Petition for Writ of Certiorari — Feanyichi Ezekwesi Uvukansi, Petitioner v. Texas
Supreme Court briefJul 30, 2021
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No. _________
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------FEANYICHI E. UVUKANSI,
Petitioner,
v.
THE STATE OF TEXAS,
Respondent.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The Texas Court Of Criminal Appeals
---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦--------------------------------RANDOLPH L. SCHAFFER, JR.
Counsel of Record
1021 Main, Suite 1440
Houston, Texas 77002
(713) 951-9555
noguilt@schafferfirm.com
Counsel for Petitioner
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
Petitioner was convicted of capital murder and
sentenced to life without parole based on the identification testimony of a single eyewitness who was to be
sentenced in federal court for possession with intent to
distribute ten kilograms of cocaine. The state prosecutor, who had agreed to write a letter to the federal
judge on the witness’s behalf, elicited his false testimony that no one had promised him anything or told
him that his punishment range would be reduced or
that he would receive a lower sentence. After petitioner was convicted, the prosecutor wrote a letter to
the federal judge that the witness’s testimony “alone
convinced the jury of the [petitioner’s] guilt,” and the
witness received probation. The state habeas trial
court found that the prosecutor had knowingly elicited
and failed to correct the witness’s false testimony, but
that petitioner failed to prove by a preponderance of
the evidence that the false testimony affected the verdict, as it did not impeach the witness’s identification.
The Texas Court of Criminal Appeals (TCCA) denied
relief without written order, which requires this Court
to “look through” that denial to the trial court’s findings of fact and conclusions of law as the basis for the
denial. The questions presented are:
I.
Did the state courts—by requiring petitioner to prove by a preponderance of the
evidence that the prosecution’s knowing
use of and failure to correct false testimony affected the verdict—disregard this
ii
QUESTIONS PRESENTED—Continued
Court’s precedent requiring that the prosecution prove beyond a reasonable doubt
that the false testimony did not affect the
verdict?
II. Did the state courts—by concluding that
an eyewitness’s false testimony that he
had not been promised consideration was
immaterial because impeaching his motive to testify would not impeach his
identification of petitioner—disregard this
Court’s precedent holding that impeachment evidence and exculpatory evidence
are the same for purposes of a materiality
analysis?
iii
RELATED CASES
•
State v. Uvukansi, No. 1353181, 174th
District Court of Harris County. Judgment entered June 20, 2014.
•
Uvukansi v. State, No. 01-14-00527-CR,
First Court of Appeals of Texas. Judgment entered June 2, 2016.
•
Uvukansi v. State, No. PD-0727-16, Texas
Court of Criminal Appeals. Judgment entered October 19, 2016.
•
Ex parte Uvukansi, No. 1353181-A, 174th
District Court of Harris County. Judgment entered April 2, 2019.
•
Ex parte Uvukansi, No. WR-88,493-02,
Texas Court of Criminal Appeals. Judgment entered April 14, 2021.
•
Uvukansi v. Lumpkin, No. 4:21CV1624,
United States District Court for the
Southern District of Texas. Pending.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
RELATED CASES ...............................................
iii
OPINIONS BELOW .............................................
1
JURISDICTION ...................................................
1
CONSTITUTIONAL PROVISION ........................
1
STATEMENT .......................................................
2
A.
Procedural History ....................................
2
B.
Factual Statement .....................................
3
1. The Trial ..............................................
3
2. Discovery Of The False Testimony ...... 10
3. The State Court Evidentiary Hearing ........................................................ 17
a. The prosecutor had agreed to write
a letter to the federal judge for Jeresano ............................................. 17
b. Jeresano knew that he would receive consideration for his testimony ............................................... 17
c. The jury did not know that the
prosecutor had agreed to write a
letter to the federal judge for Jeresano ................................................. 18
d. Jeresano testified falsely that no
promise had been made for his testimony ............................................. 19
v
TABLE OF CONTENTS—Continued
Page
4. The State Habeas Trial Court’s Findings Of Fact ......................................... 22
REASONS FOR GRANTING REVIEW ............... 24
I.
The State Courts—By Requiring Petitioner
To Prove By A Preponderance Of The Evidence That The Prosecution’s Knowing
Use Of And Failure To Correct False Testimony Affected The Verdict—Disregarded
This Court’s Precedent Requiring That
The Prosecution Prove Beyond A Reasonable Doubt That The False Testimony Did
Not Affect The Verdict ............................... 26
II.
The State Courts—By Concluding That
Jeresano’s False Testimony That He Had
Not Been Promised Consideration Was
Immaterial Because Impeaching His Motive To Testify Would Not Impeach His
Identification Of Petitioner—Disregarded
This Court’s Precedent Holding That Impeachment Evidence And Exculpatory Evidence Are The Same For Purposes Of A
Materiality Analysis .................................. 29
CONCLUSION..................................................... 36
APPENDIX
Texas Court of Criminal Appeals order (April 14,
2021) ................................................................. App. 1
174th District Court findings of fact and conclusion of law (April 2, 2019) ................................ App. 2
vi
TABLE OF CONTENTS—Continued
Page
Texas Court of Criminal Appeals order denying
discretionary review on direct appeal (October 19, 2016) ................................................... App. 60
First Court of Appeals of Texas opinion on direct
appeal (June 2, 2016) ..................................... App. 61
174th District Court judgment (June 20, 2014) .... App. 91
vii
TABLE OF AUTHORITIES
Page
CASES
Adams v. Commissioner of Correction, 71 A.3d
512 (Conn. 2013) .....................................................34
Andrus v. Texas, 140 S. Ct. 1875 (2020) .....................29
Brady v. Maryland, 373 U.S. 83 (1963) .......... 16, 26, 27
Burkhalter v. State, 493 S.W.2d 214 (Tex. Crim.
App. 1973) ..................................................................8
Chapman v. California, 386 U.S. 18 (1967).......... 26, 27
Foster v. Chatman, 136 S. Ct. 1737 (2016) ........... 24, 28
Giglio v. United States, 405 U.S. 150 (1972) .... 25, 26, 30
Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) ............33
Hinton v. Alabama, 571 U.S. 263 (2014) ....................35
Jackson v. Brown, 513 F.3d 1057 (9th Cir. 2008) ..... 33, 34
Kaupp v. Texas, 538 U.S. 626 (2003) ...........................35
King v. Johnson, 138 F.3d 951, 1998 WL 110056
(5th Cir. 1998)..........................................................25
Kyles v. Whitley, 514 U.S. 419 (1995) ..........................27
Mooney v. Holohan, 294 U.S. 103 (1935) ....................26
Napue v. Illinois, 360 U.S. 264 (1959) ...... 26, 31, 32, 33
Porter v. McCollum, 558 U.S. 30 (2009) ......................35
Rosencrantz v. Lafler, 568 F.3d 577 (6th Cir.
