Amicus Curiae Brief — Mitchell J. Stein, Petitioner v. United States

No. 20-326

IN THE

Supreme Court of the United States

___________

MITCHELL J. STEIN,

Petitioner,

v.

UNITED STATES,

Respondent.

___________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Eleventh Circuit

___________

BRIEF OF AMICI CURIAE NATIONAL

ASSOCIATION FOR PUBLIC DEFENSE, THE

CATO INSTITUTE, INNOCENCE PROJECT,

DUE PROCESS INSTITUTE, AND AMERICANS

FOR PROSPERITY FOUNDATION IN

SUPPORT OF PETITIONER

___________

TIMOTHY P. O’TOOLE

Counsel of Record

KATHERINE E. PAPPAS

MILLER & CHEVALIER

CHARTERED

900 Sixteenth St., N.W.

Washington, DC 20006

(202) 626-5800

totoole@milchev.com

Counsel for Amici Curiae

October 13, 2020

EMILY A. HUGHES

NAT’L ASS’N FOR PUBLIC

DEFENSE

For Identification Purposes

Only:

Professor of Law

College of Law

Univ. of Iowa

290 Boyd Law Building

Iowa City, IA 52242

emily-hughes@uiowa.edu

CLARK M. NEILY III

CATO INSTITUTE

For Identification Purposes

Only:

1000 Mass. Ave., NW

Washington, DC 20001

(202) 216-1461

cneily@cato.org

NINA MORRISON

INNOCENCE PROJECT

For Identification Purposes

Only:

40 Worth St., Ste. 701

New York, NY 10013

nmorrison@innocenceprojec

t.org

SHANA-TARA O’TOOLE

DUE PROCESS INSTITUTE

For Identification Purposes

Only:

700 Pennsylvania Ave, SE

#560

Washington, DC 20003

(202) 558-6683

shana@idueprocess.org

MICHAEL PEPSON

AMERICANS FOR PROSPERITY

FOUNDATION

1310 N. Courthouse Rd.,

Ste. 700

Arlington, VA 222201

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................. ii

INTEREST OF AMICI CURIAE .......................... 1

SUMMARY OF ARGUMENT ............................... 4

ARGUMENT.......................................................... 7

I.

THE ELEVENTH CIRCUIT PLACES

THE BURDEN TO DETECT AND

CORRECT FALSE TESTIMONY ON

THE WRONG PARTY ................................... 7

A. The indigent defense bar is chronically

underfunded across the United States. ...... 10

B. Crushing caseloads prevent thorough

investigation by the indigent defense bar. . 13

II.

EXCUSING PROSECUTORS’

INTRODUCTION OF FALSE

TESTIMONY UNDERMINES

PROSECUTORIAL ETHICS ...................... 15

A. The criminal justice system imposes high

ethical standards on prosecutors because they

are servants of the law. ............................... 16

B. Permitting prosecutors to knowingly use false

testimony undermines prosecutorial ethics

and contributes to a culture of corruption. . 18

III. THE ELEVENTH CIRCUIT’S

STANDARD THREATENS THE

INTEGRITY OF CRIMINAL TRIALS ........ 21

CONCLUSION .................................................... 24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Berger v. United States,

295 U.S. 78 (1935) ................................. 15, 16, 18

Giles v. Maryland,

386 U.S. 66 (1967) ............................................. 22

Kaley v. United States,

134 S. Ct. 1090 (2014)......................................... 5

Mesarosh v. United States,

352 U.S. 1 (1956)......................................... 21, 24

State ex rel. Missouri Public Defender

Comm’n v. Waters,

370 S.W.3d 592 (Mo. 2012) ............................... 12

Mooney v. Holohan,

294 U.S. 103 (1935)....................................... 5, 21

Napue v. Illinois,

360 U.S. 264 (1959)..................................... 21, 23

Powell v. Alabama,

287 U.S. 45 (1932) ............................................. 16

Public Defender v. Florida,

115 So. 3d 261 (Fla. 2013) .......................... 12, 14

Simmons v. State Public Defender,

791 N.W.2d 69 (Iowa 2010) .............................. 12

U.S. v. Bagley,

473 U.S. 667 (1985)........................................... 22

iii

United States v. Nejad,

No. 18-cr-224 (AJN), 2020 WL

5549931 (S.D.N.Y. Sept. 16, 2020) ......... 9, 10, 18

United States v. Olsen,

737 F.3d 625 (9th Cir. 2013)............................. 19

Wilbur v. City of Mt. Vernon,

989 F. Supp. 2d 1122 (W.D. Wash.

2013) .................................................................. 12

Other Authorities

Am. Bar Ass’n Standing Comm. on Legal Aid &

Indigent Defendants, Ten Principles of A Public

Defense Delivery System 3 (Feb. 2002),

http://www.americanbar.org/content/dam/aba/ad

ministrative/legal_aid_indigent_defendants/ls_sc

laid_def_tenprinciplesbooklet.authcheckedam.pd

f .......................................................................... 13

Andrew Ford and J.D. Gallop, Public

Defenders Struggle to Stay Ahead:

Brevard’s Public Defender Face Long

Days, Low Pay, and an

Overwhelming Caseload, Florida

Today (Jul. 12, 2014),

http://www.floridatoday

.com/story/news/local/2014/07/12/pub

lic-defenders-struggle-to-stay-aheadof-caseloads-and-stress/ 12569621/ ...... 11, 13, 14

Bennett L. Gershman, Litigating Brady

v. Maryland: Games Prosecutors

Play, 57 Case Western L. Rev. 531,

542-48 (2007)....................................................... 9

iv

Blake E. Ashforth & Vikas Anand, The

Normalization of Corruption in

Organizations, 25 Res. in Org.

