Petition for Writ of Certiorari — Kareem Daniels, Petitioner v. Georgia

Supreme Court briefMay 21, 2020

Ask Donna

What actually matters in this document.

Text

No. ___________

I N T HE

Supreme Court of the United States

_______________

K AREEM D ANIELS ,

Petitioner,

S TATE OF G EORGIA ,

Respondent.

_______________

On Petition for a Writ of Certiorari

to the Court of Appeals of Georgia

_______________

P ETITION FOR A W RIT OF C ERTIORARI

_______________

B RANDON A. B ULLARD

Counsel of Record

Appellate Defender

M ICHAEL W. T ARLETON

Chief Assistant Appellate Defender

Office of the Appellate Defender V ERONICA M. O’G RADY *

Georgia Public Defender Council

Assistant Appellate Defender

104 Marietta Street NW, Suite 600

Atlanta, GA 30303

(404)739-5152

brandon.bullard@gapubdef.org

*Only admitted in Georgia, application for admission to this Court is pending.

Practicing under the supervision of The Office of Appellate Defender

Counsel for Petitioner

Q UESTION P RESENTED

Under the Fourteenth Amendment, prosecutors may not knowingly

secure convictions using false or misleading evidence. This Court has

never limited the scope of false or misleading evidence to perjurious testimony and has invalidated convictions where the testimony was not

shown to have been perjured. The question presented is whether the

Constitution permits a prosecutor to knowingly use false or misleading

testimony, as long as it does not constitute perjurious testimony.

P ARTIES TO THE P ROCEEDING

Petitioner is Kareem Daniels, who was appellant in the Georgia

Court of Appeals. Respondent is the State of Georgia, which was appellee in the Georgia Court of Appeals. Neither party is a corporation.

R ELATED P ROCEEDINGS

This case arises from the following proceedings in Georgia state courts:



State v. Daniels, No. 12SC114801 (Superior Court of Fulton

County, Georgia) (entering judgment of conviction on October

23, 2013; denying the motion for new trial on June 29, 2016;

and denying the motion for new trial again following hearing

on remand from appellate courts on January 9, 2018);



Daniels v. State, No. A17A0239 (Court of Appeals of Georgia)

(remanding the case to the trial court for rehearing on the motion for new trial on March 28, 2017);



Daniels v. State, No. A18A1865 (Court of Appeals of Georgia)

(affirming the trial court’s denial of the motion for new trial

on March 8, 2019 and denying the motion to reconsider on

March 25, 2019); and



Daniels v. State, No. S19C1070 (Supreme Court of Georgia)

(denying a writ of certiorari on December 23, 2019).

There are no other proceedings in state or federal trial or appellate

courts or in this Court that are related to this case.

T ABLE OF C ONTENTS

Question Presented......................................................................................................... i

Parties to the Proceeding .............................................................................................. ii

Related Proceedings....................................................................................................... ii

Table of Contents .......................................................................................................... iii

Index to Appendices ...................................................................................................... iii

Table of Authorities ....................................................................................................... v

Petition for a Writ of Certiorari.............................................................................. 1

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional Provision ................................................................................................ 2

Statement of the Case ................................................................................................... 2

The Facts Below .............................................................................................. 2

The Trial .......................................................................................................... 3

The Motion for New Trial and Appeal............................................................ 6

Reasons for Granting the Petition .............................................................................. 10

This Court has never held perjury to be an essential element of a Napue

claim and such a holding would run counter to this Court’s precedents. ... 11

Lower courts are divided on whether proof of perjury is necessary to

sustain a Napue claim and require this Court’s guidance to resolve the

split. ............................................................................................................... 20

The question presented of great concern because it addresses the basic

integrity of the criminal trial process. .......................................................... 24

This case is a suitable vehicle to resolve whether proof of perjury is a

necessary element of a Napue claim. ........................................................... 25

Conclusion .................................................................................................................... 28

I NDEX TO A PPENDICES

Appendix A: Georgia Court of Appeals Opinion (Mar. 8, 2019) ……………………1a

Appendix B: Georgia Court of Appeals Denial of Motion for Reconsideration (Mar.

25, 2019) …………………………………………………………………………...14a

iii

Appendix C: Georgia Supreme Court Opinion Denying Petition for Certiorari

(Dec. 23, 2019) ……………………………………………………………………15a

Appendix D: Opinion of the Trial Court (Jan. 9, 2018) …………………………….16a

Appendix E: Excerpts of Trial Transcript ……………………………………………23a

T ABLE OF A UTHORITIES

Cases

Akrawi v. Booker, 572 F. 3d 252 (6th Cir. 2009) .............................................. 21

Alcorta v. Texas, 355 U. S. 28 (1957) .........................................................passim

Berger v. United States, 295 U.S. 78 (1935) ..................................................... 24

Birano v. State, 426 P. 3d 387 (Haw. 2018) ...................................................... 20

Brady v. Maryland, 373 U. S. 83 (1963) ........................................................... 17

Campbell v. Reed, 594 F. 2d 4 (4th Cir. 1979) .................................................. 22

Commonwealth v. Daigle, 399 N. E. 2d 1063 (Mass. 1980) ............................. 21

Commonwealth v. Simmons, 804 A. 2d 625 (Pa. 2001).................................... 20

Daniels v. State, 824 S. E.2d 754 (2019) ............................................................. 1

DeLuzio v. People, 494 P. 2d 589 (Colo. 1972) .................................................. 21

Ex Parte Weinstein, 421 S. W. 3d 656 (Tex. Crim. App. 2014) ......................... 20

Giglio v. United States, 405 U. S. 150 (1972) ................................. 15, 16, 18, 26

Gilday v. Callahan, 59 F. 3d 257 (1st Cir. 1995) .............................................. 21

Greene v. Comm’r of Corr., 190 A. 3d 851 (Conn. 2018) ................................... 20

Hamann v. State, 324 N. W. 2d 906 (Iowa 1982).............................................. 21

Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) .................................................. 21

Howell v. State, 163 So. 3d 240 (Miss. 2014) .................................................... 21

Jenkins v. Artuz, 294 F. 3d 284 (2d Cir. 2002) ................................................. 22

Johnson v. State, 44 So. 3d 51 (Fla. 2010) ........................................................ 20

McDonald v. State, 553 P. 2d 171 (Okla. Crim. 1976) ..................................... 21

Meece v. Com., 348 S. W. 3d 627 (Ky. 2011) ..................................................... 21

Miller v. Pate, 386 U. S. 1 (1967)................................................................passim

Mooney v. Holohan, 294 U. S. 103 (1935) ....................................... 11, 12, 18, 25

Moore v. Illinois, 408 U. S. 786 (1972) .......................................................passim

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

People v. Morrison, 101 P. 3d 568 (Ca. 2004) ................................................... 20

People v. Robertson, 190 N. E. 2d 19 (N. Y. 1963) ............................................ 20

People v. Smith, 870 N. W.2d 299 (Mich. 2015) ............................................... 20

