A few months ago, we published a detailed post highlighting two cases in which the Supreme Court had the opportunity to grant certiorari and “shut down judicial evasion of doctrines requiring prosecutorial accountability.” Unfortunately, the Court declined to take either opportunity, denying the petitions in Woods v. Smith and Stein v. US in October and December, respectively. While the cases themselves will now fall out of public view, both the problematic court opinions below and the doctrinal injustices they perpetrate remain intact. Keeping that in mind, it is well worth reviewing how these sorts of decisions enable prosecutors to further eviscerate due process decisions like Napue, Giglio, and Brady of their meaning. Let’s consider, for example, the Solicitor General’s Brief in Opposition in the Stein case.

At issue in Stein was whether the Eleventh Circuit’s reading of Supreme Court precedent was flawed. Rather than treating a claim about the prosecution’s elicitation of and failure to correct false testimony as a stand-alone due process issue, the court of appeals collapsed the traditional Napue/Giglio framework, holding that defendants must show not only that the prosecution knowingly presented perjury, but also suppressed evidence of the falsity of the witness’s testimony from the defense team. In other words, on the Eleventh Circuit’s logic, there can be no Napue/Giglio violation without an independent Brady violation. We explained more in our previous post:

[I]t 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.” 

In some ways, the debate here boils down to the question of whether the Constitution permits a prosecutor to knowingly present a lie to the jury, so long as the defense knows that the lie is a lie. In his petition for certiorari, Mr. Stein’s team summarized its position: “We have an adversary system of justice, but there are some constitutional limits that apply to the prosecutor no matter what the accused knows or does in response.” The Solicitor General, however, took its chance to argue that “there is no violation of due process resulting from prosecutorial non-disclosure of false testimony if defense counsel is aware of it and fails to object.” In short, the U.S. Government has argued that it can effectively shift the burden to the defendant to call out perjured testimony; it can farm out its ethical obligations, “gamble” by eliciting untrue statements, or at the very least, sit quietly if one of its own witnesses testifies falsely. Relying on opinions like the one the Eleventh Circuit issued below, the Solicitor General’s brief refers to this as a “common-sense proposition.”

Enough courts have been willing to buy this line of argument such that the proposition is relatively “common,” but it certainly makes no sense. Long ago, the Supreme Court held that a prosecutor is “not at liberty to strike foul [blows].” But, that lofty vision—built on the understanding the prosecutors have a duty to seek justice, not convictions—has been sapped of meaning. Through litigation like that in Stein, prosecutors have reeled it in—with judges scarfing the bait—and taken it apart piece by piece. Watering down a prosecutor’s duty to avoid eliciting perjury is just one example. In Woods, the lower courts embraced arguments that make a prosecutor’s duty to disclose exculpatory evidence under Brady contingent on the defense lawyer’s diligence in seeking that evidence.

The dismantling of the prosecutor’s constitutional duties is disconcerting, to say the least. Nobody reading this should be surprised that prosecutors almost always advance arguments to limit their ethical obligations, curtail any potential liability, eradicate judicial and public scrutiny, and expand their powers. Even if we cannot summon surprise as a response, we must remember that these arguments are disturbing. And, it is all the more disturbing that they appear to be convincing courts that a “common-sense” understanding of prosecutors’ constitutional duties actually involves evaluating what defense attorneys are doing. It is a nasty trick indeed for a Government to put the onus of challenging a lie on the person against whom it is being used. Yet, that is how the legal doctrines pertaining to prosecutorial accountability have been perverted.

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