Behav. 6 (2003) ................................................. 20

Brandon L. Garrett, Judging Innocence,

108 Colum. L. Rev. 55, 60 (2008) ..................... 23

Caroline Wolf Harlow, U.S. Dep’t of

Justice, Bureau of Justice Statistics,

Special Report: Defense Counsel in

Criminal Cases 1 (2000),

https://www.bjs.gov/

content/pub/pdf/dccc.pdf ..................................... 5

Center on Wrongful Convictions, The

Snitch System: How Snitch

Testimony Sent Randy Steidl and

Other Innocent Americans to Death

Row (Winter 2004-2005),

http://www.law.northwestern.edu/le

galclinic/

wrongfulconvictions/documents/Snit

chSystemBooklet.pdf ........................................ 23

Christopher Campbell, Ph.D., et

al., Unnoticed, Untapped and

Underappreciated: Clients’

Perceptions of Their Public

Defenders, 33 Behav. Sci. & L. 751,

753 (2015) .......................................................... 13

Criminal Justice Standards for the

Defense Function, § 4-1.2 (Am. Bar

Ass’n 4th ed.) ..................................................... 17

v

Criminal Justice Standards for the

Prosecution Function, § 3-1.4 (Am.

Bar Ass’n 4th ed.).............................................. 17

Geoffrey T. Burkhart, How to Leverage

Public Defense Workload Studies, 14

Ohio State J. Crim. L. 403, 423

(2017) ................................................................. 13

Joaquin Sapien and Sergio Hernandez,

Who Polices Prosecutors Who Abuse

Their Authority? Usually Nobody,

ProPublica (Apr. 3 & 5, 2013),

https://www.propublica.org/article/w

ho-polices-prosecutors-who-abusetheir-authority-usually-nobody ........................ 19

Joel Cohen & Danielle Alfonzo

Walsman, The ‘Brady Dump’:

Problems With ‘Open File’ Discovery,

N.Y. L. J. (Sept. 4, 2009)..................................... 9

Lack of Representation by Public

Defender Office Challenged,

Southern Center for Human Rights

(Sept. 24, 2014) (last visited Sept.

11, 2017),

https://www.schr.org/resources/proce

ss_for_selecting_cordele_circuit_publ

ic_defender ........................................................ 12

Linda Klebe Trevino & Stuart A.

Youngblood, Bad Apples in Bad

Barrels: A Causal Analysis of

Ethical Decision-Making, 75 J.

Applied Psychol. 378, 379 (1990) ..................... 20

vi

Matt Ford, A Governor Ordered to Serve

as a Public Defender, The Atlantic

(Aug. 4, 2016),

https://www.theatlantic.com/politics/

archive/ 2016/08/when-the-governoris-your-lawyer/494453/ ..................................... 12

Nat’l Right to Counsel Comm., Justice

Denied: America’s Continuing

Neglect of Our Constitutional Right

to Counsel 59 (Apr. 14, 2009),

https://constitutionproject.org/docum

ents/justice-denied-america-scontinuing-neglect-of-ourconstitutional-right-to-counsel/ ............ 10, 14, 15

Right to Counsel, Southern Center for

Human Rights (last visited Sept. 11,

2017), https://www.schr.org/ourwork/counsel ..................................................... 11

Samuel R. Gross, et al., Nat’l Registry

of Exonerations, Government

Misconduct and Convicting the

Innocent: The Role of Prosecturos,

Police and Other Law Enforcement

(Sept. 1, 2020),

https://www.law.umich.edu/special/e

xoneration/Documents/Government_

Misconduct_and_Convicting_the_In

nocent.pdf .............................................. 18, 22, 23

vii

Shawn Musgrave, New England Ctr. for

Investigative Reporting, Scant

Discipline Follows Prosecutors’

Impropriety in Massachusetts, (Mar.

6, 2017),

https://www.necir.org/2017/03/06/sca

nt-discipline-follows-prosecutorsimpropriety-massachusetts/ ............................. 19

William D. Lawrence, The Public

Defender Crisis in America: Gideon,

the War on Drugs and the Fight for

Equality, 5 U. Miami Race & Soc.

Just. L. Rev. 167 (2015) .............................. 10, 11

INTEREST OF AMICI CURIAE 1

The National Association for Public Defense

(“NAPD”) is an association of more than 14,000

professionals who deliver the right to counsel

throughout all U.S. states and territories. NAPD

members include attorneys, investigators, social

workers, administrators, and other support staff who

are responsible for executing the constitutional right

to effective assistance of counsel. NAPD’s members

are advocates in jails, in courtrooms, and in

communities and are experts in not only theoretical

best practices, but also in the practical, day-to-day

delivery of legal services. Their collective expertise

represents state, county, and local systems through

full-time, contract, and assigned counsel delivery

mechanisms, dedicated juvenile, capital and

appellate offices, and a diversity of traditional and

holistic practice models.

In addition, NAPD hosts annual conferences

and webinars where discovery, investigation, crossexamination, and prosecutorial duties are addressed.

NAPD also provides training to its members

concerning zealous pretrial and trial advocacy and

strives to obtain optimal results for clients both at the

trial level and on appeal.

The Cato Institute is a non-partisan publicpolicy research foundation established in 1977 and

1 Counsel for Amici provided notice to the parties of their intent

to file an amicus brief on September 30, 2020, giving more than

ten days advance notice. The parties have consented to the filing

of this brief and attached hereto are their letters of consent.

Pursuant to Rule 37.6, amici state that no counsel for a party

authored this brief in whole or in part, and no person or entity,

other than amici and their counsel, made a monetary

contribution to the preparation or submission of the brief.

