Petition for Writ of Certiorari — Edward George McGregor, Petitioner v. Texas

No. _________

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------EDWARD GEORGE McGREGOR,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Texas Court Of Criminal Appeals

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------RANDOLPH L. SCHAFFER, JR.

Counsel of Record

1021 Main, Suite 1440

Houston, Texas 77002

(713) 951-9555

noguilt@swbell.net

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Napue v. Illinois, 360 U.S. 264 (1959), held that a

conviction violates due process when it is based on

false, material testimony that the prosecution knowingly elicited or failed to correct. False testimony is

material unless the prosecution proves beyond a reasonable doubt that it did not contribute to the conviction. Lower courts are divided on the standard for

determining the materiality of false testimony. Most

have held that materiality is determined by considering the effect on the verdict had the jury known that

the witness lied and the prosecutor was complicit. The

Texas Court of Criminal Appeals (TCCA), following the

minority approach, concluded that false testimony that

two witnesses did not have agreements with the prosecution was immaterial because it did not refute the

substance of their testimony that petitioner had confessed to them and the prosecution’s case was “fairly

strong.” It ignored the time-honored legal maxim that

cross-examination demonstrating that a witness has

lied about one matter undermines not only his credibility but also the substance of his testimony.

The question presented is:

Is the materiality of false testimony knowingly used by the prosecution determined by

asking whether the jury would have convicted

the defendant had the witnesses told the

truth or by asking whether the jury would

have convicted him had he been able to impeach them on cross-examination?

ii

RELATED CASES

•

State v. McGregor, No. 09-DCR-053051, 434th District Court of Fort Bend County, Texas. Judgment

entered September 3, 2010.

•

McGregor v. State, No. 01-10-01085-CR, First Court

of Appeals of Texas. Judgment entered August 9,

2012.

•

McGregor v. State, No. PD-0150-13, Texas Court of

Criminal Appeals. Judgment entered April 17,

2013.

•

Ex parte McGregor, No. 09-DCR-053051-HC1, 434th

District Court of Fort Bend County, Texas. Judgment entered November 7, 2016.

•

Ex parte McGregor, No. WR-85,833-01, Texas Court

of Criminal Appeals. Judgment entered June 12,

2019. Rehearing denied September 11, 2019.

iii

TABLE OF CONTENTS

Page

OPINIONS BELOW ...............................................

1

JURISDICTION .....................................................

1

CONSTITUTIONAL PROVISION.........................

1

STATEMENT..........................................................

2

A.

Procedural History.......................................

2

B.

Factual Statement .......................................

2

REASONS FOR GRANTING CERTIORARI ........

10

A.

There Is An Intractable Conflict Among The

Lower Courts Regarding The Standard For

Determining The Materiality Of False Testimony........................................................... 12

B.

False Testimony Is Per Se Material Where

The Prosecution’s Case Was Only “Fairly

Strong”.......................................................... 15

C.

False Testimony Is Material Where The

Prosecutor Emphasized It During Summation................................................................ 17

D.

False Testimony Is Material Even Though

The Jury Knew That The Witnesses Had A

Motive To Testify For The Prosecution........ 19

E. False Testimony Is Material Even Though

It Concerned The Credibility Of The Witnesses Instead Of The Substance Of Their

Testimony ..................................................... 21

F.

Summary Reversal Is Appropriate .............

23

CONCLUSION .......................................................

24

iv

TABLE OF CONTENTS – Continued

Page

APPENDIX

Appendix A—Texas Court of Criminal Appeals

opinion (June 12, 2019) ...........................................1a

Appendix B—434th District Court findings of

fact and conclusions of law (November 7,

2016) ......................................................................37a

Appendix C—434th District Court Supplemental findings of fact and conclusions of law

(June 27, 2017) ......................................................65a

Appendix D—Texas Court of Criminal Appeals order denying rehearing (September 11,

2019) ......................................................................69a

v

TABLE OF AUTHORITIES

Page

CASES

Adams v. Commissioner of Correction, 71 A.3d

512 (Conn. 2013) ............................................... 14, 16

Chapman v. California, 386 U.S. 18 (1967)................11

Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009)........17

Giglio v. United States, 405 U.S. 150 (1972) ..............22

Guzman v. State, 941 So.2d 1045 (Fla. 2006) ............20

Haskell v. Greene, 866 F.3d 139 (3d Cir. 2017) ...........17

Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (en

banc) ........................................................................14

Hinton v. Alabama, 571 U.S. 263 (2014) ....................23

In re DePuy Orthopaedics, Incorporated, Pinnacle Hip Implant Product Liability Litigation,

888 F.3d 753 (5th Cir. 2018) ....................................22

Jackson v. Brown, 513 F.3d 1057 (9th Cir. 2008) .... 14, 20

Kaupp v. Texas, 538 U.S. 30 (2009) .............................23

McGregor v. State, 394 S.W.3d 90 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref ’d) .........................2

Mesarosh v. United States, 352 U.S. 1 (1956).............21

Napue v. Illinois, 360 U.S. 264 (1959) ................ passim

People v. Savvides, 136 N.E.2d 853 (N.Y. App.