2009)3 ......................................................................33
Sullivan v. Louisiana, 508 U.S. 275 (1993) ................27
United States v. Agurs, 427 U.S. 97 (1976) .................27
viii
TABLE OF AUTHORITIES—Continued
Page
United States v. Bagley, 473 U.S. 667
(1985) ............................................... 25, 26, 27, 28, 33
United States v. Mazzanti, 925 F.2d 1026 (7th
Cir. 1991) .................................................................33
Wearry v. Cain, 136 S. Ct. 1002 (2016) .......................35
Wilson v. Sellers, 138 S. Ct. 1188 (2018) .............. 25, 28
CONSTITUTIONAL PROVISION
U.S. Const. amend. XIV ................................................1
FEDERAL STATUTE
28 U.S.C. § 1257(a) ........................................................1
STATE STATUTE
TEX. CRIM. PROC CODE art. 11.07, § 4 (West 2020)........ 24
FEDERAL SENTENCING GUIDELINE
U.S.S.G. § 5K1.1 .................................................. passim
RULE
Sup. Ct. R. 10(c)...........................................................25
OTHER AUTHORITY
Ahdout, Direct Collateral Review, 121 COLUM. L.
REV. 160 (2021)..........................................................3
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner, Feanyichi E. Uvukansi, respectfully petitions for a writ of certiorari to review the judgment
of the TCCA.
---------------------------------♦---------------------------------
OPINIONS BELOW
The TCCA’s denial of habeas corpus relief without
written order (App. 1) is unreported. The state district
court’s findings of fact and conclusions of law (App. 2)
is unreported. The TCCA’s refusal of discretionary review on direct appeal (App. 60) is unreported. The
Texas Court of Appeals’ unpublished opinion affirming
the conviction on direct appeal (App. 61) is available at
2016 WL 3162166. The judgment of conviction of the
state district court (App. 91) is unreported.
---------------------------------♦---------------------------------
JURISDICTION
The TCCA denied relief on April 14, 2021. This
Court has jurisdiction under 28 U.S.C. § 1257(a).
---------------------------------♦---------------------------------
CONSTITUTIONAL PROVISION
The Fourteenth Amendment to the United States
Constitution provides, in pertinent part, “No State
2
shall . . . deprive any person of . . . liberty . . . without
due process of law. . . .”
---------------------------------♦---------------------------------
STATEMENT
A. Procedural History
Petitioner pled not guilty to capital murder in the
174th District Court of Harris County, Texas. The jury
convicted him, and the court assessed punishment at
life imprisonment on June 20, 2014.
The Texas Court of Appeals affirmed petitioner’s
conviction in an unpublished opinion issued on June 2,
2016. The TCCA refused discretionary review on October 19, 2016. Uvukansi v. State, No. 01-14-00527-CR,
2016 WL 3162166 (Tex. App.—Houston [1st Dist.]
2016, pet. ref ’d).
Petitioner filed a state habeas corpus application
on November 14, 2017. The trial court, after conducting an evidentiary hearing, recommended that relief be
denied on April 2, 2019. The TCCA denied relief without written order on April 14, 2021. Ex parte Uvukansi,
No. WR-88,493-02 (Tex. Crim. App. Apr. 14, 2021).
Petitioner filed a federal habeas corpus petition in
Uvukansi v. Lumpkin, No. 4:21CV1624 in the United
States District Court for the Southern District of Texas
on May 17, 2021. That case is pending.1
Petitioner’s pending federal habeas petition should not deter this Court from reviewing the TCCA’s judgment. Petitioner
1
3
B. Factual Statement
1. The Trial
Two men fired 28 shots across a parking lot into a
crowd leaving a club after a concert on June 20, 2012,
killing three persons and wounding a fourth (7 R.R. 2829, 34-35, 84, 129; 9 R.R. 53-54, 61-62, 65-66, 69, 75, 7778). The police recovered 18 spent shell casings at the
scene; ten were fired from one gun, and eight from a
different gun (7 R.R. 116, 168-70).
The police determined that the wounded man, a
member of the Crips, reportedly had orchestrated the
murder of members of the Bloods in January 2012 (8
R.R. 167-70). The police theorized that the Bloods had
retaliated by committing the murders at the club (8
R.R. 179-80).
Houston Police Department Sergeant Chris Cegielski obtained petitioner’s name as a possible suspect
on June 25, 2012 (8 R.R. 184, 187-88). On June 28,
2012, Sgt. Cegielski showed a photospread containing
petitioner’s photo to Dedrick Foster, who “confirm[ed]
faces substantive and procedural hurdles on federal habeas review under the Antiterrorism and Effective Death Penalty Act
which he does not face on state habeas review. A commentator
has observed that, for this reason, this Court recently has granted
certiorari to review state court post-conviction decisions addressing substantial constitutional issues. See Z. Payvand Ahdout, Direct Collateral Review, 121 COLUM. L. REV. 160, 184 (2021) (“Faced
with the decisions of Congress in passing AEDPA . . . , the Court
has seized on the only means available to it for the robust development of doctrine pertaining to collateral review: direct collateral review.”). This Court should follow that course in petitioner’s
case.
4
the information” that Sgt. Cegielski had received from
other sources (8 R.R. 196, 198-99).2 Sgt. Cegielski contacted the district attorney’s office to obtain an arrest
warrant (8 R.R. 199-200).
Brent Wasserstein, a lawyer, called Sgt. Cegielski
and said that a client, Oscar Jeresano, had information
about the murders (8 R.R. 201).3 Jeresano gave a statement to Sgt. Cegielski and identified petitioner in a
photospread on June 29, 2012 (8 R.R. 35-39, 201, 206).
The police arrested petitioner on July 3, 2012 (8
R.R. 221). He said in a recorded interview that he left
the club, heard shots, and was pulled back inside by
Michael Rhone (8 R.R. 221-24; SX 58).
Sgt. Cegielski interviewed Rhone on July 5, 2012
(8 R.R. 233). Rhone did not confirm petitioner’s story,
causing Sgt. Cegielski to believe that petitioner had
lied.4
Rhone testified that he knew petitioner, heard
about the shooting on the news, and told the police that
he was at a friend’s house instead of at the club with
petitioner (8 R.R. 115-17).
Foster was murdered on July 11, 2012 (8 R.R. 239). Petitioner was in custody on that date. Foster’s murder remains unsolved.
3
Jeresano’s full name is Oscar Armando Jeresano Betancourth
(8 R.R. 43).
4
Apparently, it did not occur to Sgt. Cegielski that Rhone
might have lied to avoid being involved in a capital murder case
involving the Crips and the Bloods.
2
5
Jeresano testified that he was working as a valet
at the club on the night of the concert (8 R.R. 5, 7). After
the concert ended, he heard shots, turned around, and
saw a man shooting a gun (8 R.R. 14, 18-19).5 He
ducked behind a car and saw people running and bodies falling (8 R.R. 27, 29). He ran into the club after the
shooting stopped (8 R.R. 31). He did not tell the police
that he saw the shooting because he had a pending federal case, was scared that he would get in trouble, did
not think that the police would believe him because of
his record, and wanted to talk to his lawyer first (8 R.R.