2

dedicated to advancing the principles of individual

liberty, free markets, and limited government. The

Cato Institute’s Project on Criminal Justice was

founded in 1999 and focuses on the proper role of the

criminal sanction in a free society, the scope of

substantive criminal liability, the proper and effective

role of police in their communities, the protection of

constitutional and statutory safeguards for criminal

suspects and defendants, citizen participation in the

criminal justice system, and accountability for law

enforcement officers.

The Innocence Project is a nonprofit

organization dedicated primarily to providing pro

bono legal and related investigative services to

indigent people in prison whose actual innocence may

be established through post-conviction evidence. It

has a specific focus on exonerating long-incarcerated

individuals through use of forensic evidence,

including newly-developed DNA testing methods.

The Innocence Project has served as lead or co-counsel

in over 200 exonerations nationwide – many of which

involved wrongful convictions obtained through the

suppression of Brady information and/or the

presentation of false testimony by the prosecution.

The Innocence Project also seeks to prevent future

wrongful convictions by researching their causes and

pursuing legislative and administrative reform

initiatives designed to enhance the truth-seeking

functions of the criminal justice system—including

identifying those who actually committed crimes for

which others were wrongfully convicted. Because

wrongful convictions destroy lives and allow the

actual perpetrators to remain free, the Innocence

Project’s objectives both serve as an important check

on the awesome power of the state over accused

citizens and help ensure a safer and more just society.

3

As perhaps the nation’s leading authority on wrongful

convictions, the Innocence Project and its founders,

Barry Scheck and Peter Neufeld, are regularly

consulted by officials at the state, local, and federal

levels.

Due Process Institute is a bipartisan, nonprofit, public-interest organization that works to

honor, preserve, and restore principles of fairness in

the criminal justice system. Formed in 2018, it

creates and supports achievable bipartisan solutions

for challenging criminal legal policy concerns through

advocacy, litigation, and education. Since its

founding, Due Process Institute has participated as

an amicus curiae in a host of state and federal cases

presenting critically important criminal legal issues.

Americans for Prosperity Foundation (“AFPF”)

is a 501(c)(3) nonprofit organization committed to

educating and training Americans to be courageous

advocates for the ideas, principles, and policies of a

free and open society. As part of this mission, it

appears as amicus curiae before federal and state

courts. AFPF is interested in this case because it

believes that the government’s knowing use of false

testimony offends due process, violates prosecutorial

ethics, and undermines the accuracy and integrity of

the factfinding process. AFPF is concerned that the

decision below, if allowed to stand, would encourage

prosecutorial gamesmanship and increase the risk of

wrongful convictions.

Accordingly, NAPD, the Cato Institute,

Innocence Project, Due Process Institute, and AFPF

have strong interests in the issues raised in this case

and fully supports the grounds for certiorari

identified by Petitioner.

4

As Petitioner has detailed, this case presents a

concrete federal and state court split on an important

constitutional issue, and the Eleventh Circuit’s

decision is on the wrong side of that

split. Furthermore, the facts of this case present an

ideal vehicle for addressing the issue, as the decision

below accepts the premise that the government may

knowingly use false testimony to convict a criminal

defendant. This Court’s jurisprudence, and basic

principles of fairness and due process, reject such a

proposition.

NAPD, the Cato Institute, Innocence Project,

Due Process Institute, and AFPF write separately as

amici curiae only to provide additional discussion,

from the perspective of the indigent criminal defense

bar and the bi-partisan perspective of groups

committed to the fair application of due process, about

the importance of the issue and the practical

implications of the Eleventh Circuit’s rule if left

unchecked.

SUMMARY OF ARGUMENT

Petitioner’s case asks a basic but fundamental

question: Will our criminal justice system permit

convictions obtained through the knowing use of false

testimony to stand, simply because the prosecutor has

not also suppressed evidence indicating the testimony

was false? The Eleventh Circuit answered this

question in the affirmative, but for decades this Court

has known a very different justice system, one in

which the knowing, uncorrected use of false testimony

by the prosecutor could never be countenanced. And

for good reason. As this Court has long recognized,

the knowing use of false testimony is “as inconsistent

with the rudimentary demands of justice as is the

5

obtaining of a like result by intimidation.” Mooney v.

Holohan, 294 U.S. 103, 112 (1935).

The manner in which the Eleventh Circuit’s

rule undermines the integrity of the criminal justice

system becomes especially acute when considering

the overwhelming burdens and obstacles that the

indigent defense bar encounters in striving to fulfill

their constitutional and ethical duties to clients.

Public defenders throughout this country perform a

noble and often heroic function, providing adversarial

representation for the people of the United States,

“one at a time.” See Kaley v. United States, 134 S. Ct.

1090, 1114 (2014) (Roberts, J. dissenting) (“Federal

prosecutors, when they rise in court, represent the

people of the United States. But so do defense

lawyers—one at a time.”). What’s more, they do so in

the vast majority of criminal cases. See, e.g., Caroline

Wolf Harlow, U.S. Dep’t of Justice, Bureau of Justice

Statistics, Special Report: Defense Counsel in

Criminal Cases 1 (2000), https://www.bjs.gov/

content/pub/pdf/dccc.pdf (estimating that eighty-two

percent of criminal defendants facing felony charges

cannot afford to hire counsel).