1956) ........................................................................21

Porter v. McCollum, 558 U.S. 30 (2009) ......................23

Rosencrantz v. Lafler, 568 F.3d 577 (6th Cir.

2009) ........................................................................14

vi

TABLE OF AUTHORITIES – Continued

Page

Shih Wei Su v. Filion, 335 F.3d 119 (2d Cir. 2003) ....... 16

Sullivan v. Louisiana, 508 U.S. 275 (1993) .......... 11, 23

United States v. Bagley, 473 U.S. 667

(1985) ..................................................... 11, 16, 22, 23

United States v. Mazzanti, 925 F.2d 1026 (7th

Cir. 1991) .................................................................14

United States v. Wallach, 935 F.2d 445 (2d Cir.

1991) ........................................................................14

Wearry v. Cain, 136 S.Ct. 1002 (2016) ........................23

CONSTITUTIONAL PROVISION

U.S. CONST. amend. XIV ...............................................1

FEDERAL STATUTES

28 U.S.C. §1257(a) .........................................................1

Anti-Terrorism and Effective Death Penalty Act

of 1996 (AEDPA) .....................................................12

STATE STATUTE

TEX. PENAL CODE §37.03 (West 2020).........................18

RULES

SUP. CT. R. 10(b) ..........................................................12

SUP. CT. R. 10(c) ..........................................................12

vii

TABLE OF AUTHORITIES – Continued

Page

MISCELLANEOUS

Poulin, Convictions Based on Lies: Defining Due

Process Protection, 116 PENN. ST. L. REV. 331

(2011) ................................................................. 13, 17

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Edward George McGregor, respectfully

petitions for a writ of certiorari to review the judgment

of the TCCA.

------------------------------------------------------------------

OPINIONS BELOW

The TCCA’s unpublished opinion (App. 1a-36a) is

available at 2019 WL 2439453. The district court’s

findings of fact and conclusions of law (App. 37a-64a)

and supplemental findings of fact and conclusions of

law (App. 65a-68a) are unreported. The TCCA’s unpublished order denying rehearing (App. 69a) is unreported.

------------------------------------------------------------------

JURISDICTION

The TCCA denied rehearing on September 11,

2019. This Court has jurisdiction under 28 U.S.C.

§1257(a).

------------------------------------------------------------------

CONSTITUTIONAL PROVISION

The Fourteenth Amendment to the United States

Constitution provides, in pertinent part, “No State

shall . . . deprive any person of . . . liberty . . . without

due process of law. . . .”

------------------------------------------------------------------

2

STATEMENT

A. Procedural History

Edward McGregor, age 17 at the time of the offense, pled not guilty to capital murder in the 434th

District Court of Fort Bend County, Texas. A jury convicted him, and the court sentenced him to life in

prison on September 3, 2010.

The First Court of Appeals of Texas affirmed

McGregor’s conviction in a published opinion issued on

August 9, 2012. The TCCA refused discretionary review on April 17, 2013. McGregor v. State, 394 S.W.3d

90 (Tex. App.—Houston [1st Dist.] 2012, pet. ref ’d).

McGregor filed a state habeas corpus application

on March 31, 2016. The trial court conducted an evidentiary hearing and recommended a new trial on November 7, 2016. The TCCA remanded for additional

findings of fact and conclusions of law. The trial court

entered additional findings and conclusions and again

recommended a new trial. The TCCA denied relief in

an unpublished opinion issued on June 12, 2019, and

denied rehearing on September 11, 2019. Ex parte

McGregor, 2019 WL 2439453, No. WR-85,833-01(Tex.

Crim. App. 2019) (not designated for publication).

B. Factual Statement

McGregor, then age 17, lived with his family in

Fort Bend County in 1990 (19 R.R. 47). Kimberly Wildman lived two houses from the McGregors (19 R.R. 8,

10). She called 911 for assistance at 11:45 p.m. on April

3

17, 1990 (10 R.R. 73, 78-81). An officer entered her

home and found her nude on the kitchen floor with

multiple stab wounds (10 R.R. 73, 90-91). He asked if

she knew who did it (10 R.R. 93). She said, “A black

man.” He asked, “Do you know him?” She said, “No.”

The police found nude photos of her and documents indicating that she had worked in a topless club (11 R.R.

47, 49, 52). Her wounds were fatal (12 R.R. 111-13,

120). Sperm cells found on vaginal and anal swabs indicated that she recently had sexual intercourse (12

R.R. 117). However, the pathologist could not determine whether the intercourse occurred contemporaneously with the murder, and nothing indicated that it

was non-consensual (12 R.R. 139-41).