31-32).
Jeresano testified that he told Wasserstein that he
wanted to talk to the police because his uncle had been
murdered in this manner when he was six or seven
years old and he wanted the victims’ families to have
closure and not suffer like his family did (8 R.R. 33-34).
Two days later, he met with an officer at Wasserstein’s
office, gave a statement, and identified petitioner in a
photospread (8 R.R. 35-39).6 He also identified petitioner in court (8 R.R. 39).
Jeresano testified that he had been arrested and
charged with possession with intent to distribute ten
kilograms of cocaine in 2011, pled guilty in federal
court in Victoria, Texas, in July 2012 and was to be sentenced after he testified at petitioner’s trial (8 R.R. 35).
Jeresano did not know whether the man shot anyone (8
R.R. 100-02).
6
Jeresano described the shooter to the police as a black male
dressed in black with a “fade” hairstyle (8 R.R. 71, 73).
5
6
The range of punishment for his federal offense was
ten years to life imprisonment. He asserted that no one
had promised him anything for his testimony or told
him that his punishment range would be reduced or
that he would receive a lower sentence as a result of
his cooperation.7
King elicited on cross-examination that Jeresano
was facing deportation as a result of his federal conviction (8 R.R. 44-45). He asserted that he did not know,
and that his attorney, Wasserstein, had not informed
him, that his plea agreement provided that, if he cooperated, he might receive a reduced sentence under
§ 5K1.1 of the federal sentencing guidelines (8 R.R.
48).8 He elaborated, “Nobody has ever, ever told me
that I am going to get less time for helping this case,
nobody . . . I’m here by my own will, not to help myself.
I’m here to help the family’s (sic) of the people that
died, nothing else” (8 R.R. 49).
The trial court conducted a hearing outside the
presence of the jury at King’s request (8 R.R. 80-81).
King asserted that the federal prosecutor, Patti Booth,
informed her by e-mail that Jeresano’s plea agreement
Lead prosecutor Gretchen Flader informed petitioner’s lead
counsel, Vivian King, at a pretrial hearing that she would write a
letter to the federal judge regarding Jeresano’s cooperation before
he was sentenced (3 R.R. 5-6). Flader did not elicit testimony
about the letter on direct examination of Jeresano.
8
Section 5K1.1 of the United States Sentencing Guidelines
provides that, upon motion of the government stating that the defendant has provided substantial assistance in the investigation
or prosecution of another person who has committed an offense,
the court may depart from the guidelines.
7
7
provided that the government would recommend a
§ 5K1.1 sentence reduction if he provided substantial
assistance (8 R.R. 83-84). Flader responded she had
“zero knowledge of any . . . potential sentencing reduction”; that she had not been informed that it “was possible, or in any way going to happen in this case”; and
that, “I just want to put it on the record so that it
doesn’t look like I committed a prosecutorial misconduct by not telling you something that’s in the discovery record” (8 R.R. 84-85). Flader objected to King
asking Jeresano about the letter that Flader had
agreed to write on his behalf because she had informed
Wasserstein rather than Jeresano (8 R.R. 87-88). The
court observed that “the problem is unless somebody
told him something, he didn’t know anything about it”
(8 R.R. 88). King then became emotional and had a
breakdown (8 R.R. 89):
And the way y’all are coming at me, I can’t
even think. So may I start thinking all over
again? I’ve got so many—I’ve got to fight you,
I’ve got to fight her, I’ve got to fight Wasserstein, I’ve got to fight everybody in the damn
courthouse. Let me just figure it out, okay,
please.
King made an offer of proof that she wanted to
ask Jeresano about Booth’s e-mail that the government will file a motion to reduce his sentence if he cooperates against petitioner (8 R.R. 92-93). The court
ruled that, because no one ever told Jeresano about the
8
agreement, “I’m not going to let you do it through him”
(8 R.R. 93-94).9
King called Wasserstein to testify before the jury.
He testified that Jeresano was arrested on December
4, 2011, and charged with possession of ten kilograms
of cocaine that were found in a hidden compartment in
a vehicle that he was driving (9 R.R. 41-42). Jeresano
was released on bond on January 3, 2012, and ordered
to remain at home and wear a GPS monitor (9 R.R. 4243).10 Wasserstein testified that Jeresano wanted to
talk to the police about the murders because it was the
right thing to do and did not ask whether his cooperation would help him in his federal case (9 R.R. 43-44,
46-47). Wasserstein arranged the interview and notified the federal prosecutor that Jeresano was cooperating in the state prosecution (9 R.R. 44). Jeresano pled
guilty in federal court on July 24, 2012, and was scheduled to be sentenced on November 5, 2012 (9 R.R. 43).
Wasserstein filed a motion to modify the bond conditions to remove the home confinement and GPS monitor on August 23, 2012, which the federal court granted
The court ignored the controlling precedent in allowing
Flader to protect Jeresano from cross-examination regarding the
leniency that she would request that he receive in exchange for
his testimony. See Burkhalter v. State, 493 S.W.2d 214, 218 (Tex.
Crim. App. 1973) (prosecutor cannot prevent jury from learning
of deal by making it with lawyer instead of witness).
10
Jeresano violated his bond conditions by being at the club
at 2:00 a.m.
9
9
on August 28, 2012.11 Wasserstein repeatedly reset the
sentencing so Jeresano could testify against petitioner
(9 R.R. 45, 49). Wasserstein explained that, after Jeresano testified, Wasserstein would notify the federal
prosecutor so she could file a § 5K1.1 motion, which
would permit the federal judge to decide whether to reduce the sentence (9 R.R. 45). King did not elicit that
Flader had agreed to write a letter informing the federal judge of Jeresano’s cooperation.
Flader elicited on cross-examination of Wasserstein that Jeresano wanted to talk to the police because it was the right thing to do (9 R.R. 46-47).
Wasserstein testified that he did not explain the
§ 5K1.1 motion to Jeresano but told him that testifying
against petitioner probably would help at his federal
sentencing (9 R.R. 47-48).
During their closing arguments, the prosecutors
argued that the police had no leads until Foster came
forward and said that petitioner was involved in the
shooting, but Foster could not testify because he was
dead (10 R.R. 31, 35); that Jeresano identified petitioner as a gunman and came forward to help the victims rather than to get a “good deal” (10 R.R. 32-33);
and, that Rhone’s testimony that he was not at the club
established that petitioner provided a false alibi to the
police (10 R.R. 11).
Wasserstein testified that the removal of these bond conditions was unrelated to Jeresano’s cooperation in the capital
murder case (9 R.R. 48-49).