Even a well-funded defense is at a

disadvantage to the government, particularly when

faced with voluminous productions of last-minute

discovery. And unfortunately, in many jurisdictions

the indigent defense bar must perform these

functions despite overwhelming caseloads and

extreme underfunding. Such conditions are simply

not conducive to a rule like the Eleventh Circuit’s,

which shifts ultimate responsibility from the

prosecution, which is the party in the best position to

prevent and correct its knowing use of false testimony

at trial, to the defense, which is the party that does

6

not know the testimony is false and may lack the

resources and time to uncover its falsity.

Such a shift also threatens to divorce

prosecutors from their historic obligation to seek

justice, not convictions. Amici has no doubt that the

problem Petitioner identifies is not the norm; most

prosecutors would not think of knowingly introducing

false testimony, much less refusing to correct it. But

for those prosecutors who have—and would—the

consequences should be clear: if discovered, any

resulting conviction will be reversed, regardless of

whether the prosecutor silently disclosed enough

evidence to allow defense counsel to uncover the

falsehood.

The Eleventh Circuit erroneously rejected this

rule, and in so doing sent the pernicious message that

the U.S. Constitution winks at convictions that are

the product, at least in part, of knowing false

testimony. Such a rule disrespects those prosecutors

who play by the rules and undermines the longstanding principles that have governed the

heightened ethical obligations that have traditionally

accompanied prosecutorial powers in our system.

Most importantly, this rule deprives defendants of the

fairness and due process that the Constitution

guarantees that common sense requires.

Put simply, prosecutors have great power, and

with that power comes a great responsibility to ensure

that convictions are the product of an honest, fair, and

just process. The Eleventh Circuit’s rule allows

prosecutors to pass that responsibility off to defense

counsel and discourages prosecutors from discharging

their responsibilities in an ethical, fair, and

transparent manner.

For these reasons, Amici

respectfully submit that this Court should grant the

7

petition and hold that the Eleventh Circuit’s rule is

fundamentally inconsistent with both the integrity of

the criminal justice system and prosecutors’ historic

role in that system.

ARGUMENT

I.

THE ELEVENTH CIRCUIT PLACES THE

BURDEN TO DETECT AND CORRECT

FALSE TESTIMONY ON THE WRONG

PARTY

Prosecutors should never be permitted to

obtain a conviction through the intentional and

knowing use of false testimony. Under the Eleventh

Circuit’s rule, a prosecutor can potentially avoid

reversal if she can later show she disclosed enough

information that would have allowed defense counsel

to correct the testimony. Such a rule is inconsistent

with the fundamental guarantees of fairness and due

process. First, it places the burden on the defense,

including underfunded public defenders, to correct a

prosecutor’s intentional and knowing use of false

testimony, and is thus much less likely to be effective

in ensuring the integrity of criminal trials. Second,

this rule enables—and incentivizes—a prosecutor to

circumvent the duty to correct false testimony and

sends a message that that the knowing use of false

testimony will have no consequences whatsoever.

This is a prescription for injustice.

To be sure, Amici do not believe that defense

counsel will acquiesce to a prosecutor’s knowing use

of false testimony or will forego serious efforts to

correct it. Indeed, Amici have no doubt that defense

counsel will vigorously attempt to correct false

testimony when they know about it or when they

learn enough to suspect it. But, as demonstrated

8

below, defense counsel will often be in a poor position

to do so. A defense lawyer is already, by definition, in

the dark when a prosecutor knowingly presents false

testimony. And exposing such errors is often difficult

or impossible because indigent defense systems

around the country, which are responsible for

representing the majority of criminal defendants,

often suffer from inadequate resources and

unreasonably high (sometimes shockingly high)

caseloads. These factors suggest that the current

system, in which the duty to correct remains with the

prosecutor, is the much more effective and fair one.

The Eleventh Circuit’s misguided rule, if anything,

makes it more likely that criminal trials and

convictions will be tainted with unfairness and

characterized by injustice, regardless of the

defendant’s resources. In situations where indigent

defendants are represented by underfunded and often

overworked public defenders, this result is all but

certain.

The defense bar cannot—and should not—bear

the burden of identifying and combating false

testimony that the prosecution already knows is false.

By excusing a prosecutor’s knowing use of false

testimony when the prosecutor has disclosed the

material that demonstrates its falsity, the Eleventh

Circuit places the burden on the wrong party and

devalues the ethical obligations prosecutors must

uphold when seeking a conviction.

The practical consequences of such a rule could,

and likely will, exacerbate an already-disturbing

trend in criminal practice generally—namely, socalled document dumps in which the State “discloses”

voluminous quantities of documents to the defense on

the eve of trial. See Bennett L. Gershman, Litigating

9

Brady v. Maryland: Games Prosecutors Play, 57 Case

Western L. Rev. 531, 542-48 (2007); Joel Cohen &

Danielle Alfonzo Walsman, The ‘Brady Dump’:

Problems With ‘Open File’ Discovery, N.Y. L. J. (Sept.

4, 2009). Such gamesmanship tests the bounds of

even a well-funded defense and necessarily stretches

already thin resources to their breaking point,

sometimes preventing the defense from discovering

and effectively using important evidence. And when

combined with the Eleventh Circuit’s standard such

practices would become especially pernicious. These

last-minute disclosures would not only undermine a

meaningful defense, but also would inoculate the

knowing subornation of false testimony during the

trial itself. Put simply, the Eleventh Circuit’s rule

enables prosecutors to say, “yes, I knowingly used

false testimony to mislead the court and jury, but I’m

not responsible because you didn’t catch me.” Due

process and basic guarantees of fairness require much

more.

The risks of this rule are exemplified by a

recent matter out of the Southern District of New

York. While the trial was underway, prosecutors

discovered that a document had not been produced to

defense counsel and, rather than promptly disclose

the material, instead exchanged chat messages

regarding “burying the document among others” and

ultimately transmitted it alongside “about fifteen”

previously produced documents and without

identifying it as newly disclosed. United States v.

