Petition for Writ of Certiorari — Paysun Long, Petitioner v. Randy Pfister, Warden

No. ______

In the

Supreme Court of the United States

_________________________

PAYSUN LONG,

v.

Petitioner,

RANDY PFISTER, in his official capacity as Warden of

Stateville Correctional Center,

Respondent.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

DOUGLAS G. SMITH

Counsel of Record

MICHAEL W. GLENN

KIRKLAND & ELLIS LLP

300 North LaSalle

Chicago, IL 60654

(312) 862-2000

dsmith@kirkland.com

Counsel for Petitioner

January 12, 2018

QUESTION PRESENTED

Nearly sixty years ago, this Court held that the

failure by a prosecutor to correct perjured testimony

deprives an accused of liberty without due process of

law. Napue v. Illinois, 360 U.S. 264, 269 (1959). The

Court’s ruling was consistent with a long line of

precedent acknowledging “that a conviction, secured

by the use of perjured testimony known to be such by

the prosecuting attorney, is a denial of due process.”

While v. Ragen, 324 U.S. 760, 764 (1945). When a

prosecutor fails to fulfill his “duty to correct what he

knows to be false and elicit the truth,” he “prevent[s]

. . . a trial that could in any real sense be termed fair.”

Napue, 360 U.S. at 270; see also United States v.

Agurs, 427 U.S. 97, 103 (1976) (“In a series of . . . cases,

the Court has consistently held that a conviction

obtained by the knowing use of perjured testimony is

fundamentally unfair.”).

In this case, a key prosecution witness offered

false testimony critical to the conviction of petitioner

Paysun Long. She swore to the jury, repeatedly, that

she had been consistent in identifying Mr. Long as the

person who murdered the decedent. It is undisputed

that those statements were false, and the prosecution

knew they were false. Yet, there is also no dispute

that the prosecutor failed to correct those false

statements before the jury deliberated.

A unanimous Seventh Circuit panel agreed that

Mr. Long’s conviction violated Napue. Nonetheless,

the en banc court affirmed Mr. Long’s conviction in a

5-3 decision, based on four purported “exceptions” to

Napue’s directive that the prosecution must correct

perjured testimony. According to the majority, this

Court has not “expressly decided” that a Napue

ii

violation occurs where the false testimony is elicited

by the defense, the defense knows the testimony is

false, the prosecutor does not “rely” on the false

testimony during closing arguments, or the jury is

presented with contrary evidence. App.7a. Absent

this Court’s intervention, Mr. Long will likely spend

the rest of his life in jail, having been convicted based

on perjury.

The question presented is:

Whether there are exceptions to this Court’s

ruling in Napue v. Illinois, 360 U.S. 264 (1959), that

would allow a criminal defendant to be convicted

based on perjury that the prosecution fails to correct.

iii

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 6

JURISDICTION ......................................................... 6

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..................................... 6

STATEMENT OF THE CASE ................................... 6

A. Factual Background ..................................... 6

B. Trial Proceedings ......................................... 7

C. Post-Trial Proceedings ................................. 9

D. The Seventh Circuit’s En Banc Decision... 11

REASONS FOR GRANTING THE PETITION ...... 13

I.

This Case Deepens A Conflict Among The

Courts of Appeals And State Courts Of Last

Resort. ................................................................ 16

II. The En Banc Decision Is Wrong. ...................... 22

A. Napue Applies Regardless Of Who

Elicits The Perjury ..................................... 24

B. Napue Applies Regardless Of Whether

The Defense Is Aware Of The Perjury ...... 26

C. Napue Applies Regardless Of Whether

The Prosecution “Relies” Upon The

Perjury ........................................................ 29

D. Napue Applies Regardless Of Whether

Contrary Evidence Is Introduced .............. 31

III. This Case Is An Excellent Vehicle To

Address The Question Presented. .................... 32

CONCLUSION ......................................................... 35

iv

APPENDIX CONTENTS

OPINION,

U.S. Court of Appeals, 7th Circuit en banc,

October 20, 2017 .................................................. 1a

OPINION,

U.S. Court of Appeals, 7th Circuit,

October 27, 2015 ................................................ 25a

OPINION,

U.S. District Court, C.D. Illinois,

September 26, 2013 ........................................... 54a

ORDER,

Appellate Court of Illinois, Third District

January 21, 2011 ............................................... 81a

TRIAL TRANSCRIPT (excerpt),

Tenth Judicial Circuit of Illinois, Peoria Cty.

January 14, 2004 ................................................ 108a

U.S. Const. amend. XIV ..................................... 110a

28 U.S.C. § 2254(d)(1) ........................................ 111a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Alcorta v. Texas,

355 U.S. 28 (1957) .................................... 24, 25, 26

Banks v. Dretke,

540 U.S. 668 (2004) ................................................ 6

Beltran v. Cockrell,

294 F.3d 730 (5th Cir. 2002) ...................... 2, 20, 21

Berger v. United States,

295 U.S. 78 (1935) .............................. 16, 22, 26, 32

California v. Trombetta,

467 U.S. 479 (1984) .............................................. 27

Commw. of N. Mariana Islands v.

