Brady - Perjured Testimony / Inconsistent Statement of Witness

Strickler v. Greene, 119 S.Ct. 1936 (1999)

The state presented an eyewitness that testified about a carjacking (which later led to the killing of the driver). The witness testified that she had an exceptionally good memory about the event. The state did not disclose to the defense, however, that the eyewitness had previously stated that she did not have a clear memory of the event, that she thought it was simply a college prank, that her memory was "muddled", that she once said she could not identify anybody, and that she once stated she could not remember being at the abduction site. Though there was a reasonable possibility that disclosure of this information to the defense may have produced a different result, there was not a reasonable probability that disclosure would have produced a different result. This is the correct Brady standard and federal habeas relief was not granted.

Banks v. Dretke, 540 U.S. 668 (2004) The Supreme Court set aside a death sentence and remanded this case to the lower court for further consideration of the validity of the guilt-innocence judgment, based on the Brady violations. Specifically, the state failed to reveal to the defense that a witness was a paid informant (though the witness denied it at trial).

Dow v. Virga, 729 F.3d 1041 (9th Cir. 2013)

The defendant, a suspect in a robbery, was placed in a line-up. He had a scar under his right eye. Prior to the witness being brought into the line-up room, the defendant’s lawyer asked that all the participants in the line-up wear a bandage under the right eye so that the defendant’s scar would not differentiate him from the other participants in the line-up. At trial, the prosecutor asked the police officer about what happened at the line-up and the officer responded that the defendant insisted that everybody wear a bandage under their right eye so as not to differentiate him. The officer knew, as did the prosecutor, that it was the defendant’s lawyer and not the defendant himself who made this request. In closing argument, the prosecutor argued that the defendant’s request revealed a consciousness of guilt. The Ninth Circuit held that this was a Napue error requiring that the conviction be set aside.

Guzman v. Secretary, Dept. of Corrections, 663 F.3d 1336 (11th Cir. 2011)

A police officer testified falsely about whether any benefit had been provided to a key witness. The police denied that any benefit had been provided, but, in fact, the officer had given the witness, a crack addict, $500.00. The prosecutor was not aware of this benefit and was not aware that the officer testified falsely. Nevertheless, the knowledge (and false testimony) of the officer was attributed to the prosecutor and a new trial was ordered. This case contains a thorough review of the “materiality” standard for gauging Giglio violations post-conviction.

Sivak v. Hardison, 658 F.3d 898 (9th Cir. 2011)

The state’s failure to reveal certain benefits that the jailhouse snitch received from the prosecution (favorable parole letters) and the fact that the snitch lied as a witness about these benefits necessitated that the death sentence be set aside.

United States v. Freeman, 650 F.3d 673 (7th Cir. 2011)

In this drug conspiracy trial, a key witness for the government described an important meeting that occurred among the conspirators that included specific identified people, at a specific location at a specific time. Prior to trial, one of the defense attorneys alerted the prosecutor to the fact that his client – one of the identified participants in this meeting – was in jail at the relevant time. The prosecutor forged on ahead, despite this warning. At trial, the witness was thoroughly cross-examined, but the prosecutor did not relent, until several weeks later, when he offered a stipulation that one of the participants in this supposed meeting was, in fact, in jail at the time. During closing argument, however, the prosecutor argued that this was a minor mistake that could easily be the result of faulty memory about the date of the meeting. The trial court granted a post-trial motion for new trial on the basis of this Napue violation and the Seventh Circuit affirmed.

Lambert v. Beard, 633 F.3d 126 (3rd Cir. 2011)

The key witness for the state in this murder prosecution (a co-conspirator) was thoroughly impeached with several prior inconsistent statements. One part of his testimony, however, remained constant and was not the subject of a prior inconsistent statement: the defendant and one other person were the perpetrators. However, the state had failed to produce one other prior inconsistent statement in which the witness identified another perpetrator. The Third Circuit held that even though the witness was “thororughly” impeached with prior inconsistent statements, the undisclosed statement was significant and of a different nature than the impeachment evidence that was previously furnished. The Third Circuit granted the writ. THE SUPREME COURT REVERSED ON FEBRUARY 21, 2012. Wetzel v. Lambert, 132 S. Ct. 1195 (2012). On remand, though, in an unpublished decision, the Third Circuit again granted the writ on the basis of the Brady violation. Lambert v. Beard, 537 Fed.Appx. 78 (3rd Cir. 2013).

Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010)

The state failed to reveal to the defense that the informant in this state murder prosecution had originally negotiated a certain deal in exchange for his testimony and that thereafter, the informant insisted on an even better deal in exchange for his testimony in the murder case. The informant also committed perjury during the course of his testimony, including about his background, his education, a conversation he had the with the prison rabbi about testifying against the defendant, as well as his history of providing “snitch” evidence in other cases. This case contains an extensive discussion of the perils of jailhouse informant testimony.