Nejad, No. 18-cr-224 (AJN), 2020 WL 5549931, at *10

(S.D.N.Y. Sept. 16, 2020). As the court explained,

“[n]o responsible Government lawyer should

strategize how to ‘bury’ a document that was not, but

should have been, previously disclosed to the defense.

A responsible Government lawyer should—at a

10

minimum—forthrightly and truthfully reveal late

disclosures to the defense.” Id. at *11. Yet the

Eleventh Circuit’s rule would seemingly excuse end

even legitimize this behavior.

Combining this system with the overwhelming

caseloads, shockingly inadequate funding, and lack of

institutional resources demonstrates that the public

defense bar is particularly disadvantaged by this rule.

A.

The indigent defense bar is chronically

underfunded across the United States.

Public defense systems suffer from chronic

underfunding. For example, in 2009 alone, 37 states

experienced significant shortfalls in public defense by

mid-year. See Nat’l Right to Counsel Comm., Justice

Denied: America’s Continuing Neglect of Our

Constitutional Right to Counsel 59 (Apr. 14, 2009)

(“Justice Denied”), https://constitutionproject.org/

documents/justice-denied-america-s-continuingneglect-of-our-constitutional-right-to-counsel/. These

budgetary shortfalls have caused many public

defender offices to drastically reduce funding, staff,

and resources. See id. at 59-60.

On average, spending on prosecution is three

times higher than on public defense. See William D.

Lawrence, The Public Defender Crisis in America:

Gideon, the War on Drugs and the Fight for Equality,

5 U. Miami Race & Soc. Just. L. Rev. 167, 177 (2015).

In fact, in 2008, spending on prosecution and

corrections overshadowed spending on public defense

by a ratio of 14:1. See id. at 178. Similarly, a study

of Kentucky’s funding in 2005 found that spending on

indigent defense tallied $56.4 million, while

prosecutorial spending on indigent cases alone

amounted to $130–$139 million. Justice Denied at 61.

11

Likewise, a study in California found that, in 2006–

2007, indigent defense services were underfunded by

at least $300 million. Further exacerbating this

problem, the funding gap between prosecution and

indigent defense in California grew 20% between

2003–2004 and 2006–2007. See id.

In the Eleventh Circuit, public defense is also

plagued by a chronic lack of funding. In Florida, for

example, the Brevard County Public Defense office

received $6.7 million in funding during fiscal year

2014–2015, which was only one-third of the $17.2

million allocated to the prosecutor’s office. Andrew

Ford and J.D. Gallop, Public Defenders Struggle to

Stay Ahead: Brevard’s Public Defender Face Long

Days, Low Pay, and an Overwhelming Caseload

(“Brevard Public Defenders”), Florida Today (Jul. 12,

2014),

https://www.floridatoday.com/story/news/local/2014/0

7/12/public-defenders-struggle-to-stay-ahead-ofcaseloads-and-stress/12569621/. Likewise, Georgia

had no state-wide public defender program until

2003, and it did not receive funding until 2005. See

Right to Counsel, Southern Center for Human Rights

(last visited Sept. 11, 2017), https://www.schr.org/ourwork/counsel. To make matters worse, in one Georgia

judicial circuit, Cordele, the public defense office had

an annual caseload of 1700, amounting to 567 cases

per attorney and resulting in defendants waiting

months before speaking to counsel.

Lack of

Representation by Public Defender Office Challenged,

Southern Center for Human Rights (Sept. 24, 2014)

(last

visited

Sept.

11,

2017),

https://www.schr.org/resources/process_for_selecting

_cordele_circuit_public_defender.

12

Because jurisdictions across the country suffer

from comparable resource disparities and excessive

workloads, the implications of the Eleventh Circuit’s

ruling are far-reaching.

Yet another stark

illustration of the public defense crisis comes from

Missouri, which ranks 49th in state funding for public

defense. In the face of crippling staff shortages, the

Director of the state public defense system appointed

then-Governor Jay Nixon to serve as indigent defense

counsel. Matt Ford, A Governor Ordered to Serve as a

Public Defender, The Atlantic (Aug. 4, 2016),

https://www.theatlantic.com/politics/archive/

2016/08/when-the-governor-is-your-lawyer/494453/.

While largely a symbolic gesture, the move was a

public cry for help by a system facing crisis-level

funding deficits and unmanageable caseloads.

Ultimately, the dire situation facing public

defender systems—as evidenced by underfunding and

extraordinary caseloads—has led public defense

lawyers to repeatedly seek relief from the courts. See,

e.g., Wilbur v. City of Mt. Vernon, 989 F. Supp. 2d

1122 (W.D. Wash. 2013); Public Defender v. Florida,

115 So. 3d 261 (Fla. 2013); State ex rel. Missouri

Public Defender Comm’n v. Waters, 370 S.W.3d 592,

599-601 (Mo. 2012); Simmons v. State Public

Defender, 791 N.W.2d 69, 89 (Iowa 2010). It is also an

unmistakable sign that public defenders face difficult

obstacles when striving to ensure the fairness and

integrity of the criminal justice process. The Eleventh

Circuit’s rule increases the likelihood that these

difficulties will become insurmountable, and that no

remedy will exist when a prosecutor knowingly uses

false testimony to secure a conviction.

13

B.

Crushing caseloads prevent thorough

investigation by the indigent defense bar.

The American Bar Association standards call

for reasonable caseloads for indigent defense counsel,

acknowledging explicitly that the quality of defense

suffers significantly as caseloads increase. See Am.

