McCORMACK, J.
In this case, we consider whether the prosecution breached a duty to correct the substantially misleading, if not false, testimony of a key witness about his formal and compensated cooperation in the government's investigation. Given the overall weakness of the evidence against the defendant and the significance of the witness's testimony, we conclude that there is a reasonable probability that the prosecution's exploitation of the substantially misleading testimony affected the verdict. See Napue v. Illinois, 360 U.S. 264, 271-272, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). We therefore reverse the judgment of the Court of Appeals in part, vacate the defendant's convictions, and remand this case to the Genesee Circuit Court for a new trial.
The defendant was charged with, among other things, armed robbery, MCL 750.529, and first-degree felony murder, MCL 750.316(1)(b), after the police found known drug dealer Larry Pass,
Yancy was a paid informant;
At trial, however, the fact and extent of Yancy's participation in the investigation that lead to the prosecution of the defendant and the compensation Yancy received for it was never made known to the jury. On the contrary, Yancy testified that he was not paid for his cooperation in relation to "this case," i.e., the prosecution of the defendant for Pass's murder. The topic first arose during direct examination, during which Yancy admitted in response to the prosecutor's question that he had been "paid by a federal agency for [his] cooperation." Neither the prosecutor's question nor Yancy's answer tied his cooperation to his involvement in the investigation of the defendant as the prime suspect in Pass's murder. In order to avoid linking Yancy's compensated cooperation to the investigation and prosecution of the defendant, the prosecutor carefully limited her subsequent questions to whether he was specifically paid for the testimony he was giving,
The prosecutor revisited the topic during redirect examination, again limiting her question to whether Yancy had been paid for his "testimony" in particular. Yancy again denied being compensated:
Four times, then, Yancy denied having been paid in connection with the defendant's case — specifically, that he had not been compensated for his testimony at the defendant's trial and also that he had not been otherwise compensated for "cooperating" "with regards to this case." Clearly, the jury could have interpreted this statement to indicate that Yancy had never been paid for his involvement with the investigation of the Pass homicide, not merely that the Genesee County Prosecuting Attorney's office had not compensated him for "testimony" or cooperation with the defendant's formal prosecution. The latter point might have been true; the former point was plainly misleading and likely untrue, as the prosecutor well knew, having elicited Harris's testimony at the pretrial hearing. This former point, however, was never corrected or clarified at trial, nor was the true nature or extent of Yancy's participation or compensation as an informant put before the jury. Rather, the prosecutor exploited the potential confusion Yancy's testimony created by reminding the jury of Yancy's denials during closing argument, cementing the false notion that Yancy had only been paid for his cooperation in other cases, and attempting to advance his credibility as a result of that fact:
The jury found the defendant guilty of armed robbery and felony murder, but acquitted him of the other charges. On June 30, 2011, the defendant was sentenced as a fourth-offense habitual offender to life in prison for the murder conviction and to 20 years, 10 months to 35 years for the armed-robbery conviction. The defendant appealed and, among other
