PERRY, J.

Paul Beasley Johnson, a prisoner under sentence of death, appeals a circuit court order denying his second successive motion for postconviction relief, after an evidentiary hearing. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.; Fla. R.Crim. P. 3.851. As explained more fully below, the record here is so rife with evidence of previously undisclosed prosecutorial misconduct that we have no choice but to grant relief.

Specifically, we conclude that newly disclosed evidence shows the following. First, after Johnson was arrested and counsel was appointed, the State intentionally induced Johnson to make incriminating statements to a jailhouse informant in violation of Johnson's right to counsel. Because Johnson's statements were impermissibly elicited, the informant's testimony concerning those statements was inadmissible under United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). Second, although the prosecutor at Johnson's first trial knew that Johnson's statements were impermissibly elicited and that the informant's testimony was inadmissible, he knowingly used false testimony and misleading argument to convince the court to admit the testimony. And third, because the informant's testimony was admitted and then later used at Johnson's 1988 trial, and because the State has failed to show that this error did not contribute to the jury's advisory sentences of death, we must vacate the death sentences under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and remand for a new penalty phase proceeding before a new jury.

This result is compelled by the applicable case law of both the United States Supreme Court and this Court. This case law is based on the principle that society's search for the truth is the polestar that guides all judicial inquiry, and when the State knowingly presents false testimony or misleading argument to the court, the State casts an impenetrable cloud over that polestar. The United States Supreme Court explained as follows: "[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair ... [for it] involve[s] a corruption of the truth-seeking function of the trial process." United States v. Agurs, 427 U.S. 97, 103-04, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The rationale underlying this principle is timeless:

Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). "The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction [is] implicit in any concept of ordered liberty...." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). In other words, whenever the State seeks to obfuscate the truth-seeking function of a court by knowingly using false testimony or misleading argument, the integrity of the judicial proceeding is placed in jeopardy.1

The reversal of the death sentences in this case is directly attributable to the misconduct of the original prosecutor. He knowingly presented false testimony and misleading argument to the court in an effort to convince the court that a jailhouse informant was not acting on instructions from the State when he gathered information from Johnson. In fact, however, the informant was acting on instructions from the State, and this rendered his testimony inadmissible. The prosecutor knew this. Yet, the prosecutor sought, successfully, to gain the admission of the informant's testimony through legal legerdemain, and the informant subsequently testified at trial and revealed his impermissible testimony to the jury.

This is not a case of overzealous advocacy, but rather a case of deliberately misleading the court. If the true facts of the informant's status had been made known to the trial court, his testimony would have been ruled inadmissible in both the guilt and penalty phases of the trial. This did not happen. The prosecutor's misconduct obfuscated the truth-seeking function of the court and compromised the integrity of the subsequent proceedings. In light of the State's failure to show that this error was harmless beyond a reasonable doubt with respect to the penalty phase of the 1988 trial, reversal of the death sentences is the only option available to this Court under the case law of both the United States Supreme Court and this Court.

I. BACKGROUND

The underlying facts of this case are set forth fully in the Court's opinion on direct appeal following Johnson's third trial. See Johnson v. State, 608 So.2d 4 (Fla.1992). On the night of January 8-9, 1981, Johnson did the following: he kidnapped, robbed, shot and killed William Evans, a taxicab driver, and set his cab on fire; he robbed, shot and killed Ray Beasley, a man who had given him a ride from a late-night restaurant; he struggled with, shot and killed Theron Burnham, a deputy sheriff who had responded to the scene of the Beasley crime; and he fired upon Clifford Darrington and Samuel Allison, two other deputies who had responded to the scene. The early procedural history of this case is set forth in the Court's opinion:

Johnson, 608 So.2d at 6.