Edwina Barnum, a topless dancer and prostitute,

was found murdered in her apartment in Harris

County in May 1994 (15 R.R. 144, 146, 152, 157). She

had been shot in the head, strangled, and stabbed in

the back (16 R.R. 136). Police found a condom in her

bed sheets (15 R.R. 191, 194). Nothing indicated that

she had been sexually assaulted (16 R.R. 141-42).

DNA testing conducted in 2006 and 2007 revealed

that McGregor’s DNA was consistent with the profiles

developed from the condom found in Barnum’s bed

sheets and the swabs taken from Wildman (12 R.R.

164-66; 16 R.R. 95, 117; 17 R.R. 15, 17). McGregor previously had flirted with Barnum and attended the club

where she danced (15 R.R. 189, 220; 17 R.R. 35-37, 4546, 82-83). Thus, the physical evidence established

that he had consensual sex with two women who were

murdered four years apart. He was charged with the

4

capital murders of Wildman in Fort Bend County and

Barnum in Harris County.

Delores Gable (also known as Delores Lee), a career criminal with multiple felony convictions, had

been in prison since 1995 serving lengthy sentences for

possession of two kilograms of cocaine and solicitation

of capital murder (11 R.R. 117, 124-26, 133-36). She

wrote a letter to Fort Bend County Assistant District

Attorney Michael Elliott on October 31, 2006, stating

that she could “seal” the State’s case against McGregor

but that she had colon cancer and was seeking “some

relief from [sic] testifying” or she would “just leave

well enough alone” (11 R.R. 137-39, 141-45). Investigators interviewed her, and she became a prosecution

witness (11 R.R. 147-48). She testified that she heard

McGregor tell her husband, Brian, as they stood in

their front yard watching the police conduct the investigation across the street, that he had killed “the white

lady” (11 R.R. 155-56, 159).1 Assistant District Attorney Elizabeth Shipley (also known by her married

name, Elizabeth Exley) elicited on direct examination

that she did not promise Gable anything in exchange

for her testimony (11 R.R. 165). Gable initially denied

on cross-examination that she knew that a prosecutor

could help her obtain parole or that she had asked for

any such help but ultimately acknowledged that she

had heard that a prosecutor could help (11 R.R. 171).

1

The defense conclusively established at trial and at the habeas evidentiary hearing that neither Delores nor Brian Gable

lived in that neighborhood on the night of Wildman’s murder (18

R.R 98-102; 2 H.R.R. 68-70, 82-83).

5

Adam Osani testified that McGregor threatened

him while he was in the Harris County Jail on a felony

assault charge (15 R.R. 98-100; 102-07). Marvin Paxton, an inmate, told McGregor to leave Osani alone (15

R.R. 112). McGregor responded that he would kill Paxton “like I did those other two bitches” (15 R.R. 113).

Osani told his lawyer, who contacted Shipley (15 R.R.

125-27). After Osani testified before the grand jury,

he pled guilty to a reduced charge of misdemeanor assault and was sentenced to six months in jail (which

amounted to time-served) and released (15 R.R. 99,

128, 138). Shipley elicited on direct examination that

Osani was not promised anything in exchange for his

testimony and did not know whether she had talked to

his prosecutor or done anything in relation to his case

(15 R.R. 122-23). He denied on cross-examination that

his lawyer told him that he received a reduced sentence for his cooperation (15 R.R. 138).

Paxton, who initially had five aggravated robbery

charges, testified that McGregor threatened him and

confessed to killing two women (16 R.R. 155-58, 162,

170). Paxton provided this information to his lawyer

because “I have a mother” (16 R.R. 166, 169). Before he

testified, he pled guilty to two aggravated robbery

charges with a cap of 45 years on punishment, and the

State dismissed the other three charges (16 R.R. 18589, 197). Shipley elicited on direct examination that

she had not promised him anything in exchange for his

testimony (16 R.R. 167, 169). He acknowledged on

cross-examination that she told him that, if he provided good information and helped with McGregor’s

6

case, “it was possible” that his cooperation would be

brought to the attention of his prosecutor and judge at

sentencing (16 R.R. 190-91, 197).

McGregor testified that he had consensual sexual

intercourse with Wildman, who was alive when he went

home before dark (19 R.R. 54-56). He denied breaking

into her home, sexually assaulting her, and killing her

(19 R.R. 84). His mother and brother testified that he

was home that night (18 R.R. 122-24; 19 R.R. 10-14).

He further testified that, four years later, he had consensual sexual intercourse with Barnum while wearing a condom, which he left behind (19 R.R. 67-70). He

initially told the police that he did not know these

women because he did not remember Wildman’s name

after 16 years, he knew Barnum only by her nickname

(“Nina”), and he was scared after learning that he was

under arrest for capital murder (19 R.R. 73-77). He denied killing them or confessing to Gable, Osani, and

Paxton (19 R.R. 62, 78, 84).