Bowie,

243 F.3d 1109 (9th Cir. 2001) .................... 4, 18, 29

DeMarco v. United States,

928 F.2d 1074 (11th Cir. 1991) ........................ 2, 21

DeVoss v. State,

648 N.W.2d 56 (Iowa 2002).................................. 21

Drake v. Portuondo,

553 F.3d 230 (2d Cir. 2009) ....................... 4, 17, 20

Giglio v. United States,

405 U.S. 150 (1972) ........................................ 25, 27

vi

Haskell v. Superintendent Greene SCI,

866 F.3d 139 (3d Cir. 2017) ....................... 4, 17, 25

Hayes v. Brown,

399 F.3d 972 (9th Cir. 2005) ................. 3, 5, 18, 26

Hysler v. Florida,

315 U.S. 411 (1942) ................................................ 1

Jenkins v. Artuz,

294 F.3d 284 (2d Cir. 2002) ....................... 4, 17, 25

Knowles v. Mirzayance,

556 U.S. 111 (2009) .............................................. 15

Longus v. United States,

52 A.3d 836 (D.C. 2012) ....................................... 26

Maslenjak v. United States,

137 S. Ct. 1918 (2017) .......................................... 33

Meece v. Commw.,

348 S.W.3d 627 (Ky. 2011)............................... 2, 21

Miller v. Pate,

386 U.S. 1 (1967) .................................................. 14

Mooney v. Holohan,

294 U.S. 103 (1935) ...................................... passim

Napue v. Illinois,

360 U.S. 264 (1959) ...................................... passim

Panetti v. Quarterman,

551 U.S. 930 (2007) .............................................. 15

vii

People v. Smith,

870 N.W.2d 299 (Mich. 2015) .................... 4, 19, 29

Perry v. New Hampshire,

565 U.S. 228 (2012) .............................................. 31

Smith v. State,

34 N.E.3d 1211 (Ind. 2015) .................................. 32

Soto v. Ryan,

760 F.3d 947 (9th Cir. 2014) ................................ 18

State v. Brunette,

501 A.2d 419 (Me. 1985) .................................. 4, 19

State v. Yates,

629 A.2d 807 (N.H. 1993)..................................... 19

Strickler v. Greene,

527 U.S. 263 (1999) .............................................. 32

Tenet v. Doe,

544 U.S. 1 (2005) .................................................. 24

United States v. Adebayo,

985 F.2d 1333 (7th Cir. 1993) ................................ 2

United States v. Agurs,

427 U.S. 97 (1976) ............................................... i, 1

United States v. Bagley,

473 U.S. 667 (1985) ........................................ 26, 30

United States v. Crockett,

435 F.3d 1305 (10th Cir. 2006) ........................ 2, 20

viii

United States v. Foster,

874 F.2d 491 (8th Cir. 1988) ...................... 4, 18, 28

United States v. Garcia,

793 F.3d 1194 (10th Cir. 2015) ............................ 29

United States v. Kelly,

35 F.3d 929 (4th Cir. 1994) .................................... 4

United States v. Langston,

970 F.2d 692 (10th Cir. 1992) .......................... 3, 22

United States v. LaPage,

231 F.3d 488 (9th Cir. 2000) ........................ passim

United States v. Mangual-Garcia,

505 F.3d 1 (1st Cir. 2007) ................................ 2, 17

United States v. O’Keefe,

128 F.3d 885 (5th Cir. 1997) .................................. 2

United States v. Sanfilippo,

564 F.2d 176 (5th Cir. 1977) .................................. 3

United States v. Santiago,

798 F.2d 246 (7th Cir. 1986) ............................ 3, 22

United States v. Stein,

846 F.3d 1135 (11th Cir. 2017),

cert. denied (Dec. 11, 2017) ............................ 20, 21

Wheat v. United States,

486 U.S. 153 (1988) ........................................ 33, 34

While v. Ragen,

324 U.S. 760 (1945) .................................................i

ix

White v. Woodall,

134 S. Ct. 1697 (2014) .......................................... 15

Yarborough v. Alvarado,

541 U.S. 652 (2004) .............................................. 15

Statutes

28 U.S.C. §1254(1) ....................................................... 6

28 U.S.C. § 2254 ........................................................ 10

Other Authorities

ABA Model Rules of Prof’l Conduct

(2017) .................................................................... 26

Rachel E. Barkow, Organizational

Guidelines for the Prosecutor’s Office,

31 Cardozo L. Rev. 2089 (2010) ........................... 34

Stephanos Bibas, Prosecutorial

Regulation Versus Prosecutorial

Accountability, 157 U. Pa. L. Rev.

959 (2009) ............................................................. 34

PETITION FOR WRIT OF CERTIORARI

For well over eight decades, this Court has

consistently reinforced the fundamental principle

that a conviction obtained through “the presentation

of testimony known to be perjured,” runs counter to

due process and “is as inconsistent with the

rudimentary demands of justice as is the obtaining of

a like result by intimidation.” Mooney v. Holohan, 294

U.S. 103, 112 (1935). Thus, this Court’s directives

“are clear” that whenever the government “obtains a

conviction through the use of perjured testimony, it

violates civilized standards for the trial of guilt or

innocence and thereby deprives an accused of liberty

without due process of law.” Hysler v. Florida, 315

U.S. 411, 413 (1942).

Building upon this precedent, the Court in

Napue v. Illinois held that when the government

knows that a witness for the prosecution has testified

falsely, the prosecutor “has the responsibility and

duty to correct what he knows to be false and elicit the

truth.” 360 U.S. 264, 270 (1959). Failure to fulfill that

duty “prevent[s] . . . a trial that could in any real sense

be termed fair,” id., for the government’s knowing use

of false testimony “involve[s] a corruption of the truthseeking function of the trial process,” United States v.

Agurs, 427 U.S. 97, 104 (1976).

Rather than apply this clearly established law, a

number of federal and state courts—including the

Seventh Circuit here—have created “exceptions” to

Napue. Despite this Court’s clear mandates, these

judicially-created exceptions excuse the government

from correcting knowingly false testimony that is

placed before the jury.

2

For example, a number of courts have held that

the prosecution need not correct perjury if the false

testimony was elicited on cross-examination by the

defense, rather than by the prosecution. See, e.g.,

United States v. O’Keefe, 128 F.3d 885, 894 (5th Cir.

1997) (“[W]hen the defense elicits the alleged perjury

on cross-examination, no material falsehood has

occurred because the government has not itself

knowingly presented false testimony.”); United

States v. Adebayo, 985 F.2d 1333, 1342 (7th Cir. 1993)

(same).

Courts likewise have refused to set aside

convictions obtained through the knowing use of false

testimony if the defendant had knowledge of the

falsity. See, e.g., United States v. Mangual-Garcia,

505 F.3d 1, 10–11 (1st Cir. 2007) (recognizing the

“division within the circuits on the issue,” but deciding

that “[w]hen the defendant knows about the false

testimony and fails to bring it to the jury or the court’s

attention,” that “strategic choice[]” cannot be

challenged on appeal); United States v. Crockett, 435

F.3d 1305, 1318 (10th Cir. 2006) (“The government

had disclosed this impeachment evidence and hence

Napue is inapposite.” (emphasis added)); Beltran v.

Cockrell, 294 F.3d 730, 736 (5th Cir. 2002) (defense’s

failure to refute false testimony of which it was aware

was a “deliberate defense strategy” that undermined

due process claim); Meece v. Commw., 348 S.W.3d 627,

680 (Ky. 2011) (same).

Some courts have held that a conviction may

stand if the prosecutor did not “rely” on or “capitalize”

on the falsehood during summation.

See, e.g.,

DeMarco v. United States, 928 F.2d 1074, 1077 (11th

Cir. 1991) (vacating conviction where “the

3

prosecutor’s argument to the jury capitalizing on the

perjured testimony reinforced the deception of the use

of false testimony and thereby contributed to the

deprivation of due process”); United States v.

Sanfilippo, 564 F.2d 176, 179 (5th Cir. 1977).

And, other courts have held that the introduction

of perjured testimony without correction is

permissible so long as the jury is provided with some

contrary evidence.

See, e.g., United States v.

Langston, 970 F.2d 692, 700–01 (10th Cir. 1992)

(concluding no reversible error where witness, who

testified falsely on direct examination, “was

extensively cross-examined and impeached”); United

States v. Santiago, 798 F.2d 246, 247 (7th Cir. 1986).

The Seventh Circuit invoked each of these

exceptions here. In its en banc decision, the court

acknowledged that the prosecution knowingly used

false testimony to convict Paysun Long. Yet, the court

held that there was no due process violation because

each of these “exceptions” to Napue could excuse the

government’s failure to correct the perjured

testimony.

This ruling is not only at odds with the Court’s

broad directive in Napue, it is also at odds with the

rulings of other federal circuits and state supreme

courts that have remained faithful to Napue’s

teaching and have rejected each of the alleged

“exceptions” identified by the Seventh Circuit.

Other courts have faithfully applied Napue,

holding that it expressly imposes “an affirmative duty

on the part of the prosecution to correct false

testimony at trial, even when the testimony is

unsolicited” by the prosecution. Hayes v. Brown, 399

F.3d 972, 981 (9th Cir. 2005) (en banc); see also

4

Jenkins v. Artuz, 294 F.3d 284, 295–96 (2d Cir. 2002);

United States v. Foster, 874 F.2d 491, 495 (8th Cir.

1988); People v. Smith, 870 N.W.2d 299, 306 n.8

(Mich. 2015); State v. Brunette, 501 A.2d 419, 424 (Me.

1985).

Nor, as these courts recognize, is this duty altered

by the defendant’s awareness of the false testimony

because “[t]he obligation to avoid presenting false or

misleading testimony of its own witness begins and

ends with the prosecution.” Smith, 870 N.W.2d at 306

n.7. These rulings recognize “the free standing

constitutional duty of the State and its

representatives to protect the system against false

testimony” embodied in Napue and this Court’s other

precedents. Commw. of N. Mariana Islands v. Bowie,

243 F.3d 1109, 1118 (9th Cir. 2001); see also Drake v.

Portuondo, 553 F.3d 230, 240 (2d Cir. 2009) (“The

prosecutor is an officer of the court whose duty is to

present a forceful and truthful case to the jury, not to

win at any cost.”).