At the 1988 trial, Johnson sought to suppress the testimony and notes of James Smith, a jailhouse informant, on grounds that Smith was operating as a government agent and had impermissibly obtained incriminating information from Johnson in 1981 in violation of his Sixth Amendment right to counsel. The motion was summarily denied, and Smith testified at trial. The jury rejected Johnson's insanity defense and found him guilty of three counts of first-degree murder, two counts of armed robbery, two counts of attempted first-degree murder, and one count each of kidnapping and arson. The judge followed the jury's recommendation and sentenced Johnson to death on each murder count2 based on several aggravating circumstances3 and no statutory or nonstatutory mitigating circumstances. Johnson appealed, and the Court affirmed.4

Johnson filed his first rule 3.850 motion in 1994, which the postconviction court dismissed without prejudice. Johnson appealed the dismissal, and while the appeal was pending, he filed an amended motion, which the postconviction court dismissed for lack of jurisdiction. This Court dismissed the pending notice of appeal and directed the postconviction court to reinstate the amended motion and proceed with a hearing. Johnson v. State, 661 So.2d 824 (Fla.1995) (table decision). Johnson then filed a further amended rule 3.850 motion, and the court granted an evidentiary hearing. At the hearing, which was held in 1997, the defense presented James Smith as a witness, and he recanted his prior testimony. He testified that he had earlier been operating on instructions from the State and had lied at trial. The postconviction court found that Smith's recantation testimony was unbelievable, and denied the motion. Johnson appealed, and the Court affirmed. Johnson v. State, 769 So.2d 990 (Fla.2000). Johnson then filed a habeas corpus petition, raising several claims of ineffective assistance of appellate counsel, which the Court denied. Johnson v. Moore, 837 So.2d 343 (Fla.2002). Johnson filed his first successive postconviction motion in 2003, raising a Ring5 claim. The postconviction court denied relief, and this Court affirmed. Johnson v. State, 933 So.2d 1153 (Fla.2006) (table decision).

In the present proceeding, Johnson filed his second successive postconviction motion in April 2007, raising three claims: (1) a newly discovered evidence, and a Giglio,6 and a Brady7 claim; (2) a lethal injection claim; and (3) an ABA Report8 claim. The postconviction court granted an evidentiary hearing on the first claim, and the hearing was held on December 4, 2007. The defense asserted that, based on newly discovered notes found in the files of Hardy Pickard, the prosecutor at the first trial, Johnson was entitled to a new trial. The defense claimed that the notes show that Pickard committed Giglio and Brady violations with respect to State witnesses James Smith and Amy Reid.9 Following the hearing, the postconviction court denied the rule 3.851 motion and Johnson filed the present appeal, asserting that the court erred in denying each of the claims.

While the present appeal was pending in this Court, the Governor on October 7, 2009, signed a second death warrant for Johnson, with the execution set for November 4, 2009. The Court on October 8, 2009, issued an order allowing the circuit court to consider a successive rule 3.851 motion, should one be filed within the time limits set forth in the order. Johnson on October 27, 2009, filed in circuit court his third successive postconviction motion, but he filed the motion outside the time limits set forth in the order. This Court on October 28, 2009, heard oral argument in the present appeal and granted Johnson's "Application for Stay of Execution" so the Court could consider his claims related to the issue of prosecutorial misconduct. The stay was to remain in effect pending further order of this Court. The Court on November 5, 2009, issued an order granting the State's "Motion to Extend Order Granting Jurisdiction to Circuit Court" to allow the circuit court to consider Johnson's third successive postconviction motion while this Court was addressing the present appeal.

II. THE 1981 SUPPRESSION HEARING

In 1980, inmate James Smith worked as an informant and potential witness in several cases for Investigator Ben Wilkerson of the Polk County Sheriff's Office. After Johnson was arrested in January 1981, Smith encountered Johnson in the visitation area of the Polk County jail. At the suppression hearing prior to the first trial,10 Smith testified as follows concerning this initial encounter:

After speaking with Johnson, Smith sought to meet with Investigator Wilkerson to discuss the encounter, and he met with him on February 5, 1981, several days after the encounter. At the suppression hearing, Smith testified as follows with respect to that meeting:

(Emphasis added.)

Investigator Wilkerson testified as follows at the suppression hearing with respect to that meeting, on direct examination by defense counsel:

On cross-examination by prosecutor Pickard, Wilkerson backtracked, clarifying his prior testimony as follows:

(Emphasis added.)

A few days after this meeting with Wilkerson, Smith was transferred from his cell on the third floor of the Polk County jail to a cell directly adjoining Johnson's cell in a secluded area of the second floor. At the suppression hearing, Smith testified as follows concerning his encounters with Johnson after the transfer:

(Emphasis added.)