Perkins v. State, 144 So. 3d 457 (Ala. Crim. App. 2012) .................................. 21

Pyle v. Kansas, 317 U. S. 213 (1942) ........................................................... 12, 18

Riddle v. Ozmint, 631 S. E. 2d 70 (S. C. 2006).................................................. 20

Rippo v. State, 423 P. 3d 1084 (Nev. 2018) ....................................................... 20

Romeo v. State, 21 A. 3d 597, 2011 WL 1877845 (Del. 2011) .......................... 21

Smith v. State, 34 N. E. 3d 1211 (Ind. 2015) .................................................... 20

State v. Davis, 992 A. 2d 302 (Vt. 2010) ........................................................... 20

State v. Denmon, 635 S. W. 2d 345 (Mo. 1982) ................................................. 21

State v. LaCaze, 208 So. 3d 856 (La. 2016) ....................................................... 20

State v. Lankford, 399 P. 3d 804 (Idaho 2017) ................................................. 20

State v. Saenz, 22 P. 3d 151 (Kan. 2001) .......................................................... 21

Stephens v. State, 737 S. W. 2d 147 (Ark. 1987) ............................................... 21

Teleguz v. Com., 643 S. E. 2d 708 (Va. 2007) .................................................... 21

United States v. Agurs, 427 U. S. 97 (1976).................................... 10, 17, 19, 20

United States v. Bagley, 473 U. S. 667 (1985) ...................................... 17, 18, 20

United States v. Clarke, 442 F. App’x 540 (11th Cir. 2011) ............................... 8

United States v. DiPaolo, 835 F. 2d 46 (2d Cir. 1987) ...................................... 22

United States v. Dvorin, 817 F. 3d 438 (5th Cir. 2016) .................................... 21

United States v. Ellisor, 522 F. 3d 1255 (11th Cir. 2008) ................................ 24

United States v. Freeman, 650 F. 3d 673 (7th Cir. 2011) ................................. 21

United States v. Garcia, 793 F. 3d 1194 (10th Cir. 2015) ................................ 21

United States v. Griley, 814 F. 2d 967 (4th Cir. 1987) ..................................... 22

United States v. Harris, 498 F. 2d 1164 (3d Cir. 1974) .................................... 22

United States v. Hoffecker, 530 F. 3d 137 (3d Cir. 2008) ................................. 22

United States v. McNair, 605 F. 3d 1152 (11th Cir. 2010) ............................... 22

United States v. Payne, 940 F. 2d 286 (8th Cir. 1991) ..................................... 21

United States v. Rivera Pedin, 861 F. 2d 1522 (11th Cir. 1988) ...................... 22

United States v. Sitzmann, 893 F.3d 811 (D. C. Cir. 2018) ............................. 21

United States v. Zichettello, 208 F. 3d 72 (2d Cir. 2000) .................................. 22

Wood v. Mann, 2 Sumn. 316, 30 F. Cas. 451 (C. C. D. Mass. 1836) ................. 22

Statutes

Ga. Stat. Ann. § 16-10-24.3 .................................................................................. 3

Ga. Stat. Ann. § 16-10-70 ............................................................................... 8, 10

Ga. Stat. Ann. § 16-4-1 ......................................................................................... 3

Ga. Stat. Ann. § 16-5-41 ....................................................................................... 3

Ga. Stat. Ann. § 16-6-1 ......................................................................................... 3

Ga. Stat. Ann. § 16-8-14 ................................................................................. 9, 27

Ga. Stat. Ann. § 16-8-40 ....................................................................................... 3

Ga. Stat. Ann. § 40-5-121 ..................................................................................... 3

Constitutional Provisions

U. S. Const. amend. XIV .............................................................................passim

vii

P ETITION FOR A W RIT OF C ERTIORARI

This Court held in Napue v. Illinois 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. 264,

269 (1959). Petitioner Kareem Daniels respectfully seeks a writ of certiorari to the Court of Appeals of Georgia to resolve whether the Fourteenth Amendment due process clause will tolerate a prosecutor’s knowing use of false or misleading testimony, so long as that testimony does

not amount to the crime of perjury. There is a deep divide in the lower

courts—federal circuits and state courts of last resort—whether proof of

perjury is necessary to make out a Napue violation. This Court should

grant review to resolve this divide.

O PINIONS B ELOW

The opinion of the Court of Appeals of the State of Georgia (App.

1a–13a) is published at 824 S. E.2d 754. The Georgia Court of Appeals’

order denying petitioner’s motion for reconsideration of that opinion

(App. 14a) is unpublished. The Supreme Court of Georgia’s opinion

denying certiorari (App. 15a) is unpublished. And the relevant order

from the trial court (App. 16a–22a) is unpublished.

J URISDICTION

The Court of Appeals of the State of Georgia affirmed the trial

court’s denial of a new trial on March 8, 2019. App. 1a–13a. Petitioner

timely petitioned the Supreme Court of Georgia for a writ of certiorari,

which it denied on December 23, 2019. App. 15a. On March 19, 2020, in

light of the health concerns created by the spread of COVID-19, this

Court issued an Order providing that “the deadline to file any petition

for a writ of certiorari due on or after the date of this order is extended

to 150 days from the date of the lower court judgment[.]” Misc. Order,

589 U. S. ___ (Mar. 19, 2020). This Court has jurisdiction under 28

U.S.C. § 1257(a).

C ONSTITUTIONAL P ROVISION

The Fourteenth Amendment to the United States Constitution provides, in relevant part: “No State shall . . . deprive any person of . . .

liberty . . . without due process of law . . . .” U. S. Const. amend. XIV.

S TATEMENT OF THE C ASE

A. The Facts Below

Lakeidra Taylor, the complaining witness, was working at a Kroger

grocery store when she first met Kareem Daniels and gave him her

phone number. App. 3a. Although Taylor called Daniels that same day,

they only spoke on the phone once and did not run into each other again

until several months later on September 28, 2012. T. 338–41, 381.1 That

day, Taylor was walking to her apartment when she noticed a man she

thought she recognized—who later turned out to be Daniels—driving an

1“T. __” refers to the designated page of the reporter’s transcript from Daniels’ trial.

“R. __” refers to the designated page of the clerk’s record from Daniels’ trial. “Remand

Hr’g T. __” refers to the designated page of the reporter’s transcript from Daniels hearing on remand from the Georgia Court of Appeals.

SUV. App. 2a. After exchanging pleasantries from the car window, Daniels parked his vehicle, got out of it, and allegedly forced Taylor into the

back seat. Id. Taylor testified that she pushed Daniels away and managed to get out of the vehicle, but Daniels took Taylor’s wallet out of her

hand during the struggle. Id. The two argued back and forth about returning the wallet, prompting Taylor to eventually call the police and

Daniels to leave the apartment complex. Id. He was apprehended later

that evening, although the allegedly stolen wallet and its contents were

never recovered.2 Id.