They likewise have rejected the proposition that

there is any “reliance” or “capitalization” element

required to establish a Napue violation. Under this

Court’s precedents, the defense need only show that

the prosecution “knew or should have known that the

testimony was false.”

Haskell v. Superintendent

Greene SCI, 866 F.3d 139, 146 (3d Cir. 2017); see also

United States v. Kelly, 35 F.3d 929, 933 (4th Cir.

1994). As these courts recognize, “[a]ll perjury

pollutes a trial, making it hard for jurors to see the

truth.” United States v. LaPage, 231 F.3d 488, 492

(9th Cir. 2000).

Finally, courts have acknowledged that no

amount of contrary evidence can cure the introduction

5

of perjury. See e.g., Hayes, 399 F.3d at 987 (citing

Napue, 360 U.S. at 270). As these courts have noted,

“the government’s duty to correct perjury by its

witnesses is not discharged merely because defense

counsel knows, and the jury may figure out, that the

testimony is false.”

LaPage, 231 F.3d at 492

(emphasis added).

Accordingly, there is a deep and persistent split

among the circuits that warrants this Court’s

intervention. The Seventh Circuit’s decision and

those of other circuits recognizing these “exceptions”

to Napue are inconsistent with rulings by the Second,

Third, Eighth and Ninth Circuits (and several state

courts of last resort) rejecting judicially-created

loopholes that allow the prosecution to convict a

criminal defendant based on perjury. This split in

authority includes two en banc decisions on opposite

sides of this question. The split is therefore more than

ripe for this Court’s intervention.

Moreover, the consequences of this split are

profound. Criminal defendants may be convicted

based on perjury simply by virtue of the jurisdiction

in which they find themselves, depriving them of

fundamental due process rights. While many courts

continue to faithfully apply Napue, others refuse to

require the prosecution to take the minimal step of

simply correcting perjured testimony on the record,

resulting in convictions based on perjury—a

fundamental violation of due process—including that

of Mr. Long here. By granting the petition, this Court

can solidify what “[c]ourts, litigants, and juries” have

long believed: “[O]bligations to refrain from improper

methods to secure a conviction plainly resting upon

the prosecuting attorney, will be faithfully observed.”

6

Banks v. Dretke, 540 U.S. 668, 696 (2004)(internal

quotation omitted).

The petition should be granted.

OPINIONS BELOW

The Seventh Circuit’s en banc opinion and dissent

are reported at 874 F.3d 544 and reproduced at

App.1a–24a. The three-judge panel’s opinion is

reported at 809 F.3d 299 and reproduced at App.25a–

53a. The District Court’s decision is unreported and

reproduced at App.54a–80a. The Illinois Appellate

Court opinion and dissent denying post-conviction

relief are unreported and reproduced at App.81a–

107a.

JURISDICTION

The en banc Seventh Circuit issued its opinion on

October 20, 2017. This Court has jurisdiction under

28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory

provisions are reproduced in the Appendix.

STATEMENT OF THE CASE

A. Factual Background

On June 11, 2001, Larriec Sherman was shot in

the Taft Homes housing development in Peoria,

Illinois. App.57a. When the responding officer

arrived at the scene, Sherman lay on the ground near

a bicycle. Id. Fifty to sixty people were gathered

around Sherman, who was transported to a nearby

hospital where he died from multiple gunshot wounds.

Id.

7

B. Trial Proceedings

Petitioner, Paysun Long, was tried twice for the

murder of Sherman. In the first trial, the prosecution

made several improper and unsupported statements

during closing argument, and the conviction was

reversed. App.26a–27a. In the second trial, the

prosecution obtained a conviction based on the

testimony of an alleged eyewitness who the

government agrees perjured herself on the stand.

No physical evidence tied Mr. Long to the murder.

App.26a. Instead, the prosecution relied largely on

witness testimony to convict Mr. Long. Id. Two of the

witnesses testified that Mr. Long was not the shooter,

but the prosecution was allowed to put into evidence

earlier recorded statements by those same witnesses

saying that he was. App.26a–27a. The testimony of a

third witness, who was sixteen years old at the time

of the shooting, was contradicted by other witnesses,

including the responding officer. App.41a. It is the

testimony of the fourth witness, Brooklyn Irby, which

is the subject of this appeal.

Ms. Irby testified under oath that she saw

Mr. Long shoot the decedent. On cross-examination,

defense counsel asked her whether she had previously

told the prosecutor and an investigator the exact

opposite, stating that she had lied when she first told

investigators that she had seen Mr. Long shoot the

decedent. App.27a. Ms. Irby repeatedly denied that

she had done so. These repeated sworn statements

were indisputably false. Nonetheless, the prosecution

failed to correct those statements and the jury was

allowed to consider them.

Indeed, during closing argument, the prosecution

told the jury that Ms. Irby “came in here and raised

8

her hand and told you what happened” and that she

“was under oath” and “told you what she saw”:

[Defense counsel will] argue that Brooklyn

Irby came to the State’s Attorney’s Office and

said on an earlier occasion prior to her

testifying and said I wasn’t telling the police

the truth. Well, she came in here and raised

her hand and told you what happened and

you saw her testimony. Maybe she thought if

she told the State’s Attorney’s Office she

wasn’t telling the truth she wouldn’t have to

testify. But when she came in here and was

under oath, she told you what she saw and

that was consistent with what Keyonna

[Edwards] told you and that was consistent

with what she has told you and that was

consistent with what Shawanda [Walker]

told you and that was consistent with the

physical evidence.1

App.109a.

During rebuttal closing, another

prosecutor, who was the lead prosecutor in Mr. Long’s

first trial, told the jury that “[Irby] testified here

yesterday to what she saw that night of June 1, 2001.

‘I saw Paysun shoot Larry Sherman in the back.’”

App.100a. She emphasized that, while there were

differences in the witnesses’ testimony, “it was the

truth that was consistent.” Id.

Finally, the lead prosecutor committed what the

dissent below described as “two outrages” during

rebuttal closing argument. App.24a. Specifically, she

As the dissenting Justice in the Illinois Appellate Court

noted, the only physical evidence was that Sherman was shot

four times. App.98a n.2.

1

9

engaged in what the dissenters described as a

“blatantly racist stunt” in order to explain away the

failure of the numerous witnesses present to identify

Mr. Long as the shooter by “comparing those present

when the police arrived to the slave characters in

Gone with the Wind,” describing their reaction to

police questioning as similar to a character in the

movie who said she “don’t know nothing ‘bout birthin’

babies.” Id. Further, the prosecutor relied upon a

letter that Irby wrote that was not in evidence,

causing the judge to intervene sua sponte to address

what was a “blatant attempt by the experienced lead

prosecutor to put unadmitted hearsay in front of the

jury.” Id. Despite the judge’s intervention, the jury

specifically requested to see Ms. Irby’s letter during

deliberations. Id.

Based on Ms. Irby’s testimony, Paysun Long was

found guilty of first-degree murder and sentenced to

51 years in prison.

C. Post-Trial Proceedings

In April 2007, Long filed a pro se petition for postconviction relief. Among his claims was that appellate

counsel was ineffective for failing to raise the issue

that the prosecution allowed Brooklyn Irby to testify

falsely at Long’s second trial. The State filed a motion

to dismiss the post-conviction petition. The state

court granted the motion and dismissed the petition

without holding an evidentiary hearing.

