Petition for Writ of Certiorari — Elijah Dwayne Joubert, Petitioner v. Texas

Supreme Court briefNov 22, 2021

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No.

In the Supreme Court of the United States

ELIJAH DWAYNE JOUBERT,

Petitioner,

STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari

to the Texas Court of Criminal Appeals

PETITION FOR WRIT OF CERTIORARI

MAUREEN F RANCO

Federal Public Defender

Western District of Texas

T IVON S CHARDL *

Capital Habeas Unit Chief

Tivon_Schardl@fd.org

T IMOTHY G UMKOWSKI

Assistant Federal Defender

919 Congress Avenue, Suite 950

Austin, Texas 78701

737-207-3007

* Counsel of Record

Attorneys for Petitioner

CAPITAL CASE

QUESTION PRESENTED

An investigation commissioned by the District Attorney in Harris County,

Texas, concluded that Elijah Joubert’s prosecutor—Daniel Rizzo—wrongfully convicted an innocent man—Joubert’s co-defendant, Alfred Brown of capital murder. The

special prosecutor found Rizzo: (1) abused the grand jury process; (2) coerced false

testimony; (3) intimidated Brown’s alibi witness; (4) intentionally suppressed telephone records corroborating Brown’s alibi; (5) knowingly allowed co-defendant

Dashan Glaspie to falsely accuse Brown and falsely blame Joubert for the shooting of

Alfredia Jones; and (6) knowingly allowed Glaspie to falsely testify that his plea

agreement required him to be 100 % truthful with the juries.

Based on Rizzo’s presentation of Glaspie’s false testimony, one jury convicted

Brown and sentenced him to death, and another convicted Joubert, and sentenced

him to death. Rizzo urged jurors to sentence Joubert to death because, among other

things, he was the “cold-blooded killer” of Jones, and not the remorseful getaway

driver he claimed to be.

The District Attorney declared Brown innocent and he has been released. In

Joubert’s state post-conviction proceedings, the District Attorney conceded that

Glaspie lied about Brown and his need to testify truthfully to keep his 30-year sentence. The State did not dispute that Rizzo knew Glaspie was lying.

The trial court found Rizzo’s knowing use of false testimony about Brown and

Joubert was material and denied Joubert a fair trial under this Court’s decision in

Napue v. Illinois, 360 U.S. 264 (1959). As to the sentence, the court found that discrediting Glaspie’s account could have led the jury to give Joubert a life sentence.

The Texas Court of Criminal Appeals disagreed. It held Joubert was not entitled to relief under Napue because Joubert did not “show by a preponderance of the

evidence” that there was a “reasonable likelihood” Glaspie’s false testimony about

Brown alone affected the jury’s decision. That gives rise to the following question:

Does the Due Process Clause of the Fourteenth Amendment permit a

prosecutor’s knowing use of false testimony unless the defendant proves

by a preponderance of the evidence that there was a reasonable likelihood that one aspect of the false testimony actually affected the judgment of the jury?

RELATED PROCEEDINGS

351st Judicial District Court, Harris County, Texas:

State of Texas v. Elijah Dwayne Joubert, No. 944756 (Oct. 21,

2004) (judgment of conviction and sentence of death)

Court of Criminal Appeals of Texas:

Elijah Dwayne Joubert v. State of Texas, No. AP-75, 050 (Oct. 3,

2007) (direct appeal affirming the judgment of the trial court)

Ex parte Elijah Dwayne Joubert, No. WR-78, 119-01 (Sept. 25,

2013) (order denying relief on initial application for habeas

corpus)

Ex parte Elijah Dwayne Joubert, No. WR-78, 119-02 (Jun. 23,

2021) (order denying relief on subsequent application for a writ of

habeas corpus)

Unites States District Court (S.D. Tex.):

Elijah Dwayne Joubert v. Stephens, No. 13-3002 (Oct. 15, 2015)

(order staying Petitioner’s federal habeas proceedings)

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PROCEEDINGS ............................................................................................................ ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES ......................................................................................... iv

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED ........................................................... 1

INTRODUCTION .......................................................................................................... 1

STATEMENT OF THE CASE....................................................................................... 4

Petitioner’s trial ............................................................................................ 5

II. Alfred Brown’s case .................................................................................... 11

III. Initial post-conviction proceedings on Brady ............................................ 12

IV. Procedural history of Petitioner’s Napue claim......................................... 15

REASONS FOR GRANTING THE PETITION .......................................................... 21

The TCCA decided Petitioner’s false-testimony claim in a way that

conflicts with the relevant decisions of this Court .................................... 21

II. The TCCA’s Decision in Joubert’s Case Conflicts with the Decisions

of Courts of Last Resort in Other States, and with Decisions of

Federal Circuits .......................................................................................... 29

A. Most courts agree Napue claims pose a lower hurdle for

defendants than Brady claims that do not involve the use of

false evidence. ......................................................................................... 30

B. The courts of last resort in Florida and Illinois, and the Ninth

and Eleventh Circuits, hold Napue claims require a cumulative

materiality/harm analysis, like Brady claims....................................... 35

III. This case presents an excellent vehicle for resolving the lower

courts’ conflicting applications of Napue ................................................... 37

CONCLUSION............................................................................................................. 39