United States v. Triumph Capital Group, Inc., 544 F.3d 149 (2d Cir. 2008)

The government failed to reveal an agent’s notes of a witness’s proffer session that were materially inconsistent with the witness’s testimony at trial (and inconsistent with the Jencks material that was furnished to the defense). See also United States v. Rivas, 377 F.3d 195 (2d Cir. 2004).

Mahler v. Kaylo, 537 F.3d 494 (5th Cir. 2008)

Prior to trial, witnesses gave statements that the defendant shot the victim while they were wrestling over a shotgun. At trial, however, the witnesses testified that the victim was walking away from the defendant when the defendant shot him in the back. Failing to provide the inconsistent witness statements to the defendant prior to trial was a Brady violation that required granting a writ of habeas corpus.

Jackson v. Brown, 513 F.3d 1057 (9th Cir. 2008)

The prosecution failed to reveal promises it had made to prosecution witnesses and when the witnesses lied on the stand about any promises, the prosecutor failed to correct the misrepresentation. Other promises were made by the police to certain witnesses (and were not even known to the prosecutors). All these Brady errors required setting aside the death penalty.

Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006)

Twelve years ago, the defendant entered a guilty plea to a RICO case that charged various predicate offenses, including murder. A key witness for the government provided a statement implicating the defendant in one of the charged murders. Later, however, he recanted and told the AUSA and the case agents that the defendant was not involved in the murder. The AUSA and agents met once again with the witness and he recanted his recantation. The witness’s recantation was never provided to the defense, despite Brady obligations that were ongoing pursuant to the Constitution and Local Rules. The defendant entered a guilty plea, though during the plea colloquy, he never admitted participation in the murder. Years later, the witness’s recantation was revealed. The District Court granted § 2255 relief. The First Circuit affirmed, concluding that the government’s conduct amounted to a violation of Brady and amounted to gross governmental misconduct.

Morris v. Ylst, 447 F.3d 735 (9th Cir. 2006)

A status report was prepared by a legal assistant that advised another prosecutor that a witness had perjured herself at the defendant’s trial. The Ninth Circuit held that this report – work product – was not required to be produced to the defense pursuant to Brady. However, the prosecutor did have a duty to investigate this allegation A prosecutor may not remain willfully ignorant of the facts.

Graves v. Dretke, 442 F.3d 334 (5th Cir. 2006)

The prosecutor neglected to inform the defendant that on the day before the key prosecution witness testified, he told the prosecutor that he, the witness, alone was responsible for the murders and had also revealed previously that his wife was involved. The prosecutor also asked the witness at trial whether all of his statements consistently implicated the defendant (with one exception). The witness responded affirmatively, as did a police officer who was asked the same question. Yet, the witness had not been consistent and had exculpated the defendant and implicated his wife. The Brady violation necessitated reversing the conviction.

Slutzker v. Johnson, 393 F.3d 373 (3rd Cir. 2004)

The state’s failure to produce police reports in which an eyewitness affirmatively denied that she saw the defendant at the scene of the crime was a Brady violation. The same witness testified at trial that the defendant was the person she saw at the scene. The trial occurred fifteen years after the murder and the police report had been taken at the time of the murder. Though there were three other eyewitnesses, their testimony was dubious (two of the witnesses were 5 and 6 years old at the time of the murder and claimed to have recovered memories in which they saw the defendant at the scene of the crime).

Shih Wei Su v. Filion, 335 F.3d 119 (2d Cir. 2003)

The Second Circuit concluded that the prosecutor knowing elicited perjured testimony relating to a witness’s cooperation agreement with the government and granted a writ of habeas corpus. In fact, there was an agreement that if he cooperated, the witness would be afforded youthful offender treatment. At trial, however, it was represented that there was no agreement on the terms of the plea agreement.

Bailey v. Rae, 339 F.3d 1107 (9th Cir. 2003)

The defendant was charged with sexual offenses that required, as an element, proof that the victim was incapable of giving consent to the sexual contact. The state was aware of, and had possession of therapy notes of the victim, that revealed that she knew the difference between good touching and bad touching. These reports contradicted, to some degree, the state’s contention that the victim was mentally defective to the extent that she could not give consent. Failure to provide this information to the defense was reversible Brady error.

United States v. Arnold, 117 F.3d 1308 (11th Cir. 1997)

The government possessed numerous tape recordings of an IRS special agent talking with the government’s star witness while he was in prison. On the tapes were several conversations involving the witness’s expectation of a reduced sentence and the agent’s assurance that the witness would receive a reduced sentence in exchange for his cooperation. These tapes were never disclosed to the defense. At trial, the witness denied any expectation of a reduced sentence in exchange for his cooperation. The Eleventh Circuit reversed the conviction.

Jacobs v. Singletary, 952 F.2d 1282 (11th Cir. 1992)

The government violated Brady by failing to reveal to the defense that a witness, in a prior statement to a polygrapher, had stated that he was not sure who shot the gun. This was inconsistent with the witness’s trial testimony. This was material evidence and withholding it required a new trial.

