the effect that he didn't know these people were registered out of his apartment...even though some of these were relatives of his or of his campaign manager!

Now, the judge in New York State Supreme Court, Bronx County, found there was no proof of fraud on Castro's part. However, Castro tesstified under oath, under penalty of perjury, in this case. Why do this? From a legal perspective, this was probably necessary to defend his designating petition because there is a line of case law under which judges may draw an adverse inference against a respondent-candidate (such as Castro) who is accused of election fraud or petition fraud and who elects not to testify in open court. However, this testimony -- if ultimately proven perjurious -- exposed him to additional and greater criminal liability that far outweighs any downside he would have suffered by getting his 2008 designating petition invalidated. One must wonder whether he received the proper legal counsel in 2008. Did his attorney know enough about the law to properly warn him about the criminal consequences of perjury? Did his attorney know enough about the real facts of the case to recognize the potential for perjury? Or, did Castro simply lie through his teeth to his own counsel? Did Castro think he could just dance and sing his way past this claim?

Now, if reports are correct, Castro expects to be charged criminally. A conviction could cost him his freedom and his office. The tragedy is that there is apparently no reason for this, except to get a handful more petition signatures or votes. Furthermore, gathering these signatures is not difficult at all. In Castro's district, Democratic voters virtually fall from the sky.

Perjury is serious stuff. Go ask Scooter Libby. Or Martha Stewart. Or even Bill Clinton, impeached for suborning perjury.

If Castro did commit perjury and gets charged, convicted and incarcerated, he can blame himself for his hubris in thinking he could lie on the record and get away with it.

Final note: If Castro were a candidate in Northern New Jersey, would the U.S. Attorney's Office have acted first?

Eric Dixon is a New York lawyer and strategic analyst who engages in crisis management and other matters. Mr. Dixon cautions readers that this article is not legal advice. Mr. Dixon may be contacted for further comment through, or at 917-696-2442.

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