Linda Christian, a Fort Bend County Jail inmate,

testified that Gable said during McGregor’s trial that

she thought that the parole board would help her as a

result of her testimony (20 R.R. 98).

Shipley argued during summation that Gable,

Osani, and Paxton credibly testified that McGregor

had confessed to them (21 R.R. 18-19, 33-35, 74-78);

that, although Gable hoped that her testimony would

help with parole, she had no motive to lie and was particularly credible because she had information about

McGregor’s family that a stranger would not have (21

7

R.R. 74-75);2 and that she did not know what defense

counsel was talking about in suggesting that the witnesses would receive benefits, as she did not “operate

that way” (21 R.R. 75).

A juror sent a note to the court on the second day

of deliberations asking to be released because the other

jurors disagreed with her (22 R.R. 4-5). The court refused to excuse the juror and denied a defense motion

for mistrial (22 R.R. 8). The jury convicted McGregor

at the end of the second day (22 R.R. 9).

McGregor filed an application for a writ of habeas

corpus alleging that his conviction violated due process

because Shipley failed to disclose to the defense that

Osani had received consideration for his grand jury

testimony before the trial and that Gable and Paxton

would receive consideration after the trial and because

she elicited and failed to correct their false testimony

to the contrary. The trial court conducted a four-day evidentiary hearing.

The evidence established that, before McGregor’s

trial, Shipley agreed to write a letter advising the parole board of Gable’s cooperation and help her obtain a

special parole review in exchange for her testimony;

and, that Shipley wrote the letter and requested the

2

Testimony at the habeas evidentiary hearing established

that Gable met McGregor’s former fiancée in prison in 2006 and

could have obtained information about the McGregors from her (3

H.R.R. 59-60). The TCCA rejected without comment McGregor’s

contention that defense counsel was ineffective in failing to elicit

this testimony (App. 36a).

8

special review five days after McGregor was convicted

(3 H.R.R. 97-100). Shipley arranged with Osani’s prosecutor to reduce the felony charge to a misdemeanor

for a sentence of six months (which amounted to timeserved) as a result of his grand jury testimony (2

H.R.R. 191-92). Shipley also decided before McGregor’s

trial to inform Paxton’s prosecutor and judge of his

cooperation (3 H.R.R. 163-64). One month after McGregor was convicted, Shipley arranged with that

prosecutor for Paxton to receive seven-year sentences

that made him eligible for parole immediately (3 H.R.R.

169-70; 5 H.R.R. 27-28, 36-37). The trial court found

that Shipley failed to disclose these agreements and

understandings to the defense; that she elicited and

failed to correct the witnesses’ false testimony to the

contrary; that the false testimony was material because the witnesses were “critical” to the State’s case;

and that McGregor should receive a new trial (App.

61a-63a).3

The TCCA agreed that the record supported the

trial court’s findings that Shipley failed to disclose to

the defense her promises to Gable and Osani and that

she elicited and failed to correct their false testimony

that they did not and would not receive consideration

3

The trial court also found that Gable testified falsely that

her last name was Gable; that she was married to Brian; that they

lived in Wildman’s neighborhood on the night of the murder; that

she saw McGregor’s father that night; that McGregor had a fresh

cut on his lip that night,; and that she came forward 16 years later

because she had cancer (App. 62a). The TCCA rejected a separate

claim based on this false testimony for a variety of reasons (App.

22a-31a). None are relevant to the present petition.

9

(App. 16a-17a, 20a-21a). It rejected the finding that

Shipley agreed to a “seven-year deal” with Paxton before he testified (App. 18a-19a).4 The TCCA concluded

that Paxton’s testimony that Shipley told him that

she “could” report his cooperation to his prosecutor

and judge at sentencing did not mislead the jury, notwithstanding her admission at the habeas evidentiary

hearing that she “would” report his cooperation (App.

19a-20a).

The TCCA held that Gable’s false testimony was

immaterial because the jury knew that she had an interest in testifying for the State in view of her letter to

Elliott that she was “seeking relief,” her acknowledgment on cross-examination that she had heard that a

prosecutor can help an inmate obtain parole, and

Christian’s testimony that she said that she expected

a parole benefit as a result of her testimony (App. 32a).