Prosecutor Pickard argued as follows in closing argument to the court at the suppression hearing:

(Emphasis added.)

The trial court denied the motion to suppress, reasoning that although it was a close question as to whether Smith was operating as a government agent, it appeared that the police were passive recipients of information that was being passed to them from Johnson through Smith:

(Emphasis added.)

This Court on direct appeal agreed that it was a close question as to whether Smith was operating as a government agent, but the Court concluded that the evidence supported the trial court's suppression ruling:

Johnson v. State, 438 So.2d 774, 776 (Fla. 1983) (emphasis added).

Subsequently, at the 2007 evidentiary hearing, prosecutor Pickard was confronted with his own handwritten notes from the State files that were disclosed to the defense in 1997 and that are now the subject of Johnson's present postconviction motion. One of the notes, which was dated February 19, 1981, states: "Wilcox— Talk to me + Glen about agent theory." And another note on the same page is configured as follows:

When Pickard was confronted with these notes on direct examination by defense counsel, the following transpired:

(Emphasis added.)

This testimony by Pickard at the 2007 evidentiary hearing is contrary to all the above emphasized passages in the testimony of Smith and Wilkerson and in the closing argument of Pickard at the 1981 suppression hearing. In those emphasized passages, the declarants indicate that Smith, after his initial meeting with Investigator Wilkerson, was acting on his own in gathering information from Johnson and recording it in notes and then disclosing it to the State, whereas in prosecutor Pickard's testimony at the evidentiary hearing, Pickard indicates that Smith was told to go back and gather information (he was told "to keep his ears open") and record it in notes (he was told "[t]o take notes") and then presumably disclose it to the State (he "may have been even told to turn over the notes").

III. GOVERNMENT AGENT

The United State Supreme Court addressed the issue of jailhouse informants in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). The facts there were as follows:

Henry, 447 U.S. at 266-67, 100 S.Ct. 2183 (footnotes omitted).

Henry was convicted in federal district court, but the circuit court reversed and remanded for an evidentiary hearing into whether Nichols was acting as a government agent. At the hearing, a federal agent submitted an affidavit describing his relationship with Nichols:

Henry, 447 U.S. at 268, 100 S.Ct. 2183 (quoting agent's affidavit). The federal agent's affidavit also stated that the agent "never requested anyone affiliated with the Norfolk city jail to place Nichols in the same cell with Henry." Id. The district court again denied relief, and the circuit court again reversed, concluding that the government had violated Henry's Sixth Amendment right to counsel. The government sought review.

The United States Supreme Court framed the Sixth Amendment right to counsel issue as follows:

Henry, 447 U.S. at 270, 100 S.Ct. 2183 (citation omitted). The Court then affirmed based on the following reasoning:

Henry, 447 U.S. at 274-75, 100 S.Ct. 2183 (footnote omitted) (emphasis added).

In the present case, based on the evidence now before the Court as a result of the 2007 evidentiary hearing, we conclude that the State intentionally created a situation likely to induce Johnson to make incriminating statements without the assistance of counsel.11 First, James Smith was an experienced informant who had been working with Investigator Wilkerson for at least a month on pending cases prior to encountering Johnson in the visitation area of the jail. Second, according to prosecutor Pickard's notes and testimony at the 2007 evidentiary hearing, during Smith's initial meeting with Wilkerson, Smith was told to go back and "keep his ears open" and "take notes" and then presumably disclose the notes to the State. Third, a few days after Smith's initial meeting with Wilkerson, Smith was transferred from his cell on the third floor of the Polk County jail to a semi-isolation cell directly adjoining Johnson's semi-isolation cell in a secluded area on the second floor, where the two could talk freely and privately.12

And finally, Smith was not operating as a passive listener with respect to Johnson, but rather was actively engaging Johnson in conversation and questioning him concerning his case and then reporting back to Investigator Wilkerson on a regular basis13 —and prosecutor Pickard was aware of this at the time of the suppression hearing. For example, Smith testified as follows at his July 20, 1981, pretrial deposition, which was attended by Pickard, on direct examination by defense counsel:

(Emphasis added.)

Further, as noted above, Smith testified as follows at the August 28, 1981, suppression hearing, which was also attended by Pickard, on direct examination by defense counsel:

(Emphasis added.)

