JACKSON — A retired Navy captain and doctor who pleaded guilty to charges of drunken driving and having cocaine is now charged with perjury in a case that legal observers and even four members of the Mississippi Supreme Court say could set a dangerous legal precedent.
Before he pleaded guilty to the charges, prosecutors claim David Conwill, 61, was captured on a jailhouse recording indicating that the cocaine belonged to him. That contradicted his first denial to a judge. Now he is charged with perjury as a habitual offender, which carries a sentence of up to 10 years.
His attorney, Doug Wade, said most offenders in the United States plead not guilty early on, deny the charges against them, and plead guilty later as part of a plea deal.
“Hell, this could throw the whole legal system into chaos because the majority of cases are handled by plea bargains,” Wade said.
Madison County District Attorney Michael Guest said there’s no truth to Conwill’s claims that they are treating him unfairly or that someone’s out to get him. Guest said the Madison County sheriff’s department contacted his office about the possibility of pursuing a perjury case after reviewing the recorded phone call that contradicted Conwill’s testimony.
“The offense that led us to presenting the (perjury) case to the grand jury was that he got up on the stand and lied to the judge,” Guest said. “We’re not treating Mr. Conwill differently than anybody else.”
Still, Guest said, out of an “abundance of caution” he removed his staff from the case in October and it has been turned over to a special prosecutor. The court filing in which the district attorney’s office withdrew from the case said it was doing so without conceding any of the allegations that the case was handled improperly. The special prosecutor was traveling and not available for comment Friday.
The case began in on April Fool’s Day in 2007 when Conwill was pulled over for a DUI in central Mississippi’s Madison County. He was out on bond for that charge when he was arrested a few months later in September and police found a small amount of cocaine in his car. Conwill told the officer the drugs must belong to the woman in his car. At a hearing, he told the judge a similar story. But during a call that was recorded on a jail telephone, he suggested he had gotten the cocaine for her.
Presented with the phone call, Conwill pleaded guilty to the DUI, his third, and the cocaine charge in a deal with the Madison County district attorney’s office in February 2008. Conwill had spent several months in jail before the case was resolved and was sentenced to house arrest.
Then, in a move that four members of the Mississippi Supreme Court have called “dangerous,” Conwill was indicted on perjury. He was first indicted on perjury as a habitual offender in May 2008, but that indictment was thrown out for technical reasons. He was indicted again for perjury as a habitual offender in March 2009. Habitual offender charges carry enhanced penalties and the sentences must be served in their entirety, so Conwill could go to prison for 10 years, longer for lying than the cocaine charge. The DUI and the cocaine possession were used as prior convictions for the habitual offender enhancement.
The Mississippi Supreme Court initially agreed with arguments in Conwill’s appeal, but the court reversed its own ruling in a split decision that Justice Jess Dickinson described as something he was “unable to comprehend.”
Dickinson’s dissenting opinion dated May 5 said the case “raises serious questions about fairness and due process; and it stands as a dangerous precedent. I would order the indictment dismissed.”
“When the district attorney negotiated the plea, he knew all the facts and circumstances that led to the later perjury prosecution, and those facts and circumstances arose out of the same case,” Dickinson wrote. “By persuading Conwill to plead guilty — which required him to swear in court that he was guilty — the district attorney assured himself of a perjury conviction, since Conwill’s two sworn statements contradicted each other.”
The dissenting opinion was signed by three other justices, including Chief Justice Bill Waller Jr., but the majority of the court decided to allow the indictment to stand, without explaining its reason other than to say its earlier decision to grant an appeal had been “improvidently” granted.
Mississippi College School of Law professor Matt Steffey is not involved in the case, but reviewed court records provided by The Associated Press. Steffey said “the case raises serious issues regarding double jeopardy, due process, fundamental fairness and prosecutorial authority.”
“It is, at the least, very unusual to see a perjury charge predicated, essentially, on a guilty plea. It’s not at all uncommon for a defendant’s plea to be inconsistent with statements made in a bond hearing or to the police. What is quite remarkable is that a perjury charge followed acceptance of the guilty plea and sentencing,” Steffey said. “Having denied commission of the crime, the defendant later admitted guilt. All the alleged conduct was known to the prosecution, and happened before acceptance of the guilty plea. It’s difficult to conceive of these events as involving separate crimes, which is essentially the basis of the defendant’s double jeopardy argument.”
Steffey said it’s unclear if the legal arguments raised on appeal will eventually persuade a court, but it will be fascinating to see how the case plays out.
“On one day, the defendant is a person facing drug charges; on the next, the defendant has pleaded guilty to the drug charge. Rather than end the matter, the defendant as a result immediately becomes a habitual offender facing 10 years in prison, despite the fact that he is not alleged to have committed a subsequent criminal act,” Steffey said.
Conwill took his case to the U.S. Supreme Court. On Monday, it decided not to hear the case. Wade said they will ask the U.S. Supreme Court to reconsider. If that fails, and prosecutors take the case to trial and win a conviction, Wade said they’ll appeal the conviction and any sentence handed down.