Over a vigorous dissent, the Illinois Appellate

Court affirmed Mr. Long’s conviction. App.91a. The

court recognized that, under Napue, the prosecutor’s

“knowing use of perjured testimony to obtain a

conviction violates a criminal defendant’s due process

rights.” App.86a. The court further acknowledged

10

that the “State has an obligation to correct false

testimony,” regardless of who elicits it.

Id.

Nonetheless, while the majority observed that the

evidence against Long was far from “overwhelming,”

it concluded the constitutional violation was

“harmless.” App.87a.

The dissenting judge agreed that “the clear

import of existing law is that the State has the

obligation to correct the perjured testimony.”

App.93a. She strenuously disagreed, though, that the

prosecution’s failure to correct perjury in Mr. Long’s

case could be ignored on the ground that it was

“harmless,” particularly given that the “case against

Long was underwhelming” and, indeed, “a teetering

edifice” based on perjured testimony.

App.96a;

App.102a.

After his petition for leave to appeal was denied

by the Illinois Supreme Court, Long filed a pro se

petition seeking collateral relief in the district court

under 28 U.S.C. § 2254. While the district court

denied the petition, a unanimous three-judge panel of

the Seventh Circuit reversed it. App.26a; App.53a.

The Seventh Circuit concluded that the Illinois

Appellate Court’s decision on Long’s Napue claim

“was an unreasonable application of clear Supreme

Court precedent.” App.38a. As the court observed,

there was no dispute that the prosecutor failed to

correct Irby’s perjured testimony. App.39a. In fact,

during closing arguments, the prosecutor essentially

“argued that Irby was credible and affirmatively

relied on Irby’s changing story to bolster her

credibility.” Id. The court ruled that the Illinois

Appellate Court’s failure to reverse Mr. Long’s

11

conviction constituted “an unreasonable application of

Napue.” App.42a.

D. The Seventh Circuit’s En Banc Decision

In a 5-3 decision, the en banc Seventh Circuit

reversed the unanimous panel. In addressing his due

process claim, the en banc court reasoned that Long’s

assertion that Napue and its successors serve as a fullstop, requiring a prosecutor to correct any false

testimony presented by its witness, no matter if “the

defense already knows the truth,” “could be so

understood” if “taken at a high level of generality.”

App.5a. In fact, the court recognized that Napue can

“be read to imply that a prosecutor must correct

testimony no matter who solicited it.”

App.6a

(emphasis added).

Despite this recognition, the en banc court

distanced itself from this Court’s directives and

determined that Long’s due process claim raises four

discrete issues that it suggested “have never been

expressly decided by the Supreme Court”:

Do Napue and its successors apply when the

defense rather than the prosecutor elicits the

false testimony?

Must the prosecutor correct false testimony

when defense counsel already knows the

truth?

Does the Constitution forbid a conviction

obtained when the prosecutor does not

correct but also does not rely on the

falsehood?

Does the Constitution forbid a conviction

obtained when all material evidence is

presented to the jury before it deliberates?

12

App.7a.

The court did not dispute that Irby’s

testimony was false or that the prosecution failed to

correct her perjury. App.10a. Instead, the court held

that, based on “the four open issues” it identified, it

was not clearly established that a Napue violation had

occurred. Id.

Three judges dissented from the majority opinion.

As these judges observed, each of the exceptions to

Napue that the majority identified was actually

rejected in this Court’s decision: “Napue itself

considered and rejected the grounds the majority

relies upon to excuse the Illinois’ courts failure to

follow it.” App.11a. The dissent also noted that this

Court made clear in Napue that it “does not matter

. . . which side elicited the false testimony.” Id. (citing

Napue, at 360 U.S. at 269). ‘“The same result obtains

when the State, although not soliciting false evidence,

allows it to go uncorrected when it appears.”‘ App.18a

(quoting Napue, 360 U.S. at 269). “Nor does it matter

whether the defense knew of the false testimony or

whether the jury heard evidence contradicting the

false testimony.” App.11a–12a (citing Napue, 360

U.S. at 269–70). Finally, regardless of whether the

prosecution “relies” on the perjured testimony or

contrary evidence is introduced, a failure to correct

the perjury is “plainly contrary to Napue.” App.21a.

The dissent concluded that Napue required

reversal of Mr. Long’s conviction. As the dissent

noted, Ms. Irby’s repeated statements under oath

“were lies” and “the prosecutor knew it.” App.13a.

Nonetheless, “the prosecutor did nothing to correct

Irby’s false denials of having changed her story, even

in redirect examination of Irby.” Id. “To sum up,

then, a key prosecution witness lied about a point

13

critical to her credibility, and the prosecution knew

she was lying. Yet the prosecution took no steps to

correct the perjury.”

App.15a (Hamilton, J.,

dissenting).

REASONS FOR GRANTING THE PETITION

This Court made clear in Napue “that a conviction

obtained through use of false evidence, known to be

such by representatives of the State, must fall under

the Fourteenth Amendment.” 360 U.S. at 269.

Nevertheless, a split of authority has developed over

whether the Court really meant what it said. Multiple

courts of appeals and state supreme courts have

followed Napue’s holding that, because “[a] lie is a lie,

. . . if it is in any way relevant to the case, the

[prosecutor] has the responsibility and duty to correct

what he knows to be false and elicit the truth.” Id. at

269–70. But other courts have departed from this

clear path, crafting various exceptions to Napue that

negate its core protections by allowing the

government to knowingly use perjury to obtain

convictions.

The entire en banc Seventh Circuit agreed that

this Court has never recognized such “exceptions for

testimony elicited by the defense, or testimony known

by the defense to be false, or testimony corrected

before the jury deliberates.” App.5a. That should

have been the end of the matter. Paysun Long was

convicted through the government’s knowing use of

perjury, which denied him “a trial that could in any

real sense be termed fair.” Napue, 360 U.S. at 270.

A slim majority of the court, however, affirmed

Long’s conviction.

The majority reasoned that,

because this Court “has never considered” several

“possible qualifications” to Napue, the prosecution

14

could use perjury to convict Long because (1) the

perjury was elicited by the defense, (2) the defense

knew the testimony was false, (3) the prosecutor did

not rely on the falsehood, and (4) contrary evidence

was introduced before the jury deliberated. App.5a.

By undercutting Napue’s rudimentary protections,

however, the Seventh Circuit brought itself into

conflict with numerous other federal circuit and state

courts, which have rejected some or all of these

“exceptions.” The Court should grant the petition to

resolve these unnecessary conflicts among the lower

courts.

The Seventh Circuit’s decision illustrates the

deep division among the federal and state courts

called upon to interpret Napue. This Court is

uniquely suited to resolve this confusion by clarifying

that its decision recognizes none of these purported

exceptions. Napue’s language is emphatic and clear.

It makes plain that the Court did not contemplate any

of the exceptions that have cropped up among the

lower courts, seeking to evade this Court’s clear

directive that criminal convictions may not be based

on perjured testimony.

Under this Court’s

jurisprudence, “[t]here has been no deviation from”

the fundamental principle “that the Fourteenth

Amendment cannot tolerate a state criminal

conviction obtained by the knowing use of false

evidence.” Miller v. Pate, 386 U.S. 1, 7 (1967).

Review is particularly warranted because the

decisions by the Seventh Circuit and other courts that

have created these “exceptions” to the fundamental

rule against convictions based on perjured testimony

are plainly at odds with Napue and have led to a

significant violation of constitutional rights. As the

15

majority here acknowledged, “Napue itself holds []

that perjury known to the prosecution must be

corrected before the jury retires.” App.5a. And, as the

majority further conceded, Napue and its successors

do “not contain exceptions for testimony elicited by the

defense, or testimony known by the defense to be

false, or testimony corrected before the jury

deliberates.”