Smith testified at the suppression hearing that while he was housed next to Johnson, he met with Investigator Wilkerson at least three or four times and turned in his notes. Wilkerson also testified that he met with Smith at least three or four times during this period and that Smith turned in his notes. And prosecutor Pickard's notes indicate that he too met with Smith on at least two occasions—February 16 and 19, 1981—during this period and that they discussed Johnson's case in detail. As it turned out, shortly after Smith testified at Johnson's trial, Smith's seven-year prison sentence was vacated and he was set free. Based on the foregoing, we conclude that Smith, after his initial meeting with Investigator Wilkerson, was acting as a government agent, and his testimony and notes concerning Johnson's statements should have been suppressed.

IV. KNOWING USE OF FALSE TESTIMONY

The United States Supreme Court in Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), held that a prosecutor cannot knowingly use false testimony against a defendant. To establish a Giglio violation, a defendant must show the following: (1) the prosecutor presented false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material. Guzman v. State, 941 So.2d 1045, 1050 (Fla.2006). Once the first two prongs are established, the State bears the burden of showing that the false evidence was immaterial by showing that its use was harmless beyond a reasonable doubt. Id. To do this, the State must show that "there is no reasonable possibility that the error contributed to the conviction." Id. (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)). A court's decision with respect to a Giglio claim is a mixed question of law and fact, and a reviewing court will defer to the lower court's factual findings if they are supported by competent, substantial evidence, but will review the court's application of law to facts de novo. Sochor v. State, 883 So.2d 766, 785 (Fla. 2004).

The postconviction court below ruled as follows concerning Johnson's Giglio claim:

Notably, this ruling was not based on any discrete factual findings to which this Court must defer. Because the ruling consists of the court's application of law to facts, it is subject to de novo review.

On this record, we conclude that prosecutor Pickard committed a Giglio violation with respect to Smith at the 1981 suppression hearing. First, the prosecutor presented false testimony and misleading argument to the court. As noted above, all the earlier referenced passages in the testimony of Smith and Wilkerson and in Pickard's closing argument at the 1981 suppression hearing are contrary to Pickard's notes and his testimony at the 2007 evidentiary hearing. In those referenced passages, the declarants indicate that Smith, after his initial meeting with Investigator Wilkerson, was acting on his own in gathering information from Johnson and recording it in notes and then disclosing it to the State, whereas in Pickard's notes and testimony at the evidentiary hearing, Pickard indicates that Smith was told to go back and gather information (he was told to "keep his ears open") and record it in notes (he was told "[t]o take notes") and then presumably disclose it to the State (he "may have been even told to turn over the notes").

Second, according to Pickard's notes and testimony, he knew at the time of the suppression hearing that the testimony of Smith and Wilkerson was false and his own closing argument was misleading. Again as noted above, when Pickard was shown his handwritten notes at the 2007 evidentiary hearing, he testified as follows with respect to the meaning of those notes:

(Emphasis added.)

Significantly, there was no equivocation in Pickard's response with respect to Smith's listening and taking notes: "I'm sure he was told to listen, to take notes." (Emphasis added.) Given this response and given the plain language of Pickard's notes ("Ben [Wilkerson]—Smith had already talked to Johnson—Told Smith to make notes. Told [Smith] to keep ears open."), we conclude that Pickard knew in 1981 that during Smith's initial meeting with Investigator Wilkerson, Smith was told to go back and "keep his ears open" and "take notes" and then presumably disclose the notes to the State. This conclusion is bolstered by the fact that Pickard's notes indicate that he met with Smith on February 16 and 19, 1981, and discussed Johnson's case with him in detail. Accordingly, we conclude that Pickard knew at the time of the suppression hearing that the testimony of Smith and Wilkerson was false and his own closing argument to the court was misleading.