Based on Taylor’s allegations, Daniels was charged with one count

of robbery by force (Ga. Stat. Ann. § 16-8-40); one count of attempted

rape (Ga. Stat. Ann. §§ 16-4-1, 16-6-1); one count of false imprisonment

(Ga. Stat. Ann. § 16-5-41); one count of hindering a person making an

emergency call (Ga. Stat. Ann. § 16-10-24.3); and one count of driving on

a suspended license (Ga. Stat. Ann. § 40-5-121). App. 2a & 2a n.1.

B. The Trial

At trial, the State presented the testimony of six witnesses: Taylor

and five police officers who assisted with the investigation. On direct

examination, Taylor testified about meeting Daniels months before

when she was working at Kroger and explained that by the time of the

alleged incident, she was working somewhere else. App. 3a. After

2 Taylor described the stolen item as a black “mini-sized” wallet that was covered in

colorful decorations that were either butterflies or stars. T. 360, Def.’s Ex. 1

at 19:13:29–19:14:00. Taylor told the police that she had the following items inside the

wallet: an “old” I.D.; her social security card; her transportation card; and $60 in cash.

T. 375. Even though those items were never found, Taylor’s recorded police interview

begins with a detective handing Taylor her I.D., which she then puts into a mini-sized

black wallet that is sitting on the table in front of her. T. 398–99, 574, Def.’s Ex. 1 at

18:32:20–18:32:34.

prompting from the State about the “transition” from Kroger to her new

job, Taylor testified that “[she] basically left Kroger because [she]

wanted to . . . get into the healthcare field . . . [because she] still had

[her] CNA at that time[.]” Id. at 3a, 23a. This testimony, however, was

untrue.

On cross-examination, trial counsel confronted Taylor by asking if

the true reason she left Kroger was because she had been caught shoplifting, to which Taylor replied: “No, I wasn’t caught shoplifting.”

App. 3a, 25a. The State objected that the topic was irrelevant, that it

was improper character evidence, and that it was otherwise inadmissible because the defense failed to provide the State with any information

about the shoplifting in discovery.3 App. 25a–26a. Trial counsel rejoined

that the shoplifting incident was relevant impeachment material—thus,

not subject to discovery—and read into the record Taylor’s signed, handwritten resignation letter, admitting to shoplifting:

I did a transaction for a refund that I put on a gift card that

I didn’t buy. I didn’t receive as a gift. I kept the gift card

and used it. I’ve also used another employee’s Kroger card

to get his employee discount. Earlier this week, I did another transaction, the same as one month ago and did the

same thing. I’m willing to pay back the money that I put on

the gift cards and the money that was discounted to me

from the employee Kroger card. As of March 31, I will resign from Kroger.

Id. at 4a, 26a–27a.

Trial counsel went on to argue that Taylor’s prior act of dishonesty was

relevant to Taylor’s character for truthfulness and was admissible as a

3 Though it would appear from the State’s objection that it was unaware of circum-

stances of Taylor’s resignation, Taylor told the prosecutor before trial about the incident—which the prosecutor admitted at the hearing on remand. Remand Hr’g T. 26,

27.

prior inconsistent statement. App. 27a–28a, 29a–30a. In response, the

State doubled down on its objection, asking the court to instruct the jury

that it should not “take any improper inference about the improper line

of questioning.” App. 28a–29a. The court declined to give a limiting instruction, finding that the initial question was proper, but it prohibited

any further questioning on the matter.4 Id. at 29a, 30a–31a. Immediately thereafter, trial counsel concluded her cross-examination of Taylor

and the State conducted a brief redirect examination. Id. at 32a–35a.

Despite having the obligation and the opportunity to address the falsehood on redirect, the State did nothing to try to correct Taylor’s false

testimony. Id.

In closing, the State repeatedly argued that Taylor had absolutely

no reason to lie5 and that her subsequent consistent statements—to the

police, to the District Attorney’s office, and to the jury—all provided “direct evidence corroborating her prior statement[s]” and enhanced her

credibility6. But the defense was prevented—due to the State’s earlier

objection—from arguing that Taylor’s motivation for making false allegations was simply that she was a liar. Hamstrung by the court’s ruling,

the only argument trial counsel could propound was that Taylor’s motivation for lying was irrelevant and that it was not the defense’s burden

to establish why Taylor would lie. T. 579–80.

4 Despite that ruling, the court noted that if the attorneys for the State and defense

came to an agreement “to clarify what it is . . . shoplifting versus stealing the gift

cards[,]” that it would permit that agreement to be put before the jury in some fashion.

App. 31a.

5 T. 599, 602, 603, 604, 607, 619, 622.

6 T. 588, 599, 599–601, 603–05, 615–16.

After the close of evidence, the jury found Daniels guilty of robbery

by force and the two misdemeanor charges of hindering an emergency

call and driving on a suspended license, but he was acquitted of the attempted rape and false imprisonment charges. App. 2a n.1. The trial

court imposed a sentence of 20 years, 5 to be served in confinement. Id.

C. The Motion for New Trial and Appeal

Following his conviction, Daniels timely moved for new trial and

was appointed new appellate counsel. After a hearing on his motion, the

trial court denied Daniels a new trial but vacated his misdemeanor convictions due to insufficient evidence. App. 2a n.1. Daniels appealed.

Shortly after his case docketed in the Georgia Court of Appeals for the

first time, that court remanded for a hearing on whether the State knowingly elicited false testimony from Taylor in violation of Daniels’ due

process rights.7 App. 2a.

At the hearing on remand, the trial court received in evidence a copy

of Taylor’s resignation letter, the testimony of trial counsel, and the testimony of the prosecutor who tried the case. During the hearing, trial

counsel testified that the prosecutor approached her immediately following the bench conference about Taylor’s statements and chided her for

trying to ask about Taylor’s resignation in front of the jury. Remand Hr’g

T. 20–22. Trial counsel responded that the prosecutor’s question about

Taylor’s “transition” from Kroger had opened the door to impeachment,

even if the State was not aware of it. Id. But the prosecutor retorted that

she had, in fact, known that shoplifting played a role in Taylor’s decision

7 Daniels case docketed in the Georgia Court of Appeals for the first time under case

number A17A0239. Docketing Not. 1, Sept. 7, 2016. Daniels was granted remand by

the court on March 28, 2017. Or. Granting Remand 1, Mar. 28, 2017.

to leave Kroger because Taylor had disclosed that fact before trial. Remand Hr’g T. 20–22, 26. The prosecutor confirmed this in her own testimony on remand, when she testified that she had spoken with Taylor

prior to trial, had asked Taylor why she left Kroger, and that Taylor had

informed her that she left Kroger because of allegations of misuse of

Kroger coupons, discounts, or gift cards. Remand Hr’g T. 26, 27, 31.

