Paysun Long v. Randy Pfister

D.C., TICE, Washington, P. Wis- plaintiffs’ Charles about the owners’ associations Jr., Grant, dom, John Patrick UNITED standing of to assert derivative lack OFFICE, Lex- ATTORNEY’S misplaced. STATES claim Kentucky, Appellee. for ington, IV. COLE, Judge; Before: Chief reasons, I respectfully foregoing For the BATCHELDER, DAUGHTREY, majority’s from II.C of the Part dissent CLAY, ROGERS, MOORE, GIBBONS, I reverse the district opinion, and would COOK, McKEAGUE, SUTTON, seek- plaintiffs’ motion court’s denial GRIFFIN, KETHLEDGE, WHITE, com- the second amended ing leave file STRANCH, DONALD, BUSH, exclusivity claim as plaintiffs’ on the plaint Judges.* Circuit tying claim. plaintiffs’

well as on the

ORDER was heard the en banc This case court on 2017. The en banc October divided; therefore, evenly court is sen by the court is AF imposed tence district City Sch. Dist. Ponti FIRMED. Dep’t of Educ., 584 F.3d Sec’y ac v. America, UNITED STATES 2009) (en banc); Stupak- (6th Cir. Plaintiff-Appellee, States, Thrall v. United (6th 1996) (en banc). Cir. Ray GIBSON, Defendant-Appellant. IT SO ORDERED. IS

No. 15-6122 Appeals, United States Circuit. Sixth Argued: October Paysun LONG, Petitioner-Appellant, Filed: October Decided and

Randy PFISTER, Warden, Stateville Center, Respondent- Correctional Appellee. No. 13-3327 Belli, EN Dennis C.

ARGUED BANC: Appeals, Columbus, Ohio, United States Court Appellant. for Finnuala Circuit. Seventh Tessier, K. DEPART- UNITED STATES D.C., JUSTICE, Washington, MENT OF SEPTEMBER ARGUED Appellee. for ON SUPPLEMENTAL DECIDED OCTOBER Ohio, Belli, Columbus, BRIEF: Dennis C. Tessier, Appellant. UNIT- Finnuala K. ED OF JUS- DEPARTMENT STATES

* R, ruling. Judge Thapar participation from Amul recused himself this conviction be

A state court vacated argued, without cause record, recanting the" support in the friends. At Long and his feared witnesses proceeded trial the Long’s second Irby at the first. and identified as Edwards killer; Long in as other court intro statements were witnesses’ video- time, on But this asked cross- duced. Smith, Attorney, & Douglas Kirkland G. recantation, Irby about her examination LLP, IL, Chicago, for Petitioner- Ellis telling that she had been Walter denied Appellant. Long. The defense identify coerced Glick, Attorney, Office Michael M. Walter, Irby who testified called had Appeals Divi- Attorney General—Criminal him that her identification indeed told IL, sion, Chicago, Lindsay Beyer Payne, did not con been coerced. General, Attorney Attorney, Office on cross- testimony test Walter’s either IL, Chicago, Respondent-Appellees. for closing argument. or during examination time, Long jury convicted a second WOOD, Judge, Before Chief and yéars in pris and he sentenced to BAUER, EASTERBROOK, KANNE, on. court affirmed on appellate The state’s ROVNER, WILLIAMS, SYKES, and appeal again and affirmed after a direct HAMILTON, Judges.* Circuit for judge Long’s application denied collat EASTERBROOK, Judge. Circuit App. eral relief. 409 Ill. 3d Ill. (2011). Dec. N.E.3d 673 Larriec Sherman was shot death Pay- Long’s applica- A 2001. Four witnesses district court denied June identified § gunman; but Long sun as the their tion for relief under 28 U.S.C. statements panel of this Two of the court reversed. 809 were recorded video. four (7th 2015), panel Cir. Long’s recanted before trial. The other concluded that, by spontaneously correcting two—Keyonna Brooklyn Edwards testimony, Irby—testified, Irby’s prosecutor violated while the video statements Illinois, recanting intro- the rule 360 U.S. the two witnesses were too, trial, (1959), Irby, had recanted before duced. L.Ed.2d States, Walter, telling investigator Giglio Frank successors such as v. United an Attorney, police officers State’s (1972). Long panel her name as understood cases coerced these that, consistently any witness Irby But establish whenever shooter. testified a statement her statement. On cross-exami- makes video untrue, recanting the Due Process Clause nation she conceded told knows requires original true Amendment her statement was Fourteenth prosecutor to correct that statement false. The be- and her recantation Long’s Irby immediately. Ed- That was not done lieved trial, court, panel gave open convicting Long second and the held wards therefore is to collateral relief. T5 entitled murder. * Judge argument participated in this in its decision. Flaum heard Circuit himself appeal but recused and has later . son, panel this reach conclusion the also had to 113 S.Ct Long’s procedural address default L.Ed.2d 353 setting state Our order court, by holding Long’s rehearing which case for en banc vacated the . appellate lawyer panel’s had rendered ineffective decision. by making argu- a Napue assistance Long contends that the state appeal.