As a related matter, we conclude that Pickard also knew at the time of the suppression hearing that Smith's testimony concerning Johnson's statements was inadmissible. The decision in Henry had been issued the year before, and Pickard had made a point of discussing the issue with other attorneys on his staff and with Smith's attorney. Pickard's notes and his testimony at the 2007 evidentiary hearing and Smith's testimony at his 1981 deposition, which was attended by Pickard, show that Pickard knew the following: Smith was an experienced informant who had worked with Investigator Wilkerson on other cases; after Johnson had been arrested and placed in the Polk County jail, Smith had encountered him in the visitation area of the jail; after Smith's initial encounter with Johnson, Smith had met with Wilkerson and had been told to go back and "keep his ears open" and "take notes" and presumably disclose the notes to the State; Smith had subsequently been transferred to a cell next to Johnson's cell in a secluded area of the jail, where the two could talk freely and privately; and Smith thereafter did not act as a passive listener but rather actively engaged Johnson in conversation and questioned him concerning his case and then reported back to Wilkerson on a regular basis. Thus, unlike the incomplete scenario that Pickard presented to the suppression court in 1981 and that this Court reviewed on appeal in 1983, the above scenario is not a "close question" at all—Smith clearly was acting as a government agent and his testimony and notes concerning Johnson's statements were inadmissible under Henry.

And third, the State has failed to show that Pickard's knowing use of false testimony and misleading argument at the 1981 suppression hearing was immaterial, i.e., that it was harmless beyond a reasonable doubt. Specifically, the State has failed to show that "there is no reasonable possibility that the error contributed to the [death sentences]." Had Smith and Wilkerson testified truthfully and had Pickard argued truthfully in closing argument at the 1981 suppression hearing, the trial court would have been bound under Henry to suppress Smith's testimony and notes. As it turned out, however, due to the false testimony of the State witnesses and the misleading argument of Pickard, the motion to suppress was denied and Smith's impermissible testimony and notes were admitted and later used by the State at the 1988 trial. As explained below, we conclude that while the State has shown that this error was immaterial with respect to Johnson's convictions, the State has failed to show that the error was immaterial with respect to his death sentences.

V. MATERIALITY

A. Smith's Testimony at the 1988 Trial

During the State's case-in-chief in the guilt phase of the 1988 trial, Smith testified as to what Johnson told him in February and March 1981 concerning each of the murders. First, Smith testified as follows concerning Johnson's statements with respect to the murder of William Evans, the taxicab driver:

Second, Smith testified as follows concerning Johnson's statements with respect to the murder of Ray Beasley, the driver who gave Johnson a ride from the late-night restaurant:

And third, Smith testified as follows concerning Johnson's statements with respect to the murder of Theron Burnham, the police officer:

Further, Smith testified in 1988 as follows concerning Johnson's plan to evade punishment for the killings by tricking everyone and acting as though he were crazy at the time of the crimes:

(Emphasis added.)14

B. Impact on the 1988 Trial

Based on this record, we conclude that the State's use of Smith's testimony was immaterial in the guilt phase of the 1988 trial, but was material in the penalty phase. With respect to the guilt phase, the State has met its burden of showing that Smith's testimony—including both his description of the details of the crimes and his "play like he was crazy" statement—was harmless beyond a reasonable doubt. First, the defense conceded that Johnson had committed the killings but claimed that he was insane at the time because of his drug use. Because Johnson conceded that he had committed the killings, the State's use of Smith's testimony concerning the details of the crimes was immaterial as to Johnson's guilt. And second, because of the circumstances of these killings, the State's use of Smith's "play like he was crazy" statement was also immaterial as to Johnson's guilt. Under the insanity standard, Johnson was required to show either that he did not know what he was doing or the consequences, or that he did not know that what he was doing or the consequences were wrong.15 Yet the circumstances of the killings display a degree of awareness on the part of Johnson that belies his claim of not knowing what he was doing or not knowing that what he was doing was wrong. The insanity standard thus posed a virtually insurmountable hurdle for the defense, regardless of Smith's "play like he was crazy" statement.

With respect to the penalty phase, on the other hand, we conclude that the State has not met its burden of showing that Smith's testimony was harmless beyond a reasonable doubt. The penalty phase jury was the same jury that had sat through the guilt phase proceeding and had heard Smith's testimony concerning Johnson's role in committing the crimes and his plan to "play like he was crazy." The jury had also heard the prosecutor's final closing argument in the guilt phase wherein he emphasized Smith's "play like he was crazy" statement, twice:

(Emphasis added.) Further, the penalty phase jury was specifically instructed that it should base its advisory sentence not just on the evidence that was presented in the penalty phase but also on the evidence that was presented in the guilt phase, which included Smith's testimony and notes. In his opening statement to the penalty phase jury, the prosecutor stated that the State planned to rely entirely on the testimony and exhibits that it had already presented in the guilt phase, which again included Smith's testimony and notes. The defense, on the other hand, presented the testimony of Johnson's aunt and two uncles and three of the mental health experts who had testified in the guilt phase.