11
10
King argued that petitioner told the police that he
was at the club but did not shoot anyone (10 R.R. 19);
and, that Jeresano claimed that he saw the shooting in
order to receive a reduced sentence in his federal case
and that he was at the club dealing dope instead of
parking cars as he had testified (10 R.R. 13-14).12
2. Discovery Of The False Testimony
Petitioner hired undersigned counsel in 2017.
Counsel checked the docket sheet in Jeresano’s federal
case and determined that the key documents had been
sealed (1 H.C.R. 32-36). Counsel filed a motion to unseal these documents, which the federal court granted.
These documents, and information provided by Wasserstein, demonstrated that Jeresano testified falsely
that no one had promised him anything for his testimony or told him that his punishment range would be
reduced or that he would receive a lower sentence as a
result of his cooperation.
Although Jeresano testified that he did not know,
and Wasserstein did not tell him, that his plea agreement provided for a sentence reduction (8 R.R. 48),
he had signed a plea agreement almost two years before petitioner’s trial which stated that, if he provided
substantial assistance, “the Government would recommend to the Court a reduction in the Defendant’s
There was no evidence to support King’s argument that
Jeresano was dealing drugs at the club. Her co-counsel argued
that Jeresano was not at the club at all (10 R.R. 25-26). Clearly,
defense counsel were not on the same page.
12
11
sentence. . . .” (1 H.C.R. 37). Thus, Jeresano testified
falsely at petitioner’s trial that he did not know whether
his plea agreement provided for a sentence reduction
and that he was testifying simply to help the victims’
families.
The events that transpired after Jeresano signed
the plea agreement demonstrate a carefully orchestrated
attempt by Flader, with Wasserstein’s cooperation, to
ensure that Jeresano would receive consideration for
his testimony without disclosing that information to
the defense or the jury or leaving a paper trail.
Jeresano acknowledged during the federal guilty
plea proceeding that he had knowingly transported
drugs in his vehicle for $1,000 (1 H.C.R. 61-63).13 After
he pled guilty, the federal prosecutor, Booth, asked the
court to allow him to remain on bond because “he is
cooperating with the state authorities” as a witness to
a homicide in Houston (1 H.C.R. 65). Booth said, “I
know it’s extraordinary, but we’re asking under extraordinary circumstances that he be allowed to stay
out on bond.” Jeresano was allowed to remain on bond.
The Presentence Investigation Report reflected
that Jeresano was subject to a mandatory minimum
term of imprisonment of ten years and that he was
subject to removal from the United States as a result
of his conviction (1 H.C.R. 74, 76).
Jeresano denied knowing that the quantity of the cocaine
was 9.85 kilograms (1 H.C.R. 61).
13
12
Petitioner was sentenced on June 20, 2014 (C.R.
1092-93). Flader wrote a letter to United States District Judge John Rainey on August 15, 2014, regarding
Jeresano’s cooperation (1 H.C.R. 80-81). She asserted
that Jeresano was “an exceptional human being” who
“did not expect anything for his cooperation, but only
came forward for the families of the victims” and, while
testifying, “was not only honest, but spoke with such
conviction his testimony alone convinced the jury
of the Defendant’s guilt” (emphasis added). She
described Jeresano as “brave, loyal, polite and kind
hearted” and stated that she and the families of the
victims will always be in his debt.
Judge Rainey sentenced Jeresano on January 5,
2015 (1 H.C.R. 82-103). Booth asked for a downward
departure to “one-third off of the lowest end of the
guidelines” under § 5K1.1 based on Jeresano’s cooperation (1 H.C.R. 84-85). Judge Rainey observed that this
“was a triple homicide that was going nowhere” until
Jeresano “stepped up” and solved it by identifying the
shooter (1 H.C.R. 86). Jeresano humbly observed that
God wanted him to help because “nobody else stepped
forward.” Wasserstein praised Jeresano as “the bravest
and most heroic client I’ve ever represented” and
gushed, “I’ve never had the opportunity to speak on
someone’s behalf with the character that Oscar has” (1
H.C.R. 89).14 Wasserstein added that the bravest conduct he had ever seen in a courtroom was the way that
Jeresano “stood up to defense counsel” after he “was
Wasserstein apparently forgot about the ten kilograms of
cocaine hidden in Jeresano’s vehicle.
14
13
badgered for almost a day about being a liar, about being somebody who was just doing this because of a motive to help with sentencing” (1 H.C.R. 91). Wasserstein
then gilded the lily by embellishing that Jeresano
“stood up to a defendant that was throwing gang signs
at him, throat-slashing type of signs towards him.”15
Jeresano then sought to distance himself from the ten
kilograms of cocaine that he so readily acknowledged
that he possessed when he pled guilty by asserting
that he did not know what was in the back of the vehicle and that he was “guilty of trusting somebody I
shouldn’t have trusted” (1 H.C.R 93).
Judge Rainey—like petitioner’s jury—bought Jeresano’s act hook, line, and sinker. He said, “I’ve been
at this a long time, and I don’t believe I’ve ever seen
anyone that had the courage that you’ve shown in solving a triple homicide. . . . And your crime doesn’t even
compare to someone killing three people all at the
same time, wounding, I think, two or three more (1
H.C.R. 96). Jeresano provided “as much cooperation
and assistance” as he had ever seen (1 H.C.R. 97).16
Judge Rainey stated that the “letter from the assistant
district attorney in Harris County is unbelievable. You
made her case.” Acknowledging that he had never before done this, he placed Jeresano on probation for
The record of petitioner’s trial does not reflect that he
“threw gang signs” or made “throat-slashing signs” while Jeresano testified. If petitioner had done so, the prosecutor, a court
official, or Wasserstein surely would have notified the court so it
could take appropriate action. Wasserstein clearly misrepresented what happened in an effort to obtain leniency for Jeresano.
16
Booth parroted that she agreed (1 H.C.R. 97).
15
14
three years “in recognition of the extraordinary cooperation in solving that triple homicide.”
All of this was a sham.
Wasserstein provided an affidavit in petitioner’s
state habeas proceeding explaining what really happened (1 H.C.R. 104-06). He asserted, in pertinent
part:
I had agreements with Harris County assistant district attorney Gretchen Flader and assistant United States attorney Patty Booth
that Jeresano-Betancourth would receive consideration in exchange for his cooperation
and, if necessary, his testimony. Flader agreed
to write a letter advising the federal district
court of his cooperation. Booth agreed to file a
5K1.1 motion asking the court to sentence
him below the statutory minimum of ten
years. The filing of this motion gave the court
discretion to sentence him to less than ten
years.
I informed Jeresano-Betancourth of the arrangement that I made with the respective
prosecutors. Although he knew at the time of
his testimony against Uvukansi that the state
prosecutor would write a letter of cooperation
and the federal prosecutor would file a motion
requesting a sentence below the statutory
minimum, he did not know that he would receive probation.17
Wasserstein did not know why Jeresano had not been deported (1 H.C.R. 105).
