The Serial Podcast, Episode 10: The Supreme Court’s Framework for Prosecution Witness Plea Bargains
I’ve been getting a lot of e-mail today about a prior post of mine entitled, “The Serial Podcast, Take 4: Did the Prosecution Violate the Brady Doctrine in Connection With Jay’s Plea Deal?” It seems that the impetus is this morning’s tenth episode of the Serial Podcast, “The Best Defense is a Good Defense,” which touches upon this very issue. I have not listened to this episode yet, so I don’t have any insight into what specifically happened at Adnan’s trial. What I do know is that, in Napue v. Illinois, 360 U.S. 264 (1959), “[t]he Supreme Court established a framework for the application of Brady to witness plea agreements….” State v. Oulette, 989 A.2d 1048, 1056 (Conn. 2010). For now, I’ll leave it to readers to decide where the prosecution’s behavior at Adnan’s trial falls within that framework.
As I noted in that prior post,
In Brady v. Maryland, the Supreme Court held that the prosecution violates the Due Process Clause when it fails to timely disclose material exculpatory evidence to the defendant. Evidence is material when it creates the reasonable probability of a different outcome at trial. In United States v. Bagley, the Supreme Court held that material exculpatory evidence includes evidence that could be used to impeach a key witness for the prosecution.
This takes us to Napue v. Illinois. In Napue, the defendant, Henry Napue, was charged with murder. The key witness for the prosecution was George Hamer, who was already serving a 199-year sentence for that same murder, which he claimed that he committed with the defendant. At the defendant’s trial, Hamer testified as follows:
Q. Did anybody give you a reward or promise you a reward for testifying?
A. There ain’t nobody promised me anything.
On redirect examination the Assistant State’s Attorney again elicited the same false answer.
Q….Have I promised you that I would recommend any reduction of sentence to anybody?
A. You did not.
On cross-examination, however, the following testimony was elicited from Hamer:
Q….And didn’t you tell him (one of Napue’s attorneys) that you wouldn’t testify in this case unless you got some consideration for it?
A. * * * Yes, I did; I told him that.
Q. What are you sentenced for?
A. One Hundred and Ninety-Nine Years.
Q. You hope to have that reduced, don’t you?
A. Well, if anybody would help me or do anything for me, why certainly I would.
Q. Weren’t you expecting that when you came here today?
A. There haven’t no one told me anything, no more than the lawyer. The lawyer come in and talked to me a while ago and said he was going to do what he could.
Q. Which lawyer was that?
A. I don’t know; it was a Public Defender. I don’t see him in here.
Q. You mean he was from the Public Defender’s office?
A. I imagine that is where he was from, I don’t know.
Q. And he was the one who told you that?
A. Yes, he told me he was trying to get something did for me.
Q. * * * And he told you he was going to do something for you?
A. He said he was going to try to.
Q. And you told them (police officers) you would (testify at the trial of Napue) but you expected some consideration for it?
A. I asked them was there any chance of me getting any. The man told me he didn’t know, that he couldn’t promise me anything.
Q. Then you spoke to a lawyer today who said he would try to get your time cut?
A. That was this Public Defender. I don’t even know his name.
After he was convicted of the murder, the defendant “filed a post-conviction petition, in which he alleged that Hamer had falsely testified that he had been promised no consideration for his testimony….” The former Assistant State’s Attorney handling Napue’s case initially indicated that “he had promised Hamer that if he would testify against Napue, ‘a recommendation for a reduction of his (Hamer’s) sentence would be made and, if possible effectuated.'” Later, at the defendants PCR hearing, the former ASA testified “that he had only promised to help Hamer if Hamer’s story ‘about being a reluctant participant’ in the robbery was borne out, and not merely if Hamer would testify at petitioner’s trial.”
The defendant was unsuccessful in appealing his conviction in state court, with the Supreme Court of Illinois (1) acknowledging that Hamer lied about being promised no consideration by the ASA; but (2) concluding that the defendant “was entitled to no relief since the jury had already been apprised that someone whom Hamer had tentatively identified as being a public defender ‘was going to do what he could’ in aid of Hamer, and ‘was trying to get something did’ for him.”
The United States Supreme Court disagreed and granted the defendant relief. Here’s a condensed version of the Court’s conclusion:
First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment….The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.
The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend….
Second, we do not believe that the fact that the jury was apprised of other grounds for believing that the witness Hamer may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one. As Mr. Justice Schaefer, joined by Chief Justice Davis, rightly put it in his dissenting opinion below…:
‘What is overlooked here is that Hamer clearly testified that no one had offered to help him except an unidentified lawyer from the public defender’s office.’
Had the jury been apprised of the true facts, however, it might well have concluded that Hamer had fabricated testimony in order to curry the favor of the very representative of the State who was prosecuting the case in which Hamer was testifying, for Hamer might have believed that such a representative was in a position to implement (as he ultimately attempted to do) any promise of consideration.
As noted in the introduction, Napue “established a framework for the application of Brady to witness plea agreements….” And here is the Supreme Court of Connecticut’s explanation of that framework in State v. Oulette:
[T]his court has stated: “[D]ue process is…offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears….If a government witness falsely denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception….Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading….A new trial is required if the false testimony could…in any reasonable likelihood have affected the judgment of the jury.
So, does the behavior of the prosecution and Jay at Adnan’s trial fall within this framework? Did Jay substantially mischaracterize the nature of the plea deal, and did the prosecution fail to correct him? As I said, I haven’t yet listened to the tenth episode yet, but I have read the appellate briefs. And, as I noted in my prior post, Adnan’s claim on appeal seemed to be that the prosecution/Jay lied about the prosecution hiring a private attorney for Jay. Obviously, there are many differences between Adnan’s trial and Napue, in which the prosecution witness claimed that there was not even a deal between him and the prosecutor. But at the heart of both cases, there’s the issue of the prosecution possibly not disclosing arrangements it made between the witness and an attorney. I’ll wait until I listen to the episode before drawing any final conclusions.
-CM