After the hearing on remand, the trial court again denied Daniels a

new trial. App. 16a–22a. In so ruling, the trial court found that “the

prosecutor admitted she knew Taylor had been caught stealing from

Kroger as an employee and that Taylor left her employ at Kroger because of the theft.” App. 20a. Nevertheless, the trial court determined,

“[e]ven where a person is caught stealing, she may have other reasons

for wanting leave her current employment[,]” and so while Taylor’s

“stated reason for leaving Kroger was not the whole truth of the matter,

. . . her testimony [wa]s not necessarily false.” App. 21a (emphasis

added). And so the trial court concluded Taylor’s testimony on direct did

not constitute the type of false testimony that constitutes a due process

violation.8 Further, the court explained, even if the testimony were false,

it was not material because the statement went only to Taylor’s credibility. App. 21a–22a.

8 Daniels argued at every stage that Taylor’s testimony on direct and cross-examina-

tion were false, but the trial court’s order only addressed the testimony elicited on

direct examination. Daniels moved the court to reconsider its ruling and issue an opinion on the State’s duty to correct the false testimony elicited on cross-examination. R.

36–44. The court denied that motion, holding that “[t]here is no analysis needed as to

whether the State was under some obligation to ask additional clarifying questions [on

redirect] as to why Taylor left her job at Kroger; the court specifically precluded any

further questions about the matter.” R. 45.

Daniels appealed to the Georgia Court of Appeals a second time (under docket number A18A1865). There, he argued that the State had violated his due process rights when it secured his conviction through the

knowing use of false evidence—specifically, Taylor’s misleading assertion on direct examination about her reason for leaving Kroger and her

untruthful statement on cross-examination that she was not caught

shoplifting. App. 8a–10a. The Court of Appeals affirmed, finding that

Daniels had failed to establish that Taylor’s testimony “was actually

false and rises to the level of perjury.” App. 9a–10a.

To reach that conclusion, the Court of Appeals began with what it

said were four necessary showings to prove a Napue violation:

(1)

That the statements in question were actually false;

(2)

That the State knew the statements were false but

failed to correct the falsehood;

(3)

That the statements were material to the case; and

(4)

That the witness committed the offense of perjury, as

defined by Ga. Stat. Ann. § 16-10-70(a).

App. 8a.9

Applying those elements, the court of appeals determined that Daniels

had failed to make the fourth showing. First, the court determined that

Taylor’s comment on direct—that she left Kroger to pursue nursing—

was not perjurious or actually false because “a person may have more

than one reason for leaving a job, so even if her stated reason for leaving

Kroger was not the whole truth of the matter, it was not necessarily

false.” App. 9a (internal quotations and alterations omitted). The court

9 To support its interpretation of what is required to establish a Napue violation, the

court of appeals relied on an unpublished Eleventh Circuit opinion, United States v.

Clarke, 442 F. App’x 540, 543–44 (11th Cir. 2011). App. 8a.

went on to say that the presence of conflicting evidence does not support

a showing that the witness was being dishonest or that the State knowingly elicited false testimony. Id.

Next, as to Taylor’s testimony on cross-examination, the court of appeals departed from the trial court’s finding that the theft of Kroger

goods had been at least part of the reason for her leaving her job. See

App. 9a–10a. The appellate court instead engaged in a de novo review of

the facts and—based on its own reworking of the facts—announced that

“the written resignation statement . . . does not clarify where the [gift]

card was from or to whom it belonged, how Taylor obtained it, and how

it was used.”10 App. 9a–10a. In the end, the court held that Daniels failed

to establish that Taylor’s denial of having been caught shoplifting was

actually false or rose to the level of perjury because

[w]hile that statement apparently show[ed] misuse of a gift

card, given the lack of specificity about the essential elements required to prove the offense of shoplifting, it cannot

be said with certainty that such a crime occurred. Even

if . . . the acts in question could form the basis for a shoplifting charge, there is no evidence that any such charge

was ever made or that Taylor knew that her conduct might

be construed to support such a charge when she denied

having been caught shoplifting.

Id. at 10a.

“Under the circumstances,” the court said, “Daniels has not shown that

10 Assuming for argument’s sake that Daniels had to establish that Taylor had com-

mitted the essential elements of shoplifting, the court of appeals would still have erred.

The court of appeals only addressed the portion of Taylor’s statement concerning her

misuse of gift cards. App. 9a–10a. But it ignored the part where Taylor admitted that

she had improperly used another employee’s discount. Id. Taken together, Taylor’s admissions add up to a confession to shoplifting, which under Georgia law includes

“[w]rongfully caus[ing] the amount paid to be less than the merchant’s stated price for

the merchandise.” Ga. Stat. Ann. § 16-8-14(a)(5). According to her resignation letter,

Taylor committed at least two offenses of shoplifting by using another employee’s

Kroger discount and improperly obtaining the gift cards.

the testimony was false since there are alternative explanations for the

discrepancy[,]” and it affirmed. App. 10a.

R EASONS FOR G RANTING THE P ETITION

The Georgia Court of Appeals erred by holding that only proof of

perjury would satisfy the false-evidence element of a due process claim

under Napue v. Illinois, 360 U. S. 264 (1959), which this Court has never

held to be so.

“[A] conviction obtained through use of false evidence, known to be

such by representatives of the State, must fall under the Fourteenth

Amendment.” Napue v. Illinois, 360 U. S. 264, 269 (1959). Likewise, a

prosecutor “has the responsibility and duty to correct what he knows to

be false and elicit the truth[,]” even if the State did not actually solicit

the false testimony and even if the false testimony goes only to the witness’s credibility. Napue, 360 U. S. at 269–70. The importance of these

principles is undeniable, as any failure to fulfill them “prevent[s] . . . a

trial that could in any real sense be termed fair,” id., because the State’s

use of testimony that it knows to be false “involve[s] a corruption of the

truth-seeking function of the trial process[.]” United States v. Agurs,

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

The Georgia Court of Appeals subverted those principles when it

held that the State’s knowing presentation of testimony, however false

or misleading, does not offend the Constitution unless a defendant could

prove that the witness who gave the testimony committed perjury, as

defined by Georgia Code Section 16-10-70. That holding is incorrect in

light of this Court’s precedent, is in conflict with almost half of the federal circuits and numerous state courts of last resort, and is inconsistent

with the “truth-seeking function of the trial process[.]”

Daniels’s case epitomizes the problems with interpreting “false testimony” so narrowly that it embraces only perjured testimony: Such an

interpretation renders the protections of the Fourteenth Amendment a

hollow shell, easily frustrated by carefully crafted questions and answers that are technically true in isolation, but taken together create an

impression that is anything but the truth. Under this interpretation, a

prosecutor may not knowingly permit perjury, but any lesser contrivance would be fair game.

The follies of such a narrow understanding are implicit in this

Court’s holdings in numerous cases—most especially Alcorta v. Texas,

355 U. S. 28 (1957) and Miller v. Pate, 386 U. S. 1 (1967). Nevertheless,

there is an entrenched conflict in both state courts of last resort and

federal circuit courts that has spanned decades—and the court of appeals decision in Daniels’ case is just the most recent addition to an everdeepening rift. This Court’s review is warranted to resolve an important

issue that has divided the lower for almost 60 years.

A. This Court has never held perjury to be an essential element of a Napue claim and such a holding would run

counter to this Court’s precedents.