ment direct “contrary courts rendered decisions to” Napm and similar decisions. Of course the entails Because this case judges disparage state didn’t conviction, contradict collateral of a review state we Napue-, citing Lucas Appellate 2254(d), start with 28 U.S.C. which as favor, Long’s though ruled in 1996 amended Antiterrorism matter state law. The state court did not (AEDPA) Act Penalty Effective Death (It analyze Napue at all. was cited once provides: Lucas.) on, given but not elaborated But application An for a writ of cor- habeas Richter, from Harrington we know v. 562 pus custody on of person behalf a 86, 97-100, 131 S.Ct. L.Ed.2d pursuant to judgment the of a State (2011), that does not matter whether granted respect court shall not be a precedent; state court discusses federal any adjudicated to claim that was the 2254(d)(1) § applies the state whenever merits court unless proceedings State merits, court a makes on the decision no claim—(1) adjudication the of the result- says. matter what the judiciary state to, contrary ed in a decision that or was . Williams, 289, also Johnson v. U.S of, application involved an unreasonable 1088, S.Ct. L.Ed.2d So law, clearly as established Federal de- we start with the merits—and we because by Supreme termined the Court of the Supreme the' not conclude Court has .that United States[.] “clearly, of established” the doctrine The Appellate Court of Illinois ruled Lucas is of a rule constitutional any light error was harmless the law, not- we need error address harmless inculpating Long. other evidence Davis v. (or procedural-default for that matter the — Ayala, U.S. -, 135 issue). (2015), L.Ed.2d 323 holds that a harmless- error “on decision is the as Long Napue one merits” succes understands and its 2254(d) phrase. uses state court to sors establish that must Long good position immediately false-testimony— concluded that had a any correct law, as a matter of People state v. that it not because does matter whether Lucas, truth, Ill. already 2d 272 Ill.Dec. defense knows or the. wheth (2002), prose jury 787 N.E.2d 113 holds that a truth er the learns the before deliber testimony cutor must correct ating. false It is not hard find statements that, high elicits. at a of.generality, defense Given harmless-error taken level however, ruling, that conclusion Court could be so summa understood. court, Long. by Napue principle way panel benefit our this in Cali rized contrast, Trombetta, straight went federal law un 467 U.S. fornia successors, (1984): der and its and after 81 L.Ed.2d 413 “The holding .rudimentary access-to-evi violated most impose upon the rule of is dence cases stated panel obligation report entitled did not to the new trial. constitutional mention the doctrine of harmless error or the trial court whenever defendant witnesses, apply government lie oath.” the standard Brecht v. Abraham (in faith) deliberately bad exceptions not contain had been elicited This statement does defense, Brady or testimony by inadvertently. or This is how elicited 83, 87, by testimony Maryland, be known false, (1963), it, testimony re or corrected before understood But marking deliberates. then with of those any has never con exculpatory considered there is a holds All itself possible qualifications. problem “irrespective of the stitutional prose to the perjury holds is that known good prosecution.” faith or bad faith cution must be corrected before accordingly It proper is read when or say The Court did not retires. establishing as that it is passage Napue Giglio identifies as consti whom. And testimony, elicits the false irrelevant who prosecutor’s problem tutional deliberate truth, the defense knows whether occur deception jurors, which can’t jury. presented the truth is truth comes out at trial and when the not before the Court Those issues were rely prosecutor does the falsehood. expressly decided. (a) its successors: similarly under- inappropriate It testimony prose- elicited holding Giglio anything about stand (we shortly); exception cutor discuss an these matters. There the false defense; (b) the truth was unknown the counsel, by defense but the was elicited (c) rely on prosecutor jury asked the fact, nothing of that whose made Court (d) testimony; jury never the false briefed; significance parties had case, contrast, by truth. In this learned the instead it for the because the ruled testimony was elicited by the false false prosecutor embraced witness’s defense, truth, which knew the and the jury as argued it to the a statement and relying on the false prosecutor, instead conviction, though at basis of even least testimony, accepted Walter’s prosecutors that the one understood Irby’s argued about recantation exculpatory truth and unknown her in-court identification was nonetheless that no The witness defense. testified correct. made; promises prosecutor been one Napue, passage One 360 U.S. (who them) otherwise, yet made knew imply be a could read trial the that the told testimony mat prosecutor must correct no promise of a the witness’s absence made solicited it. The Court “The ter who wrote: testimony especially credible. Justices State, al same result obtains when the Brady required concluded that the truth’s evidence, soliciting though not false allows from prosecutor and forbade the disclosure must go language