17
15
Armed with this new evidence, petitioner filed a
state habeas corpus application alleging that Jeresano
testified falsely that no one had promised him anything for his testimony or told him that his punishment range would be reduced or that he would receive
a lower sentence as a result of his cooperation. Petitioner specified that Flader had elicited false testimony
from Jeresano on direct examination, successfully objected to King’s attempt to cross-examine him about
the arrangement by falsely claiming that he did not
know about it, and failed to correct his false testimony
to that effect on cross-examination. Undersigned counsel also investigated what became of Flader after petitioner’s trial.
Harris County District Attorney-elect Kim Ogg
sent an e-mail to First Assistant District Attorney
Belinda Hill on December 20, 2016, stating that, when
she took office on January 1, 2017, she intended to investigate whether Flader had misinformed a capital
murder victim’s mother about the status of the case
and made false statements about Ogg (2 H.C.R. 315).
Ogg requested that the Harris County District Attorney’s Office (HCDAO) preserve all of Flader’s records,
including her e-mails.
On February 27, 2017, Gary Zallar, the HCDAO’s
director of information systems and technological services, sent a memo to Ogg that Flader may have deleted
16
her e-mails (2 H.C.R. 290-91).18 The HCDAO subsequently determined that Flader deleted all of her
e-mails regarding petitioner’s case (3 H.R.R. 152-54).
The e-mails were obtained from a back-up system after
undersigned counsel issued a subpoena for them (3
H.R.R. 158-59).
Petitioner filed a motion for production of favorable evidence requesting disclosure of the reasons that
Ogg did not renew Flader’s contract when she became
district attorney (1 H.C.R 219-20). On March 23, 2018,
the habeas prosecutor informed the court and counsel
at a hearing that Ogg told him that Flader was “let go”
because she was “sleeping with” the prosecutor who
prosecuted the “Jenny rape victim case that became
the high point of the political season” and, as a result,
could not be “part of her office” (2 H.R.R. 16-18). When
the prosecutor made this representation, the HCDAO
was withholding from petitioner a letter dated February 9, 2017, in which the HCDAO had represented
to the Texas Workforce Commission, in response to
Flader’s unemployment compensation claim, that Ogg
terminated Flader for Brady and discovery violations
in a capital murder trial (2 H.C.R. 287-89).
Thus, the HCDAO fired Flader for suppressing evidence and violating discovery rules in another capital
murder trial yet defended her conduct in eliciting and
Flader testified at petitioner’s habeas evidentiary hearing
that she went to her office on the Saturday after she learned that
she would be terminated and deleted her e-mails (3 H.R.R. 14-16).
18
17
failing to correct false testimony at petitioner’s capital
murder trial.
3. The State Court Evidentiary Hearing
a. The prosecutor had agreed to write a
letter to the federal judge for Jeresano.
Flader and Wasserstein both testified that they
had an agreement that, if Jeresano cooperated and testified, Flader would write a letter informing the federal
judge of his cooperation before he was sentenced (3
H.R.R. 25, 166). Flader understood that the purpose of
the letter would be to persuade the judge to be lenient
(3 H.R.R. 26). Wasserstein believed that Flader’s letter
would “go a long way” in helping Jeresano obtain a reduced sentence (3 H.R.R. 171). He considered Flader’s
promise to him that she would write the letter as
the functional equivalent of a promise to Jeresano (3
H.R.R. 242-43). He and Booth agreed that, if Flader
wrote the letter, the government would file a § 5K1.1
motion asking the court to sentence Jeresano below the
statutory minimum of ten years in prison (3 H.R.R.
166).
b. Jeresano knew that he would receive
consideration for his testimony.
Flader testified that, if she had told Jeresano before he testified that she would write a letter to the
federal judge, and King had asked him about it, he
would have to admit it; if he had denied it, she would
have a duty to correct his false testimony (3 H.R.R.
18
32-33). Although she did not tell Jeresano about the
letter, she assumed (correctly) that Wasserstein did
(3 H.R.R. 32, 38).
Wasserstein testified that he told Jeresano before
trial about his agreements with Flader and Booth (3
H.R.R. 184-85). With the cooperation of both prosecutors, he was able to reset the sentencing for over two
years so Jeresano could testify against petitioner (3
H.R.R. 173). He told Jeresano before petitioner’s trial
that his sentencing had been reset because he had to
testify against petitioner to obtain Flader’s letter and
the government’s § 5K1.1 motion (3 H.R.R. 173-75). He
also reminded Jeresano of these agreements during a
break in Jeresano’s testimony at petitioner’s trial (3
H.R.R. 167-70).
Flader acknowledged that she did not ask Jeresano about the letter on direct examination (3 H.R.R.
30). Jeresano had testified at petitioner’s trial that he
did not know that he would get less time for his cooperation and testimony and that he was testifying only
to help the victims’ families (8 H.R.R. 48-49). Flader
did not correct this testimony by eliciting that she
would write a letter and Booth would file a § 5K1.1 motion.
c. The jury did not know that the prosecutor had agreed to write a letter to
the federal judge for Jeresano.
Flader testified that she did not disclose to the jury
that she would write a letter to the federal judge for
19
Jeresano because it was not her obligation to do so and
she did not consider it to be important (3 H.R.R. 30).19
Flader acknowledged that King did not ask Jeresano
about the letter on cross-examination and did not elicit
from Wasserstein that Flader would write a letter or
that he had told Jeresano about a letter (3 H.R.R. 67,
72-73). Wasserstein testified that he did not mention
the letter during his testimony because the lawyers did
not ask about it (3 H.R.R. 195). King testified that she
did not ask Wasserstein about the letter because the
court had sustained Flader’s objection when she tried
to ask Jeresano about consideration (3 H.R.R. 257-58).
Flader acknowledged that the jury did not know that
she would write a letter informing the federal judge of
Jeresano’s cooperation and testimony that could (and
did) result in him receiving probation (3 H.R.R. 73).
d. Jeresano testified falsely that no promise had been made for his testimony.
Jeresano testified that he cooperated in the prosecution of petitioner because his uncle had been murdered when he was six or seven years old and he
wanted the victims’ families to have closure and not
suffer like his family did (8 R.R. 33-34). He testified
that no one had promised him anything for his
Flader’s testimony that she did not consider the letter to be
important was incredible. Clearly, she did not want the jury to
know that she would write a letter, as she successfully objected
when King sought to ask Jeresano about consideration for his testimony on the basis that she made the agreement with Wasserstein (8 H.R.R. 87-88).
19
20
testimony or told him that his punishment range of ten
years to life would be reduced as a result of his cooperation (8 R.R. 35). Flader testified that she did not verify
that Jeresano’s uncle had been murdered before she
elicited this testimony (3 H.R.R. 46-47). King testified
that she could not investigate whether Jeresano’s uncle had been murdered because she first heard about it
when Jeresano testified (3 H.R.R. 235-37). Wasserstein
testified that he did not believe that there was any substance to Jeresano’s claim that his uncle had been murdered and that Jeresano may have made it up (3
H.R.R. 180-81).