Id.

Whether Napue “expressly”

considered these exceptions—as discussed further

below, it did, and rejected them—thus is beside the

point, App.7a, as “AEDPA does not require state and

federal courts to wait for some nearly identical factual

pattern before a legal rule must be applied.” Panetti v.

Quarterman, 551 U.S. 930, 953 (2007) (quotation

omitted); see also Yarborough v. Alvarado, 541 U.S.

652, 666 (2004) (“Certain principles are fundamental

enough that when new factual permutations arise, the

necessity to apply the earlier rule will be beyond

doubt.”). Rather, the state courts and Seventh Circuit

should have “reasonably appl[ied] the rules ‘squarely

established’ by this Court’s holdings to the facts” of

Long’s case. White v. Woodall, 134 S. Ct. 1697, 1706

(2014) (quoting Knowles v. Mirzayance, 556 U.S. 111,

122 (2009)). Under those rules, Long is entitled to a

new trial in which the government does not knowingly

use perjury to obtain his conviction.

Moreover, the fundamental premise of the

majority’s decision is wrong.

As the dissent

documented in detail, this Court has in fact implicitly

considered each of the majority’s purported

“exceptions” to Napue and rejected them flat out,

stating emphatically that the prosecution has a duty

to correct perjured testimony, regardless of the source

and regardless of other evidence offered at trial, so

that the possibility that a conviction is obtained based

16

on perjury is precluded. This is what the Constitution

and our nation’s traditions fundamentally require and

it is what this Court underscored when it decided

Napue. In sum, Napue simply does not admit of

“exceptions.”

I.

This Case Deepens A Conflict Among The

Courts of Appeals And State Courts Of Last

Resort.

It has long been a pillar of our criminal justice

system that a prosecutor’s ultimate responsibility, as

“the representative not of an ordinary party to a

controversy, but of a sovereignty whose obligation to

govern impartially,” is “not that it shall win a case,

but that justice shall be done.” Berger v. United

States, 295 U.S. 78, 88 (1935). Consistent with this

duty, courts have interpreted Napue—as requiring

prosecutors to correct perjury, regardless of the

circumstances. Thus, these courts have faithfully

adhered to Napue’s directive that “a conviction

obtained through use of false evidence, known to be

such by representatives of the State,” is a strict

violation of due process. 360 U.S. at 269. Prosecutors

must not allow false testimony “to go uncorrected

when it appears.” Id.

Despite these express directives, some lower

courts have crafted exceptions to Napue and its

successors that permit the government to obtain a

conviction based upon the knowing use of false

testimony when the defendant is aware of the falsity,

where the government did not “solicit” the testimony,

where it did not seek to “rely” or “capitalize” on it, or

where it was contradicted by other evidence admitted

at trial. Understandably, this has created “a division

within the circuits,” as well as the state courts of last

17

resort that have addressed the issue. MangualGarcia, 505 F.3d at 10. The split has only intensified,

and shows no indication of a course correction absent

this Court’s intervention.

1. The Second, Third, Eighth and Ninth Circuits

are among the courts that do not recognize exceptions

to Napue. Recently, for example, the Third Circuit

held that when a prosecutor “knowingly present[s] or

fail[s] to correct perjured testimony, the threat to a

defendant’s right to due process is at its apex and the

state’s interests are at their nadir.” Haskell, 866 F.3d

at 152. The court granted habeas relief based on the

prosecution’s failure to correct false testimony on the

ground that “[p]resenting false testimony cuts to the

core of a defendant’s right to due process.” Id. at 147,

152.

The Second Circuit likewise affirmed a district

court’s grant of habeas relief when the government

knowingly used false testimony to secure a conviction,

even though it was the defense counsel that elicited

the perjured testimony during cross-examination.

Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002). The

court observed that the defendant’s due process rights

were violated because the prosecutor “did nothing to

correct th[e] false” testimony. Id. at 294; see also

Drake, 553 F.3d at 241 (“We have interpreted

Supreme Court precedent as holding that ‘if it is

established that the government knowingly permitted

the introduction of false testimony reversal is

virtually automatic.’”).

The Eighth Circuit has adopted a similar

approach to situations where a government witness

provides testimony the government knows to be false,

holding that it is incumbent upon the prosecution to

18

correct the error, not the defendant. United States v.

Foster, 874 F.2d 491 (8th Cir. 1988). In Foster, the

court reasoned that “[t]he fact that defense counsel

was also aware” of the false testimony and did not

“correct the prosecutor’s misrepresentation is of no

consequence.” Id. at 495. As the court observed, the

fact that the defense is aware of the perjury “d[oes]

not relieve the prosecutor of her overriding duty of

candor to the court” and her responsibility “to seek

justice rather than convictions.” Id.

The Ninth Circuit has followed suit, issuing a

series of opinions (including one decision en banc),

holding that the government “has a constitutional

duty to correct false testimony given by its witnesses,

even when the defense knows the testimony was false

but does nothing to point out such falsity to the jury

or judge.” Soto v. Ryan, 760 F.3d 947, 968 (9th Cir.

2014); see also Hayes v. Brown, 399 F.3d 972, 981 (9th

Cir. 2005) (en banc) (same). The court has observed

that this Court’s precedents provide “a workable set of

precise rules” to govern such circumstances and that

a prosecutor has a “freestanding ethical and

constitutional obligation . . . as a representative of the

government to protect the integrity of the court and

the criminal justice system” by ensuring the trial is

free of false testimony. Bowie, 243 F.3d at 1114, 1122.

The Supreme Judicial Court of Maine has

faithfully adhered to the same view, holding that

“[w]here false testimony, whether intentionally

solicited or not, may have affected the outcome of a

trial, not only is the trial fundamentally unfair, but

the truth-seeking function of the trial process itself is

unacceptably compromised.” State v. Brunette, 501

A.2d 419, 423 (Me. 1985). In a thorough examination

19

of the issue, the unanimous court vacated the

defendant’s conviction despite the fact “the

prosecution did not solicit the false testimony and

immediately and fully informed both the defense

counsel” and trial judge of the false testimony. Id. at

424. Invoking Napue, the court emphasized that

“[w]hen the testimony is in any way relevant to the

case,” the duty rests with the prosecutor “to correct

what he knows to be false and elicit the truth.” Id.

In a similar vein, the New Hampshire Supreme

Court concluded that a defendant’s due process rights

were violated and vacated his conviction where the

prosecution failed to correct perjury, even though

defense counsel could have, but did not, cross-examine

the government’s witness about his false testimony.

State v. Yates, 629 A.2d 807, 809–10 (N.H. 1993). The

court reiterated that, under Napue, “the final

responsibility rest[s] with the prosecutor, not [the

defendant], to bring to the attention of the court and

the jury” that its witness’ testimony contained

falsehoods. Id. at 810.2

Nor do these courts sanction “exceptions” for the

use of false testimony where the prosecution did not

“rely” or “capitalize” on the perjury during summation

or the defendant was able to introduce contrary

evidence during trial. As to reliance, these courts

recognize that “[a]ll perjury pollutes a trial, making it

hard for jurors to see the truth.” LaPage, 231 F.3d at

492. Regardless of whether the prosecution relies on

the false testimony during closing arguments,

The Michigan Supreme Court has reached a similar

conclusion, stating that the Napue “obligation . . . begins and

ends with the prosecution.” People v. Smith, 870 N.W.2d 299,

306 n.7 (Mich. 2015).

2

20

allowing perjury to go uncorrected constitutes “a

corruption of the truth-seeking function of the trial

process.” Drake, 553 F.3d at 241 (internal quotation

omitted). Nor does the introduction of contrary

evidence remove the taint of perjured testimony—

particularly in light of jurors’ general skepticism of

defense counsel. LaPage, 231 F.3d at 492. Allowing

the jury to weigh false testimony along with other

evidence expressly authorizes it to base a conviction

on perjured testimony.