It acknowledged that Osani’s false testimony that he

did not receive a favorable plea bargain in exchange for

his grand jury testimony was “[m]ore significant to the

4

The TCCA misconstrued McGregor’s contention to be that

Shipley agreed to seven-year sentences before Paxton testified. To

the contrary, McGregor contends that Shipley suppressed favorable impeachment evidence that she decided before Paxton testified to arrange for him to receive lenient sentences in exchange

for his testimony; that she elicited his false testimony that she did

not promise him anything; and that she failed to correct his false

testimony that it was only “possible” that his cooperation would

be brought to the attention of his prosecutor and judge at sentencing. McGregor need not belabor the point in view of the TCCA’s

acknowledgement that Shipley knowingly elicited and failed to

correct the false testimony of Gable and Osani. That said, the

TCCA clearly erred with regard to Paxton.

10

materiality analysis” (App. 33a). However, it held that

their false testimony collectively was immaterial because it did not refute the substance of their testimony

that McGregor had confessed to them, physical evidence linked him to two women who were murdered

four years apart, and the State’s case was “fairly

strong” (App. 33a-36a):

We are convinced beyond a reasonable doubt

that the outcome of this case would have been

the same even if the jury had heard evidence that Osani’s cooperation as a grand

jury witness against Applicant would be

taken into consideration by his prosecutor and even if Delores had admitted that

she expected a parole letter. Given the DNA

evidence against Applicant and the long odds

against the defensive theory that he innocently

had sex with two women–whom he knew but

denied knowing–shortly before their brutal

murders four years apart, the State’s case

was fairly strong. Viewed in light of the totality of the record, we cannot say that the

false testimony was material to Applicant’s

conviction.

(App. 36a) (emphasis added).

------------------------------------------------------------------

REASONS FOR GRANTING CERTIORARI

A conviction must be set aside where the prosecutor elicited or failed to correct false testimony that was

material to the conviction. Napue v. Illinois, 360 U.S.

11

264, 271 (1959). The determination of materiality is

governed by the “harmless error” standard of Chapman v. California, 386 U.S. 18, 24 (1967), which requires that the prosecution prove beyond a reasonable

doubt that a constitutional error did not contribute to

the conviction. United States v. Bagley, 473 U.S. 667,

679 n. 9 (1985) (prosecution must prove beyond a reasonable doubt that false testimony did not contribute

to conviction). In applying the Chapman standard, a

reviewing court must determine “not what effect the

constitutional error might generally be expected to

have upon a reasonable jury, but rather what effect it

had upon the guilty verdict in the case at hand.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). “The inquiry

. . . is not whether, in a trial that occurred without the

error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered

in this trial was surely unattributable to the error.” Id.

(emphasis in original).

The TCCA counterfactually determined that, because the prosecution’s case was “fairly strong,” McGregor would have been convicted at a hypothetical

trial at which the witnesses testified truthfully rather

than lied under oath. That is, the TCCA analyzed materiality as if the trial occurred “without the error.”

Sullivan, 508 U.S. at 279. As discussed below, most

lower courts have taken a contrary approach by considering the effect on the verdict had the witnesses’

false testimony been impeached on cross-examination.

This state habeas corpus case presents a rare opportunity for this Court to resolve this issue under a

12

de novo standard of review instead of the more restrictive standard applicable in federal habeas corpus cases

under the Anti-Terrorism and Effective Death Penalty

Act of 1996 (AEDPA).5 This Court’s review is warranted to resolve this important issue that has divided

the lower courts. SUP. CT. R. 10(b) and (c).

A. There Is An Intractable Conflict Among The

Lower Courts Regarding The Standard For

Determining The Materiality Of False Testimony.

Professor Anne Bowen Poulin has summarized the

division among the lower courts concerning this issue:

In some cases it is clear that the allegedly perjured information had no impact on the defendant’s conviction or sentence. In others, the

court’s approach to materiality determines

the outcome. There are two possible approaches: First, the court may assess the

likely result had the defense been informed

of the contradictory information and the

witness testified truthfully, disclosing the

facts favorable to the defendant or acknowledging impeaching information.

Alternatively, the court may ask how the

jury would have judged the case had the

jurors learned that the witness had testified falsely under oath. Only this second

5

McGregor is time-barred under the AEDPA from pursuing

federal habeas corpus relief.

13

approach accounts for the gravity and corrupting effect of false testimony.

When the court merely asks what would have

happened had the witness given truthful testimony, the court gives insufficient weight to

the witness’s willingness to testify falsely or

the government’s willingness to allow false

testimony to stand uncorrected. Instead, the

court should focus on how a jury would respond upon learning that the witness had

given false testimony under oath and the

prosecution had failed to correct it. Thus, the

court should assess the impact had the jury

heard the witness’s false testimony, learned it

was false, and, further, learned about the government’s awareness of the falsity. The likely

impact would be the destruction of the witness’s overall credibility as well as the credibility of the prosecution itself, an impact

beyond that of the truthful testimony alone.

Analyzing the impact of the false testimony in

this way, a court is more likely to find materiality.

See Poulin, Convictions Based on Lies: Defining Due

Process Protection, 116 PENN. ST. L. REV. 331, 382-83

(2011) (emphasis added).