it to uncorrected”. This arguing that had not been witness light of the citation the be understood promised favorable treatment. Texas, gave: Alcorta v. (1957). 103, 2 L.Ed.2d 9 Alcorta 78 S.Ct. This case therefore entails four prosecutor the witness not told expressly been questions have never forthcoming deliberately elicited a be by Supreme Court: decided statement; misleading the defense and the (cid:127) apply Do its successors truth, Napue and something jury never learned context, than the when the defense rather pas Alcorta Read in stressed. false prosecutor elicits the testimo- sage Napue implies prosécutor that a ny? must the truth a falsehood furnish (cid:127) 505, 133 prosecutor 1990, 1994, 186 Must correct L.Ed.2d (2013).

testimony when defense counsel al- — ready knows the truth? Smith, U.S. -, Lopez v. 135 S.Ct. (cid:127) (2014). Does the Constitution forbid a con- also, L.Ed.2d 1 e.g., — Donald, viction obtained U.S. -, when the Woods

does not correct but also does not rely the falsehood? that, appreciate if general We proposi- (cid:127) tion inevitably Does the Constitution a con- entails forbid some concrete appli- cation, then no

viction all material there’s obtained when ev- need wait for the apply presented principle Justices idence be- the inev- way. itable But it is not obvious to fore deliberates? us that Napue principle requires a new trial ques- that all four of these believes when the fails to correct a fal- yes tions be should answered but does sehood, but the defense knows about that any contend that of them has an- been falsehood and corrects it. contrary, To the by swered in the defendant’s favor Saadeh, this court held United States v. that, Supreme Court. Instead he believes (7th 1995), 61 F.3d Cir. that there a general principle once been has estab- is no constitutional violation in that situa- lished, appeals court of can resolve sub- Adcox, tion. See also United States v. sidiary possi- issues such as these. That’s a (7th 1994). Cir. proposi- bility rejected Court has tion that knowledge defense counsel’s that, statutory inconsistent rule the truth is irrelevant therefore cannot be relief, support principle collateral must clearly by taken as established “clearly be ... established the Su- principle itself. Nor does the Napue princi- preme Court of the United States” rather ple establish that it is irrelevant whether than an intermediate federal court. presented open the truth is in court before principle Justices that a be insist made deliberates. concretely applicable problem to the way Another to ask applica- whether the may it on hand before be used collateral tion of when the defense knows A example sequence review. recent this is it truth so obvious that must be as taken said, summarily reversing appel- an already established is examine how the late decision: have subject. Justices handled a related pointed The Ninth Circuit to no of case Napue-Giglio rule is a to the cousin holding ours must [that doctrine, Brady requires prose- which of specify precise advance trial the exculpatory cution to reveal material evi- theory liability of it which would dence. The Justices themselves treat Na- Instead, rely]. Appeals the Court of cit pue Brady as two of manifestations a ed three older cases that stand for noth prosecutors that principle expose must ma- ing general proposition than more See, in their positions. terial weaknesses that adequate a defendant must have Greene, e.g., v. Strickler 298- charges against notice him. ... (1999). 144 L.Ed.2d 286 This proposition is far too abstract clearly specific respon establish rule Supreme Court has considered Brady requires dent needs. We have before cautioned whether (or against ... “framing put jury) exculpato lower courts before the disclose precedents high our a ry impeaching such level information to the known Jackson, See, generality.” Nevada v. e.g., U.S. defense. The answer is no. Unit counsel). 97, 103, Agurs, We ed States v. fective assistance U.S. (Brady agree- (1976) panel’s -with the resolution of those 49 L.Ed.2d that-'-portion its only to issues reinstate applies information “unknown defense”). opinion reproducing has without discussion circuit Our made n there is no point same and added here. that Brady if obligation disclosure Affirmed the infor have found easily could it, HAMILTON, Judge, joined by Circuit mation, See, if it didn’t fact. even find WILLIAMS, Morris, ROVNER Circuit United States e.g., F.3d 1996). dissenting. (7th agree. Judges, Other Cir. circuits Wilson, See, e.g., United States high, relief is habeas The bar 1990). (4th Given how Cir. state requiring to show the petitioner understood, Brady ap an intermediate controlling unreasonably applied courts confidently predict pellate court could not precedent. Court U.S.C. Supreme Giglio will be Napue, treated that . 2254(d)(1). § Petitioner cleared has differently—let alone so we confident that high respectfully bar. I dissent. (as 2254(d) requires) declare could ago, Supreme sixty years Nearly already clearly been this has established deprives person a held a State Court, if it liberty process of due law without may In case what occurred well this using tes- knowingly convicts him rather than the helped have the defense imposed timony, and testimony enabled prosecutor. Irby’s false testimony is duty perjured to see depict per- her either as Illinois, the defense to a Napue v. corrected. (if hap-