After closing arguments, the judge instructed the jury with respect to the following mental health mitigating circumstances, both statutory and nonstatutory:

The judge gave the following instruction concerning the burden of proof for mitigating circumstances: "A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it established." The jury then deliberated and returned death recommendations for each of the murders, but the recommendations were nonunanimous on each count: a vote of eight to four for the murder of Evans, a vote of nine to three for the murder of Beasley, and a vote of nine to three for the murder of Burnham. The judge sentenced Johnson to death on all three counts based on several aggravating circumstances16 and no statutory or nonstatutory mitigating circumstances.

Although Smith's testimony appears to be damaging to the defense in general, it appears to be far more consequential with respect to the death sentences than the convictions. Unlike the situation in the guilt phase, where the rigorous nature of the insanity standard and the circumstances of the killings posed a virtually insurmountable hurdle for the defense, the situation in the penalty phase presented a far different scenario—a scenario where Smith's impermissible testimony and notes reasonably may have moved the tipping point. First, the proposed mental health mitigating circumstances posed a lower hurdle for the defense to overcome than the insanity standard, for the defense needed to show only that at the time of the killings Johnson was under the influence of extreme mental or emotion disturbance, or his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, or he was under the influence of drugs, or he suffered from a disorder of drug dependency that contributed to his committing the crimes. This was an entirely different scenario from the guilt phase, where the defense had to show that Johnson was insane.

Second, the burden of proof for mitigating circumstances is a more forgiving burden for the defense than the burden of proof for insanity, for jurors must only be "reasonably convinced" that a mitigating circumstance exists in order to consider it established, regardless of the State's showing. Third, unlike the situation with respect to the insanity defense, the facts of these killings are not necessarily inconsistent with the proposed mental health mitigating circumstances, for Johnson conceivably could have proceeded with the killings in a deliberate manner and yet still have been under the influence of extreme mental or emotional disturbance, or operating with a substantially impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, or operating under the influence of drugs, or suffering from a drug dependency that contributed to his commission of the crimes. In fact, all the mental health experts that testified in the penalty phase attested to this. And finally, the proposed mental health mitigation was extensive, consistent and unrebutted. Unlike the situation in the guilt phase, where the State presented its own mental health experts in rebuttal, the testimony of Johnson's mental health experts in the penalty phase was unrebutted.

Dr. Gary Ainsworth, a psychiatrist, testified that at the time of the crimes Johnson was severely intoxicated on amphetamines, that he was under extreme mental or emotional disturbance, that his capacity to appreciate the criminality of his conduct was somewhat impaired, and that his capacity to conform his conduct to the requirements of law was substantially impaired. Dr. Thomas McClane, a psychiatrist, testified that at the time of the crimes Johnson was substantially intoxicated on amphetamines, that he suffered from amphetamine-induced delirium, that he was under extreme mental and emotional disturbance, that his capacity to appreciate the criminality of his conduct was substantially impaired, and that his capacity to conform his conduct to the requirements of law was substantially impaired. And Dr. Walter Afield, a psychiatrist, testified that at the time of the crimes Johnson was very heavily intoxicated on amphetamines, that he exhibited symptoms of amphetamine-induced delirium, that he was under the influence of extreme mental or emotional disturbance, that his ability to appreciate the criminality of his conduct was substantially impaired, and that his ability to conform his conduct to the requirements of law was substantially impaired.

Based on the foregoing, we conclude that Smith's testimony was material in the penalty phase in two respects. First, Smith's statements concerning the details of the killings may have reinforced in jurors' minds the deliberate nature of the killings and thereby caused jurors to discount the proposed mental health mitigation. Specifically, Smith provided details of the killings that emphasized their cold-blooded nature and that were not provided by any other State witnesses. Smith alone testified that Johnson said the following: that he set the cab on fire to destroy his fingerprints; that he lured Beasley to the back of the car by telling him that he had lost his billfold; that he forced Beasley to his knees before shooting him in the head; and that the death of the deputy was "all in the line of duty." And second, Smith's "play like he was crazy" statement may have contributed to a conclusion, in the eyes of jurors, that the proposed mental health mitigation was inapplicable to Johnson, for this statement makes it appear as though Johnson had decided beforehand to trick his own mental health experts and feign mental health issues in order to evade punishment for the killings. Again, jurors may have discounted the proposed mental health mitigation, which was extensive, consistent and otherwise unrebutted, because of this statement.