Bar Ass’n Standing Comm. on Legal Aid & Indigent

Defendants, Ten Principles of A Public Defense

Delivery

System 3

(Feb.

2002),

http://www.americanbar.org/content/dam/aba/admini

strative/legal_aid_indigent_defendants/ls_sclaid_def

_tenprinciplesbooklet.authcheckedam.pdf.

Yet in

many jurisdictions, workloads are so onerous that the

right to counsel exists merely in the abstract. See

Christopher Campbell, Ph.D., et al., Unnoticed,

Untapped and Underappreciated: Clients’ Perceptions

of Their Public Defenders, 33 Behav. Sci. & L. 751,

753 (2015).

For example, in Brevard County, Florida, the

18 public defenders handling felony cases each

worked 433 felony cases, nearly tripling the 150-case

limit suggested by the National Association of Chief

Defenders decades ago and rising to three times the

standard suggested by recent workload studies in

other jurisdictions. See Ford and Gallop, Brevard

Public Defenders; Geoffrey T. Burkhart, How to

Leverage Public Defense Workload Studies, 14 Ohio

State J. Crim. L. 403, 423 (2017). Public defenders

handling misdemeanors had 810 cases per attorney,

which is double the recommended 400 misdemeanor

cases per attorney. See Ford and Gallop, Brevard

Public Defenders. And in Dade County, Florida,

average caseloads rose in recent years from “367 to

nearly 500 felonies and from 1380 to 2225

misdemeanors.” Justice Denied at 68. What’s more,

14

these skyrocketing caseloads occurred in the face of a

12.6% budget reduction. See id.

These crushing caseloads have led defenders in

some jurisdictions—including jurisdictions within the

Eleventh Circuit’s purview, see, e.g., Public Defender

v. Florida, 115 So. 3d 261—to refuse additional cases.

See also Justice Denied at 68 (describing response in

2006, when six misdemeanor attorneys in Knox

County, Tennessee, had to handle “over 10,000 cases,

averaging just less than one hour per case.”).

To make matters worse, staffing levels are also

on unequal footing, with state prosecutors typically

enjoying more—and higher paid—staff than public

defense institutions. Id. at 61-63. For example,

prosecutors in Cumberland, New Jersey, have over

seven times the investigative staff on hand than do

their indigent defense counterparts. See id.

Beyond legal staffing, the public defense bar

has far fewer critical support services than

prosecutors, even though prosecutors have built-in

investigative support in law enforcement agencies.

See id. Prosecutors also benefit from state and federal

resources such as crime labs, expert witnesses, and

special investigators. See id. In contrast, public

defenders must often carve resources from already

emaciated budgets for these functions or seek prior

approval from the court, which is often denied. Id.

These disparities demonstrate that the deck is

stacked against indigent defense counsel who strive

to provide effective assistance to criminal defendants

and ensure the fairness of a criminal trial. The

Eleventh Circuit’s rule makes it more likely—if not

certain—that public defenders will be unable to

achieve these salutary objectives.

15

The Eleventh Circuit’s rule is a dangerous and

misguided legal standard that makes unfairness in

the criminal justice process more likely and

unaccountability in the prosecution of criminal

defendants all but certain. The burden of preventing

and correcting false testimony should be placed on the

shoulders of the attorneys who, by definition, know

the testimony is false and are constitutionally

charged with a duty to seek justice: prosecutors.

II.

EXCUSING PROSECUTORS’

INTRODUCTION OF FALSE

TESTIMONY UNDERMINES

PROSECUTORIAL ETHICS

The Eleventh Circuit’s rule not only threatens

the integrity of the trials infected by the knowing

presentation of false testimony, but also sends a

larger message that threatens to infect the entire

criminal justice system. After all, the integrity of the

criminal justice system depends, in large part, on

public faith in the integrity of prosecutors. See Berger

v. United States, 295 U.S. 78, 88 (1935) (“It is fair to

say that the average jury . . . has confidence that these

obligations, which so plainly rest upon the

prosecuting attorney, will be faithfully observed.”).

Indeed, prosecutors make important decisions every

single day about who gets charged, who gets

prosecuted, who goes to jail, and who goes free. For

this reason, the Court has said for a century that

United States attorneys are not mere advocates but

servants of justice. See id. The high ethical standards

imposed on prosecutors by our adversarial system are

particularly important when a defendant is indigent

and relies on public defense for representation. The

Eleventh Circuit’s rule allows prosecutors to evade

these standards at their convenience and to prioritize

16

the securing of convictions over the necessity of

ensuring justice.

A.

The criminal justice system imposes high

ethical standards on prosecutors because

they are servants of the law.

Prosecutors have a special role in the United

States criminal justice system.

As the Court

explained in Berger v. United States, a federal

prosecutor is the “representative not of an ordinary

party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its

obligation to govern at all[.]” 295 U.S. at 88. The

prosecutorial role—and therefore duties—is distinct

from the defense attorney’s role. A defense attorney

in the criminal justice system is an officer of the court,

but not a “servant of the law” in the “peculiar” and

“definitive” sense that a prosecutor is. Id. In short,

prosecutors are obligated to seek justice, not

convictions at any cost.

The ethical standards for prosecutors and

criminal defense attorneys reflect this difference.

Because a prosecutor serves the public and has no

individual client, her duty is that “justice shall be

done.” Id. In contrast, a criminal defense attorney’s

duty is to her client, protecting the client’s legal rights

in a complex system. See Powell v. Alabama, 287 U.S.

45, 69 (1932); see also Criminal Justice Standards for

the Defense Function, § 4-1.2 (Am. Bar Ass’n 4th ed.).

