Amicus Curiae Brief — Miguel Angel Santana, Petitioner v. Maryland

No. 21-440

IN THE

Supreme Court of the United States

___________

MIGUEL ANGEL SANTANA,

Petitioner,

v.

STATE OF MARYLAND,

Respondent.

___________

On Petition for Writ of Certiorari to the

Maryland Court of Special Appeals

___________

BRIEF OF AMICI CURIAE DUE PROCESS

INSTITUTE, NATIONAL ASSOCIATION FOR

PUBLIC DEFENSE, THE CATO INSTITUTE,

AND INNOCENCE PROJECT 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 22, 2021

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

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

VANESSA POTKIN

INNOCENCE PROJECT

For Identification Purposes

Only:

40 Worth St., Ste. 701

New York, NY 10013

vpotkin@innocenceproject.org

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................... iii

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

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

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

I.

THE MINORITY POSITION ADOPTED

BY THE MARYLAND COURT OF

SPECIAL APPEALS 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. .... 11

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. ............................. 19

III. THE MINORITY POSITION ADOPTED

BY THE MARYLAND COURT OF

SPECIAL APEALS THREATENS THE

INTEGRITY OF CRIMINAL TRIALS ............ 22

ii

CONCLUSION ....................................................... 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Berger v. United States,

295 U.S. 78 (1935).................................... 16, 17, 18

Giglio v. United States,

405 U.S. 150 (1972)...................................... passim

Giles v. Maryland,

386 U.S. 66 (1967)................................................23

Kaley v. United States,

571 U.S. 320 (2014)................................................5

Matter of Kurtzrock,

192 A.D.3d 197 (N.Y. App. Div.

2020) .....................................................................16

McMillian v. State,

No. 610, 2021 WL 3788950 (Md. Ct.

Spec. App. Aug. 26, 2021) ....................................17

Mesarosh v. United States,

352 U.S. 1 (1956)............................................22, 24

State ex rel. Mo. Pub. Def. Comm’n v.

Waters,

370 S.W.3d 592 (Mo. 2012) ..................................13

Mooney v. Holohan,

294 U.S. 103 (1935)..........................................4, 22

Napue v. Illinois,

360 U.S. 264 (1959).............................. 4, 10, 22, 24

iv

Powell v. Alabama,

287 U.S. 45 (1932)................................................17

Pub. Def. v. Florida,

115 So. 3d 261 (Fla. 2013) ...................................13

Simmons v. State Pub. Def.,

791 N.W.2d 69 (Iowa 2010) .................................13

Strickland v. Washington,

466 U.S. 668 (1984)..............................................11

U.S. v. Agurs,

427 U.S. 97 (1986)................................................11

United States v. Bagley,

473 U.S. 667 (1985)..........................................8, 23

United States v. Nejad,

487 F. Supp. 3d 206 (S.D.N.Y. 2020) ..................19

United States v. Olsen,

737 F.3d 625 (9th Cir. 2013)................................20

Wilbur v. City of Mt. Vernon,

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

2013) .....................................................................13

Other Authorities

Am. Bar Ass'n Standing Comm. on

Legal Aid & Indigent Defendants,

Ten Principles of A Public Defense

Delivery System (Feb. 2002),

https://www.americanbar.org/conten

t/dam/aba/administrative/legal_aid_i

ndigent_defendants/ls_sclaid_def_te

nprinciplesbooklet.pdf .........................................13

v

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/n

ews/local/2014/07/12/publicdefenders-struggle-to-stay-aheadofcaseloads-and-stress/12569621/ .......................14

Blake E. Ashforth & Vikas Anand, The

Normalization of Corruption in

Organizations, 25 Res. in Org.