This Court has long held that a prosecutor’s knowing deception of

the jury corrupts the truth-seeking function of a trial. The issue first

surfaced in Mooney v. Holohan, 294 U. S. 103 (1935). There, the peti-

tioner sought leave to file a habeas petition, alleging that his confinement violated due process because the state knowingly relied on perjured testimony at his trial. Mooney v. Holohan, 294 U. S. 103, 110

(1935) (per curiam). Because Mooney had not properly presented his

claim in state court, this Court denied him leave to file. Id. at 115. But

it nonetheless condemned the state’s conduct, noting that knowing reliance on perjured testimony undermines fundamental fairness:

[Due Process] is a requirement that cannot be deemed to

be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which in

truth is but used as a means of depriving a defendant of

liberty through a deliberate deception of court and jury by

the presentation of testimony known to be perjured. Such

a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.

Id. at 112.

Seven years later, this Court relied on Mooney in Pyle v. Kansas, reiterating that, if properly pleaded, a state’s knowing use of perjured testimony would constitute a due process violation. Pyle v. Kansas,

317 U. S. 213, 216 (1942).

The Court had occasion in Alcorta v. Texas, 355 U. S. 28 (1957), to

substantively apply the principle first announced in Mooney and Pyle.

In Alcorta, the state charged the petitioner with malice murder for killing his wife. Alcorta v. Texas, 355 U. S. 28, 28–29 (1957) (per curiam).

Although the petitioner had admitted the homicide, he claimed to have

committed it in a fit of passion, sparked by the discovery of his wife kissing another man late at night in a parked car. Id. at 28. That claim, had

the jury accepted it, would have mitigated the petitioner’s culpability

and capped his punishment at five years’ imprisonment. Id. at 29. To

counter the petitioner’s claim, the state called the only eyewitness: the

man whom the petitioner alleged his wife had been kissing. Id. The eyewitness testified that he had given the victim rides home a couple of

times, but that he had had no dates with her and that they were not in

love—giving the impression that he and the victim were nothing more

than casual friends. Id. Rejecting the petitioner’s claim, the jury found

him guilty of murder with malice and sentenced him to death. Id.

At the habeas corpus hearing, however, the eyewitness revealed

that he in truth had been in a sexual relationship with the petitioner’s

wife and that he had disclosed that fact to the prosecutor before trial.

Id. at 30–31. But the prosecutor had advised the eyewitness not to volunteer that information unless specifically asked about it by the defense.

Id. at 31. This Court, in a per curiam opinion, held that “[i]t cannot seriously be disputed that [the eye-witness’s] testimony, taken as a whole,

gave the jury the false impression that his relationship with petitioner’s

wife was nothing more than that of casual friendship.” Id. Because the

false testimony was prejudicial, the Court concluded that, under the

principle announced in Mooney and Pyle, the state violated the petitioner’s right to due process. Id. at 30–31.

Soon after it decided Alcorta, this Court issued the seminal opinion

on prosecutors’ knowing reliance on false testimony: Napue v. Illinois,

360 U. S. 264 (1959). There, the prosecutor promised to recommend a

sentence reduction if the principal witness—an accomplice—would testify against the petitioner. Napue, 360 U. S. at 266. At trial, however,

the accomplice denied that he had received any promises in exchange

for his testimony and the prosecutor failed to correct that fact. Id. at 267

n.2. This Court unanimously reaffirmed that “a conviction obtained

through use of false evidence, known to be such by representatives of

the State, must fall under the Fourteenth Amendment,” and explained

that “[t]he same result obtains when the State, although not soliciting

false evidence, allows it to go uncorrected when it appears.” Napue,

360 U. S at 269. And the Court went further, holding that “[t]he principle 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.” Id. Because the state had

presented false testimony that prejudiced the jury’s ability to evaluate

the reliability of the state’s star witness,11 the petitioner’s conviction

could not stand. Id.

Eight years later, in Miller v. Pate, this Court revisited the issue of

the knowing presentation of false evidence. 386 U. S. 1 (1967). During

the petitioner’s trial for the brutal murder of a child, the prosecution

introduced a pair of heavily “bloodstained” shorts, along with expert testimony that blood type found on the shorts matched the victim’s blood

type. Miller, 386 U. S. at 3–4. Then, in closing, the prosecution highlighted how important the “bloodstained” shorts were to the case.

386 U. S. at 4–5. As it turned out, the shorts were stained with paint,

not blood—a fact that the prosecutor knew about before the trial. Id. at

11 The state in Napue argued that the Court was bound by the lower court’s factual

conclusions regarding the prejudice suffered as a result of the false testimony. Napue,

360 U. S.at 271–72. The Court, however, disagreed noting that “[i]n cases in which

there is a claim of denial of rights under the Federal Constitution, this Court is not

bound by the conclusions of lower courts, but will reexamine the evidentiary basis on

which those conclusions are founded.” Id. at 271.

6. But Miller did not discover this fact until his federal habeas proceeding when he first had an opportunity to examine the shorts independently. Id. at 5. During that proceeding, Miller presented the testimony of a chemical microanalyst, who testified that all the reddishbrown stains on the shorts were paint. Id. On cross-examination, the

“[state’s] counsel content[ed] himself” with eliciting testimony from the

expert conceding that there could have been blood on the shorts at some

time. Id.

But this Court did not oblige the petitioner to prove technical falsehood or perjury before it would grant relief after the state knowingly

misled the jury. The microanalyst’s inability to fully contradict the

state’s trial evidence notwithstanding, this Court unanimously determined that “[t]he prosecution deliberately misrepresented the truth”

and reversed: “More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained

by the knowing use of false evidence. There has been no deviation from

that established principle. There can be no retreat from that principle

here.” Id. at 6, 7 (internal citations omitted).

Thereafter, this Court addressed the known-false-testimony problem twice in 1972: Giglio v. United States, 405 U. S. 150 and Moore v.

Illinois, 408 U. S. 786.

Giglio’s facts were similar to Napue’s. The prosecution exchanged

immunity for an accomplice’s testimony against the petitioner. But,

when asked if he had been promised anything in exchange for his testimony, the accomplice denied the existence of any deal. Giglio v. United

States, 405 U. S. 150, 151–52 (1972). The difference between Giglio and

Napue is that the prosecutor who tried the case was unaware of the deal,

which a different prosecutor had struck. Id. at 152. This Court, however,

found the distinction immaterial, holding that imputed knowledge could

support a due process claim based on false testimony. Id. at 153–55.