In essence, our adversarial system depends on both

the advocacy of defense counsel and the independent

duty of the prosecutor to seek justice.

Moreover, as officers of the court, both defense

counsel and prosecutors owe duties of candor to the

court, but the nuances of those duties differ because

17

of the prosecutorial powers in the adversarial system.

Specifically, while ethical standards recognize that

defense counsel’s duty of candor must be “tempered”

in some cases by “competing ethical and

constitutional obligations,” the prosecution has no

such competing interest. Compare Criminal Justice

Standards for the Defense Function, § 4-1.4 (Am. Bar

Ass’n 4th ed.) with Criminal Justice Standards for the

Prosecution Function, § 3-1.4 (Am. Bar Ass’n 4th ed.).

Thus, prosecutors have a “heightened” duty of candor,

precisely because of their role as a servant of the

public. See Criminal Justice Standards for the

Prosecution Function, § 3-1.4 (Am. Bar Ass’n 4th ed.).

This duty of candor prohibits prosecutors from

making statements of “fact or law, or offer[ing]

evidence, that the prosecutor does not reasonably

believe to be true[.]” Id. § 3-1.4(b). Likewise,

prosecutors have further ethical duties to correct false

evidence or testimony when they have introduced it.

Id. § 3-6.6(c). The Eleventh Circuit’s rule transforms

this duty from mandatory to optional with no

consequences—except for criminal defendants.

At bottom, prosecutors have an unflagging

duty to seek justice, and “[i]t is as much [their] duty

to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every

legitimate means to bring about a just one.” Berger,

295 U.S. at 88. The Eleventh Circuit’s decision

disregards these principles and makes it more, not

less, likely that prosecutors will use “improper

methods calculated to produce a wrongful conviction.”

Id.

18

B.

Permitting prosecutors to knowingly use

false testimony undermines

prosecutorial ethics and contributes to a

culture of corruption.

Lowering

the

standards

imposed

on

prosecutors threatens the integrity of the criminal

justice system because prosecutors will have limited

consequences and the behavior will become

normalized.

And “[w]ith each misstep” by the

Government, “the public faith in the criminal-justice

system further erodes” and “the likelihood grows that

a reviewing court will be forced to reverse a conviction

or even dismiss an indictment, resulting in wasted

resources, delayed justice, and individuals guilty of

crimes potentially going unpunished.” Nejad, 2020

WL at *15.

Studies of state prosecutorial discipline show

that only a handful of prosecutors have been

disciplined for misconduct, despite courts reversing

convictions and ordering new trials for misconduct

many more times. See Samuel R. Gross, et al., Nat’l

Registry of Exonerations, Government Misconduct

and Convicting the Innocent: The Role of Prosecturos,

Police and Other Law Enforcement at xxi (Sept. 1,

2020),

https://www.law.umich.edu/special/exoneration/Docu

ments/Government_Misconduct_and_Convicting_the

_Innocent.pdf (concluding that “[p]rosecutors are

hardly ever disciplined for misconduct that

contributes to false convictions” and explaining that

“[w]e know of some discipline for prosecutors in 4% of

exonerations with prosecutorial misconduct”); Shawn

Musgrave, New England Ctr. for Investigative

Reporting, Scant Discipline Follows Prosecutors’

Impropriety in Massachusetts, (Mar. 6, 2017),

19

https://www.necir.org/2017/03/06/scant-disciplinefollows-prosecutors-impropriety-massachusetts/

(describing 120 reversed convictions since 1985 in

Massachusetts, but only two prosecutors publicly

disciplined since 1980); Joaquin Sapien and Sergio

Hernandez, Who Polices Prosecutors Who Abuse Their

Authority? Usually Nobody, ProPublica (Apr. 3 & 5,

2013),

https://www.propublica.org/article/whopolices-prosecutors-who-abuse-their-authorityusually-nobody (describing 30 reversed convictions in

New York City, but only one prosecutor publicly

disciplined).

Given these facts, if the Eleventh Circuit’s

standard is upheld, no regularly enforceable remedy

for the use of false testimony will exist, and no

mechanism will exist to deter prosecutors from

intentionally and knowingly using false testimony to

secure a conviction. Thus, such a standard will

degrade prosecutorial ethics, compromise the

reliability of criminal verdicts, and undermine

appellate courts’ capacity to correct resulting

injustice—all at the expense of indigent criminal

defendants. Cf. United States v. Olsen, 737 F.3d 625,

631-32 (9th Cir. 2013) (Kozinski, C.J., dissenting from

denial of reh’g en banc) (“When a public official

behaves with such casual disregard for his

constitutional obligations and the rights of the

accused, it erodes the public’s trust in our justice

system, and chips away at the foundational premises

of the rule of law. When such transgressions are

acknowledged yet forgiven by the courts, we endorse

and invite their repetition.”).

Importantly, while most prosecutors will not

use false testimony, the change in standard will

nonetheless

affect

their

behavior,

whether

20

intentionally or not. Behavioral economics shows

that standards can institutionalize poor individual

and organizational behavior. When an individual

sees an institution tolerating behavior in another,

then the individual will internalize that they, too, are

permitted to engage in similar behavior. See Linda

Klebe Trevino & Stuart A. Youngblood, Bad Apples in

Bad Barrels: A Causal Analysis of Ethical DecisionMaking, 75 J. Applied Psychol. 378, 379 (1990). This

phenomenon is pronounced where the individual

rationalizes that “by serving the company’s interest,

they are also serving the public’s interest.” Blake E.