jurer she had remembered what 3 L.Ed.2d 1217 (if faulty memory pened) having or as case, key lied this witness forgotten); helped have she could point critical'to her credibility. about She force of Irby’s the defense diminish she jury, repeatedly, swore why awfully It is to see identification. hard identifying petitioner been consistent may helped the .have defense Long person events who Sher- murdered lies, prosecutors relief the ab- Those and the should lead man. were collateral legal clearly they prosecutors established Yet the any lies. sence knew were nothing to cor- transgression. see the lies were rected. open four presented with the is- When identified, recognized actually state courts have

sues we erred, may process or all of them in due violation our resolve some excusing explained, by in the violation Long’s position. panel of a favor defendant date, affirms the re- majority as harmless. it not so to and But has done 2254(d)(1) rejecting sults in court first accordingly prohibits grant the state reasoning the state actual and then attempt of not collateral relief. We do courts’ possible questions hypothesizing or distinctions how those would determine might this case and the be drawn between be resolved. should Napue line of cases. Long presents other contentions reject- him. 809 at Yet itself panel against resolved considered majority upon to (quotation from Gone with the grounds ed the relies 313-16 Wind; anecdote; courts’ failure follow prosecutor’s prosecutor’s excuse Illinois matter, evidence; Supreme Court it. It to letter not in inef- does reference said, investigator which side elicited the false testimo- and an herself that she had ny. Id. Nor 79 S.Ct. 1173. does lied when first investigators she told in matter whether the defense knew the June 2001 that Long she had seen shoot or whether the heard Supp. App. Sherman. Irby 132-36. re- contradicting testimony. the false peatedly that she denied done so. had 269-70, 1173. See id. What lies, sworn Those answers were and the prosecutor heard was never knew it. Yet the judge saying that the witness had lied to nothing Irby’s to correct false denials of Moreover, jury. against Long the case having changed her story, in even redirect fragile so violation was Irby. examination of reasonably cannot be harmless. deemed Long’s attorney did what he could to post-conviction The state courts’ denial Irby’s attack lies and thus her credibility. Long contrary Napue, so relief was presenting After State had finished its is necessary habeas relief under 28 case, Walter, the defense called Frank § 2254. U.S.C. prosecution’s' investigator who had talked lays I of Part this dissent out the facts Irby. that-Irby Walter testified during perjury Long’s witness’s tri- identification of Long. recanted her App. Part II the' Supreme al. summarizes Dkt. 13-12 at 330-34. That’s how the evi rejects in Napue. Court’s Part III decision Irby dence closed: said she had never majority’s to limit efforts changed story, her and Walter said she excuse the state it. courts’ failure follow had. Perjury Long’s I. Trial During closing arguments, prosecu- lies, acknowledge Irby’s tion did even Paysun review here the conviction We let them. The alone correct Long’s Long murder Sherman problem, saying first tried to finesse (The second trial. second was needed counsel would prosecutorial because misconduct trial.) closing argument first No argue Brooklyn Irby came physical Long to evidence tied the murder. Attorney’s Office and on State’s said an heavily two wit- relied to her prior testifying earlier occasion nesses—Keyonna Brooklyn Edwards and telling the police and said wasn’t I Irby—who they testified that seen Well, in here truth. she came and raised shoot had her Sherman. Edwards happened you her what hand and told issues, credibility own since details some testimony. you Maybe her saw she her by any- were corroborated account thought Attorney’s if she told the State’s present, else but our focus here is one telling truth Office she she wasn’t Irby.1 But testify. when she have wouldn’t oath, she came here