A due process violation presents a constitutional question that this Court reviews de novo. People v. Wilder, 485 Mich. 35, 40, 780 N.W.2d 265 (2010). It is inconsistent with due process when the prosecution allows false testimony from a state's witness to stand uncorrected. Napue, 360 U.S. at 269, 79 S.Ct. 1173; see also People v. Wiese, 425 Mich. 448, 453-454, 389 N.W.2d 866 (1986); Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). It is well established that "a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction...." Napue, 360 U.S. at 269, 79 S.Ct. 1173. Indeed, the prosecution has an affirmative duty to correct false testimony, and this duty specifically applies when the testimony concerns remuneration for a witness's cooperation. See Giglio, 405 U.S. at 154-155, 92 S.Ct. 763; Wiese, 425 Mich. at 455-456, 389 N.W.2d 866. The responsibility "does not cease to apply merely because the false testimony goes only to the credibility of the witness." Napue, 360 U.S. at 269, 79 S.Ct. 1173. Nor is the blameworthiness of the prosecutor relevant. Smith v. Phillips, 455 U.S. 209, 220 n. 10, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Rather, while "not every contradiction is material" and the prosecutor need not correct every instance of mistaken or inaccurate testimony, United States v. Martin, 59 F.3d 767, 770 (C.A.8, 1995), it is the effect of a prosecutor's failure to correct false testimony that "is the crucial inquiry for due process purposes," Smith, 455 U.S. at 220 n. 10, 102 S.Ct. 940. A prosecutor's capitalizing on the false testimony, however, is of particular concern because it "reinforce[s] the deception of the use of false testimony and thereby contribute[s] to the deprivation of due process." DeMarco v. United States, 928 F.2d 1074, 1077 (C.A.11, 1991); see Jenkins v. Artuz, 294 F.3d 284, 294-295 (C.A.2, 2002) (stating that the prosecutor's promotion of the false testimony at summation "plainly sharpened the prejudice," "`ha[d] no place in the administration of justice[,] and should neither be permitted nor rewarded") (citations and quotation marks omitted); Mills v. Scully, 826 F.2d 1192, 1195 (C.A.2, 1987) ("[T]here may be a deprivation of due process if the prosecutor reinforces the deception by capitalizing on it in closing argument...."). A new trial is required if the uncorrected false testimony "could ... in any reasonable likelihood have affected the judgment of the jury." Napue, 360 U.S. at 271-272, 79 S.Ct. 1173;
As the Court of Appeals correctly observed, Yancy's trial testimony undoubtedly left the impression that he received no payment of any kind for his participation in this case, either for his testimony or for his prior cooperation that was the necessary condition to his testimony. The overall impression conveyed was false. Whether Yancy understood why or for what he had been compensated, the prosecutor knew that Agent Harris had given uncontroverted pretrial testimony that Yancy was compensated for information central to the formal prosecution of the defendant.
Instead of rectifying this false impression regarding Yancy's involvement, the prosecutor capitalized on and exploited it. Though well aware of Harris's testimony and the fact of Yancy's compensation, the prosecutor never took any steps to correct or explain Yancy's testimony. Rather, the prosecutor carefully limited her questioning of Yancy to the fact that he had been paid for cooperating with law enforcement, while never seeking to clarify that Yancy had been compensated for his cooperation in the investigation of the defendant. To the contrary, the prosecutor further distanced
Capitalizing on Yancy's testimony that he had no paid involvement in the defendant's case is inconsistent with a prosecutor's duty to correct false testimony.
Whatever Yancy may have believed about the truth of his testimony, we conclude both that it conveyed a serious misimpression about the nature of his involvement in the case and that the prosecutor's exploitation of that testimony violated the defendant's right to due process. For this reason, we disagree with the Court of Appeals that this violation does not warrant relief. Rather, in light of the effect that Yancy's uncorrected testimony had on his credibility and the role that credibility played in securing the defendant's convictions, we conclude that there is a "reasonable likelihood" that the false impression resulting from the prosecutor's exploitation of the testimony affected the judgment of the jury. Napue, 360 U.S. at 271, 79 S.Ct. 1173. Accordingly, the defendant is entitled to a new trial.