We note that despite the damaging testimony of Smith, the jury at Johnson's 1981 trial recommended death by the slimmest of margins—a seven-to-five vote.17 The jury at Johnson's 1988 trial also recommended death by a nonunanimous vote on each count: eight to four, nine to three, and nine to three. Had Smith's testimony been suppressed in 1981, the outcome of either trial might have been different. In sum, based on this record, we conclude that the State's use of Smith's testimony was immaterial in the guilt phase of the 1988 trial but was material in the penalty phase, for the State has failed to show that "there is no reasonable possibility that the error contributed to the [death sentences]." Guzman, 941 So.2d at 1050. We also conclude that the State's due diligence argument is without merit.18

VI. CONCLUSION

We conclude that newly disclosed evidence shows the following. First, after Johnson was arrested and counsel was appointed, the State intentionally created a situation likely to induce Johnson to make incriminating statements to a jailhouse informant, James Smith, in violation of Johnson's Sixth Amendment right to counsel. Because Johnson's statements were impermissibly elicited, Smith's testimony concerning those statements was inadmissible under United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). Second, although the prosecutor at Johnson's first trial knew that Johnson's statements were impermissibly elicited and that Smith's testimony was inadmissible, he knowingly used false testimony and misleading argument to convince the court to admit the testimony. And third, because Smith's testimony was admitted and later used—innocently but impermissibly—by a different prosecutor at Johnson's 1988 trial, and because the State has failed to show that this error did not contribute to the jury's advisory sentences of death, we must vacate the death sentences under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and remand for a new penalty phase proceeding before a new jury. This result is dictated by the misconduct of the original prosecutor in this case, Hardy Pickard. His misconduct tainted the State's case at every stage of the proceedings and irremediably compromised the integrity of the entire 1988 penalty phase proceeding. This is not a case of overzealous advocacy, but rather a case of deliberately misleading both the trial court and this Court.

It must be emphasized that in our American legal system there is no room for such misconduct, no matter how disturbing a crime may be or how unsympathetic a defendant is. The same principles of law apply equally to cases that have stirred passionate public outcry as to those that have not. Cf. Jones v. State, 705 So.2d 1364, 1367 (Fla.1998) (noting that although "the rule of objective, dispassionate law in general [] may sometimes be hard to abide, the alternative—a Court ruled by emotion—is far worse"). In our system of justice, ends do not justify means. Rather, experience teaches that the means become the end and that irregular and untruthful arguments lead to unreliable results. Lawlessness by a defendant never justifies lawless conduct at trial. See, e.g., United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio; Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Guzman v. State, 868 So.2d 498 (Fla.2003). The State must cling to the higher standard even in its dealings with those who do not. Accordingly, we must grant relief.

We find the remainder of Johnson's claims to be without merit.19 We reverse the postconviction court's order denying Johnson's rule 3.851 motion.20 We vacate Johnson's death sentences and remand for a new penalty phase proceeding before a newly empanelled jury.21 Because the death warrant is now moot, we lift the stay of execution.

It is so ordered.

PARIENTE, LEWIS, and LABARGA, JJ., concur.

POLSTON, J., dissents with an opinion.

QUINCE, C.J., and CANADY, J., recused.

POLSTON, J., dissenting.

I would not vacate Johnson's three death sentences and remand for a new penalty phase because, unlike the majority, I do not believe a reversible violation under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), occurred.

A Giglio claim alleges that a prosecutor knowingly presented false and material testimony against a defendant. Initially, a defendant must demonstrate that the prosecutor presented false testimony and that the prosecutor knew the testimony was false. Guzman v. State, 941 So.2d 1045, 1050-51 (Fla.2006). Then, the evidence is deemed immaterial if there is no reasonable possibility that it affected the sentence. See id. The State bears the burden of establishing that the testimony was not material by proving that it was harmless beyond a reasonable doubt. Id.