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Commissioner of Correction,

71 A.3d 512 (Conn. 2013). ................................................................................ 34, 35

Ex parte Adams,

768 S.W.2d 281 (Tex. Crim. App. 1989)................................................................. 25

Agurs v. United States,

427 U.S. 97 (1976) ...........................................................................................passim

Alcorta v. Texas,

355 U.S. 28 (1957) ............................................................................................ 28, 36

Ex parte Alfred Dewayne Brown,

No. WR-68,876-01 (Tex. Crim. App. Nov. 5, 2014)................................................ 15

Andrus v. Texas,

140 S. Ct. 1875 (2020) ............................................................................................ 39

Azania v. State,

730 N.E.2d 646 (Ind. 2000) .................................................................................... 32

Barrientes v. Johnson,

221 F.3d 741 (5th Cir. 2000) .................................................................................. 31

Brady v. Maryland,

373 U.S. 83 (1963) ...........................................................................................passim

Brecht v. Abrahamson,

507 U.S. 619 (1993) .......................................................................................... 30, 31

Ex parte Chabot,

300 S.W.3d 768 (Tex. Crim. App. 2009)........................................................... 25, 26

Chapman v. California,

386 U.S. 18 (1967) ...........................................................................................passim

Ex parte Cherry,

456 S.W.2d 949 (Tex. Crim. App. 1970)................................................................. 25

Com. v. Spaulding,

991 S.W.2d 651 (Ky. 1999) ..................................................................................... 31

Cone v. Bell,

556 U.S. 449 (2009) .................................................................................................. 1

Crutcher v. State,

481 S.W.2d 113 (Tex. Crim. App. 1972)................................................................. 25

Ex parte De La Cruz,

466 S.W.3d 855 (Tex. Crim. App. 2015)..................................................... 22, 25, 26

Douglas v. Workman,

560 F.3d 1156 (10th Cir. 2009) .............................................................................. 31

Ex parte Fierro,

934 S.W.2d 370 (Tex. Crim. App. 1996)................................................................. 25

Gates v. State,

754 P.2d 882 (Okla. Crim. App. 1988) ................................................................... 32

In re Ghahremani,

332 S.W.3d 470 (Tex. Crim. App. 2011)................................................................. 26

Giglio v. United States,

405 U.S. 150 (1972) .......................................................................................... 23, 33

Gilday v. Callahan,

59 F.3d 257 (1st Cir. 1995) ............................................................................... 30, 31

Giles v. Maryland,

386 U.S. 66 (1967) ............................................................................................ 28, 29

Gratzer v. State,

71 P.3d 1221 (Mont. 2003) ..................................................................................... 31

Guzman v. State,

941 So.2d 1045 (Fla. 2006) ..................................................................................... 34

Harris v. State,

847 S.E.2d 563 (Ga. 2020) ...................................................................................... 31

Haskell v. Superintendent Greene SCI,

866 F.3d 139 (3d Cir. 2017) .............................................................................. 30, 31

Hayes v. Brown,

399 F.3d 972 (9th Cir. 2005) ............................................................................ 31, 36

Johnson v. State,

44 So. 3d 51 (Fla. 2010) .......................................................................................... 37

Jones v. State,

479 N.W.2d 265 (Iowa 1991) .............................................................................. 6, 31

Jones v. United States,

202 A.3d 1154 (D.C. 2019)...................................................................................... 34

Joubert v. State,

235 S.W.3d 729 (Tex. Crim. App. 2007)................................................................. 15

Ex parte Joubert,

WR 78,119 01 (Tex. Crim. App. Sept. 25, 2013) .................................................... 16

Ex parte Joubert,

WR-78,119-02, 2016 WL 5820502 (Tex. Crim. App. October 5, 2016) ................. 16

Kotteakos v. United States,

328 U.S. 750 (1947) ................................................................................................ 30

Kyles v. Whitley,

514 U.S. 419 (1996) .........................................................................................passim

Manning v. State,

884 So.2d 717 (Miss. 2004) ..................................................................................... 32

Ex parte McGregor,

No. WR-85,833-01, 2019 WL 2439453 (Tex. Crim. App. June 12,

2019)........................................................................................................................ 25