DeMarco v. United States, 928 F.2d 1074 (11th Cir. 1991)

Though the defense attorney was aware that one of the prosecutor’s witnesses was committing perjury, the prosecutor’s allowing this to occur and then capitalizing on the testimony in her closing was grounds to vacate the judgment. The perjured testimony in this case was the existence of deals and promises from the government. The defense attorney was formally provided notice of the deals, but at trial, the witness denied there were any deals and the prosecutor did nothing to correct this false testimony. The fact that the prosecutor referred to these lies in her closing argument is the reason for reversal despite the defense attorney’s knowledge of the lies.

Brown v. Wainwright, 785 F.2d 1457 (11th Cir. 1986)

The State knowingly introduced false testimony relating to a witness’ tentative plea agreement. In granting habeas relief, the Eleventh Circuit holds that the proper legal standard is not whether the defendant can prove that the correction of the false testimony “probably would have resulted in an acquittal.” Rather, where, as here, the State intentionally uses false testimony, a new trial is required if the false testimony “could in any reasonable likelihood have affected the judgment of the jury.”

United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997)

The defendant was charged with conspiring to extend extortionate loans. A critical component of the government’s case was proof that the people to whom he made loans, made loans themselves with the borrowed money, hence the conspiracy. At trial, however, most of the borrowers testified that they used the money for their own purposes (such as gambling). The government relied on one borrower who did not testify, but whose records, according to an FBI agent reflected that he re-loaned the money. The government knew, however, from interviewing the witness that he did not re-loan the money. This amounted to the presentation of perjured, false testimony and the conviction had to be set aside. To the extent that the government did not know if all the records of the borrower reflected that he did not re-loan the money, the government’s ignorance in this regard was willful given the information that was provided by the borrower.

United States v. Payne, 63 F.3d 1200 (2d Cir. 1995)

A co-defendant, in a related case, filed an affidavit proclaiming her innocence. Later, she became a cooperating witness and testified against the defendant. Her affidavit was Brady information which should have been furnished to the defendant. Though her affidavit was filed in the public records of the related case, there was no reason to believe that defendant’s counsel would be aware of this affidavit. Harmless error.

United States v. Kelly, 35 F.3d 929 (4th Cir. 1994)

The defendant was convicted of kidnapping. He had been retained by a woman to “recover” her daughter from a cult. He approached a woman, who identified herself as being the daughter, and brought her to the mother. The mother said that this was the wrong person. The “victim” was then returned to the place from which she was taken. The “victim” was another member of the cult and was also under investigation by the Feds for money laundering, CTR violations and filing false loan applications to a bank. At trial, she answered questions about the loan application falsely and the government failed to correct this testimony. Also, there were Brady violations: the government failed to disclose the extent of the victim’s participation in the cult, the true scope of her criminal conduct which was under investigation (including a search warrant affidavit which supported a search of her house) and the various false statements she had made to her employer, the EPA, to which she had lied about her health in order to use several months of paid sick leave – while she continued to work at other jobs.

United States v. Fisher, 106 F.3d 622 (5th Cir. 1997)

The government produced an inconsistent statement of a witness to the defense after the witness testified on the last day of trial. This was reversible error. This decision was subsequently OVERRULED on other grounds in Ohler v. United States, 529 U.S. 753 (2000).

United States v. Weintraub, 871 F.2d 1257 (5th Cir. 1989)

At sentencing, the government furnished information in the PSI that the defendant was responsible for distributing 50 to 70 pounds of cocaine. The government withheld evidence that the witness had made a prior inconsistent statement suggesting that the defendant was responsible for a much smaller amount of cocaine. The sentence had to be set aside based on this improper withholding of evidence.

United States v. Boyd, 55 F.3d 239 (7th Cir. 1995)

Another of the El Rukn convictions was set aside because of the prosecutor’s failure to reveal the extent to which witnesses for the prosecution were rewarded with sexual favors, phone privileges, physical contact with relatives and drug transfers. One witness for the prosecution testified that he no longer used drugs, even though the prosecution was aware that he was dealing drugs in prison during the time that he testified. The failure to disclose this to the defense was a Brady violation which required reversal of the conviction. The trial court properly granted a new trial to the defendant.

United States v. Foster, 874 F.2d 491 (8th Cir. 1988)

The prosecutor failed to correct false and misleading testimony which was given by witnesses who had made agreements with the government. The failure to correct these misstatements amounted to the knowing use of false testimony by the government and violated the defendant’s right to due process.

United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995)

Prior statements of a witness that are both material and inconsistent with his anticipated testimony fall within the Brady rule. Here, the police report prepared by the arresting officer contained material discrepancies with the witness’s trial testimony. A remand for further evaluation of this Brady issue was required, even though the inconsistencies were “aired” during the course of the trial.