As noted, there was no physical evidence tying the defendant to the crime. No murder weapon was ever recovered, the defendant's fingerprints were not found at the scene, and no other physical evidence confirmed that he had ever been at Pass's house. The defendant was convicted solely on the testimony of Lard and Yancy, two witnesses with significant credibility issues. As the jury was made aware, Lard was testifying pursuant to a favorable plea agreement for his role in the crime,
Yancy's account of the crime was also riddled with inconsistencies
There was, therefore, a basis for skepticism about both Lard and Yancy. What is most significant for our assessment, however, is that, as far as the jury knew, Yancy was uniquely credible in one respect: he was the sole lay witness who did not directly benefit from his participation in the case. Unlike Lard, he was not facing charges in connection with Pass's murder, and according to his testimony, he had not been compensated for testifying and had no paid connection with the defendant's case. Of course, Yancy did receive at least one known direct benefit for his participation in the case — financial compensation. But the prosecutor exploited the false impression to the contrary, urging the jury to believe Yancy — and convict the defendant — because of it. Given that the prosecution's case hinged entirely on the jury's credibility assessment of Lard and Yancy, this emphasis on the one (albeit false) indication of the difference in trustworthiness between them is unsurprising. For the same reason, however, we cannot overlook its prejudicial effect. See Wiese, 425 Mich. at 456, 389 N.W.2d 866 (concluding, in a case that "depended almost entirely on [the falsely testifying witness's] testimony," that the use of the false testimony and the defendant's resulting inability to properly question the witness's credibility "reasonably could have affected the judgment of the jury").
Put simply, the "dreadful state" of Yancy's credibility would have been even more dreadful had the jury learned that he was paid for his information against the defendant. And contrary to the Court of Appeals' suggestion, the prejudice from the prosecutor's exploitation of Yancy's potentially misleading testimony cannot be discounted simply because the jury had other reasons to disbelieve Yancy. Indeed, this case demonstrates the opposite to be true. Presented with a witness who was revealed to be a regular drug user, to have been in a dispute with the defendant about money, to have taken the victim's drugs, to have left the victim "gurgling off his blood" on the floor, and to have then left town for a year, the jury was more likely to have viewed the false inference that Yancy was not compensated at all for his involvement as the most significant basis for crediting his testimony against the defendant.
Due process required that the jury be accurately apprised of the incentives underlying the testimony of this critical witness, and plainly that the prosecution not exploit any confusion relating to this critical topic. See United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (C.A.5, 1987)
For the foregoing reasons, we conclude that the defendant is entitled to a new trial. Accordingly, we reverse the judgment of the Court of Appeals in part, vacate the defendant's convictions, and remand this case for proceedings consistent with this opinion.
YOUNG, C.J., and MARKMAN, VIVIANO, and BERNSTEIN (except for footnote 5), JJ., concurred with McCORMACK, J.
BERNSTEIN, J. (concurring in part and dissenting in part).
I concur with the majority opinion except for footnote 5. With respect to defendant's speedy-trial claim, I respectfully disagree with the majority's conclusion that defendant is not entitled to relief. Instead, I concur with Part II of Justice KELLY'S partial concurrence and partial dissent. Accordingly, I would also reverse the judgment of the Court of Appeals with respect to the speedy-trial claim and remand this case to the trial court to consider whether the prosecution overcame the presumption of prejudice to defendant's person and defense.
MARY BETH KELLY, J. (concurring in part and dissenting in part).
I concur in the result of the majority's opinion with respect to the issue of Yancy's false testimony. It is reasonably likely that Yancy's uncorrected false testimony affected the judgment of the jury; therefore, a new trial is warranted. I part ways with the majority to the extent that it would grant a new trial simply for "substantially misleading" testimony of a material witness that need not rise to the level of falsity and, further, dissent from the majority's resolution of defendant's speedy-trial issue.
I would grant a new trial on the basis of the false evidence in the form of Yancy's testimony, which was "uncorrected when it appear[ed]" during defendant's trial.
Nevertheless, applying the traditional standard to this case, I agree with the majority that defendant is entitled to a new trial. Yancy's testimony was, in fact, false. The Court of Appeals explained that "[o]n direct, cross, and redirect examination, Yancy repeatedly admitted that he was paid for cooperating with law enforcement but repeatedly denied that any of the payment pertained to the instant case."
Although defendant is entitled to a new trial on the basis of false testimony, I would not simply remand for a new trial but would also remand for additional factual findings related to defendant's speedy-trial claim, and I respectfully dissent from the majority's conclusion that defendant is not entitled to any relief on this claim. The Court of Appeals acknowledged that the circuit court did not correctly apply the Barker v. Wingo
The right to a speedy trial is enshrined in the United States Constitution:
The United States Supreme Court has held that the right to a speedy trial serves "to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself."