Behav. 6 (2003) ....................................................21

Brandon L. Garrett, Judging Innocence,

108 Colum. L. Rev. 55 (2008) ..............................24

Caroline Wolf Harlow, U.S. Dep't of

Justice, Bureau of Justice Statistics,

Special Report: Defense Counsel in

Criminal Cases 1 (2000),

https://bjs.ojp.gov/content/pub/pdf/dc

cc.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),

https://www.innocenceproject.org/wp

content/uploads/2016/02/SnitchSyste

mBooklet.pdf ........................................................24

vi

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

Unnoticed, Untapped and

Underappreciated: Clients'

Perceptions of Their Public

Defenders, 33 Behav. Sci. & L. 751

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

Christopher T. Robertson, D. Alex

Winkelman, Incentives, Lies, and

Disclosure, 20 U. Pa. J. Const. L. 33

(2017) ......................................................................6

Criminal Justice Standards for the

Defense Function, § 4-1.2 (Am. Bar

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

Criminal Justice Standards for the

Defense Function, § 4-1.4 (Am. Bar

Ass'n 4th ed.) ........................................................18

Criminal Justice Standards for the

Prosecution Function, § 3-1.4 (Am.

Bar Ass'n 4th ed.).................................................18

DNA Exonerations in the United States,

Innocence Project (lasted visited Oct.

21, 2021),

https://innocenceproject.org/dnaexonerations-in-the-united-states/ ........................3

Geoffrey T. Burkhart, How to Leverage

Public Defense Workload Studies, 14

Ohio State J. Crim. L. 403 (2017) .......................14

Graham Hughes, Agreements for

Cooperation in Criminal Cases, 45

V. and L. Rev. 1 (1992) ..........................................9

vii

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 ...........................20

Kenneth Rosenthal, Prosecutor

Misconduct, Convictions, and Double

Jeopardy: Case Studies in an

Emerging Jurisprudence, 71 Temp.

L. Rev. 887 (1998) ..................................................9

Linda Klebe Trevino & Stuart A.

Youngblood, Bad Apples in Bad

Barrels: A Causal Analysis of

Ethical Decision-Making, 75 J.

Applied Psychol. 378 (1990) ................................21

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 (Apr. 14, 2009)

(“Justice Denied”),

https://constitutionproject.org/docum

ents/justice-denied-america-scontinuing-neglect-of-ourconstitutional-right-to-counsel/ ......... 11, 12, 14, 15

viii

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 ................................................. 19, 23, 24

Shawn Musgrave, New England Ctr. for

Investigative Reporting, Scant

Discipline Follows Prosecutors'

Impropriety in Massachusetts (Mar.

6, 2017),

https://www.wgbh.org/news/2017/03/

06/scant-discipline-followsprosecutors-impropriety-inmassachusetts ......................................................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) .................................11, 12

INTEREST OF AMICI CURIAE 1

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.

Ensuring prosecutorial accountability—squarely

presented by the question raised in this case—is one

of the Due Process Institute’s top priorities.

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

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

to file an amicus brief on October 12, 2021, giving 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

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

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 established in 1992, which is dedicated

to providing pro bono legal services to people whose

actual innocence may be established through postconviction evidence.

The Innocence Project has represented

hundreds of exonerees, proving actual innocence in

192 cases with irrefutable DNA evidence. In

approximately half of these cases, the exoneration

litigation helped reveal the true perpetrators.

3

The Innocence Project is, accordingly, well

familiar with how often wrongful convictions are

obtained through the suppression of Brady

information and/or the presentation of false

testimony by the prosecution. Nearly three decades

of exoneration data show, for example, that false

jailhouse informant testimony is the leading cause of

wrongful convictions. See DNA Exonerations in the

United States, Innocence Project (lasted visited

Oct. 21, 2021), https://innocenceproject.org/dnaexonerations-in-the-united-states/. 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. 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.

Accordingly, the Due Process Institute, NAPD,

the Cato Institute, and Innocence Project have strong

interests in the issues raised in this case and fully

support the grounds for certiorari identified by

Petitioner.

As Petitioner has detailed, this case presents a

concrete federal and state court split on an important

constitutional issue, and the Maryland Court of

Special Appeals’ decision is on the wrong side of that

split. Moreover, the subject of the falsehood—the

substance of what prosecutors actually promised a

cooperating witness in exchange for his or her

testimony—is of critical importance, as it is one that,

in our experience, is often obscured and/or concealed.