Means v. State,

429 S.W.2d 490 (Tex. Crim. App. 1968)................................................................. 25

Mitchell v. United States,

101 A.3d 1004 (D.C. 2014)...................................................................................... 34

Mooney v. Holohan,

294 U.S. 103 (1935) .................................................................................... 22, 23, 28

Ex parte Napper,

322 S.W.3d 202 (Tex. Crim. App. 2010)................................................................. 25

Napue v. Illinois,

360 U.S. 264 (1959) .........................................................................................passim

People v. Bracey,

283 N.E.2d 685 (Ill. 1972) ...................................................................................... 35

People v. Olinger,

176 Ill. 2d 326 (1997) .............................................................................................. 36

Powell v. United States,

880 A.2d 248 (D.C. 2005)........................................................................................ 34

Pyle v. Kansas,

317 U.S. 213 (1941) .................................................................................... 23, 28, 36

Ex parte Robbins,

360 S.W.3d 446 (Tex. Crim. App. 2011)..................................................... 22, 24, 26

Rosencrantz v. Lafler,

568 F.3d 577 (6th Cir. 2009) ............................................................................ 30, 31

Shih Wei Su v. Filion,

335 F.3d 119 (2d Cir. 2003) .............................................................................. 31, 32

Smith v. Sec’y, Dep’t of Corr.,

572 F.3d 1327 (11th Cir. 2009) .................................................................. 23, 33, 36

State v. Blank,

192 So.3d 93 (La. 2016) .......................................................................................... 31

State v. Brunette,

501 A.2d 419 (Me. 1985) ......................................................................................... 32

State v. Dockery,

2018 WL 4603139 (Wash. Ct. App. Sept. 25, 2018) .............................................. 31

State v. Eugene,

340 N.W.2d 18 (N.D. 1983) .................................................................................... 32

State v. Johnson,

45 N.E.3d 208 (Ohio 2015) ..................................................................................... 31

State v. Kimble,

833 S.E.2d 814 (N.C. 2019) .................................................................................... 31

State v. Kolbet,

638 N.W.2d 653 (Iowa 2001) .................................................................................. 31

State v. Lankford,

399 P.3d 804 (Idaho 2017)...................................................................................... 31

State v. Mildenhall,

747 P.2d 422 (Utah 1987)....................................................................................... 31

vii

State v. Robinson,

2005 WL 20088186 (Tenn. Crim. App. Aug. 17, 2005) ......................................... 31

State v. Towns,

432 A (R.I. 1981) ..................................................................................................... 32

State v. Yates,

629 A.2d 807 (N.H. 1993) ....................................................................................... 31

Strickland v. Washington,

466 U.S. 668 (1984) ................................................................................................ 24

Strickler v. Greene,

527 U.S. 263 (1999) .......................................................................................... 27, 32

Tiner v. Premo,

391 P.3d 816 (Or. 2017) .......................................................................................... 31

Tison v. Arizona,

481 U.S. 137 (1987) ........................................................................................ 2, 3, 39

Trepal v. Sec’y, Florida Dep’t of Corr.,

684 F.3d 1088 (11th Cir. 2012) .............................................................................. 31

United States v. Bagley,

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

United States v. Clay,

720 F.3d 1021 (8th Cir. 2013) ................................................................................ 31

United States v. Nelson,

217 A.3d 717 (D.C. 2019)........................................................................................ 34

Ventura v. Attorney General, Fla.,

419 F.3d 1269 (11th Cir. 2005) .............................................................................. 31

Wearry v. Cain,

577 U.S. 385 (2016) .......................................................................................... 23, 24

Ex parte Weinstein,

421 S.W.3d 656 (Tex. Crim. App. 2014)................................................................. 26

Woodall v. United States,

842 A.2d 690 (D.C. 2004)........................................................................................ 34

viii

Constitutional Provision

U.S. Const. amend XIV ...................................................................................... 1, 22, 29

Statutes

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

28 U.S.C. § 2254 ........................................................................................................... 16

28 U.S.C. § 2254(d) ...................................................................................................... 37

Tex. Code Crim. Proc. Art. 37.071............................................................................... 11

Tex. Code Crim. Proc. Art. 37.071, § 2(b)(1) ............................................................... 39

Tex. Code Crim. Proc. Art. 37.071, § 2(d)(2) ............................................................... 39

Tex. Code Crim. Proc. Art. 37.071, § 2(e)(1) ............................................................... 39

Tex. Code Crim. Proc. Art. 37.071, § 2(f)(2) ................................................................ 39

Other Authorities

Dictionary, Merriam-Webster, https://www.merriamwebster.com/dictionary/ ................................................................................... 27, 28

INDEX TO APPENDIX

PAGES

Texas Court of Criminal Appeals order denying relief, Ex Parte

Elijah Dwayne Joubert, WR-78,119-02 (Tex. Crim. App. June 23,

2021)

1a-6a

Texas 351st District Court findings of fact and conclusions of law

recommending relief, Ex Parte Elijah Dwayne Joubert, 944756-B

(Dec. 16, 2020)

7a-73a

Texas Court of Criminal Appeals remand order, Ex Parte Elijah

Dwayne Joubert, WR-78,119-02 (Tex. Crim. App. Oct. 5, 2016)

74a-75a

Texas Court of Criminal Appeals direct appeal opinion, Elijah

Dwayne Joubert v. State of Texas, AP 75,050 (Tex. Crim. App. Oct.

3, 2007)

76a-82a

PETITION FOR WRIT OF CERTIORARI

Petitioner Elijah Dwayne Joubert respectfully petitions for a writ of certiorari

to review the order of the Court of Criminal Appeals of Texas (“TCCA”) in this case.

OPINIONS BELOW

The decision of the TCCA (App. 1a-6a) is not published in the S.W. Reporter

but is available at 2021 WL 2540170. The finding of facts and conclusions of law and

recommendation of the 351st District Court of Harris County (App. 7a-73a) are unreported.

JURISDICTION

The order of the TCCA was entered on June 23, 2021. Pursuant to this Court’s

orders issued March 19, 2020, and July 19, 2021, this petition is timely. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment of the U.S. Constitution provides, in relevant

part:

No State shall *** deprive any person of life, liberty, or property, without

due process of law.