There is no bright-line rule that indicates a "fixed number of days" that must pass before a defendant's right to a speedy trial is violated.
Defendant waited in prison for 41 months before being brought to trial. The circuit court's analysis of these delays inexplicably attributed extensive delays by the court to defendant.
Contrary to the Court of Appeals' conclusion, the circuit court's prejudice inquiry was tainted by its misapprehension of applicable law. In People v. Collins, this Court established that "[a]fter 18 months, the burden shifts to the prosecution to show there was no injury [to the defendant's person or defense]."
BERNSTEIN (with respect to Part II only), J., concurred with MARY BETH KELLY, J.
ZAHRA, J. (dissenting).
The majority concludes that reversal of defendant's felony-murder and armed-robbery convictions is required because the prosecutor failed to meet her duty to correct "substantially misleading, if not false," testimony from Mark Yancy regarding the compensation paid to him by the Federal Bureau of Investigation (FBI) for information and cooperation. The objection to the prosecutor's conduct is premised in the notion that the "State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction...." Ante at 304 (quotation marks and citation omitted). I agree with this fundamental proposition, and imagine that no one denies it. But today the majority
The record is clear that Yancy admitted being paid by the FBI for his cooperation. Nonetheless, despite the prosecutor's having elicited testimony from Yancy that he had been paid for his cooperation, the majority vacates defendant's convictions because the prosecutor did not make it absolutely clear to the jury that the FBI paid Yancy for his cooperation in the government's case against defendant. I respectfully dissent because I fear the majority now holds prosecutors to the unacceptably high and extraordinarily ambiguous standard of having to correct every instance of mistaken, inaccurate, or incomplete testimony or risk the possibility that every possible or perceived contradiction will be rendered material.
The majority's claim of error is predicated on the broad proposition "that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with `rudimentary demands of justice.'"
Each of these principles is sound when one understands how they have been developed and applied. In each case enunciating these principles, neither defense counsel nor the trial court was aware that the state had agreed to compensate witnesses
The majority relies principally on Napue v. Illinois, 360 U.S. 264, 271-272, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and People v. Wiese, 425 Mich. 448, 453-454, 389 N.W.2d 866 (1986), to support the proposition that reversal is required in this case. All these cases involved witnesses who denied under oath receiving of any remuneration from the government in exchange for their testimony. It is significant, in my view, that in each case the denial of remuneration was clearly and patently false and, more importantly, that this falsity was known only by the prosecution.
Unlike the key prosecution witnesses in Napue, Giglio, and Wiese, Yancy admitted receiving compensation for his cooperation with the FBI. Moreover, as distinguished from Napue, Giglio, and Wiese, in the instant case it was not a secret that Yancy received compensation from the FBI in exchange for his cooperation. In stark contrast to Napue, Giglio, and Wiese, here there was a pretrial proceeding held for the benefit of defense counsel
In cases in which the defendant claims that the prosecution has left unchecked questionable testimony from a witness, a reviewing court must assess whether the evidence was truly false and material to the proceedings or merely inaccurate, incomplete, or otherwise vague or ambiguous such that the discrepancy is immaterial.
Examination of the testimony elicited by the prosecutor reveals no patent falsity.
The majority does not allege that either question and its respective response, taken individually, constituted the solicitation of false or misleading evidence. This is clearly because the responses to both questions are true. Yancy was paid for his cooperation, but he was not paid for his testimony. At most the majority takes issue with the prosecutor's use of the phrase "federal agency," framing that language as clear evidence the prosecutor purposefully attempted to distance the witness from the defendant and purposefully obfuscated the fact that Yancy had been compensated for information provided to the FBI. The majority uses innuendo and isolated phrases such as "federal agency" to somehow determine that "[t]he overall impression [with regard to Yancy's compensation] conveyed was false."