Flader testified that she elicited that no one had
promised Jeresano anything for his testimony or told
him that his punishment range would be reduced as a
result of his cooperation even though she had promised
Wasserstein that she would write a letter to the federal
judge (3 H.R.R. 47-49). Wasserstein testified that a
truthful answer from Jeresano would have been that
Flader promised Wasserstein that she would write a
letter to the federal judge after he testified, and Booth
promised Wasserstein that she would file a § 5K1.1
motion (3 H.R.R. 182-85).
During her closing argument, Flader asserted that
Jeresano came forward to help the victims rather than
“get a good deal” and that there had been no promise
(10 R.R. 32-33). Remarkably, Flader testified that she
did not consider her agreement with Wasserstein to
write a letter to the federal judge to constitute a promise (3 H.R.R. 74).
21
Wasserstein testified that he was present in the
courtroom when Jeresano testified on cross-examination
that no one had told him that he could get a reduced
sentence or less time for cooperating and, specifically,
that Wasserstein had never told him this (3 H.R.R. 186,
188-90). Wasserstein acknowledged that he told Jeresano before and during trial that Jeresano could get a
reduced sentence or less time for cooperating, and this
information also was contained in the plea agreement
that Jeresano signed (3 H.R.R. 167-70, 184-85, 187,
189-90).
Flader told the court outside the presence of the
jury during Jeresano’s testimony that she had “zero
knowledge of any . . . potential sentencing reduction”
and that she had not been informed that it “was possible or in any way going to happen in this case”
(3 H.R.R. 84-85). Flader testified that she had no
knowledge before trial of the possibility of a § 5K1.1
motion (3 H.R.R. 70-72). Both Wasserstein and King
testified that they explained to Flader before trial how
her letter would be used in an effort to obtain a reduced
sentence for Jeresano (3 H.R.R. 192-93, 247). Wasserstein testified that it was up to Flader, rather than him,
to correct any false testimony by Jeresano (3 H.R.R.
176).
22
4. The State Habeas Trial Court’s Findings
Of Fact
The state habeas trial court found that Flader
knowingly elicited the following false testimony from
Jeresano:
•
Jeresano had not been promised anything
for testifying in court, which misled the
jury regarding the benefits that he might
receive (App. 42; Finding 87);
•
Jeresano did not know before trial that
the federal judge could consider his cooperation and sentence him below the statutory minimum of ten years in prison
(App. 43; Finding 89); and
•
Jeresano did not know that, if he cooperated in the state prosecution, the federal
prosecutor would notify the federal judge
so he could decide whether to reduce Jeresano’s sentence (App. 43; Finding 90).
The state habeas trial court also found that Wasserstein told Jeresano before trial that, if he testified,
Flader would write a letter to the federal judge, and
Booth would file a motion to reduce his sentence (App.
43-44; Findings 92-95); that Flader and Booth made
these promises to Jeresano and Wasserstein (App. 44;
Finding 96); and, that Flader elicited testimony that
“gave the jury a false impression when the testimony
is examined as a whole” (App. 44-49; Findings 97, 110).
23
Finally, the state habeas trial court found that:
•
Jeresano testified falsely on cross-examination that he did not know, and Wasserstein did not tell him, that his plea
agreement provided that, if he cooperated
with the State, he might receive a § 5K1.1
sentence reduction (App. 44, 49; Findings
98, 110);
•
Wasserstein told Jeresano at a recess during his testimony that the federal judge
could sentence him below the statutory
minimum if a § 5K1.1 motion were filed
(App. 46; Finding 100);
•
Jeresano’s testimony was false because
his plea agreement contained such a provision, as he acknowledged during the
plea proceeding (App. 46; Finding 102);
and,
•
Jeresano’s false testimony misled petitioner’s jury (App. 50; Finding 114).
Most importantly, the state habeas trial court
found that “Jeresano’s testimony was necessary as he
was the only witness called by the State to prove [petitioner] was the shooter who killed the complainants”
(App. 52; Finding 119) (emphasis added). However, it
concluded that the false testimony was not material
(App. 50-52, 55; Findings 115-16, 120-22, 131).
The TCCA, after reviewing the trial court’s findings of fact and conclusions of law, as required by
24
article 11.07 § 4 of the Texas Code of Criminal Procedure, summarily denied relief without explanation.20
---------------------------------♦---------------------------------
REASONS FOR GRANTING REVIEW
The state habeas trial court erroneously placed
the burden on petitioner to prove by a preponderance
of the evidence that Jeresano’s false testimony—which
the prosecutor had knowingly elicited and failed to correct—“was reasonably likely to influence the judgment
of the jury.” It concluded that petitioner failed to prove
that the false testimony affected the verdict because,
even if the jury had known that Jeresano lied in denying that he had been promised consideration, it still
could have believed his identification of petitioner. Because the TCCA denied relief without written order,
this Court should “look through” that denial to the trial
court’s findings of fact and conclusions of law as the
basis for the denial. See Foster v. Chatman, 136 S. Ct.
1737, 1746 n.3 (2016) (“[It] is perfectly consistent with
this Court’s past practices to review a lower court decision—in this case, that of the Georgia habeas court—
in order to ascertain whether a federal question may
be implicated in an unreasoned summary order from a
Article 11.07, § 4 of the Texas Code of Criminal Procedure
provides, “After the convicting court makes findings of fact or approves the findings of the person designated to make them, the
clerk of the convicting court shall immediately transmit to the
Court of Criminal Appeals, under one cover, the application, any
answers filed, any motions filed, transcripts of all depositions and
hearings, any affidavits, and any other matters such as official
records used by the court in resolving issues of fact.”
20
25
higher court.”); cf. Wilson v. Sellers, 138 S. Ct. 1188,
1192 (2018) (“We hold that the federal court should
‘look through’ the unexplained decision to the last related state-court decision that does provide a relevant
rationale. It should then presume that the unexplained
decision adopted the same reasoning.”); King v. Johnson, 138 F.3d 951, 1998 WL 110056 (5th Cir. 1998) (unpublished) (reviewing the state habeas trial court’s
legal conclusion under the “look through” presumption
when the TCCA denied habeas relief without written
order).
The state courts misapplied this Court’s false testimony jurisprudence in two ways. First, they erroneously placed the burden on petitioner to prove by a
preponderance of the evidence that the false testimony
affected the verdict, when this Court requires the prosecution to prove beyond a reasonable doubt that the
false testimony did not affect the verdict. See United
States v. Bagley, 473 U.S. 667, 679-80 & n.9 (1985).
Second, they erroneously concluded that a key prosecution witness’s false testimony that he had not been
promised consideration is not material because it concerned his motive to testify rather than his positive
identification of the defendant as the perpetrator. See,
e.g., Giglio v. United States, 405 U.S. 150, 154-55 (1972).