Irby walking testified she was you told what she saw that was through housing develop- Taft Homes Keyonna what [Ed- ment consistent with in Peoria on June 2001 when she that Long wards] told was consistent you saw shoot Sherman. cross-exami- On nation, Irby you that defense counsel with what was wheth- she has told asked prosecutor had previously er she told the consistent Shawanda [Walker] with what 1. prosecution Two other testified recorded those witnesses witnesses statements' er shooter, Long prose- but saying that was not that he was. , put was cution evidence earli- allowed into clearly application consistent with sonable established you and that was

told Supreme authority, evidence. law under physical finding of on an unreasonable fact. based added). App. (emphases 149-50 Supp. 2254(d). Long Petitioner 28 U.S.C. around Missing from that careful dance courts to asking make new law the federal Irby’s any acknowledgment perjury is only on his behalf. He asks us to enforce jury. The Irby oath to the had lied under in Na Supreme Court’s decision handling Irby contrasts prosecutors’ pue v. Illinois. on other wit- sharp their attacks with nesses, witnesses, including prosecution was, case, a like murder Dkt. being App. 13-12 untruthful. See A police in Illinois. officer had prosecution prosecutors at 349-51. The knew how fatally robbery attempted in a been shot lied jury tell the that other witnesses had principal by several men. State’s wit- them, they but to the never admitted ness was a man named Hamer who was jury. jury Irby had lied already serving prison a sentence for the During closing argument, the defense Hamer testified that same murder. pointed Irby’s out lies and During one of the robbers. Na- had been Walter, jury prose- reminded trial, prosecutor pue’s asked Hamer investigator, cution’s testified had any promises of he had received Irby changed story: her she told had had leniency testimony. in return for his Ham- prosecutor him and the that she had lied false, er no. But that was said seeing June 2001 about shoot Sher- nothing to correct that lie. trial man. Yet her she lied told, however, that public a denying that. promised “to do what he defender During argument, pros- the rebuttal for Hamer. could” soft-pedaled perjury. ecutor She said prosecution later to have asked story Irby had recanted her back on the Hamer’s sentence reduced based November when she was served promise receiving that Hamer had denied immediately emphasized subpoena, a but of the Napue’s trial. When heard Irby (supposedly) told the truth sentence, Hamer’s he effort reduce Supp. App. oath. she was under 171. sought from his own conviction. The relief acknowledged still never relief, state courts denied Irby had lied her opinion by in a unanimous Court reversed testimony. began The Court Chief Justice Warren. then, up, key prosecution To sum wit- ob- from the foundation that “a conviction about critical to her credi- point ness lied evidence, through tained use bility, and the knew she was by representatives known be such took no steps Yet the lying. State, fall must Fourteenth perjury. correct the 360 U.S. Amendment.” Holohan, 1173, citing Mooney v. II. v. Illinois (1935), 79 L.Ed. 791 Antiterrorism and Effective Under .the other cases. Penalty Act known as Death AEDPA, opinion in the ad- accept courts must The next sentence problem here: “The re- on the merits a dresses the same state court’s decision State, although when the petitioner’s claim unless the state sult obtains habeas evidence, soliciting go it to contrary to or an unrea allows court decision was

553 (empha- pended it Id. appears.” heavily so uncorrected added), Texas, citing Alcorta v. 355 Cain, sis Wearry believed Hamer. See also 28, 103, (1957), 2 S.Ct. L.Ed.2d 9 U.S. -, -, 78 1002, 1006, 136 S.Ct. (The Court later ex- and other cases. (2016) 194 L.Ed.2d 78 (noting Napue holding Napue that this plained was error applies harmless standard also to ruling deliberate extension older claims). Brady 83, Mooney. Maryland, Brady v. (1963).)