INTRODUCTION

“The right to a fair trial, guaranteed to state criminal defendants by the Due

Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure that justice shall be done in all criminal prosecutions.” Cone v. Bell, 556 U.S. 449, 451 (2009) (cleaned up). For example,

state prosecutors may neither “solicit[] false evidence, [nor] allow[] it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269 (1959). That principle,

“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” who testified falsely. Ibid.

Except in Texas.

On habeas review, the trial court in Elijah Joubert’s capital murder case found

at least ten examples of false testimony presented by the prosecutor, Daniel Rizzo.

App. 50a-52a. Those included six witnesses who falsely placed Alfred Brown with

Joubert and Dashan Glaspie at the time of the robbery, App. 50a-51a, and lead detective Brock McDaniel’s misleading testimony that telephone records linked Brown

to the robbery. App. 51a. Rizzo also presented false testimony and argument that

Glaspie’s deal for a 30-year sentence required him to testify truthfully. App. 51a-52a.

Quoting the District Attorney, the court found that “‘well before Brown’s trial,”

McDaniel showed Rizzo telephone records corroborating Brown’s alibi, “‘yet [Rizzo]

failed to disclose them to the defense counsel or the jury.’” App. 53a-54a. Finally, the

judge found that at the time of Petitioner’s trial, Rizzo knew “(a) the evidence linking

Brown to the robbery and homicides was false, and (b) that Glaspie’s testimony about

his plea deal requiring complete consistency with the evidence was false.” App. 52a.

It was a close case for capital liability under Tison v. Arizona, 481 U.S. 137

(1987). Under interrogation, both Joubert and Glaspie claimed they were the getaway

driver and that the other had entered the store and shot the clerk, Alfredia Jones.

Rizzo conceded to the jury that if Petitioner “would have let Ms. Jones live,” that

“might have been sufficient” for the jury to spare him. Although Petitioner told police

he knew Jones was “‘gonna die’” if the police came, App. 5a, he also tearfully told

them he participated in the robbery believing that would not happen and no one

would get shot.

On appeal, the State argued “‘that the most powerful evidence in the State’s

case was Dashan Glaspie’s testimony. Glaspie described how Appellant was involved

in the planning of the robberies, willingly participated in them, and personally shot

Alfredia Jones in the head.’” App. 58a (quoting State’s Brief).

The trial judge found Rizzo’s knowingly false representations about Glaspie’s

credibility were material. Joubert had told police he was remorseful and that Glaspie

had coerced him. App. 59a-60a. The court found “[e]ither or both of these claims, if

credited could have influenced the jury’s verdict” regarding Joubert’s liability as a

party under Tison, or its assessment of mitigation at sentencing. Ibid.

Neither the State nor the TCCA disputed the trial judge’s factual findings. Rather, the court disagreed with his legal conclusions, based on an erroneous interpretation of this Court’s cases. Specifically, the court did not consider Glaspie’s and

Rizzo’s lies about Glaspie’s need to testify truthfully, the testimony of the other witnesses Rizzo presented to falsely corroborate Glaspie’s testimony about Brown, or the

impact on Glaspie’s credibility—and in particular his assertion that Petitioner shot

Jones—if Rizzo had complied with this Court’s cases and told the court and jury about

the telephone records exculpating Brown. Instead of asking whether “there is any

reasonably likelihood that the false testimony could have affected the judgment,”

Agurs v. United States, 427 U.S. 97, 103 (1976) (emphasis added), or that it “may have

had an effect on the outcome of the trial,” Napue, 320 U.S. at 272 (emphasis added),

the court required Petitioner to prove by a preponderance of the evidence that

“Glaspie’s false testimony about Brown’s participation in the offense” alone “affected

the judgment of the jury in [Petitioner’s] trial.” App. 5a.

That decision conflicts with the decisions of a majority of the federal Circuits

and state courts of last resort that. Like Members of this Court, those courts equate

the Napue standard with the harmless-error standard of Chapman v. California, 386

U.S. 18 (1967). This Court should accept review of Petitioner’s case and clarify that

Napue requires reversal unless the State demonstrates that its knowing use of false

testimony, considered collectively, did not contribute to the verdict.

STATEMENT OF THE CASE

Petitioner, Glaspie, and Brown, were charged with capital murder for shooting

to death Alfredia Jones and Houston Police Officer Charles Clark during the robbery

of an ACE Cash Express store on April 3, 2003.

The State alleged that Brown and Petitioner entered the store to rob it. Jones,

the store’s clerk, pressed a silent alarm button. When Officer Clark responded and

confronted the robbers, Brown killed him in an exchange of gunfire. Petitioner then

shot Jones. The robbers fled in a car.

Shortly after the incident, each man was arrested separately. Glaspie initially

denied involvement, but when investigators gave him the names of Brown and Petitioner, and repeatedly told him that three people were involved, Glaspie began to

implicate Brown and Petitioner.

For over two hours, Petitioner denied involvement in the robbery and murders.

When the detectives played him a portion of Glaspie’s statement implicating him and

Brown, Petitioner told the police he had been pressured by Glaspie into participating

in the robbery. Petitioner explained that Glaspie had lent him money to post bond on

a pending drug case and Glaspie was using that loan as leverage. Petitioner denied

having a gun during the robbery and denied shooting anyone. He told the police that

Brown shot Clark and Glaspie shot Jones.