Review is warranted because the TCCA’s judgment
directly conflicts with this Court’s well-established
precedent. SUP. CT. R. 10(c).
26
I.
The State Courts—By Requiring Petitioner
To Prove By A Preponderance Of The Evidence That The Prosecution’s Knowing
Use Of And Failure To Correct False Testimony Affected The Verdict—Disregarded
This Court’s Precedent Requiring That
The Prosecution Prove Beyond A Reasonable Doubt That The False Testimony Did
Not Affect The Verdict.
A conviction must be set aside when the prosecutor knowingly elicited or failed to correct false testimony that was material to the conviction. Napue v.
Illinois, 360 U.S. 264, 271 (1959); Giglio, 405 U.S. at
154. This Court established almost a century ago that
the prosecutor’s knowing use of false testimony is “inconsistent with the rudimentary demands of justice. . . .” Mooney v. Holohan, 294 U.S. 103, 112 (1935).
This Court’s materiality standard governing the
prosecution’s use of false testimony is more lenient to
a defendant than its materiality standard governing
the prosecution’s failure to disclose exculpatory or impeachment evidence in violation of Brady v. Maryland,
373 U.S. 83, 87 (1963) (defendant must show a reasonable probability that, if the favorable evidence had
been disclosed, the result of the trial would have been
different). See Bagley, 473 U.S. at 679-82. The determination of whether false testimony is material is governed by the harmless error standard of Chapman v.
California, 386 U.S. 18, 24 (1967), which requires that
the prosecution prove beyond a reasonable doubt that
27
a constitutional error did not contribute to the conviction. Bagley, 473 U.S. at 679-80 & n.9.
Under the Chapman standard, a reviewing court
must determine “not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty
verdict in the case at hand.” Sullivan v. Louisiana, 508
U.S. 275, 279 (1993). “The inquiry is not whether, in a
trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was surely
unattributable to the error.” Id. (emphasis in original).
The Bagley standard governing the materiality of
false testimony is more lenient to a defendant than
the Brady standard governing the materiality of suppressed evidence because false testimony involves “a
corruption of the truth-seeking function of the trial
process.” United States v. Agurs, 427 U.S. 97, 103-04
(1976).
The state habeas trial court erroneously required petitioner to prove by a preponderance of the
evidence that the false testimony affected the verdict
(2 H.C.R. 420; Finding 78). Even this Court’s more demanding materiality standard governing suppressed
evidence does not require proof by a preponderance of
the evidence. See, e.g., Kyles v. Whitley, 514 U.S. 419,
434 (1995) (“Although the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not
require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted
28
ultimately in the defendant’s acquittal (whether based
on the presence of reasonable doubt or acceptance of
an explanation for the crime that does not inculpate
the defendant).”). The state habeas trial court, by placing the burden on petitioner to prove that the false
testimony was material, used a standard that was
more onerous than the controlling Bagley standard. As
noted, false testimony is “material unless failure to disclose it would be harmless beyond a reasonable doubt,”
and the burden of proof is on the prosecution rather
than the defendant. Bagley, 473 U.S. at 679-80 & n.9.
The prosecution had the burden to prove beyond a
reasonable doubt that Jeresano’s false testimony did
not affect the verdict. Because he was the only witness
to identify petitioner, the prosecution cannot meet that
burden. Notably, the TCCA did not reject the trial
court’s erroneous materiality analysis; it simply denied
habeas relief without a written order. Thus, this Court
should “look through” that denial to the trial court’s
findings of fact and conclusions of law as the basis for
the denial. Foster, 136 S. Ct. at 1746 n.3; cf. Wilson, 138
S. Ct. at 1192. By that measure, the denial of relief conflicts with this Court’s precedent.
This Court should apply the correct materiality
standard and reverse the TCCA’s judgment because
the prosecution’s use of and failure to correct Jeresano’s false testimony violated petitioner’s right to
due process of law and a fair trial. At the very least,
this Court should grant certiorari, vacate the judgment, and remand to the TCCA to reconsider the materiality of Jeresano’s false testimony under the correct
29
standard. Cf. Andrus v. Texas, 140 S. Ct. 1875, 1886-87
(2020) (per curiam) (vacating judgment and remanding to the TCCA to address the prejudice prong of an
ineffective assistance of trial counsel claim that the
TCCA failed to address thoroughly).
II.
The State Courts—By Concluding That Jeresano’s False Testimony That He Had Not
Been Promised Consideration Was Immaterial Because Impeaching His Motive To
Testify Would Not Impeach His Identification Of Petitioner—Disregarded This Court’s
Precedent Holding That Impeachment Evidence And Exculpatory Evidence Are The
Same For Purposes Of A Materiality Analysis.
The state habeas trial court correctly found that
Jeresano’s testimony was “necessary” to the prosecution’s case because he was the only witness who identified petitioner (App. 52; Finding 119). However, the
court erroneously found that Jeresano’s false testimony was immaterial because Wasserstein testified at
trial that he told Jeresano that his cooperation probably would help at sentencing (App. 50-51; Findings
115-16); and that, even if the jury had known that
Flader would write a letter to the federal judge for Jeresano, that would not have impeached his identification of petitioner (App. 52, 55; Findings 120-22, 131).
The state habeas trial court disregarded this
Court’s precedent regarding the impeachment value
of evidence that a key prosecution witness testified
30
falsely about a cooperation agreement. See, e.g., Giglio,
405 U.S. at 154-55 (“Here the Government’s case depended almost entirely on Taliento’s testimony; without it there could have been no indictment and no
evidence to carry the case to the jury. Taliento’s credibility as a witness was therefore an important issue in
the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to
his credibility and the jury was entitled to know of it.”).
Although the jury knew that Wasserstein had told
Jeresano that testifying against petitioner probably
would help at sentencing, the jury did not know that
Flader—contrary to her questions and closing argument—had agreed to help Jeresano receive a reduced
sentence by writing a letter to the federal judge that,
in turn, would cause Booth to file a § 5K1.1 motion.
Flader argued that Jeresano was a good citizen who
came forward to help the families of the victims rather
than to “get a good deal” (10 R.R. 32-33). She deliberately misled the jury by eliciting that she had made no
promise to Jeresano. Demonstrating that Jeresano’s
testimony about his motive to testify was false not only
would have undermined his credibility, but also would
have destroyed the credibility of the prosecution’s case.
The state habeas trial court also disregarded this
Court’s precedent in concluding that, if the jury had
known that Jeresano had a selfish motive to testify,
that would not have affected its perception of the reliability of his identification. It found that the jury could
have believed that he accurately identified petitioner
even though he lied in denying that he had been
31
promised consideration (App. 53-54; Findings 124-30).
This Court has squarely rejected such a distinction.