Ashforth & Vikas Anand, The Normalization of

Corruption in Organizations, 25 Res. in Org. Behav. 6

(2003). Further contributing to the institutional

pressure to engage in bad behavior, “leniency and low

frequency of formal sanctioning by governments and

professional associations often makes [bad behavior] .

. . rational.” Id.

Accordingly, if the Court permits the Eleventh

Circuit’s rule to stand, thus excusing prosecutors from

any consequences flowing from the knowing use of

false testimony in the courtroom, it will normalize

conduct that compromises the integrity of the

criminal justice system and undermines the

Constitution’s guarantees of fairness and due process

for all defendants, regardless of their socio-economic

status. Without condemning the improper use of false

testimony, the Court will signal a tacit

encouragement for others to engage in this behavior.

To prevent that result, this Court should grant

certiorari and reverse the Eleventh Circuit’s decision.

21

III.

THE ELEVENTH CIRCUIT’S STANDARD

THREATENS

THE INTEGRITY

OF

CRIMINAL TRIALS

The Eleventh Circuit’s standard also

undermines this Court’s repeated admonitions that

integrity requires prosecutors to ensure that

convictions are not obtained through the knowing use

of false testimony. See Napue v. Illinois, 360 U.S. 264,

269 (1959) (“implicit in any concept of ordered

liberty,” is that the government “may not knowingly

use false evidence, including false testimony, to obtain

a tainted conviction[.]”) (emphasis added); see also

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

v. Holohan, 294 U.S. 103 (1935).

Breaking with this strong body of law, the

Eleventh Circuit wrongly conflates two distinct

dimensions of due process: (i) the right to disclosure

of exculpatory evidence and (ii) the right to rely on the

prosecutorial duty not to knowingly introduce false

testimony. This conflation not only undermines the

integrity of the trial process on the front end, by

allowing false testimony to be presented to

factfinders; it also hamstrings defense counsel’s

ability to safeguard integrity on the backend, by

requiring defendants challenging a prosecutor’s

knowing introduction of false testimony to

additionally show that the prosecutor withheld

evidence of the testimony’s falsity. As described

above, the imposition of this additional burden on the

defense is unreasonable.

By condoning a process that not only effectively

allows prosecutors to introduce false testimony (so

long as they have somewhere, at some time, disclosed

evidence that defense counsel might use to expose

that falsity), but also erects significant barriers to the

22

correction of such errors, the Eleventh Circuit’s

decision undermines the fundamental purpose of the

criminal trial.

As this Court has explained, “[t]he purpose of a

trial is as much the acquittal of an innocent person as

it is the conviction of a guilty one.” U.S. v. Bagley, 473

U.S. 667, 692 (1985) (Marshall, J., dissenting)

(citation and internal quotations omitted); see also

Giles v. Maryland, 386 U.S. 66, 98 (1967) (Fortas, J.,

concurring)

(characterizing

the

government’s

obligation “not to convict, but to see that, so far as

possible, truth emerges” as the “ultimate statement”

of the due process right to a fair trial).

By ignoring this fundamental corruption of the

trial purpose and a conviction based on false

testimony to stand, the Eleventh Circuit’s decision

increases the constitutionally intolerable risk of

wrongful conviction. As documented in a report

recently published by the National Registry of

Exonerations examining the impact of official

misconduct in wrongful convictions nationwide over a

thirty-year period (1989-2019), prosecutors permitted

false testimony to go uncorrected in fully eight

percent of the exonerations studied (186/2400). See

Samuel R. Gross, et al., The Nat’l Registry of

Exonerations,

Government

Misconduct

and

Convicting the Innocent: The Role of Prosecutors,

Police and Other Law Enforcement at 99 (September

1,

2020),https://www.law.umich.edu/special/exonerat

ion/Documents/Government_Misconduct_and_Convi

cting_the_Innocent.pdf (further noting that, in at

least a handful of these cases, the defense knew or

should have known of the perjury). See also Center

on Wrongful Convictions, The Snitch System: How

23

Snitch Testimony Sent Randy Steidl and Other

Innocent Americans to Death Row (Winter 20042005), http://www.law.northwestern.edu/legalclinic/

wrongfulconvictions/documents/SnitchSystemBookle

t.pdf; Brandon L. Garrett, Judging Innocence, 108

Colum. L. Rev. 55, 60 (2008) (finding in a

comprehensive study of 200 exonerations that 18% of

exonerees were convicted, in part, based on the false

testimony of informants).

The burden to ensure that criminal trials fairly

acquit the innocent as readily as they convict the

guilty must not rest solely defense counsel’s capacity

to sift through a dump of discovery and timely find

evidence that the prosecutor has knowingly

introduced false testimony. Indeed, the primary role

of defense counsel is to advise and advocate for her

client, not to police prosecutors. This Court has

already recognized that it is not defense counsel’s

burden alone to guard against false testimony (and

should affirm as much again here). Napue, 360 U.S.

at 269-70 (“A lie is a lie, no matter what its subject,

and, if it is in any way relevant to the case, the district

attorney has the responsibility and duty to correct

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

(internal quotation marks and citation omitted).

Rather, the pursuit of a fair trial must be a

shared obligation among the court, the prosecution,

and defense counsel precisely because “[t]he

government of a strong and free nation does not need

convictions based upon such testimony. It cannot

afford to abide [by] them.” Mesarosh, 352 U.S at 14.

24

CONCLUSION

For the foregoing reasons, this Court should

grant the petition.

Respectfully submitted,

TIMOTHY P. O’TOOLE

Counsel of Record

KATHERINE E. PAPPAS

MILLER & CHEVALIER

CHARTERED

900 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 626-5800

totoole@milchev.com

kpappas@milchev.com

Counsel for Amici Curiae

October 13, 2020