Brown maintained his innocence. He had an alibi. He was at his girlfriend’s

apartment at the time of the robbery.

Before Petitioner’s trial, Glaspie and the State entered into a plea agreement.

Glaspie pled guilty and would not be sentenced until after he testified at Petitioner’s

trial, then Brown’s. If Glaspie complied fully with the terms of the agreement, he

would be sentenced to a term of 30 years’ incarceration.

Harris County assistant district attorney Daniel Rizzo led the prosecution. He

represented Texas before the grand jury, during pretrial investigations by the Houston police, in Glaspie’s plea negotiations, and in the trials of Petitioner and Brown.

I. Petitioner’s trial

In his opening statement, Rizzo told jurors they would “hear that after a lot of

work we believed [Glaspie] to be the non-shooter.” 26 RR 28. Glaspie would testify

that he “got a 30-year deal for aggravated robbery” and “part of that deal is that he

has to testify truthfully.” 26 RR 28. Rizzo said Glaspie had “a big hammer over his

head to testify truthfully.” 26 RR 29. If Glaspie “lies about anything . . . about one

little minor thing,” or if his testimony “doesn’t match the evidence and the truth in

any way, the deal is that he can be prosecuted for capital murder.” 26 RR 29.

Rizzo said the evidence would show that Brown, also known as “Doby,” shot

and killed Officer Clark. 26 RR 20-21.

Glaspie would describe a dramatic scene in which Petitioner told him, “‘Shon,

this bitch played us.’” Then, Petitioner “raised up his hand, his arm, like a gangster,

and shot [Jones] once in the head and that she dropped and died in the middle of the

lobby. That’s what this Defendant did.” 26 RR 22. Rizzo assured jurors, “[a]ll of the

evidence is going to be matching up for you,” and that the evidence would corroborate

Glaspie’s testimony. 26 RR 24.

Specifically, Rizzo described cell phone location data: “what I would like you to

do, also, is to compare that evidence with Mr. Glaspie’s statements to see if it corroborates it. Because those are things that cannot lie.” 26 RR 30.

Regarding Petitioner’s videotaped statement, Rizzo told jurors that Petitioner

“makes himself guilty as a party to the capital murder.” 26 RR 26. Thus, “there won’t

be any doubt, based on his statement alone, that he’s guilty of capital murder as a

party, as a non-shooter. But that’s not the truth. That’s not what happened. He is the

killer, based on the evidence, of Mrs. Jones.” 26 RR 26-27 (emphasis added).

Detective Brett McDaniel testified for the State regarding phone records that

he had obtained and analyzed. Using location data, he mapped cell phone calls from

Glaspie’s and Petitioner’s phones beginning at 8:26 a.m. and resuming at 10:14 a.m.,

the time of before and shortly after the robbery. He showed the maps to the jury in a

slideshow. St. Exs. 222, 223. McDaniel testified that he spent two days with Glaspie,

going through the phone logs and reviewing each call. Det. McDaniel explained that

not every call was in the slideshow, that they “pulled out some that were more pertinent.” 29 RR 203-204. The exhibits depicted several calls that Glaspie said had been

made to or from Brown using Glaspie’s phone. 29 RR 231.

Relying on Glaspie’s account of which calls had been made by Brown, McDaniel

told the jury that “pings” of Glaspie’s phone showed Brown en route to the store before

the robbery, and nearby afterwards. 29 RR 219-230.

As the State would later tell the TCCA, Glaspie was the star witness against

Petitioner. Glaspie admitted that he had accepted a plea offer of 30 years on a reduced

charge of aggravated robbery to testify against Petitioner, contingent upon him testifying “truthfully,” “about [his] role or any other role that’s in this case and what

happened.” He explained that if he lied “about anything,” even “one tiny thing,” even

“a small thing,” he would be prosecuted for capital murder and eligible for the death

penalty. 29 RR 9, 11-12.

Glaspie told the jury that he recruited Petitioner and Brown to rob a check

cashing store, and admitted that the .45 caliber pistol used in the ACE robbery was

his gun. 29 RR 13-16, 19-22, 112, 128. But he said, Petitioner grabbed the gun and

took it into the store. 29 RR 40-41. Glaspie was to act only as the getaway driver, and

had not planned to enter the store. 29 RR 43. After waiting outside, Glapsie entered

the store and claimed to see Petitioner holding Glaspie’s gun to the store clerk’s head

as she knelt at the store’s safe. 29 RR 55. Glaspie’s said he saw Brown move to the

lobby of the store and heard “a few shots.” 29 RR 60-61, 62. Then, Petitioner grabbed

Jones, moved into the lobby area, told Glaspie, “this bitch played us, man,” and shot

her. 29 RR 63-65. Glaspie and prosecutor Rizzo conducted a demonstration to show

the jury how Jones was grabbed and shot. 29 RR 60-61. Glaspie testified that he and

Petitioner exited the store and got in the waiting car where Brown was in the driver’s

seat and the three drove off. 29 RR 68. Glaspie denied that he had admitted to someone that he shot the woman at the store. 29 RR 74, 165-66.