2. Other courts have disagreed, holding that

Napue does not require the prosecution to correct

perjury in all circumstances. In addition to the

Seventh Circuit, the Fifth, Tenth and Eleventh

Circuits have all recognized exceptions to Napue. See,

e.g., United States v. Stein, 846 F.3d 1135, 1150 (11th

Cir. 2017), cert. denied (Dec. 11, 2017); United

States v. Crockett, 435 F.3d 1305, 1318 (10th Cir.

2006); Beltran v. Cockrell, 294 F.3d 730, 737 (5th Cir.

2002).

For example, the Tenth Circuit has read Napue to

apply only in situations involving “a two-step process”

where the government’s nondisclosure of exculpatory

evidence is combined with the “exploitation of that

failure by the presentation of evidence or testimony

the falsity of which would have been obvious but for

the nondisclosure.” Crockett, 435 F.3d at 1317. Thus,

in instances where the government has disclosed

impeachment

evidence,

giving

a

defendant

contemporaneous knowledge of the falsity, the Tenth

Circuit has concluded that “Napue is inapposite.” Id.

at 1318.

The Fifth Circuit has likewise held that Napue

does not apply where the defense is aware of the

21

perjury on the ground that the defense’s failure to

address it “indicates waiver of the false testimony

claim.”

Beltran, 294 F.3d at 737.

The court

characterized this as a “deliberate defense strategy”

that somehow negates any due process violation

under Napue. Id. at 736.

The Supreme Court of Kentucky permitted a

conviction obtained through the use of false testimony

to stand under similar circumstances, concluding that

the defendant’s “failure to impeach” a witness who

offered false testimony “was strategic and tactical.”

Meece v. Commw., 348 S.W.3d 627, 680 (Ky. 2011).

Likewise, the Supreme Court of Iowa concluded that

a defendant “waived” a claim of prosecutorial

misconduct based on false testimony where the

alleged falsity “was very apparent during pretrial

depositions and during trial” and the defendant

“fail[ed] to raise it at trial.” DeVoss v. State, 648

N.W.2d 56, 63–64 (Iowa 2002).

Other courts have carved out exceptions to Napue

where the prosecution did not “rely” or “capitalize” on

the perjured testimony. The Eleventh Circuit has

held, for example, that no due process violation lies

unless the government “affirmatively capitalize[d] on”

the false testimony. Stein, 846 F.3d at 1147; see also

Demarco, 928 F.2d at 1077 (“[The prosecutor’s

argument to the jury capitalizing on the perjured

testimony . . . contributed to the deprivation of due

process.”).

The Tenth Circuit has likewise rejected a Napue

claim where the falsity of the witness’s testimony was

“extensively covered by defense counsels’ questioning”

and “fully developed before the jury.” United States v.

Langston, 970 F.2d 692, 700–01 (10th Cir. 1992); see

22

also United States v. Santiago, 798 F.2d 246, 247 (7th

Cir. 1986) (no Napue violation where the defense “had

an ample opportunity to impeach and discredit” the

false testimony).

The en banc Seventh Circuit here thus aligned

itself with a number of courts that have recognized

various exceptions to Napue that excuse the

prosecution’s knowing use of false testimony to obtain

a conviction. Had this case arisen in the Second,

Third, Eighth or Ninth Circuits, Mr. Long

unquestionably would have been entitled to a new

trial based on the prosecution’s violation of his due

process rights. This deep and persistent split among

the circuits warrants this Court’s intervention.

II. The En Banc Decision Is Wrong.

Review by this Court is further warranted

because the Seventh Circuit’s decision flies in the face

of this Court’s precedent and threatens “the

fundamental conceptions of justice which lie at the

base of our civil and political institutions.” Mooney,

294 U.S. at 112. Indeed, this Court has long

recognized that “the presentation of testimony known

to be perjured” violates “the rudimentary demands of

justice” and must fall. Id. Implicit within this

fundamental rule is the recognition that a prosecutor

is in a “very definite sense the servant of the law, the

twofold aim of which is that guilt shall not escape or

innocence suffer.” Berger, 295 U.S. at 88. Thus,

“while he may strike hard blows, he is not at liberty to

strike foul ones.” Id.

Napue, like this case, involved a murder

prosecution in Illinois. 360 U.S. at 265. A police

officer was fatally shot during the course of an

attempted robbery. Id. One of the State’s witnesses

23

was already serving a prison sentence for the same

murder and testified that defendant Napue was one of

the robbers. Id. at 265–66. During the trial, the

prosecutor asked the witness whether he had received

any promises of lenience in return for his testimony,

and the witness said no. Id. at 267 n.2. That

testimony was false, and was not corrected.

The prosecution later asked to have the witness’s

sentence reduced. Id. at 266. When Napue heard of

the effort to reduce the witness’s sentence, he sought

relief from his conviction. Id. at 267. The state courts

denied relief, see id., but the Supreme Court reversed

in a unanimous opinion, id. at 272. The Court based

its decision on the fundamental proposition that “a

conviction obtained through use of false evidence,

known to be such by representatives of the State,

must fall under the Fourteenth Amendment.” Id. at

269 (citing Mooney, 294 U.S. 103).

Thus, Napue imposed a hard and fast rule that

prosecutors must correct testimony that they know is

false. This has been the rule for more than five

decades, and follows upon a long tradition that

criminal convictions tainted by perjury violate a

defendant’s constitutional rights. This fundamental

principle—”implicit in any concept of ordered

liberty”—is not susceptible to any broad exception. Id.

In this case, the Seventh Circuit did not dispute

that the prosecution “knowingly use[d] false evidence

. . . to obtain a tainted conviction” of Mr. Long. Id.

Nonetheless, the majority held there was no

constitutional violation based on its recognition of

four “exceptions” to Napue’s requirement that the

prosecution correct perjury. But, as the majority

conceded, none of these exceptions are derived from

24

this Court’s precedents. Nor can Napue be reasonably

read to allow any such exception. In any event, each

of the four exceptions invoked by the majority has

been flatly refuted by Napue and its progeny. Thus,

there was “no basis for . . . the Court of Appeals’ view

that” the Court’s “more sweeping holding in” Napue

should be given this devitalized reading. Tenet v. Doe,

544 U.S. 1, 9–10 (2005). The Seventh Circuit thus

unreasonably applied this Court’s clearly established

law, and its decision warrants correction.

A. Napue Applies Regardless

Elicits The Perjury

Of

Who

The Seventh Circuit first held that perjured

testimony need not be corrected where the testimony

is elicited by the defense, rather than the prosecution.

However, the Court in Napue addressed this precise

question, noting that “[t]he same result obtains when

the State, although not soliciting false evidence, allows

it to go uncorrected when it appears.” 360 U.S. at 269

(emphasis added) (citing Alcorta v. Texas, 355 U.S. 28

(1957)).

This rule makes perfect sense given that the

corrosive effect of perjury on the verdict does not

depend on which witness introduced the perjury or

whether it was elicited by the prosecution or the

defense. The fundamental problem addressed by

Napue is the problem of convictions based on perjured

testimony. Accordingly, the fact that in this case the

prosecution’s witness lied during cross-examination,

rather than on direct examination, does not render

Napue somehow inapplicable.

The majority acknowledged that “[o]ne passage in

Napue, 360 U.S. at 269, could be read to imply that a

prosecutor must correct testimony no matter who

25

solicited it.”

App.6a.