In this case, even assuming that the testimony at issue was false and that the prosecutor knew it was false,22 a reversible Giglio violation did not occur because the testimony was immaterial. When viewed in context, there is no reasonable possibility that Smith's testimony affected Johnson's death sentences.

First, Smith's testimony was brief and extensively impeached, making it unlikely that the jury and the sentencing judge relied on it. Smith's credibility was effectively attacked by defense counsel. Smith conceded on cross-examination that he had a lengthy criminal history and that he had worked as an informant in multiple cases in order to receive favorable treatment. He then admitted that he was motivated to provide information against Johnson by the implicit promise of a reduced sentence and that, after providing information in Johnson's case, his prison sentences were vacated and he was set free. Smith also admitted that he knew the facts and circumstances of Johnson's crimes because he had read the police reports and other discovery materials to Johnson. Furthermore, Smith disclosed that his regular drug use had negatively affected his ability to recall matters when testifying in this case.

Second, Smith's testimony about the cold-blooded nature of Johnson's crimes was cumulative, thereby eliminating any reasonable possibility that Smith's testimony caused the jury in the penalty phase to emphasize "the deliberate nature of the killings [which then] caused jurors to discount the proposed mental health mitigation." Majority op. at 72. For instance, Shayne Carter testified that when Johnson left the Carters' home the evening of the murders, "Johnson said that he was going to get money for more drugs and that `if he had to shoot someone, he would have to shoot someone.'" Johnson v. State, 608 So.2d 4, 6 (Fla.1992) (quoting Carter's testimony). Additionally, Amy Reid, who was with Beasley in the car before he was shot, identified Johnson as the killer and explained that she saw Johnson holding a handgun pointed at Beasley at the rear of the car after Johnson had asked Beasley to stop driving so he could urinate and then asked Beasley to come to the rear of the car. See id. at 7. Officers Allison and Darrington, who arrived on the scene after Beasley's and Burnham's murders, testified concerning their positive identifications of Johnson and their exchange of gunfire with Johnson. See id. Carter also testified that after the murders Johnson said that "he hit the deputy with his handgun when told to place his hands on the patrol car and then struggled with him, during and after which he shot the deputy three times." Id.

Third, there is no reasonable possibility that Smith's "play like he was crazy" statement affected Johnson's sentences by causing the jury to discount Johnson's proposed mental health mitigation. As the majority explains, Johnson's proposed mental health mitigating circumstances included that at the time of the killings Johnson "was under the influence of drugs, or he suffered from a disorder of drug dependency that contributed to his committing the crimes." Majority op. at 71. The majority concludes that Smith's statement that Johnson said he was going to "play like he was crazy" to escape punishment caused the jury to conclude that this and the other proposed mental health mitigation was inapplicable to Johnson. Majority op. at 72. However, while Smith's testimony included the "play like he was crazy" statement, it also included other more numerous and descriptive statements that supported Johnson's proposed drug abuse mitigators. Smith testified that Johnson said he was abusing drugs before, during, and after the murders and that this drug use negatively altered his mental status. For example, on cross-examination, Smith testified that Johnson said that he was high from shooting up speed when the murders occurred and that Johnson indicated that he could not remember certain things. In fact, Smith stated that Johnson had said that he had been high for four days before the incident and had stayed high until he was arrested. Johnson further explained to Smith that he was out of control on crystal meth and out of his head at the time of the murders. Smith also testified that Johnson told him he flipped out when he went to the first appearance hearing and heard the charges regarding what he had done because "it all came to life at that point in time." Therefore, because Smith's testimony included many statements supporting the proposed drug mitigators, Smith's testimony taken as a whole could not have led the jury to conclude that Johnson's proposed mental health mitigation was inapplicable to Johnson.

In light of the fact that Smith's testimony was brief, effectively impeached, cumulative, and included statements supporting Johnson's proposed drug use mitigators, there is no reasonable possibility that it affected Johnson's sentences. Therefore, no reversible Giglio violation occurred. Accordingly, I respectfully dissent from the majority's decision to vacate Johnson's three death sentences and remand for a new penalty phase. I would affirm the denial of Johnson's postconviction motion.