Petitioner presented a single witness, Lamarcus Collar. Collar testified that

he returned home early from school on April 3, between 10:00 and 10:30 a.m. 30 RR

39. Minutes later, Glaspie, Brown and Petitioner arrived at the apartment, staying

only 10–15 minutes. 30 RR 39-41. Collar said he overheard Glaspie on the telephone

admitting that he had shot someone and saying, “Shit, bitch got out of line. She was

taking too long, so I had to do what I had to do.” 30 RR 46-47.

In its closing argument, the State addressed the physical evidence, arguing to

the jury that the dress worn by Jones was particularly important because in Petitioner’s “version of events” is inconsistent with Jones having no “soot or stippling on

her.” But Glaspie’s account was consistent with the way Jones’s “dress is ripped right

here (indicating) underneath the right arm.” 31 RR 10.

The State explained that jurors were not required to agree on whether it was

a robbery/murder or a double murder. 31 RR 26. He argued that the defense failed to

meet its burden as to duress because “[t]here was no one standing there forcing him

at gunpoint to commit this offense.” 31 RR 36.

Defense counsel argued that it was Glaspie who shot Jones, adding, “the State

of Texas does not want you all to focus on the real killer here. They have to justify the

decision they made for that 30-year sentence.” 31 RR 39. Counsel argued that the

State used Glapsie because he would put the murder of Jones on Petitioner, describing it as a deal with the devil: “the Devil is a deceiver,” “the Devil is a liar and the

father of lies and is a murderer.” 31 RR 83. Counsel concluded by asking the jury to

convict Petitioner of aggravated robbery, the offense Glaspie pled guilty to. 31 RR 94.

In his closing, Rizzo again vouched for Glaspie’s credibility and repeatedly assured the jury that, consistent with the terms of the plea deal, Glaspie testified truthfully. See 31 RR 106 (“Glaspie told the truth when he testified. And he had good reason to.”); 31 RR 116 (“Glaspie was telling the truth.”). Rizzo argued that “Glaspie was

telling the truth” because his testimony, “matches each and every small piece of evidence.” 31 RR 116.

Rizzo emphasized the harsh terms of the Glaspie’s deal:

Glaspie is eligible for the death penalty in Texas. Glaspie testified that

he knows that if he testifies falsely about one thing and it doesn’t match

the evidence and it doesn’t match anything, if he testifies falsely about

one thing, that all deals are off. . . . Also, he testified that there’s no

substantial compliance. In other words, he can testify about 99 percent

of - and comply with 99 percent of everything, but if one thing he doesn’t

comply with, he testifies falsely, then he can be prosecuted, again, for

capital murder. That’s a heavy hammer. That’s a bigger hammer than

most witnesses have over their head.

31 RR 118.

The court presented the jury with three charges: capital murder, felony murder, and aggravated robbery. As to capital murder, the jury could find Petitioner

guilty as a principal or party. 2 CR 293-96. During deliberations, the jury requested

the transcript of Rizzo’s direct examination of Glaspie regarding “[h]ow Ms. Jones

was being held (demonstration w/ Rizzo).” 2 CR 309.

The jury returned a general verdict of guilty of capital murder. 2 CR 307.

In the penalty phase, the State presented evidence regarding Petitioner’s prior

contacts with law enforcement as a juvenile and adult. See RR vols. 33, 34.

Petitioner presented family members, including his grandmother who testified

how Petitioner’s mother had her first child when she was 14 and was 18 when she

gave birth to Petitioner. 35 RR 117. She described how Petitioner’s mother began

using drugs in 1974, and continued to battle addiction. 35 RR 122-23. A social worker

testified about the formative phases of Petitioner’s life, and described his childhood

as “very neglectful,” marked by an absent parent and the absence of feelings of parental love due to Petitioner’s mother’s drug addiction. 35 RR 153-54, 169. Petitioner’s

mother also described her long history of drug use, and how she used marijuana while

pregnant with Petitioner. 36 RR 12. She said the apartment complex where Petitioner

grew up as “not a good place to live, not to raise kids.” 36 RR 17. She had not been

present for her children and left them unsupervised. Petitioner’s sister also described

the conditions in which she and her brother grew up. 36 RR 32-70. She confirmed

that the housing project was “not a nice place to live,” and described how the two of

them saw drug dealing and on one occasion, she observed a murder. She and her

brother had seen the bodies of murder victims around the complex. 36 RR 37-39. She

also described physical abuse by her mother. 36 RR 55-58.

In his closing argument of the penalty phase, Rizzo asked the jury “to look at

this case,” 39 RR 203, and described Petitioner as a “violent,” “cold-blooded killer,”

referring to Glaspie’s testimony that Petitioner killed Jones. 39 RR 204. Rizzo told

the jury there was no “question that [Petitioner] is the shooter of Ms. Jones.” 39 RR

215. “[A]ll of the evidence is consistent with [Petitioner] being the shooter.” Ibid. He

told the jury that “the best mitigation for [Petitioner] not to receive the death penalty

is if he would have let Ms. Jones live,” and stated that this mitigation “might have

been sufficient” to require a non-death sentence. 39 RR 227. However, according to

Rizzo, “that [mitigation] did not exist because [Petitioner] killed [Jones] and he killed

her because he was mad.” Ibid.

The jury answered the special issues submitted under Tex. Code Crim. Proc.

art. 37.071, returning affirmative answers to issues one and two and a negative answer to the mitigation special issue. 2 CR 235, 236. The trial court accordingly sentenced Petitioner to death on October 21, 2004.