The same term, this Court decided Moore v. Illinois, 408 U. S. 786

(1972), holding (in a 5–4 decision) that the petitioner had not been denied due process when the state neglected to disclose or correct testimony that seemingly contradicted known facts. Moore, 408 U. S. at 799–

800. The petitioner in Moore was convicted and sentenced to death for

murdering a bartender in a crowded bar outside of Chicago. Id. at 788–

90. The trial evidence comprised testimony from two eyewitnesses, a

waitress and a patron, as well as testimony from others recounting the

petitioner’s supposed various admissions in the days following the homicide. Id. In post-conviction proceedings, the petitioner challenged that

the state had violated his due process rights when it twice knowingly

elicited false testimony. Id. at 788–93. This Court agreed that the first

instance of allegedly false testimony (an incorrect identification of the

petitioner as someone the witness had met before) was, in fact false, but

concluded that the falsity was immaterial because it did not impeach

any of the eyewitnesses’ identifications of the petitioner as the murderer

or other witnesses’ statements identifying the petitioner as the person

who later confessed to the murder. Id. at 795–96. And so, because the

petitioner could not establish that he was prejudiced by such false testimony, he was not entitled to relief.

The second instance of alleged false testimony involved one of the

eyewitnesses: At trial, the bar patron testified that while in the midst of

a card game, he saw the petitioner enter the establishment with a shotgun, walk to the bar, and shoot the bartender. Id. at 789. After trial, the

petitioner discovered a police statement from another card player and

an accompanying diagram which showed that the eyewitness patron had

been seated with his back to the door the evening of the murder. Id. at

793. The petitioner argued that the diagram necessarily contradicted

the patron’s testimony because the patron could not have seen the person who entered the bar with a shotgun. Id. at 797–98. But the majority

was unpersuaded that the diagram itself proved that the patron’s testimony was actually false. Id. at 798. Although the statement and diagram disclosed the placement of the patron’s chair, “[t]here is nothing in

the diagram to indicate that [the patron] was looking in another direction or that it was impossible for him to see the nearby door from his

seat at the card table.” Id. In other words, the diagram alone could not

establish that the patron’s testimony was false or materially misleading.

This Court has not substantively addressed the prosecution’s knowing use of false testimony since Giglio and Moore. But this Court has

restated the principle, in dicta, in two subsequent cases: United States

v. Agurs, 427 U. S. 97 (1976) and United States v. Bagley, 473 U. S. 667

(1985). In Agurs, this Court granted certiorari to address whether the

government’s failure to disclose the victim’s criminal record amounted

to a due process violation under Brady v. Maryland, 373 U. S. 83 (1963).

Agurs, 427 U. S. at 98–99. Before addressing the operative issue, the

majority noted that Brady arguably applied in three situations, the first

of which—typified by Mooney—was where “the undisclosed evidence

demonstrates that the prosecution’s case includes perjured testimony

and that the prosecution knew, or should have known, of the perjury.”

Agurs, 427 U. S. at 103. Nine years later in Bagley, the Court echoed the

“perjured testimony” language from Agurs, even though that case likewise involved no allegations that the government had knowingly relied

on false evidence. Bagley, 473 U. S. at 679–80.

Despite Bagley’s and Agurs’s references to perjured testimony, this

Court has never required defendants to prove perjury before it will find

a due process violation for the prosecutor’s knowing presentation of false

testimony.12 Indeed, the word “perjury” does not appear in any case addressing this issue after Pyle; rather, each time this Court has dealt substantively with the question, it has classified the offending evidence as

“false,”13 as constituting a “misrepresent[ation] of the truth,”14 or as having created a “false impression.”15

More telling, perhaps, is that this Court has never engaged in a

discussion of whether the complained-of testimony constituted perjury

or even was “necessarily false.” It has instead focused on the potentially

misleading nature of the evidence. For instance, the eyewitness in Alcorta may well have been telling the truth when he testified that he was

not in love with the petitioner’s wife and had never been on any dates

with her—it would depend on how he understood love and dating. The

same could be said of the state’s forensic scientist in Miller: The petitioner did not conclusively disprove the trial testimony that the shorts

were stained with the victim’s blood. But in neither case was the Court

12 True, Mooney and Pyle refer to “perjured testimony,” but both opinions addressed

only the petitioners’ ability to assert claims in a habeas corpus petition; neither involved a substantive analysis of whether petitioners’ claims had merit. Mooney,

294 U. S. at 110–12; Pyle, 317 U. S. at 214–16.

13 Moore, 408 U. S. at 797–98; Giglio, 405 U. S. at 153–54; Miller, 386 U. S. at 7; Napue,

360 U. S. at 269–72; Alcorta, 355 U. S. at 30.

14 Miller, 386 U. S. at 6.

15 Alcorta, 355 U. S. at 31.

was concerned with parsing whether the complained-of testimony was

technically false. The dispositive issue in both cases was that the prosecution intended to mislead the jury and secure a conviction based on

such misleading evidence. Indeed, were perjury an essential element,

the claims in Alcorta and Miller might have failed.

Even in Moore—the only cases where this Court found that a defendant failed to meet his burden in establishing a due process violation—this Court did not engage in a technical discussion about whether

either the witness or patron committed perjury. As to the first allegation

of false testimony at issue in Moore, it was clear that the witness was

merely mistaken, and yet this Court treated such testimony as “false

testimony”—it simply found that it was not prejudicial. As for the second

instance of allegedly false testimony, this Court simply evaluated

whether the existence of the diagram showed his trial testimony to have

been false or misleading, which it did not. In short, this Court has never

dismissed a Napue claim by finding that a defendant failed to establish

that the witness committed perjury by giving the testimony in question.

That this Court referred to “perjured testimony” in dicta, does not

change that the focus of the “false testimony” inquiry is on preventing

“the corruption of the truth-seeking function of the trial process.” Agurs,

427 U. S. at 104. Yet the Georgia Court of Appeals ignored that point

when it burdened Daniels with proving technical perjury and denied

him relief when he could not. True, proof of perjury would doubtless be

sufficient to show that a prosecutor relied on false evidence, but this

Court has never held it to be necessary. The Georgia Court of Appeals’

contrary opinion departed from precedent and is incompatible with fundamental principles of justice.

B. Lower courts are divided on whether proof of perjury is

necessary to sustain a Napue claim and require this

Court’s guidance to resolve the split.

The Georgia Court of Appeals is not the only court to have relied on

the “perjured testimony” language appearing in dicta in Agurs and Bagley. Following Agurs, state courts of last resort and federal circuit courts

have become deeply divided over whether proof of “perjury” is required

to establish a due process violation. The split is almost perfectly even,

in fact.

About half the states have addressed whether proof of perjury is

necessary to make out a due process violation or whether misleading—

albeit technically correct—testimony will suffice. Of those, 14 have disagreed with the Georgia Court of Appeals, holding explicitly or implicitly

that that technical perjury is not essential and that a prosecutor’s knowing reliance on false or misleading testimony will support a due process

violation. People v. Morrison, 101 P. 3d 568, 581–82 (Ca. 2004); Greene

v. Comm’r of Corr., 190 A. 3d 851, 861 (Conn. 2018); Johnson v. State,

44 So. 3d 51, 53–54 (Fla. 2010); Birano v. State, 426 P. 3d 387, 413 (Haw.

2018); State v. Lankford, 399 P. 3d 804, 830–32 (Idaho 2017); Smith v.