The TCCA concluded that McGregor would have

been convicted if Gable and Osani had testified

truthfully instead of considering the effect on the verdict if the jury had known that they testified falsely

(App. 35a-36a). Most lower courts—including four federal circuit courts—have used the latter approach in

14

determining materiality under Napue. See United

States v. Wallach, 935 F.2d 445, 457 (2d Cir. 1991) (“It

was one thing for the jury to learn that Guariglia had

a history of improprieties; it would have been an entirely different matter for them to learn that after having taken an oath to speak the truth he made a

conscious decision to lie.”); Rosencrantz v. Lafler, 568

F.3d 577, 588 (6th Cir. 2009) (“[T]urning to the impact

on the jury had the prosecutor corrected Lasky, or

the defense counsel confronted Lasky with her false

denial, it is reasonable to infer that exposing Lasky

as untruthful—thereby tipping the jury to another

of Lasky’s inconsistencies and her willingness to lie

under oath—would have affected the jury’s view of

Lasky’s credibility.”); United States v. Mazzanti, 925

F.2d 1026, 1030 (7th Cir. 1991) (where prosecution witness testified falsely about an important matter, “an

analysis that simply evaluates the effect of correcting

the false testimony without evaluating the probable

impact on the witness’s credibility is too narrow,” as it

must extend to “the fact that the witness lied”); Hayes

v. Brown, 399 F.3d 972, 988 (9th Cir. 2005) (en banc)

(had jury known that prosecutor elicited witness’s

false testimony denying he would receive consideration, it “would have had a devastating effect on the

credibility of the entire prosecution case”); Jackson v.

Brown, 513 F.3d 1057, 1077 (9th Cir. 2008) (witness’s

“obvious willingness to lie under oath to keep his promises secret would cast doubt on his entire testimony”);

Adams v. Commissioner of Correction, 71 A.3d 512, 528

(Conn. 2013) (had jury known that prosecution witness

lied in denying he would receive consideration, it

15

probably would not have believed substance of his testimony; calling his credibility into question is no substitute for cross-examination revealing that he lied

about agreement).

B. False Testimony Is Per Se Material Where The

Prosecution’s Case Was Only “Fairly Strong.”

The TCCA concluded that the false testimony

was immaterial, inter alia, because the State’s case

was “fairly strong” (App. 35a-36a). It used an erroneous

standard to determine whether the false testimony

was material. The best gauge of materiality is the

lengths to which the prosecutor went to conceal the

truth. Had the DNA evidence been sufficient to convict McGregor, Shipley would not have entered into

agreements with Gable (who had been convicted of solicitation of capital murder), Paxton (who had five

aggravated robbery charges), and Osani (who had a felony assault charge) to testify that he had confessed to

them, would not have hidden these agreements from

the defense, and would not have allowed these criminals to lie to the jury.6

6

Co-prosecutor Jeff Strange testified at the habeas evidentiary hearing that Shipley dismissed the Harris County capital

murder case because McGregor’s DNA was found in the condom

rather than inside Barnum’s body, and Osani and Paxton were

“bad witnesses” (4 H.R.R. 48-49). Shipley almost certainly dismissed the case because she would have had to disclose to the

defense that she wrote a parole letter for Gable five days after

McGregor’s trial and that, one month later, Paxton received

seven-year sentences.

16

The TCCA, by categorizing the State’s case as

“fairly strong,” by inference acknowledged that the evidence was not overwhelming. A conviction must be reversed where the prosecution cannot prove beyond a

reasonable doubt that the false testimony did not contribute to it. Napue, 360 U.S. at 271; Bagley, 473 U.S.

at 679 n. 9. False testimony is material, such that a

“reversal is virtually automatic,” unless the prosecution’s case is “so overwhelming that there is no reasonable likelihood that the false testimony could have

affected the judgment of the jury.” Shih Wei Su v. Filion, 335 F.3d 119, 127, 129 (2d Cir. 2003). “Fairly

strong” is, of course, not the same as “overwhelming.”

The DNA evidence established that McGregor had

sexual intercourse with Wildman and Barnum, but

nothing indicated that it was non-consensual or that it

occurred contemporaneously with the murders. Regrettably, by virtue of their chosen profession, these

victims subjected themselves to an undue risk of harm

and could have been murdered by any of their sexual

partners or a random intruder.

The TCCA also failed to consider that the jury deliberated for two days before reaching a verdict, and

that the deliberations were so divisive that the defense

moved for a mistrial after a juror asked to be released

because of how the other jurors were treating her. The

jury’s difficulty in reaching a verdict demonstrates

that the evidence was not overwhelming. See Adams,

71 A.3d at 530. Where the State’s case was only “fairly

strong,” the false testimony of key prosecution witnesses,

17

which the prosecutor emphasized during summation,

is per se material.