In reality, any misdirection with regard to the compensation paid by the FBI to Yancy was created not by the prosecutor but by defense counsel during Yancy's cross-examination:
On the basis of this response, the majority claims that Yancy denied that he was compensated for his "cooperation with the defendant's formal prosecution." But Yancy was not asked whether he was compensated for his cooperation in the Pass murder investigation; he was asked whether he was compensated "with regards to this case." Yancy might well have believed that his compensation was not "with regards to this case," but was instead for his cooperation in the Pierson Hood gang case. Further, Yancy had just been asked if he had been paid for his testimony in this case. It would be reasonable for Yancy to assume that defense counsel was referring to his specific testimony.
Admittedly, neither the prosecutor nor defense counsel made this clarification. Instead, the prosecutor again asked Yancy to confirm that the compensation he received was not for his trial testimony. It is the prosecutor's failure to clarify the distinction between compensation for information and compensation for testimony — a confusion brought on by defense counsel's cross-examination — that the majority finds
If this were a case in which the prosecution alone was aware that Yancy was compensated for information that ultimately led to the charges against defendant, I might well have joined the majority opinion. This is not such a case. Defense counsel was fully aware of the specifics underlying the compensation the FBI paid Yancy. Accordingly, defense counsel had in his arsenal all the information necessary to cross-examine Yancy with regard to the incomplete, albeit truthful, testimony elicited by the prosecutor. Importantly, defense counsel conducted a vigorous and effective cross-examination:
The majority picks and chooses small snippets of testimony to determine that the prosecutor had evil intent to obfuscate
While defense counsel conducted a vigorous cross-examination of Yancy, counsel chose not to clarify Yancy's testimony with regard to compensation from the FBI. I conclude that explicit disclosure of evidence affecting Yancy's credibility, coupled with defense counsel's subsequent failure to raise the specific issue at trial, constituted waiver of the claim at issue in this case.
As discussed, defense counsel and the trial court were fully aware that the FBI had compensated Yancy for his cooperation and information implicating defendant in the murder of Pass. Because there was no objection when Yancy denied being compensated "with regards to this case,"
Of course the jury was certainly entitled to question Yancy's credibility. He admitted that he was a regular drug user, was in a dispute with defendant over money, took Pass's drugs (though he gave them to Lard), and left the victim "gurgling off his blood" on the floor (though he testified, "What could I do?" and "I thought I was next"), and left town for a year. Even the prosecutor wryly admitted, "[O]ur witnesses aren't from the Mormon Tabernacle choir...." With that said, "`[i]t is the defendant rather than the Government who bears the burden of persuasion with
MCL 769.26 provides:
This statute essentially embodies Michigan's harmless-error rule.
According to the majority, the alleged error prejudiced defendant because the prosecutor bolstered Yancy's credibility by arguing that he had only been paid for his cooperation in other cases:
No objection was made to the prosecutor's closing argument. Further, this argument is consistent with the record evidence from Flint police officer Shawn Ellis, who testified without objection that Yancy was not paid for his testimony and had "cooperated on other investigations with task force officers." In any event, reviewing courts should not flyspeck trial proceedings with the benefit of 20/20 appellate hindsight. "[T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one."
Further, the majority exaggerates the prejudicial effect of the alleged error. The extent to which Yancy's credibility was bolstered by argument that he had only been paid by the FBI for his cooperation in other cases is, at best, marginal. Additionally, the alleged error was clearly precipitated by the prosecutor's willingness to accommodate defense counsel's trial strategy that avoided "opening the door to Pierson Hood" because, as the trial court noted, doing so would be hazardous.
Finally, the majority does not address whether even if Yancy's testimony had been struck from the record, the prosecution nonetheless presented sufficient independent evidence at trial to establish beyond a reasonable doubt that defendant murdered Pass. Even if evidence is improperly admitted to bolster a witness's character for truthfulness, reversal is not required under MCL 769.26 if there exists other cumulative and independent evidence to support the conviction.