State, 34 N. E. 3d 1211, 1220 (Ind. 2015); State v. LaCaze, 208 So. 3d 856,

866 (La. 2016), cert. granted, judgment vacated on other grounds, 138

S. Ct. 60, 199 L. Ed. 2d 1 (2017); People v. Smith, 870 N. W.2d 299, 305

(Mich. 2015); Rippo v. State, 423 P. 3d 1084, 1105 (Nev. 2018); People v.

Robertson, 190 N. E. 2d 19, 21 (N. Y. 1963); Commonwealth v. Simmons,

804 A. 2d 625, 635 (Pa. 2001); Riddle v. Ozmint, 631 S. E. 2d 70, 75 (S. C.

2006); Ex Parte Weinstein, 421 S. W. 3d 656, 665–66 (Tex. Crim. App.

2014); State v. Davis, 992 A. 2d 302, 306–07 (Vt. 2010). But 12 states

have followed the same route as the Georgia Court of Appeals, finding

that proof of perjury is an essential element of a Napue claim or that

misleading but technically correct testimony will not suffice. Perkins v.

State, 144 So. 3d 457, 469–70 (Ala. Crim. App. 2012); Stephens v. State,

737 S. W. 2d 147, 149 (Ark. 1987); DeLuzio v. People, 494 P. 2d 589, 592

(Colo. 1972); Romeo v. State, 21 A. 3d 597, 2011 WL 1877845 at *3 (Del.

2011) (unpublished); Hamann v. State, 324 N. W. 2d 906, 909 (Iowa

1982); State v. Saenz, 22 P. 3d 151, 156 (Kan. 2001); Meece v. Com., 348

S. W. 3d 627, 676–77 (Ky. 2011); Commonwealth v. Daigle, 399 N. E. 2d

1063, 1067 (Mass. 1980); Howell v. State, 163 So. 3d 240, 252 (Miss.

2014); State v. Denmon, 635 S. W. 2d 345, 349–50 (Mo. 1982); McDonald

v. State, 553 P. 2d 171, 177 (Okla. Crim. 1976); Teleguz v. Com., 643

S. E. 2d 708, 729 (Va. 2007).

Federal circuit courts are equally fractured. Five have consistently

held that the due process clause protects against more than just the

knowing use of perjured testimony. Gilday v. Callahan, 59 F. 3d 257,

267 (1st Cir. 1995); United States v. Dvorin, 817 F. 3d 438, 452 (5th Cir.

2016); United States v. Freeman, 650 F. 3d 673, 679–80 (7th Cir. 2011);

Hayes v. Brown, 399 F.3d 972, 981 (9th Cir. 2005); United States v. Sitzmann, 893 F.3d 811, 828 (D. C. Cir. 2018), cert. denied, No. 19-7525,

2020 WL 1124539 (U. S. Mar. 9, 2020). But three have endorsed the perjury-only standard. Akrawi v. Booker, 572 F. 3d 252, 265 (6th Cir. 2009);

United States v. Payne, 940 F. 2d 286, 291 (8th Cir. 1991); United States

v. Garcia, 793 F. 3d 1194, 1207–08 (10th Cir. 2015). And four circuits—

the Second,16 Third,17 Fourth,18 and Eleventh19—have internally inconsistent holdings.20

Whether a Napue claim requires proof of perjury has been fully ventilated in over a dozen state high court opinions and in every federal

16 Compare United States v. Zichettello, 208 F. 3d 72, 102 (2d Cir. 2000) (“Reversal is

not justified unless the appellant establishes four matters: (i) the witness actually committed perjury, (ii) the alleged perjury was material, (iii) the government knew or

should have known of the alleged perjury at time of trial, and (iv) the perjured testimony remained undisclosed during trial[.]”) (internal citations and quotation marks

omitted) with Jenkins v. Artuz, 294 F. 3d 284, 294 (2d Cir. 2002) (holding that “testimony was probably true but surely misleading” constituted false testimony and required reversal).

17 Compare United States v. Hoffecker, 530 F. 3d 137, 183 (3d Cir. 2008) (explaining

that the defendant must show that the witness committed perjury in order to establish

that his due process rights were violated) with United States v. Harris, 498 F. 2d 1164,

1169 (3d Cir. 1974) (“We do not believe . . . that the prosecution’s duty to disclose false

testimony by one of its witnesses is to be narrowly and technically limited to those

situations where the prosecutor knows that the witness is guilty of the crime of perjury.”).

18 Compare United States v. Griley, 814 F. 2d 967, 970–71 (4th Cir. 1987) (“A defendant

seeking to vacate a conviction based on perjured testimony must show that the testimony was, indeed, perjured”) with Campbell v. Reed, 594 F. 2d 4, 7 (4th Cir. 1979)

(“Not only did the prosecutor allow the jury to be misled as to Miller’s reasons for testifying, but by keeping Miller ignorant of the terms of the plea bargain, he contrived a

means of ensuring that this evidence would not come before the jury.”)

19 Compare United States v. McNair, 605 F. 3d 1152, 1208 (11th Cir. 2010) (”To estab-

lish prosecutorial misconduct for the use of false testimony, a defendant must show

the prosecutor knowingly used perjured testimony, or failed to correct what he subsequently learned was false testimony, and that the falsehood was material”) with

United States v. Rivera Pedin, 861 F. 2d 1522, 1530 n.14 (11th Cir. 1988) (explaining

that “the Napue rule applies where testimony, even though technically not perjurious,

would surely be highly misleading to the jury”) (internal citations and quotation marks

omitted).

20 Apart from the dicta in Agurs and Bagley, the source for the perjury element is un-

certain. But a possible culprit is the newly-discovered-evidence precedent. The general

rule is that recantations are looked at with the utmost suspicion, but that suspicion is

lessened if the recanting witness was convicted of perjury. See, e.g., United States v.

DiPaolo, 835 F. 2d 46, 49 (2d Cir. 1987). That sensible-in-the-newly-discovered-evidence-context rule was “founded in the . . . public policy of suppressing [both] perjury”

and “the fabrication of evidence to meet . . . the cause, after the full bearing and weight

of the testimony are understood by all the parties.” Wood v. Mann, 2 Sumn. 316, 30

F. Cas. 451, 452–53 (C. C. D. Mass. 1836). That rule is misplaced in the Napue–due

process context, however, where the crux of the claim is that the opposing party knew

about the falsity when it was uttered at trial.

circuit. Still, the split has persisted for decades, and there is little evidence, save for a few internally inconsistent circuits, that either side will

reverse course. And even in the internally inconsistent circuits, no later

opinion explicitly overruled the prior contradictory caselaw. Putting the

question off will neither resolve the split nor clarify the issues for this

Court’s review. The jurisdictions are intractably fractured. They need

this Court to clarify what counts as false evidence to support a due process claim.

Without an answer from this Court, the measure of process a defendant is due will continue to vary by jurisdiction: In no jurisdiction

will prosecutors be free to knowingly secure convictions through lies.