87, 83 S.Ct. L.Ed.2d III. The Majority’s to Limit Ejforts Napue rejected attempts other to then testimony. excuse the use the false 1959, Since Napue has been understood First, it no made difference the false impose prosecutors to obligation an testimony credibility addressed Hamer’s correct prosecution they evidence that testimony. rather than his substantive case, know false. lie, “A is U.S. at S.Ct. 1173. lie no obligation. failed fulfill that The state and, if subject, any matter what its it is appellate actually acknowledged court case, way relevant to district attor violation, refused, pow over a ney duty has to cor responsibility dissent, to erful correct the error on the what rect he knows be false and elicit theory that the violation was harmless. 269-70, the truth.” Id. at *3, People Long, WL Savvides, quoting People v. 1 N.Y.2d (Ill. 21, 2011) App. (citing *4 Jan. state 154 N.Y.S.2d 136 N.E.2d cases that applied Napue)2 majority try does not to excuse the rejected theory Then the Court another harmless, process due violation as avoiding merely con perjury, for Instead, majori- as the state court did. tradictory correct evidence would ty supposed four offers distinctions that problem: “we do believe the fact might hypothetical allow some other state apprised was of other deny court relief to and thus grounds believing the witness in light avoid federal habeas relief of 28 may testify Hamer have had an interest 2254(d)(1). examination, § On how- U.S.C. [Napue] ing against petitioner turned what ever, Napue rejected it becomes clear that a tainted trial into a fair otherwise important most them. The last dis- one.” Id. 79 S.Ct. 1173. evaporates tinction when we ask what finally rejected state court’s conclusion present in an means “the truth” adver- the false would not have verdict, 271-72, “correcting” sarial trial and what counts as affected the id. at perjury Napue. since conviction of under de Harrington actually acknowledged majority Illinois court the con 2. cites v. Richter and problem. process stitutional It due 547-48, found a Williams, Johnson v. ante at for the violation that the violation did but concluded idea that AEDPA deference this, In a case "where the matter. such 2254(d)(1) applies "whenever the state ascertained,” state court’s real reasons can be merits, decision no court makes a on the arguments or we should look the "actual judiciary says.” matter what the state Both supported court’s deci theories that the state summary, unexplained cases or dealt with secondary hypothetical sion” and not by busy ders In such issued state courts. U.S. -, Chatman, rationales. Hittson v. cases, considering possible explanations for a -, 2126, 2127-28, unexplained state court's denial of a federal (2015) (Ginsburg, concurring J. in denial certiorari) helps comity (internal preserve constitutional claim be ellipses quotations of omitted). Here, however, tween state courts. 554 Napue. “Napue simply point whether misses the The majority first asks