The majority, however,

attempted to explain away this principle by noting

that the Court cited Alcorta as support, and concluded

that the Napue Court’s statement must be limited to

the facts of Alcorta. Id. Yet, the unanimous Napue

decision offered no such limitation.

Rather, it

articulated a clear rule that the “same result”

pertained no matter what party “solicit[ed] false

evidence.” 360 U.S. at 269.

Indeed, as the dissent observed, this Court

subsequently applied this very rule in Giglio v. United

States, 405 U.S. 150 (1972). There, a prosecution

witness lied on cross-examination by denying he had

received any promise of leniency. The prosecution

failed to correct the false testimony because the

prosecutor was unaware of the promise of leniency.

This Court reversed and remanded even though the

perjury was elicited by the defense in its crossexamination of the prosecution witness. Id. at 150–

51. As the Court observed, “[i]t is the responsibility of

the prosecutor” to ensure that “the due process

requirements enunciated in Napue” are satisfied. Id.

at 154–55.

As a result, the Seventh Circuit’s view has been

roundly rejected by other circuits. See, e.g., Haskell,

866 F.3d at 145–47 (due process is violated when the

government “fails to correct false testimony in a

criminal proceeding”); Jenkins, 294 F.3d at 295 (due

process is violated where “the prosecutor, by action or

inaction, is complicit in the untruthful testimony”);

LaPage, 231 F.3d at 492 (due process violated where

“the prosecutor sat silently as his witness lied” to

defense counsel).

26

As the Ninth Circuit, sitting en banc, observed,

“[t]here is no exception under Alcorta and Pyle for

solicited false testimony.” Hayes, 399 F.3d at 981.

Rather, as the court noted, this Court’s decisions in

Alcorta, Pyle, and Napue all “create an affirmative

duty on the part of the prosecution to correct false

testimony at trial, even when the testimony is

unsolicited.” Id. Indeed, “it is illogical and contrary

to principles of due process to conclude that the

government is freed from any obligation simply

because the false testimony is presented in response

to defense questioning of a witness it called.”

Longus v. United States, 52 A.3d 836, 846 (D.C. 2012).

As these courts recognize, this Court has

repeatedly underscored that the prosecution has a

special duty “to refrain from improper methods

calculated to produce a wrongful conviction.” Berger,

295 U.S. at 88; see also ABA Model Rules of Prof’l

Conduct 3.8 cmt. 1 (2017) (“A prosecutor has the

responsibility of a minister of justice and not simply

that of an advocate.”). This is a role that “transcends

that of an adversary” and requires the prosecution “to

ensure that a miscarriage of justice does not occur.”

United States v. Bagley, 473 U.S. 667, 675 & n.6

(1985). Under Napue, the prosecution’s constitutional

and ethical duty to ensure that convictions are not

based on perjury is not diminished merely because the

defendant is the one who elicited the false testimony.

B. Napue Applies Regardless Of Whether

The Defense Is Aware Of The Perjury

The Seventh Circuit’s identification of an

exception that would allow prosecutors to avoid their

duty to correct perjured testimony where the defense

knew the testimony was false is likewise contrary to

27

Napue and its progeny. Again, Napue made clear that

the prosecution has both an ethical and constitutional

obligation to correct perjured testimony. This duty

applies even where the defense knows that the

testimony is false. The directive under Napue is not

to inform defense counsel of perjured testimony.

Rather, it is to ensure that the court and ultimately

the jury is informed that witnesses have perjured

themselves so that the jury may not rely on perjured

testimony to convict the defendant. That is why this

Court declared in no uncertain terms that Napue and

Mooney “impose upon the prosecution a constitutional

obligation to report to the defendant and to the trial

court whenever government witnesses lie under oath.”

California v. Trombetta, 467 U.S. 479, 485 (1984)

(citing Napue, 360 U.S. at 269–72, and Mooney, 294

U.S. 103) (emphasis added).

In Giglio, for example, the Court observed that

the Napue rule plainly applies in cases where ‘“the

State, although not soliciting false evidence, allows it

to go uncorrected when it appears.”‘ 405 U.S. at 153

(quoting Napue, 360 U.S. at 269). Thus, as with the

purported exception where defense counsel elicits the

perjured testimony, there is no exception under

Napue where defense counsel knows that the

testimony was false.

The Seventh Circuit ignored this fundamental

holding in Napue on the ground that the Napue rule

is a “cousin to the Brady doctrine.” App.9a. However,

unlike Brady, the focus of Napue is not on defense

counsel’s knowledge.

Rather, Napue addresses

information provided to the jury and seeks to ensure

that where the jury has been provided perjured

testimony, that perjury is corrected by the prosecution

28

so that it may form no basis of a criminal conviction.

Accordingly, Napue explicitly directs that the

prosecution may not allow perjury “to go uncorrected

when it appears.” 360 U.S. at 269.

As the dissent observed below, “[w]hat matters is

the risk that the jury will use the false evidence to

convict.” App.20a. “The Napue Court put the

obligation squarely on the prosecution to see that false

evidence is corrected, without the majority’s proposed

qualification.”

App.20a–21a

(Hamilton,

J.,

dissenting).

Accordingly, other courts that have considered

similar arguments have rejected them. In Foster, for

example, the Eighth Circuit reversed a conviction

where three witnesses testified falsely regarding

whether they had received any promises from the

government in exchange for their testimony. 874 F.2d

at 494–95. The court concluded that the fact that

defense counsel was aware of the falsity was “of no

consequence” and “did not relieve the prosecutor of

her overriding duty of candor to the court.” Id. at 495.

The Ninth Circuit reached a similar conclusion in

LaPage.

As it observed, under Napue, “the

government’s duty to correct perjury by its witnesses

is not discharged merely because defense counsel

knows . . . that the testimony is false.” LaPage, 231

F.3d at 492. Finally, in reversing a conviction based

on a prosecutor’s failure to correct false testimony, the

Michigan Supreme Court succinctly recognized that

placing the burden on prosecutors to “avoid

presenting false or misleading testimony of its own

witness . . . is prudent in the unique Napue context

because Napue requires the prosecution’s knowledge

29

of the false or misleading testimony of its own

witnesses.” Smith, 870 N.W.2d at 306 n.7.

In sum, it is the threat to the integrity of the

judicial process that is Napue’s concern, not the

defendant’s knowledge of the false testimony: “A

prosecutor’s knowing use of perjured testimony is

misconduct that goes beyond the denial of a fair trial,

which is the focus of Brady. It is misconduct that

undermines fundamental expectations for a ‘just’

criminal-justice system.” United States v. Garcia, 793

F.3d 1194, 1208 (10th Cir. 2015). Indeed, it is wholly

“irrelevant” whether the defense knew about the false

testimony, because it is the prosecution’s “ethical and

constitutional obligation . . . to protect the integrity of

the court and the criminal justice system.” Bowie, 243

F.3d at 1122.

C. Napue Applies Regardless Of Whether

The Prosecution “Relies” Upon The

Perjury

There is likewise no exception under Napue for

situations in which the prosecutor does not

subsequently “rely” or “capitalize” on the perjured

testimony during closing argument. Again, Napue

itself makes clear that no exception exists, stating

that a defendant’s constitutional rights are violated

where the prosecution merely “allows [perjured

testimony] to go uncorrected.” 360 U.S. at 269

(emphasis added).

Accordingly, as the dissent

observed below, the Court’s language “flatly

contradicts the majority’s suggestion that Napue left

the prosecution room to avoid its obligation to correct

false evidence by merely refraining from asking the

jury specifically to rely upon the perjured testimony.”

App.21a.

30

Moreover, Napue and its progeny make clear

“that a State may not knowingly use false evidence

. . . to obtain a tainted conviction,” Napue, 360 U.S. at

269.