4

This Court’s jurisprudence, and basic principles of

fairness and due process, reject such a proposition.

The Due Process Institute, NAPD, the Cato

Institute, and Innocence Project 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 Maryland Court of Special

Appeals’ 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

disclosed the falsity of the testimony to defense

counsel? The Maryland Court of Special Appeals

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 obtaining of a like result

by intimidation.” Mooney v. Holohan, 294 U.S. 103,

112 (1935).

The manner in which the minority position, as

applied by the Maryland Court of Special Appeals,2

2 As explained in the petition, there is a circuit split involving

sixteen federal and state courts over what satisfies the

government’s obligation under Napue to correct material, false

5

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.

While this case involved pro bono counsel, most

defenders throughout the United States receive

appointed counsel, generally public defenders. 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, 571 U.S.

320, 358 (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://bjs.ojp.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 last-minute disclosures.

And

unfortunately, in many jurisdictions the indigent

defense bar must perform these functions despite

testimony after it is presented. The Maryland Court of Special

Appeals has adopted the minority position held by the First,

Fourth, and Tenth Circuits that the government satisfies its

obligation to correct false testimony by disclosing the falsity of

the testimony to defense counsel. See Pet. for Writ of Cert. at 2–

3 (Sept. 20, 2021).

6

overwhelming caseloads and extreme underfunding.

Such conditions are simply not conducive to a rule like

the Maryland Court of Special Appeals’, which shifts

ultimate responsibility from the prosecution, which is

the party in the best position to correct the false

testimony at trial, to the defense, which is the party

that discovers the falsity of the testimony only after it

has been heard by the fact finder. This is especially

true when the false testimony involves a leniency or

immunity agreement—or lack thereof—between the

government and a key witness. See Giglio v. United

States, 405 U.S. 150, 154–55 (1972). Liberty is

perhaps the strongest motivating force for any

witness (or for any person) and thus it is critical for

jurors to hear truthful testimony about such an

agreement or the lack thereof. See Christopher T.

Robertson, D. Alex Winkelman, Incentives, Lies, and

Disclosure, 20 U. Pa. J. Const. L. 33, 35 (2017) (stating

that “immunity or charge bargaining can be

profoundly valuable to the witness, amounting to

years of liberty”). On this subject, in particular, when

false testimony is introduced by the prosecution, it is

critical that the prosecutor correct it immediately and

transparently, not shift such responsibilities to the

defense. Giglio, 405 U.S. at 154 (“[W]hether the

nondisclosure was a result of negligence or design, it

is the responsibility of the prosecutor.”).

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 refusing to correct

false testimony. But for those prosecutors who have—

and would—the consequences should be clear: any

resulting conviction will be reversed unless the jury

hears the truth.

7

The Maryland Court of Special Appeals

decision undermines the long-standing 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 and 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 Maryland Court of Special Appeals’

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

petition and hold that the minority position, as

applied by the Maryland Court of Special Appeals, is

fundamentally inconsistent with both the integrity of

the criminal justice system and prosecutors’ historic

role in that system.

ARGUMENT

I.

THE MINORITY POSITION ADOPTED

BY THE MARYLAND COURT OF

SPECIAL APPEALS PLACES THE

BURDEN TO DETECT AND CORRECT

FALSE TESTIMONY ON THE WRONG

PARTY

Prosecutors should never be permitted to

obtain a conviction through the knowing use of false

testimony. Under the minority’s rule, a prosecutor

can potentially avoid reversal by making a lastminute disclosure that places the burden on defense

8

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 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.

This is particularly true when the false

testimony involves a leniency or immunity agreement

or lack thereof between the government and its key

witness.3 In 1972, this Court ordered a new trial

when the government failed to disclose a promise of

leniency to its key witness, without whom “there

could have been no indictment and no evidence to

carry the case to the jury.” Giglio, 405 U.S. at 154.