C. False Testimony Is Material Where The Prosecutor Emphasized It During Summation.

The TCCA, by ignoring Shipley’s summation and

counterfactually considering whether McGregor would

have been convicted at a hypothetical trial at which

the witnesses testified truthfully, failed to take into account the corrupting effect of the prosecutorial misconduct that is the gravamen of a Napue due process

violation. “A finding of bad faith on the part of the prosecution should increase the likelihood of a finding of

materiality. Similarly, if the prosecutor invoked false

testimony to persuade the jury to convict, it is more

likely that the testimony is material.” Poulin, 116 PENN.

ST. L. REV. at 386. The TCCA gave no weight to the fact

that Shipley suborned perjury and then implored the

jury during summation to believe Gable, Osani, and

Paxton.

False testimony that a prosecutor knowingly used

and then argued as a basis to convict is material. See

Drake v. Portuondo, 553 F.3d 230, 245 (2d Cir. 2009). A

witness’s false testimony that she expected nothing in

return for her testimony is material where the prosecution vouches for her credibility during summation.

Haskell v. Greene, 866 F.3d 139, 152 (3d Cir. 2017). This

bad-faith conduct deprives the defendant of due process by enabling the prosecution to obtain a conviction

through deceit. Id. at 151.

18

Shipley did not trust the jury enough to elicit testimony that she would write a letter and request a

special parole review for Gable in exchange for her testimony; that she had arranged a plea bargain to reduce

Osani’s felony assault charge to a misdemeanor for

time-served in exchange for his grand jury testimony;

and, that she had decided before Paxton testified to

arrange for him to receive lenient sentences on two

aggravated robbery charges after McGregor’s trial.

Clearly, she was concerned that, had the jury known

that these witnesses sought and received or would receive consideration, it would disbelieve their testimony

that McGregor had confessed to them. The jury was entitled to know that she purchased their testimony and

allowed them to lie about it under oath.

Shipley committed aggravated perjury, a felony

under section 37.03 of the Texas Penal Code, by eliciting false, material testimony in an official proceeding.

The TCCA failed to consider that she engaged in unethical, bad faith, criminal conduct in prosecuting a

capital murder case and gave no weight to its corrupting effect and her summation in determining materiality. It should have held that the State failed to prove

beyond a reasonable doubt that the jury would have

believed the witnesses’ testimony that McGregor had

confessed to them if it had known that they lied in

denying that they had received or would receive consideration for their testimony.

19

D. False Testimony Is Material Even Though

The Jury Knew That The Witnesses Had A

Motive To Testify For The Prosecution.

The TCCA held that Gable’s false testimony was

immaterial because the jury knew that she had an interest in testifying for the State in view of her letter to

Elliott that she was “seeking relief,” her acknowledgment on cross-examination that she had heard that a

prosecutor can help an inmate obtain parole, and

Christian’s testimony that she said that she expected

a parole benefit as a result of her testimony (App. 32a).

It ignored that Shipley argued during summation that

Gable was credible; that, although Gable hoped that

her testimony would help with parole, she had no motive to lie; and that Shipley did not know what defense

counsel was talking about in suggesting that the witnesses would receive benefits, as she did not “operate

that way” (21 R.R. 74-75). That the jury knew that Gable wanted parole does not compensate for not knowing that Shipley promised her a letter and a special

parole review and was complicit in her false testimony

to the contrary.

This Court in Napue held that a witness’s false

testimony denying that he would receive consideration

is material even though the jury knew that he had a

motive to testify for the prosecution. A co-conspirator,

who pled guilty and was serving a lengthy prison sentence, testified and implicated Napue in a murder. He

denied on cross-examination that he was promised

anything for his testimony. The prosecutor, who had

promised to recommend a sentence reduction if he

20

testified, failed to correct his false testimony. The state

court held that the false testimony was immaterial because the jury knew that a public defender would seek

a special parole review for the witness. This Court concluded, “[W]e do not believe that the fact that the jury

was apprised of other grounds for believing that the

witness . . . may have had an interest in testifying

against petitioner turned what was otherwise a tainted

trial into a fair one.” Napue, 360 U.S. at 270.

Notwithstanding Napue, lower courts are divided

on whether a witness’s false testimony denying an

agreement for consideration is material where the jury

knew that he had a motive to testify for the prosecution. Compare Jackson, 513 F.3d at 1077 (that jury

could speculate that witness serving prison sentence

who also had pending robbery charges was testifying

to obtain leniency “pales in comparison to the reality”

that law enforcement officer promised to try to get parole hold lifted and obtain special parole review and

dismissal of pending charges), with Guzman v. State,

941 So.2d 1045, 1051 (Fla. 2006) (witness’s false testimony that she did not receive reward for turning in

defendant was immaterial where she was impeached

in other ways). The TCCA’s holding that Gable’s false

testimony was immaterial because the jury knew that

she wanted parole conflicts with Napue, as the jury

was entitled to know that Shipley, after promising to

write a letter and request a special parole review, allowed Gable to lie about it.