Any false material testimony that the

government leaves uncorrected is “used” to obtain a

conviction, regardless of whether the government

reuses it, for example, in a closing statement. And any

“knowing use of perjured testimony involves . . . a

corruption of the truth-seeking function of the trial

process.” Bagley, 473 U.S. at 680. Accordingly, if a

government witness’s lie “is in any way relevant to the

case, the [prosecutor] has the responsibility and duty”

not just to refrain from capitalizing on it, but “to

correct what he knows to be false and elicit the truth.”

Napue, 360 U.S. at 269–70.

This case illustrates why the Seventh Circuit’s

exception-riddled reading of Napue is incompatible

with due process. While both the majority and dissent

agreed that the prosecution here did not “rely” on the

perjured testimony, the prosecutor told the jury

during closing that its key witness who offered the

perjured testimony, Ms. Irby, “came in here and

raised her hand and told you what happened” and that

she “was under oath” and “told you what she saw.”

App.109a. Further, the prosecutor argued that Irby’s

testimony was “consistent with” that of other

witnesses. Id. As the dissent observed, the exception

identified by the majority allowed the prosecution to

“soft-pedal[]” and “dance around” the perjury of its key

witness during oral argument with impunity.

App.14a.

Recognizing such an exception would

eliminate Napue’s protection and undermine “the

rudimentary demands of justice.” Mooney, 294 U.S.

at 112.

31

D. Napue Applies Regardless Of Whether

Contrary Evidence Is Introduced

Finally, there is no exception to Napue where

evidence that tends to contradict the perjury is

introduced at trial. The Court in Napue rejected such

arguments, stating “we do not believe that the fact

that the jury was apprised of other grounds for

believing that the witness Hamer may have had an

interest in testifying against petitioner [Napue]

turned what was otherwise a tainted trial into a fair

one.” 360 U.S. at 270.

More fundamentally, the motivation behind the

Napue rule is to prevent convictions based on perjury,

requiring prosecutors to correct the perjury so that the

jury knows that it may not base a conviction on false

testimony.

The exception the Seventh Circuit

endorsed would allow precisely this prohibited

outcome. Jurors would be authorized to weigh

perjured testimony against other evidence and, if they

determined the perjured testimony was more credible

or relevant, convict the defendant based on the

perjured testimony—all contrary to Napue. See

Perry v. New Hampshire, 565 U.S. 228, 237 (2012)

(noting the duty to correct perjured testimony).

As the dissent observed, this exception, “ignores

the reality of a jury trial in our adversarial system.”

App.21a.

“A jury that hears evidence merely

contradicting the perjury cannot be said to know the

truth.” Id. (Hamilton, J., dissenting). Rather, the jury

would remain free to base a conviction on perjured

testimony, contrary to the express directive of Napue

and its progeny that the prosecution must correct the

perjured testimony so the jury cannot rely on it to

convict the defendant.

32

Napue’s requirement that the prosecution correct

the perjured testimony recognizes the special role

“played by the American prosecutor in the search for

the truth in criminal trials.” Strickler v. Greene, 527

U.S. 263, 281 (1999). Jurors are inclined to believe

that prosecutors fulfill that obligation and observe

their traditional role to see “that justice shall be

done.” Berger, 295 U.S. at 88.

Nor does Napue’s directive impose any undue

burden on the prosecution. Rather, prosecutors are

accustomed to addressing matters like this when they

arise. When false testimony is offered, prosecutors

frequently “work out in a bench conference with the

judge and defense counsel how to inform the jury

immediately that the testimony is false.” LaPage, 231

F.3d at 492; see also Smith v. State, 34 N.E.3d 1211,

1220 (Ind. 2015).

III. This Case Is An Excellent Vehicle To

Address The Question Presented.

The metes and bounds of what constitutes

adequate protection of a defendant’s due process right

to a fair trial where a conviction is obtained through

the knowing use of false testimony is plainly a

question of exceptional national importance. This

case is an ideal vehicle for the Court to reaffirm its

holding in Napue that the prosecution must ensure

that a trial is free from the taint of false testimony

regardless of how that testimony arises or what

contradictory evidence a defendant may possess.

First, the division among the Circuits regarding

the proper interpretation of Napue presents a split

ripe for review by this Court—one that is in need of

urgent redress. Little would be gained by allowing

further percolation in the lower courts as the decision

33

below directly conflicts with those of four other

Circuits, which would have afforded Mr. Long a new

trial had he had the fortune of being tried in those

jurisdictions. Moreover, the opinions of the federal

courts of appeals and state supreme courts on this

issue provide thorough analysis and adequately set

forth the arguments on both sides of the entrenched

split. Thus, there is no colorable argument that this

Court does not have the assistance of “the crucible of

adversarial testing on which [it] usually depend[s].”

Maslenjak v. United States, 137 S. Ct. 1918, 1931

(2017) (Gorsuch, J., concurring in part and concurring

in the judgment).

Second, the issue presented here received

thorough consideration by both the panel and the en

banc court. The en banc decision addresses the

various permutations of the exceptions to Napue that

the lower courts have recognized. It provides an

excellent vehicle for this Court to clarify that its prior

decision in Napue admits of no exceptions. Perjury

must be corrected in order to afford the defendant a

fair trial—regardless of the circumstances.

Third, the question presented is significant and

has ramifications far beyond the present case. This

Court has underscored that the judiciary has an

“independent interest in ensuring that criminal trials

are conducted within the ethical standards of the

profession and that legal proceedings appear fair to all

who observe them.” Wheat v. United States, 486 U.S.

153, 160 (1988). Allowing prosecutors to obtain

convictions based on perjury “invites disrespect for the

integrity of the court,” and indeed undermines the

legitimacy of the criminal justice system. Id. (internal

quotation omitted). This Court has a compelling

34

interest in correcting the lower courts’ deviations from

Napue that allow such an outcome. The prohibition

on the use of false testimony in criminal trials is

“implicit in any concept of ordered liberty.” Napue,

360 U.S. at 269.

Fourth, there are no issues of disputed fact

relevant to the en banc court’s analysis. There is no

dispute that Ms. Irby’s testimony was false. Nor is

there any dispute that the prosecution failed to correct

it.

Every court to address the issue readily

acknowledged these fundamental facts, as has the

State itself.

Finally, the en banc court’s ethereal test not only

injects imprecision into the due process analysis but

also incentivizes prosecutorial misconduct. “The

adversary system places a premium on winning, and

prosecutors are hardly exempt from the pressure to

win.” Rachel E. Barkow, Organizational Guidelines

for the Prosecutor’s Office, 31 Cardozo L. Rev. 2089,

2091 (2010).

Given that prosecutors’ career

progression largely hinges on their conviction rates

and disciplinary proceedings are rarely undertaken, it

is no wonder that prosecutorial misconduct “still

occurs and is sanctioned too lightly to deter

effectively.”

Stephanos Bibas, Prosecutorial

Regulation Versus Prosecutorial Accountability, 157

U. Pa. L. Rev. 959, 977 n.72 (2009). Absent this

Court’s intervention, there is little that will

disincentivize the sort of behavior that could

potentially lead to wrongful convictions obtained

through the government’s knowing use of perjury.

35

CONCLUSION

For the foregoing reasons, the petition for

certiorari should be granted.

Respectfully submitted,

DOUGLAS G. SMITH

Counsel of Record

MICHAEL W. GLENN

KIRKLAND & ELLIS LLP

300 North Lasalle

Chicago, IL 60654

(312) 862-2000

dsmith@kirkland.com

Counsel for Petitioner

January 12, 2018