II. Alfred Brown’s case

Alfred Brown was tried separately, after Petitioner. Glaspie testified against

Brown in a manner consistent with his testimony at Petitioner’s trial. Ex parte Alfred

Dewayne Brown, No. 1035159-A, Agreed Proposed Findings of Fact and Conclusions

of Law at 4 (May 22, 2013).

Brown maintained that he was not at the ACE store. He had an alibi. Brown

was in the apartment of his girlfriend, Erika Dockery; that two of Ms. Dockery’s nephews were also home with him; that Ms. Dockery was at work and that he called her

around 10:00 a.m. from her apartment, which made it physically impossible for him

to participate in the ACE robbery and murders. Ibid.

On April 4, 2003, the day after the robbery, Dockery told police that Brown was

home asleep when she escorted her children to catch the bus at 6:50 a.m., and when

she left for work at 8:30 a.m. She later called home and was told that Brown was sick

and upstairs sleeping. Brown called her at work at approximately 10:00 a.m. and she

talked to him for approximately fifteen minutes. Id. at 2.

At Brown’s trial, however, Dockery was called by the prosecution and testified

that Brown was not in her apartment when she returned at 7:25 a.m. Id. at 4-5. She

testified that Brown called her around 10:00 a.m. at the home of her employer and

told her that he was at “Shono’s” home in the Villa Americana Apartments. Id. at 5.

On cross examination, Dockery testified that her employer, Alma Berry, told her the

caller ID indicated the call was from Ms. Dockery’s house. Ibid.

The jury found Brown guilty of capital murder in the death of Officer Clark on

October 18, 2005, and sentenced him to die on October 25, 2005.

On November 3, 2005, Glaspie was sentenced to 30 years’ imprisonment.

III.

Initial post-conviction proceedings on Brady

During Brown’s post-conviction proceedings, the State disclosed grand jury testimony and phone records that tended to refute Glaspie’s testimony.

The grand jury transcripts showed Rizzo called Dockery to testify on April 21,

2003. Dockery testified that Brown was asleep on her couch when she left home to go

to work at 8:30 a.m. on April 3, 2003. At approximately 10:00 a.m., she was at the

home of Alma Berry, an elderly woman for whom Dockery was a paid caregiver, when

the phone rang. Berry looked at the Caller ID on her phone and said, “Ericka, it’s

your house.” Dockery answered and spoke to Brown for about 15 minutes. Dockery

left work at 1:00 p.m., and returned home where she saw Brown who told her that he

did not feel well.

The District Attorney’s later investigation showed that Rizzo knew, but did not

disclose, that the grand jury foreman, James Koteras, was an active-duty Houston

police officer. The transcript reflects that the grand jurors, including Koteras, along

with Rizzo, accused Dockery of lying and threatened that if she was perjuring herself,

her children would be taken away. But Dockery stuck to her story. Grand Jury Testimony of Erika Dockery, pp. 1-119 (April 21, 2003).

After leaving the grand jury room, Rizzo spoke with Dockery in the hallway.

Then Dockery returned to the grand jury to “correct” her statement, saying she had

not returned to the apartment after leaving at 6:50 a.m. Id. at 120-22.

Tonika Hutchins, Glaspie’s girlfriend, testified before the grand jury on April

28, 2003. Hutchins testified that Glaspie had told her that George “Ju Ju” Powell,

rather than “Doby” (Alfred Brown) had been a participant in the ACE robbery.

Glaspie told her was there, but never entered the store, only Petitioner and “Ju Ju.”

Hutchins testified that she overheard Glaspie call Brown around 6:00 a.m. and told

someone to wake Brown up, but he was rebuffed by the other party. Grand jurors

aggressively questioned Hutchins, telling her they knew she was lying, that she took

drugs, and that her family was ashamed of her for “hanging out with a hoodlum who

probably killed someone.”

During post-conviction proceedings in Brown’s case, the State asked the police

officer who conducted the original phone investigation to search for any documents

relating to the case. He found a box of related materials at his home.

Those materials included phone records for the landline in Dockery’s apartment on April 3, 2003, along with an application Rizzo filed to obtain the landline

records from the telephone company, which was signed by the trial court on April 24,

2003. 1

The records showed a call from Dockery’s apartment to Alma Berry’s house at

10:08 a.m. on the day of the robbery. That corroborated Dockery’s statement to the

police and her initial testimony to the grand jury that Brown called her around 10:00

a.m. and that Berry recognized Dockery’s number on Caller ID.

In both Brown’s post-conviction case and Petitioner’s, the State conceded the

phone records were favorable to the defense, in that they supported Brown’s alibi and

contradicted Glaspie’s testimony. The State also conceded that the records were not

produced to Petitioner’s or Brown’s counsel or used by the State at either trial.

In Brown’s case, the State agreed, and the trial court found that the State had

“inadvertently” failed to disclose phone records that supported Brown’s alibi, and

Brown’s habeas application be granted pursuant to Brady v. Maryland, 373 U.S. 83

(1963). Ex parte Alfred Dewayne Brown, No. 1035159-A (May 28, 2013).

1 It was later revealed that prosecutor Dan Rizzo was made aware of this infor-

mation long before the trials of Petitioner and Brown.