The Court found that due to the importance of the

witness’s credibility, the jury was “entitled” to know

of the agreement, the nondisclosure of which “justifies

a new trial irrespective of the good faith or bad faith

of the prosecution.” Id. at 153–55 (internal citations

and quotations omitted); see also United States v.

Bagley, 473 U.S. 667, 690–91 (1985) ( “[E]vidence of

[a key] witness’ possible bias simply may not be said

to be irrelevant, or its omission harmless.”).

The prosecutor’s ability to grant leniency or

immunity is “perhaps the most prevalent, troubling,

3 One of the “undisputed facts of the case” is that out of thirty-

six government witness, Brawner was the only witness to

identify Petitioner as involved in the crime at issue. See Pet. for

Writ of Cert. at 5, 19.

9

and uncontrollable category of abusive exercise of

prosecutorial power.” Kenneth Rosenthal, Prosecutor

Misconduct, Convictions, and Double Jeopardy: Case

Studies in an Emerging Jurisprudence, 71 Temp. L.

Rev. 887, 928 n.197 (1998). Even without being

“explicit and outrageously coercive,” the promise of

freedom in exchange for testimony has the ability to

affect that testimony, particularly when negotiation

occurs outside of judicial supervision. Id.; Graham

Hughes, Agreements for Cooperation in Criminal

Cases, 45 V. and L. Rev. 1, 35 (1992) (“A promise of

leniency in exchange for cooperation surely enhances

. . . [the] natural tendency to lie.”). The prosecutor’s

ability to influence testimony must be checked by

requiring full disclosure of agreements or their

absence to the court and jury, and by correction of

such information when the prosecutor knows that

what the jury has heard is false. See id. at 33 (stating

that a defense counsel’s summation that a witness

may give false testimony “when their liberty may

depend on it . . . is not a substitute for a charge by the

court”).

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

below, defense counsel will often be in a poor position

to do so.

A defense lawyer will nearly always be in the

dark when a prosecutor knowingly presents false

testimony. And exposing such errors is often difficult

or impossible because indigent defense systems

10

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 minority’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 combating false testimony that the

prosecution has already admitted is false.

By

excusing a prosecutor’s knowing use of false

testimony when the prosecutor has disclosed its

falsity to only the defense attorney, the minority

position places the burden on the wrong party and

devalues the ethical obligations prosecutors must

uphold when seeking a conviction.

Put simply, the minority position’s rule enables

prosecutors to say, “yes, I knowingly used false

testimony to mislead jury, but I’m not responsible for

telling them that.” Shifting the burden to defense

attorneys leaves the defense attorney with little

ability to distinguish for the jury between testimony

that is disputed and testimony that the prosecutor

agrees is false. The minority’s approval of these lastminute disclosures also allows prosecutors an option

that keeps the jury from learning the truth, but

protects against reversal of any resulting conviction.

Under the Napue due process protections, a

11

prosecutor who fails to affirmatively correct false

testimony before the jury must show beyond a

reasonable doubt that the false testimony could not

have impacted the outcome. U.S. v. Agurs, 427 U.S.

97, 103 (1986). Under the minority rule, however, a

prosecutor’s last-minute disclosure to the defense but

not the jury shifts the focus of any failure-to-correct

error to the defense, and would presumably be

reviewed under the prejudice standard of Strickland

v. Washington, 466 U.S. 668, 669 (1984). This higher

standard for reversal makes it more likely that

convictions based on uncorrected false evidence would

be allowed to stand.

Due process and basic

guarantees of fairness require much more.

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/justicedenied-america-s-continuing-neglect-of-ourconstitutional-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).

12

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.

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.

Because jurisdictions across the country suffer

from comparable resource disparities and excessive

workloads, the implications of the Maryland appellate

court’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); Pub. Def. v. Florida, 115 So.

13

3d 261 (Fla. 2013); State ex rel. Mo. Pub. Def. Comm’n

v. Waters, 370 S.W.3d 592, 599–601 (Mo. 2012);

Simmons v. State Pub. Def., 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 Maryland Court of Appeals’ 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.