21

E. False Testimony Is Material Even Though It

Concerned The Credibility Of The Witnesses

Instead Of The Substance Of Their Testimony.

The TCCA held that the false testimony of Gable

and Osani collectively was immaterial because it did

not refute the substance of their testimony that McGregor had confessed to them (App. 35a-36a). This

Court has squarely rejected such a distinction. See Napue, 360 U.S. at 269-70 (“It is of no consequence that

the falsehood bore upon the witness’ credibility rather

than directly upon the defendant’s guilt. A lie is a

lie, no matter what its subject. . . .”) (quoting People v.

Savvides, 136 N.E.2d 853, 854 (N.Y. App. 1956)). The

TCCA failed to recognize that the jury’s assessment

of the witnesses’ credibility ultimately determines

whether it believes the substance of their testimony.

The TCCA erroneously held that the false testimony, to be material, must relate directly to McGregor’s

alleged confessions rather than to the witnesses’ motives to testify that he confessed. It disregarded this

Court’s well-settled precedent that false testimony is

material even though it would impeach the credibility

of the witness instead of the substance of her testimony.

It also disregarded the time-honored legal maxim,

“falsus in uno, falsus in omnibus” (“false in one thing,

false in everything”), which lawyers have relied on for

centuries to argue that a witness who lies about one matter cannot be believed on any matter.7 “The principle

7

This Court has recognized that a witness who lies about one

matter will lie about other matters. See Mesarosh v. United States,

22

that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction,

implicit in any concept of ordered liberty, does not

cease to apply merely because the false testimony goes

only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence,

and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.” Napue, 360 U.S. at

269. Thus, if the jury had known that the witness testified falsely that he was not promised anything, it

could have concluded that he fabricated his testimony

to curry favor with the prosecution to receive consideration. Id. at 270.

There is no distinction between impeachment evidence and exculpatory evidence for purposes of a materiality analysis. Bagley, 473 U.S. at 676. Where a

witness’s credibility is important, the jury is entitled to

know that he has an understanding or agreement with

the prosecution regarding a pending legal problem. Giglio v. United States, 405 U.S. 150, 154-55 (1972); cf., In

re DePuy Orthopaedics, Incorporated, Pinnacle Hip Implant Product Liability Litigation, 888 F.3d 753, 78892 (5th Cir. 2018) ($502 million jury verdict set aside

based on fraud because plaintiffs’ counsel, by making

undisclosed contribution to charity of one expert’s

choice before he testified and paying both experts after

352 U.S. 1, 13-14 (1956) (refusing to credit witness’s testimony

where Solicitor General acknowledged that he testified falsely in

other proceedings).

23

trial, despite representing to jury that they testified

pro bono, denied defendants opportunity to impeach

them with evidence of financial motive). The TCCA erroneously excused Shipley’s use of false testimony regarding the witnesses’ motives on the basis that it did

not impeach the substance of their testimony that

McGregor had confessed to them.

F. Summary Reversal Is Appropriate.

Although McGregor has identified a conflict between the TCCA and other lower courts regarding the

standard for determining the materiality of false testimony knowingly used by the prosecution—which ordinarily would warrant a grant of certiorari and plenary

consideration—the TCCA’s analysis is contrary to Napue, Bagley, and Sullivan. This Court “has not shied

away from summarily deciding fact-intensive cases

where, as here, lower courts have egregiously misapplied settled law.” Wearry v. Cain, 136 S. Ct. 1002, 1007

(2016) (per curiam) (summary reversal where state habeas court erroneously denied relief on suppression of

evidence claim); see also Hinton v. Alabama, 571 U.S.

263 (2014) (per curiam) (summary reversal on Sixth

Amendment ineffective assistance of counsel claim);

Porter v. McCollum, 558 U.S. 30 (2009) (per curiam)

(same); Kaupp v. Texas, 538 U.S. 626 (2003) (per curiam)

(summary reversal on Fourth Amendment claim).

At the very least, summary reversal in McGregor’s

case is warranted under Napue, Bagley, and Sullivan. The TCCA’s decision not only rewards a corrupt

24

prosecutor for suppressing favorable impeachment

evidence and eliciting and failing to correct false testimony but also will encourage other prosecutors to engage in similar unethical, criminal conduct. This Court

must intervene.

------------------------------------------------------------------

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

RANDOLPH L. SCHAFFER, JR.

Counsel of Record

1021 Main, Suite 1440

Houston, Texas 77002

(713) 951-9555

(713) 951-9854 (facsimile)

noguilt@swbell.net

November 2019