This blog post from the website prosecutorialaccountabilityt.com looks at two pending petitions in the Supreme Court that look at issues around prosecutorial accountability, Woods v. Smith and Stein v. United States.
Woods is an innocence case. After his first trial ended in a mistrial because the jury could not reach a verdict, Mr. Woods was convicted at the second trial for the 2003 murder of Eric Harris. His petition presents two questions. The first involves an evidentiary question and the Confrontation Clause. The second question, the one of particular interest here, is:
In Banks v. Dretke, 540 U.S. 668 (2004), this Court repudiated a requirement that defendants must show prior diligence when asserting a claim under Brady v. Maryland, 373 U.S. 83 (1963): “A rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.” Banks, 540 U.S. at 696. But the circuits are divided on whether this principle applies in habeas cases, with some courts—including the Sixth Circuit below—upholding state court rulings imposing so-called “due diligence” requirements. The second question presented is: Whether the Sixth Circuit erroneously upheld the state court’s unreasonable application of this Court’s Brady jurisprudence and, in doing so, exacerbated a circuit split over whether there is a defendant due diligence requirement for Brady claims on habeas review.
The Brady analysis traditionally asks three (somewhat) straightforward questions. They are: (1) Is the evidence favorable to the defendant either because it is exculpatory or impeachment material?; (2) Did the State suppress the evidence?; and (3) Would disclosure of the evidence have created a reasonable probability of a different verdict? If the answer to all of these questions is ‘yes,’ then the defendant is entitled to a new trial. If the answer to any one of them is ‘no,’ then the court will affirm the conviction and sentence. Yet, the federal Sixth Circuit layered on an additional inquiry. It asked whether the defendant’s trial team could have discovered the suppressed evidence through the exercise of due diligence. That question fundamentally changes the Brady analysis, and Mr. Woods’s petition asks whether a due diligence requirement is appropriate in the habeas context.
The Brady information at issue in Woods relates to the death of a key witness. At trial, as the Sixth Circuit acknowledged, “the prosecutor strongly, and inaccurately, implied” that the defendant was involved in the killing of Chavez Johnson, the key eyewitness to Harris murder. In post-conviction proceedings, Mr. Woods’s team discovered “the results of a police investigation indicating that Woods was not responsible for the death of a key witness—contrary to the strong implications of the prosecution at trial.” This evidence is at the heart of the petition. (It’s worth noting that this is another case in which a great deal of exculpatory evidence was suppressed. Footnote 2 of the petition highlights four categories of evidence the State failed to disclose, including open warrants against a key witness and evidence that someone else had stabbed the victim just days before the murder.)
According to the Sixth Circuit, which invoked the state court’s decision, the prosecution’s failure to disclose that law enforcement had effectively determined Mr. Woods was not responsible for killing a key State witness was not sufficient to establish suppression because the defense could have called the detective to the stand and cross-examined him about Johnson’s unrelated murder. Thus, the court found that the defense’s opportunity to learn this information through “reasonable diligence” alleviated the State of its duty to disclose what was undoubtedly evidence favorable to the defendant. This bizarre “due diligence” rule—made up by the courts and utilized in some other circuits—ignores what Brady requires. As the petition points out, “[i]n essence, the Sixth Circuit’s rule would reward the prosecutor who is especially good at hiding evidence, and manages to hide it beyond the direct appeal.”
The second case, Stein v. United States, is a white-collar criminal case involving perjured testimony “known to be such by the prosecuting attorney.” From the petition:
“This Court has repeatedly reaffirmed ‘that a conviction secured by the use of perjured testimony known to be such by the prosecuting attorney, is a denial of due process.’ White v. Rogen, 324 U.S. 760, 764 (1945). ‘The same result obtains when the State although not soliciting false evidence, allows it to go uncorrected when it appears.’ Napue v. Illinois, 360 U.S. 264, 269 (1959). When the prosecutor fails to fulfill his ‘duty to correct what he knows to be false and elicit the trust,’ he ‘prevent[s] . . . a trial that could in any real sense be termed fair.’ Id. at 270. The Eleventh Circuit here accepted that the government knowingly used false, material testimony to convict Mitchell Stein. The court nevertheless held that Stein received all the process he was due because the government did not suppress the evidence that proved its witnesses were, in fact, lying under oath. The question presented is: Whether the Due Process Clause excuses the government’s knowing use of false testimony where the government does not also suppress evidence indicating that the testimony was false.”
If the Eleventh Circuit’s opinion seems unfounded, you are reading the question above correctly. Nevertheless, like the contrived “due diligence” requirement several courts have embraced in the Brady context, it appears that a number of courts have also decided that the knowing presentation of perjury is not enough to require a new trial under Napue and Giglio. As the Eleventh Circuit put it below, “because Giglio error is a type of Brady violation, the defendant generally must identify evidence the government withheld that would have revealed the falsity of the testimony.” Even experienced defense attorneys who have seen a lot of judicial jujitsu may find this holding to be a head-scratcher. But, there it is. The petition characterizes its logic, or lack thereof, well:
“Although the Eleventh Circuit accepted that the government knowingly used false testimony to convict Mitchell Stein and send him to prison for 17 years, the court nonetheless held that there was no due process violation because the government did not also commit an independent constitutional violation by suppressing evidence proving that its witnesses were lying. While two wrongs do not make a right, in the Eleventh Circuit, in the absence of two wrongs (i.e., a Brady violation and a Giglio violation), there is no wrong at all.”