The on majority supposed when the defense bases this distinction apply successors and its theory Napue is a elicits the false the that the rule “cousin than the rather 549, Napue Brady citing an testimony?” at 548. to the doctrine.” Ante at Ante itself 83, question: Brady, Brady “The same result 1194. 373 U.S. 83 S.Ct. swered State, although not the soli requires prosecution when the to disclose to the obtains evidence, go allows it to uncor citing false exculpate tends to defense evidence that 269, 360 at appears.” accused, it U.S. when to including rected evidence relevant Nothing Napue opin in the 1173. 79 credibility. S.Ct. doctrines. are in witness The suggests prosecution’s that the consti ion Giglio, In Supreme fact linked. Court depends on which duty of candor tutional explained Mooney had held that delib- question that drew lawyer asked erately deceiving jury by pre- a court and 87, Brady, U.S. at 83 S.Ct. lie. 373 senting to is in- evidence known be false holding (noting that this 1194 compatible “rudimentary with demands Mooney pro prior rule extended justice,” and that had extended offering knowing prosecutors from hibited State, rule to cases al- where “the ly testimony). majority tries perjured evidence, though soliciting not allows phrasing of the explain away the broad 405 go appears.” it it uncorrected when opinion pointing to the citation by 153, 763, quoting Napue, 92 U.S. at Texas, to Alcorta v. 355 U.S. 78 S.Ct. at 79 S.Ct. 1173. (1957), 103, 2 and reads L.Ed.2d linked, they are are While doctrines teaching point if it as identical., Brady ap Giglio not held that of AboHa. The confined to the facts were government’s failure plies where even is to assume' better course the Su inad exculpatory disclose phras Court it was preme noticed vertent, disclo id. ing teaching Napue broadly its or nar comply sure to the defense is sufficient rowly. not so hard to We-should strain Walter, E.g., Brady. United v. States it. narrow (7th 2017); F.3d Cir. Holland fact, Supreme In Court has already (7th City Chicago, confronted a prosecution case which 2011). why Brady That’s Cir. does Nápue offering violated without itself already known to apply information testimony. perjured Giglio v. United Agurs, defense. United States U.S. States, 150, 151-52, 92 S.Ct. 97, 103, 96 S.Ct. (1972), key prosecution 31 L.Ed.2d (1976); Walter, at 629 when 870 F.3d But lied on deny- witness cross-examination prosecution prosecution knows that a ing he had any promise of lenien- received jury, lied the court witness has cy. nothing did to correct in this everyone agrees happened' which the lie because the case, Napue applies. imposes duty It of the promise. know merely inform reversed and a trial remanded for because perjury defense ensure perjury brought out defendant’s 1173. corrected. 360 U.S. cross-examination. asks, pros- perjury next If “Must mere majority disclosure Brady enough, ecutor correct false de- were is under here, already majority suggests truth?” counsel knows the and as the fense , herring logic prosecu- Ante at 549. This is a rule red would allow proposed perjury might to the stand That just tion disclose and 649. distinction have superficial plausibility, defense to it. it aside while tries rebut but is the also. simply reading contrary- Napue. ignores That is reasonable to plainly It also not again Napue, reality which the of a jury instructs that the trial in-our adversarial not prosecution may perjury allow the “to system. majority’s theory, the Na- Under it go appears.” 360 U.S. uncorrected pue might prosecutors allow to respond when to fact, majority at 1173. In 79 S.Ct. the perjury by merely allowing known the de- actually Na- interprets cites no case to contradict the It fense does perjury. pue suggests, allowing prosecu- it the Napue prosecu- not. made clear the to merely perjury to disclose the the tion a duty perjury. tion has to correct the actually correcting without .the jury merely A that hears evidence con- perjury. tradicting perjury to cannot be said not addresses what the . defense know the truth. mere contra- can Nor integrity of knows but the the evidence reasonably a “cor- diction be deemed to be jury. Napue before the teaches that prosecution The rection.” ad- here never has an to prosecution obligation ensure jury that to Irby mitted to the lied them. testimony that false is Nothing corrected. jurors Irby claim repeatedly The heard opinion suggests obligation in the that the that she under oath consistent told a if truth is removed the defense knows story, they investigator and heard Walter to opportunity has the offer contradic- and that she testify not been consistent. risk tory What matters is the evidence. judge it jurors instructed use false will up evaluate credibility to them put convict. The Court the obli- lawyers’ argu- and the witnesses that the gation squarely see just argument, not evidence. ments were corrected, with- that the false evidencé is ' post-conviction In the and proceedings, majority’s proposed qualification. out the hindsight, lawyers with the benefit-of majority next asks: “Does the Con know judges Irby jury. and lied stitution forbid a conviction when obtained “as piece is clear and as a That