Specifically, Yancy and Lard consistently testified that Lard brought defendant to Pass's home, that they used a mutual acquaintance's
Harris made no further statements about the purposes of Yancy's compensation, nor did he describe how the payment was apportioned respective to information about Pierson Hood or the Pass homicide. We therefore disagree with the dissent's characterization of Harris's testimony as stating that the payment was "due in significant part for [Yancy's] cooperation relating to [Pierson Hood]." Post at 316 (emphasis added).
Were you paid for your testimony in this case?
While we agree that the delay in this case was extraordinary, we are not persuaded that the defendant has shown sufficient prejudice to merit dismissal for a violation of his right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 530, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We therefore affirm on that issue for the reasons stated in the Court of Appeals' opinion.
In Harris, a government witness falsely testified during cross-examination that in exchange for her testimony against the defendants, the prosecution had made no promises to help her achieve a reduced sentence on pending state charges against her. Harris, 498 F.2d at 1166-1167. The prosecutor brought the witness's false testimony to the attention of the court and defense counsel a day after the testimony was given but still during the government's case-in-chief and offered to stipulate it. Id. at 1167. Unlike the prosecutor in this case, the Harris prosecutor did not seek to capitalize on the false testimony, but rather offered to correct it. Id. Indeed, it was the defendant's affirmative failure to take advantage of that offer and use other means to reveal the untruth that was fatal to the ability to complain about it on appeal. Id. at 1170. The dissent overlooks this important difference, and conflates the distinct prosecutorial duties to disclose exculpatory information, see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and to refrain from using false or misleading testimony to obtain a conviction, see Napue, 360 U.S. at 269, 79 S.Ct. 1173. See note 8 of this opinion.
Furthermore, the post-Sanfilippo cases in the United States Court of Appeals for the Fifth Circuit that the dissent cites certainly did not distinguish Sanfilippo's relevance in cases in which, as here, the prosecutor capitalized on a freestanding Napue error. Compare Sanfilippo, 564 F.2d at 178-179 (concluding that there was no waiver when the prosecutor failed to correct and subsequently capitalized on the false testimony), with Beltran, 294 F.3d at 736-737 (concluding that Sanfilippo was inapposite because the prosecution had not "used the false testimony consciously allowed by the defense as part of a legal strategy"), and United States v. Antone, 603 F.2d 566, 570-571 (C.A.5, 1979) (concluding that Sanfilippo was inapposite because it involved false testimony of "far more serious impact," i.e., relating to the conditions of the witness's plea deal for his testimony, while Antone simply involved an arrangement to have legal counsel appointed for the witness). And indeed, at least one post-Sanfilippo case from the Fifth Circuit has affirmed Sanfilippo's rule that a prosecutor's capitalizing on false testimony might result in a due process deprivation even when the defense can be charged with knowledge of the evidence. See Barham, 595 F.2d at 243 (stating that the prosecutor's "misleading questions... reinforced the deception" and "undermine[d] the Government's argument that defense counsel waived the false evidence issue" by virtue of his knowledge of the falsity).
There is no question that the prosecution complied with its Brady obligation regarding Yancy's compensation for his cooperation. Yet when Yancy's trial testimony did not reflect the true nature of his agreement, instead of clarifying, the prosecutor exploited the testimony to her advantage. This due process error stands apart from a failure to disclose. See Jenkins, 294 F.3d at 296 (stating that "the prosecutor's actions cannot be overlooked" on the ground that defense counsel knew about and "did not continue to seek to gain an admission from [the witness] as to [his] plea agreement"); Napue, 360 U.S. at 269, 79 S.Ct. 1173 (stating that the duty to correct false evidence arises "when it appears"). The dissent's understanding that any Napue violation is only meaningful when coupled with a Brady violation simply misunderstands the separate duties.