See Napue, 360 U.S. at 269-70 (“It is of no consequence
that the falsehood bore upon the witness’ credibility
rather than directly upon the defendant’s guilt. A lie
is a lie, no matter what its subject. . . .”). The court
also failed to consider that the jury’s assessment of
Jeresano’s credibility ultimately would determine
whether it believed his testimony regarding the identification; the jury’s knowledge that he lied about his
motive certainly could have affected whether it believed that his identification was reliable.21
Two of the state habeas trial court’s key findings demonstrate that it does not understand this Court’s relevant precedent
(2 H.C.R. 427):
128. The Court finds that Jeresano’s false testimony (that he was not promised anything to testify in
court) is not closely tied to the veracity of his testimony
identifying the shooter. Meaning, his false testimony
does not permit a reasonable inference to be drawn that
he had to be lying about the identity of the shooter;
nor does the false testimony mean it was “reasonably
likely” to influence the judgment (conviction/sentence)
of the jury because the jury had a right to still believe
Jeresano’s testimony identifying the appellant as the
shooter even though they may have believed he was impeached with evidence at trial, and even if they would
have heard about the letter that was going to be written to the federal judge.
129. The Court concludes the purpose of impeachment is to attack the credibility of the witness; it
does guarantee that the witness’s credibility will be totally annihilated because, once again, the determination
of the weight to be given a witness’s testimony is solely
within the province of the jury.
21
32
If Jeresano had not cooperated in the state prosecution and identified petitioner—the police suspect—
Jeresano would have served from ten years to life in
federal prison without parole. Identifying petitioner
proved to be a “get out of jail free” card that enabled
Jeresano to receive probation. The state court improperly dissected the credibility determination by requiring that the false testimony, to be material, must relate
directly to the identification rather than to the witness’s motive to make that identification. The court did
not cite any caselaw holding that false testimony is not
material unless it directly impeaches the incriminating aspect of the witness’s testimony. And, it disregarded the time-honored legal maxim, “Falsus in uno,
falsus in omnibus” (“False in one thing, false in everything”), which lawyers have relied on for centuries to
argue that a witness who lies about one matter cannot
be believed on any matter. Finally, the state court decision conflicts with Napue:
The 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. The
jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon
such subtle factors as the possible interest of
the witness in testifying falsely that the defendant’s life or liberty might depend.
33
Napue, 360 U.S. at 269. The Napue Court concluded
that, if the jury had known that the witness testified
falsely that he had not been promised consideration, it
could have concluded that he fabricated his testimony
to curry favor with the prosecution in order to receive
consideration. Id. at 270.
There is no distinction between impeachment evidence and exculpatory evidence for purposes of assessing the materiality of a prosecution witness’s false
testimony. See Bagley, 473 U.S. at 767. The lower
courts—except for the TCCA—have long recognized
this principle. See Rosencrantz v. Lafler, 568 F.3d 577,
588 (6th Cir. 2009) (“[T]urning to the impact on the
jury had the prosecutor corrected Lasky, or the defense
counsel confronted Lasky with her false denial, it is
reasonable to infer that exposing Lasky as untruthful—thereby tipping the jury to another of Lasky’s inconsistencies and her willingness to lie under oath—
would have affected the jury’s view of Lasky’s credibility.”); United States v. Mazzanti, 925 F.2d 1026, 1030
(7th Cir. 1991) (where prosecution witness testified
falsely about an important matter, “an analysis that
simply evaluates the effect of correcting the false testimony without evaluating the probable impact on the
witness’s credibility is too narrow,” as it must extend to
“the fact that the witness lied”); Hayes v. Brown, 399
F.3d 972, 988 (9th Cir. 2005) (en banc) (if the jury had
known that the prosecutor elicited false testimony that
a witness would not receive consideration, it “would
have had a devastating effect on the credibility of
the entire prosecution case”); Jackson v. Brown, 513
34
F.3d 1057, 1077 (9th Cir. 2008) (witness’s “obvious willingness to lie under oath to keep his promises secret
would cast doubt on his entire testimony”); Adams v.
Commissioner of Correction, 71 A.3d 512, 528 (Conn.
2013) (if the jury had known that a prosecution witness lied about consideration, it probably would not
have believed the substance of his testimony; calling
his credibility into question is no substitute for
demonstrating that he had lied about this agreement).
The state courts unreasonably concluded that
Flader’s knowing use of and failure to correct Jeresano’s false testimony regarding his motive to identify
petitioner was immaterial because it did not affect his
identification. They ignored that, because Jeresano
was the only witness who identified petitioner, if the
jury had known that he had a selfish motive to testify
and, as a result, doubted the reliability of his identification, no other evidence established petitioner’s
guilt. Flader told Wasserstein before trial that the
State did not have a case without Jeresano’s testimony
(3 H.R.R. 165). She informed Judge Rainey in the letter
that Jeresano’s testimony alone convinced the jury of
petitioner’s guilt (1 H.C.R. 80-81). Judge Rainey placed
Jeresano on probation because he “made [Flader’s]
case” (1 H.C.R. 97). Flader testified at petitioner’s habeas evidentiary hearing that Jeresano’s testimony
was material (3 H.R.R. 88).
If the prosecution’s knowing use of false testimony
that its key witness had not been promised consideration for his testimony is immaterial, no conviction
35
could ever be reversed on this basis. A witness’s denial
of a selfish motive to testify is, by definition, collateral
to the subject matter of his testimony—whether it concerns an identification or a defendant’s incriminating
statement. The state court decision gives prosecutors
carte blanche to promise consideration to a witness
and, thereafter, to elicit his false testimony denying
such a promise, secure in the knowledge that the conviction will be upheld.
The state court decision is so contrary to this
Court’s precedent that it requires a summary reversal.
This Court “has not shied away from summarily deciding fact-intensive cases where, as here, lower courts
have egregiously misapplied settled law.” Wearry v.
Cain, 136 S. Ct. 1002, 1007 (2016) (per curiam) (summary reversal where state habeas court erroneously
denied relief on suppression of evidence claim); see also
Hinton v. Alabama, 571 U.S. 263, 276 (2014) (per curiam) (summary reversal on Sixth Amendment ineffective assistance of counsel claim); Porter v. McCollum,
558 U.S. 30, 44 (2009) (per curiam) (same); Kaupp v.
Texas, 538 U.S. 626, 633 (2003) (per curiam) (summary
reversal on Fourth Amendment claim). The state court
decision not only rewards a dishonest prosecutor for
knowingly eliciting and failing to correct false testimony but also may encourage other prosecutors to engage in similar unethical, not to mention criminal,
conduct. This Court must intervene.
---------------------------------♦---------------------------------
36
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
RANDOLPH L. SCHAFFER, JR.
Counsel of Record
1021 Main, Suite 1440
Houston, Texas 77002
(713) 951-9555
(713) 951-9854 (facsimile)
noguilt@schafferfirm.com
July 2021
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