But in some jurisdictions, it will be acceptable for prosecutors to do so

through both misleading, albeit technically true, testimony and even

factually incorrect testimony elicited from a mistaken or ignorant witness. Indeed, in some jurisdictions the measure of process will depend

on the sovereign a defendant appears before: if, for example, a defendant

in Michigan, Mississippi, or Pennsylvania were convicted of identical offenses in federal and state court on the same misleading but technically

true testimony, the resolutions on appeal would be diametrically opposed. But resolution of this issue, which strikes at the heart of the

truth-seeking function of a trial, should not be so arbitrary as to depend

on jurisdictional happenstance.

C. The question presented is of great concern because it addresses the basic integrity of the criminal trial process.

This Court has maintained that “while [a prosecutor] may strike

hard blows, he is not at liberty to strike foul ones.” Berger v. United

States, 295 U.S. 78, 88 (1935). But combatants in the ring, as well as

their referees, need to know where the beltline is. By interpreting the

constitutional assurances so narrowly as to only protect against perjurious testimony, twelve states and three to seven federal circuits (depending on the panel) would allow prosecutors to score points through misleading testimony and false impressions.

In the technical-perjury jurisdictions, only testimony “given with

the willful intent to provide false testimony and not as a result of a mistake, confusion, or faulty memory[,]” can contravene the due process

clause requirements. United States v. Ellisor, 522 F. 3d 1255, 1277 n.34

(11th Cir. 2008). By constraining the due process clause, those jurisdictions would tolerate convictions obtained on false testimony uncorrected

by the prosecutor, so long as

(a) the witness was merely forgetful and testified inaccurately

by mistake;

(b) the witness is mentally ill or an infant and unable to form

the requisite intent to lie;

(c)

the witness is unaware that she is testifying falsely because

the prosecutor intentionally kept the truth from her; or

(d) the witness provides technically true, but carefully crafted

answers that, taken together, paint a warped picture of reality that intentionally distorts the truth.

As far back as 1935, this Court has insisted that it would not “approve such a narrow view of the requirement of due process.” Mooney,

294 U. S. at 112. This Court made plain in 1957 and again in 1967 that

misleading or false testimony, knowingly used by the state to secure a

conviction, is incompatible with the fundamental principles of justice

and due process. Napue, 360 U. S. at 269; Miller, 386 U. S. at 7. “There

[should] be no retreat from that principle here.” Miller, 386 U. S. at 7.

The criminal justice system’s legitimacy depends an understanding

that only those who were fairly convicted should suffer a deprivation of

liberty. This understanding is countermanded if prosecutors can knowingly mislead juries into guilty verdicts with false-but-not-technicallyperjurious evidence. Justice demands more than technical niceties.

This case is a suitable vehicle to resolve whether proof

of perjury is a necessary element of a Napue claim.

For three reasons, Daniels’ case is an appropriate one to decide the

question presented.

First, the issue was squarely presented to and decided by the lower

court. App. 8a–10a. And because it would arrive in this Court via direct

appeal, this Court could decide the question under the broadest standard of review, free of the procedural restraints that attend review of

state judgments under the AEDPA.

Second, only the false evidence element of the claim is in play. The

other elements—that the prosecution knew of the falsity and that the

false testimony was material—were met: The trial prosecutor testified

on remand that she was aware of the real reason Taylor left Kroger before the trial began and admitted that she learned the full details surrounding Taylor’s resignation before beginning her redirect examination

when Daniels’s counsel read the resignation letter aloud. Remand Hr’g

T. 20–22, 26, 31–32. And Taylor’s false testimony was material because

she was the only eyewitness in a case where there was little to no physical evidence that a crime had even occurred at all. Cf. Giglio, 405 U. S.

at 154 (“A new trial is required if the false testimony could . . . in any

reasonable likelihood have affected the judgment of the jury.”) (internal

citations and quotations omitted). Moreover, despite the prosecutor’s attempts to bolster Taylor’s credibility in closing, the jury apparently had

some doubts about Taylor’s veracity, since it acquitted Daniels of the

two most serious charges, attempted rape and false imprisonment—

even without knowing that she lied about the circumstances of her departure from Kroger. In sum, the only issue reasonably in dispute is

whether Taylor’s testimony was false or misleading such that it would

trigger the prosecutor’s duty to elicit or expose the truth.

Third, Daniels’s case cleanly presents exactly the sort of factual issues that have split the lower courts, as Daniels’ case involves both misleading testimony that was not necessarily untrue and patently false

testimony that may not have risen to the level of perjury. First, Taylor’s

direct testimony that she left Kroger to pursue a career in healthcare

may not have been “necessarily false,” but it was surely not her whole

or even principal reason; Taylor’s relationship with her employer ended

because she stole from it. See App. 21a. But, as in Alcorta and Miller,

the distinction between technically false and not-wholly-true is without

a difference: Taylor’s testimony that she left Kroger because she wanted

to pursue a different career deliberately misled the jury. Even if Taylor

left both because she was caught shoplifting and because she was ready

for a new career, by telling only the half of the story that cast her in a

sympathetic light, the prosecutor prevented the jury from fully assessing her credibility. Such an omission—unlike the omission at issue

in Moore—presented a distort picture of the truth. Nevertheless, courts

across the country have struggled over whether such intentionally misleading testimony is false in the constitutional sense.

Next, Taylor’s testimony on cross-examination that she was not

caught shoplifting went beyond deception by omission, it was an outright falsehood. She admitted in her own handwriting to taking gift

cards without permission; keeping those gift cards for personal use; impermissibly using another employee’s discount; and to feeling remorse

for her thefts—enough that she was willing to pay back the money

Kroger was deprived of by her actions. App. at 4a, 26a–27a. The prosecutor and defense counsel testified that they understood Taylor had stolen gift cards from Kroger or had gotten a discount of some sort on

Kroger items to which she was not otherwise entitled. Remand Hr’g T.

16, 27. Even assuming the technical elements of shoplifting—rather

than its vernacular usage—are what matters, Taylor’s actions were

shoplifting, under Georgia law. Ga. Stat. Ann. § 16-8-14. It is unclear,

however, if Taylor committed the offense of perjury by saying otherwise,

because the record is silent as to whether Taylor knew that fact. But

whether Taylor was aware that her testimony was false is of no moment:

the state was aware of the falsity and failed to correct it. Daniels’s case,

therefore, presents an opportunity to address both kinds of false testimony that have vexed courts.

C ONCLUSION

In most other states that have considered the issue and nearly half

the federal circuits, controlling caselaw would mandate a reversal of

Daniels’ conviction. But because Daniels was prosecuted in Georgia, his

conviction stood because Taylor’s testimony, while false and misleading,

was not technically perjurious. Were this Court to grant certiorari in

this case, it could ensure that similarly situated defendants would receive an equal measure of justice in every jurisdiction.

The petition for a writ of certiorari should be granted.

Respectfully submitted on May 21, 2020 by:

BRANDON A. BULLARD

Counsel of Record

Appellate Defender

MICHAEL W. TARLETON

Chief Assistant Appellate Defender

VERONICA M. O’GRADY

Assistant Appellate Defender

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.