fact certain not correct also does or- crystal a small See Nix v. diamond.” rely not Ante does the falsehood?” at 157, 190, 106 Whiteside, 475 U.S. Again, Napue opinion 549. answers (1986) J., (Stevens, concur question: “The same result obtains jurors conflicting ring). But just heard State, although soliciting when the Irby pros from Walter. evidence, go it to allows uncorrected closing argument told them in ecution even appears.” at when state prior that a inconsistent witness’s go The key phrase 1173. is “allows it.to credibility! To ments should affect her flatly uncorrected.” That contradicts the jury, Irby them had lied majority’s left suggestion only a was not fact but possibili a certain obligation room its avoid ty. one of those of sand It was “mixtures by merely refraining correct false evidence lawyers more clay” familiar to jury specifically rely asking from judges. id. As McDade Justice perjured testimony. upon Ap Illinois explained her in the dissent Court, Finally, asks: “Does the pellate process due are majority “jurors, Constitution a conviction if the leave forbid obtained violated can legal presented to to what all discern he had material-evidence somehow Irby obligation had. lied before it deliberates?” Ante tell them—that Long to the murder. Long, physical evidence tied oath.” WL (McDade,- J., eyewitnesses posed in All four of (emphasis the State’s dissenting) *8 they problems. Two testified Court made original). Edwards had recently. The ex see shoot Sherman. point more same credibility Irby usually problems. own And process of law her plained that due jury. failure to contradictory lied to the The State’s presentation on the relies likely Irby’s perjury influenced the evidence, exception per correct but noted the witnesses, jury. It not of the state where due was reasonable jury by prosecution merely offering contra- court to find that stronger for much medicine. process calls (from Walter) 228, dictory investigator Hampshire, 565 evidence Perry v. New U.S. 716, Napue pro- sufficient to cure the due 237, 694 was 132 S.Ct. 181 L.Ed.2d Long, 809 F.3d at 311. cess violation. See short, majority’s suggestions that In courts room to evaluating rejecting possibili- leaves state In error, following it on the facts of this case ty avoid of harmless consider the we Napue expressly re- support. Napue, are without 360 U.S. at as a whole. record 1173; suggestions, and its jected Giglio, several of the 79 also 405 U.S. at see last. logic clearly rejects (reversing per- 92 763 where key to jured testimony prosecution’s was Remaining Issues IV. case); Long, 809 at 311. We should eyes not our to other instances of close why Long’s panel explained due overreach, prosecutorial including two out- proce- process claim under was not closing argument, rages from the rebuttal durally And defaulted. F.3d at 308-09. respond. when the defense could process cannot violation due or reasonably be dismissed as harmless First, blatantly prosecution pulled any available stan- non-prejudicial under stunt, comparing present racist those dard, itself, whether under U.S. police characters arrived slave (false testimony “may 79 S.Ct. Wind, quoting from the Gone with have had an effect on the outcome the slave scene where Scarlett O’Hara tells trial”), Abrahamson, Brecht v. 507 U.S. Prissy help her deliver Melanie Wilkes’s 619, 622, 113 S.Ct. baby. Prissy famously tells “Miss Scarlett” (1993) (whether “had error substantial nothin’ birthin’ that she “don’t know ’bout influence”), Chapman or injurious effect babies,” slapped. promptly and is California, 168; Supp. App. Supp. App. see also 70-71 (“harmless (1967) beyond 17 L.Ed.2d (McDade, J., dissenting from affirmance doubt”). reasonable appeal) (prosecutor’s on direct use Gone Appellate passage appeal Illinois Court acknowl- with the was “blatant Wind worked). mo- edged appeals, different to racism” that And a few three later, explained, so far panel court’s the case ments went Long Long, Irby 2011 to written that against was weak. See describe a letter (“not judge had to overwhelming”); WL at *3 was even evidence. The disregard Supp. (affirming interrupt second App. verdict: and told “closely attempt experienced second trial was bal- that blatant anced”); hearsay App. (reversing original put unadmitted Supp. lead 171, but “closely jury, Supp. App. evidence in first trial was in front of the verdict: balanced”); jury’s During Long, (noting got F.3d at 311 she attention. delib- “weak”). erations, against asked to see letter. that case was No short, Long convicted fair trial. We should order that he receive

a new trial. ACOSTA, Secretary

R. Alexander Labor, Plaintiff-Appellee, DT MANAGEMENT, & C GLOBAL

LLC, Country Town Limou- & d/b/a

sine, Jansen, and John and William

Lynch, Defendants-Appellants. Krantz, al., Plaintiff-Appellees, Mark et Management, LLC, DT & C Global Jansen, and John Defendants- Appellants. 16-4076, No. No. 16-4077 of Appeals, United States Court Circuit. Seventh Argued October Decided October

Case Details

Case Name: Paysun Long v. Randy Pfister

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 20, 2017

Citation: 874 F.3d 544

Docket Number: 13-3327

Court Abbreviation: 7th Cir.