But even if the rule announced by the majority today is intended as a narrow one, as emphatically stated by the majority, the opinion remains rife with directives that a prosecutor must do more than refrain from knowingly arguing to the jury facts known to be untrue. Instead, the majority imposes on the prosecution the burden to do more than ensure that testimony elicited on direct examination is truthful; that testimony must now be truthful and complete. And it also imposes on the prosecution an obligation to correct misguided testimony that a reviewing court might later declare to be "substantially misleading," even when that testimony is the product of defense counsel's cross-examination and when, as here, defense counsel is fully aware that the testimony is misleading, has all the information needed to effectively cross-examine the witness on this point, and, as a matter of trial strategy, elects to let that testimony stand.
So if, as the majority states, my fear of the breadth of the majority opinion is overblown, it nevertheless seems to be fully justified and anchored in the various broad statements scattered throughout its opinion that are not congruent with the majority's claim that it announces a narrow rule.
As a result of this discovery request, the trial court conducted the evidentiary hearing at which FBI Special Agent Dan Harris testified.
While there may be circumstances in which the prosecution has complied with Brady yet failed to meet an overriding duty to correct a witness's perjured testimony, we ought not let appellate hindsight decouple Brady from Napue in cases in which it is clear that defense counsel was aware that the testimony was arguably misleading and yet declined to clarify it for the jury.
The majority attempts to decouple Brady from Napue by citing three federal cases: DeMarco v. United States, 928 F.2d 1074, 1076-1077 (C.A.11, 1991), United States v. Sanfilippo, 564 F.2d 176, 178-179 (C.A.5, 1977), and Jenkins v. Artuz, 294 F.3d 284, 296 (C.A.2, 2002). The majority's reliance on these cases is seriously misplaced. To begin with, DeMarco involved actual perjured testimony, while the instant case involves, at best, "substantially misleading testimony." Further, a more recent case from the United States Court of Appeals for the Eleventh Circuit, Routly v. Singletary, 33 F.3d 1279, 1286 (C.A.11, 1994), concluded that when "testimony concerning [a witness's] understanding was, at worst, equivocal, [it was] not so misleading as to require corrective action by the state." Further, while Routly expressly acknowledged DeMarco, it nonetheless held that "[t]here 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." Id.
Similarly Sanfilippo, was quickly distinguished within its own circuit. See United States v. Antone, 603 F.2d 566, 571 (C.A.5, 1979). Interestingly, in Beltran v. Cockrell, 294 F.3d 730, 736-737 (C.A.5, 2002), the United States Court of Appeals for the Fifth Circuit explained that "[t]he Sanfilippo court did not deal with the situation presented here, where the prosecution used the false testimony consciously allowed by the defense as part of a legal strategy." (Emphasis added.) Likewise, defense counsel in this case chose as part of his trial strategy to ignore Yancy's testimony and instead represent to the jury that Yancy and the prosecution had a tacit agreement that Yancy would not be charged for any crime in exchange for his testimony against defendant.
Finally, the majority's reliance on Jenkins is misplaced because that court expressly stated that defense counsel, unlike defense counsel in this case, had not relied on the witness's problematic testimony to advance a strategic or tactical omission at trial. In sum, the cases the majority cites are easily distinguishable. Moreover, the majority uses these cases for a proposition that has been rejected by more recent cases in those same circuits. In fact, a majority of federal courts have rejected the rule the majority now invokes. See footnote 18 of this opinion.
Defense counsel's trial strategy was to avoid "opening the door to Pierson Hood" because, as the trial court noted, doing so would be hazardous to defendant's case. Rather, defense counsel sought to impeach Yancy's claim that he was not paid "with regards to this case" by suggesting that Yancy had received some tacit benefit from the prosecution for his testimony and cooperation.
Further, it appears that an integral part of defense counsel's trial strategy was to avoid mentioning Yancy's cooperation in the Pierson Hood gang investigation. This is a significant fact that the majority ignores. And it is significant precisely because the majority holds the prosecutor responsible for failing to "correct" evidence that was not patently false and that the defense introduced for its own purpose.