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),

https://www.americanbar.org/content/dam/aba/admi

nistrative/legal_aid_indigent_defendants/ls_sclaid_d

ef_tenprinciplesbooklet.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

14

other jurisdictions. See 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-aheadofcaseloads-and-stress/12569621/;

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, these skyrocketing caseloads occurred in the

face of a 12.6% budget reduction. See id.

These crushing caseloads have led defenders in

some jurisdictions 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

15

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

minority’s rule makes it more likely—if not certain—

that public defenders will be unable to achieve these

salutary objectives.

The rule adopted by the Maryland Court of

Special Appeals 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 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 minority position as adopted by the

Maryland Court of Special Appeals 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

16

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.; Matter of Kurtzrock, 192

A.D.3d 197, 219 (N.Y. App. Div. 2020) (“Prosecutors,

in their role as advocates and public officers, are

charged with seeing that justice is done—to act

impartially, to have fair dealing with the accused, to

be candid with the courts, and to safeguard the rights

of all.”) (citations omitted).

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 minority position allows

prosecutors to evade these standards at their

convenience and to prioritize 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

17

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. See McMillian v. State, No.

610, 2021 WL 3788950 (Md. Ct. Spec. App. Aug. 26,

2021) (“[T]he State should not just be in the business

of obtaining guilty verdicts . . . . [T]here is a special

role played by the American prosecutor in the search

for truth in criminal trials.”) (internal quotations and

citation omitted).

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

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

18

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 Id. 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 minority position

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 minority position disregards

these principles and makes it more, not less, likely

that prosecutors will use “improper methods

calculated to produce a wrongful conviction.” Id.

19

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.” United States

v. Nejad, 487 F. Supp. 3d 206, 225–26 (S.D.N.Y.

2020).

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 119 (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’

20

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

https://www.wgbh.org/news/2017/03/06/scantdiscipline-follows-prosecutors-impropriety-inmassachusetts (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/who-policesprosecutors-who-abuse-their-authority-usuallynobody (describing 30 reversed convictions in New

York City, but only one prosecutor publicly

disciplined).

Given these facts, if the minority position 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

21

nonetheless

affect

their

behavior,

whether

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 minority

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 Maryland Court of Special

Appeals’ decision.

22

III.

THE MINORITY POSITION ADOPTED BY

THE MARYLAND COURT OF SPECIAL

APEALS THREATENS THE INTEGRITY

OF CRIMINAL TRIALS

The minority position as adopted by the

Maryland Court of Special Appeal 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

minority position 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

enforcing such a low standard for prosecutors to

satisfy due process requirements. A prosecutor’s

disclosure to defense counsel during a bench

conference provides no due process protection if the

defense counsel does not have the resources,

information, or capacity to convince the factfinder of

the falsity of the testimony. In an adversarial system,

there is a material difference between a defense

attorney’s allegation that the state’s witness’s

23

testimony is false, and the state’s admission to the

factfinder that their own witness gave false

testimony.

By condoning a process that not only effectively

allows prosecutors to introduce false testimony (so

long as they disclosed the falsity to defense counsel),

but also erects significant barriers to the correction of

such errors, the minority position undermines the

fundamental purpose of the criminal trial, which is

“as much the acquittal of an innocent person as it is

the conviction of a guilty one.” Bagley, 473 U.S. at 692

(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 allowing a conviction based on false

testimony to stand, the minority position increases

the risk of constitutionally intolerable wrongful

convictions. As the National Registry of Exonerations

recently reported, after 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/exoneration/Docu

ments/Government_Misconduct_and_Convicting_the

24

_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

Snitch Testimony Sent Randy Steidl and Other

Innocent Americans to Death Row (Winter 2004–

2005), https://www.innocenceproject.org/wpcontent/uploads/2016/02/SnitchSystemBooklet.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 on defense counsel’s

capacity to persuade the jury that the prosecutor has

knowingly introduced false testimony, especially

when the prosecutor has admitted its falsity to

defense counsel. 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.

25

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 22, 2021