The TCCA agreed and vacated Brown’s conviction. Ex parte Alfred Dewayne

Brown, No. WR-68,876-01 (Tex. Crim. App. Nov. 5, 2014). Brown’s case was remanded for a new trial. Ibid. On June 8, 2015, the trial court granted the State’s

motion to dismiss the capital murder charges against Brown on grounds of insufficient evidence. State v. Brown, No. 1035159, Order (Jun. 8, 2015).

IV.Procedural history of Petitioner’s Napue claim

Petitioner’s conviction and sentence were affirmed by the TCCA. Joubert v.

State, 235 S.W.3d 729 (Tex. Crim. App. 2007) (App. 76a-82a).

In December 2006, Petitioner filed his initial state application for a writ of habeas corpus. The trial court held a hearing on Petitioner’s claim that his trial counsel

were ineffective for failure to investigate and present available evidence to impeach

Glaspie’s credibility at trial. Petitioner presented seven witnesses who testified to

Glaspie’s poor reputation for truthfulness. Ex parte Elijah Joubert, No. 944756-A, 2

RR 59-110.

In December 2006, Petitioner filed his initial state application for a writ of habeas corpus alleging his trial counsel were ineffective for failing to investigate and

present available evidence impeaching Glaspie. At a hearing, Petitioner presented

seven witnesses who testified to Glaspie’s poor reputation for truthfulness. Ex parte

Elijah Joubert, No. 944756-A, 2 RR 59-110.

Trial counsel testified that “the credibility of Mr. [Glaspie] was critical to Petitioner’s case during the guilt/innocence and punishment.” Id. at 2 RR 25. The trial

court recommended that relief be denied, and the TCCA adopted the trial court’s findings and conclusions, denying relief. Ex parte Joubert, WR 78,119 01 (Tex. Crim. App.

Sept. 25, 2013).

On September 24, 2014, Petitioner filed a petition for writ of habeas corpus,

pursuant to 28 U.S.C. § 2254, in the United States District Court for the Southern

District of Texas.

In light of the developments in Brown’s case, and at Petitioner’s request, the

federal habeas court stayed and held in abeyance Petitioner’s federal habeas case to

permit Petitioner to present unexhausted Brady and Napue claims in the state

courts. Joubert v. Stephens, 4:13-CV-03002 Order (S.D. Tex. Oct. 15, 2015).

On June 9, 2016, Petitioner filed his subsequent application for writ of habeas

corpus in state court. The TCCA authorized Petitioner to proceed on Claims One and

Two, in which he alleged that the State violated Napue v. Illinois, 360 U.S. 264 (1959),

by knowingly presenting false testimony from Glaspie and other witnesses, and violated Brady by suppressing evidence that would have undercut Glaspie’s credibility

and testimony. The court remanded the case for the trial court to consider the two

claims. 2 App. 75a. Ex parte Joubert, WR-78,119-02, 2016 WL 5820502 (Tex. Crim.

App. October 5, 2016).

2 Petitioner’s relevant claims alleged:

Claim One: “The prosecution presented a false and misleading impression of

its’ key witness Dashan Glaspie’s truthfulness by withholding evidence and failing

to correct testimony which undermined the bolstering effect of the State’s zero-tolerance plea agreement.”

The trial court reviewed the documentary evidence then available, which included the trial and post-conviction records of Brown (the grand jury transcripts and

telephone records), as well as Petitioner’s subsequent application with attached exhibits, and the parties submitted proposed findings of fact and conclusions of law.

Petitioner’s counsel argued that Rizzo knew of the evidence that supported

Brown’s alibi and still presented false testimony at Petitioner’s trial. Writ Hr’g. Tr.

at 8 (Jul. 24, 2017). The State argued the evidence had been withheld unintentionally

and that Brown’s case was dismissed not because Brown was “actually innocent,” but

because there was “now insufficient evidence to support [Mr.] Glaspie’s testimony

because the other witnesses who put Mr. Brown in and around the scene of the capital

murder, their testimony has gone south on the State.” Id. at 16.

Based upon the facts then available, the trial court signed the State’s proposed

findings and conclusions. The court found “the State unintentionally failed to disclose

certain phone records that would have supported Brown’s alibi. Ex parte Elijah

Dwayne Joubert, No. 944756-B, Findings of Fact and Conclusions of Law at 15 (Aug.

4, 2017) (emphasis added).

The State did not contest the suppression and favorability prongs of Brady. Id.

As materiality, the court found that Petitioner had failed to satisfy that prong and,

recommended that relief be denied on the Brady claim. Id.

Claim Two: “The prosecution withheld material evidence which impeached its

key witness, Dashan Glaspie’s testimony and which would have undermined the

bolstering force of the State’s Zero tolerance plea agreement.”

The State’s proposed findings and conclusions did not address the merits of

Petitioner’s Napue claim. Id.

Before the case was set for submission in the TCCA, the State asked the court

to return the case to the trial court “so that it may consider whether additional and/or

different findings of fact and conclusions of law are necessary in the wake of recent

developments in the case of the applicant’s co-defendant Alfred Dewayne Brown.” Ex

parte Joubert, WR-78,119-02, Mot. Remand (Tex. Crim. App. Aug. 29, 2018).

The “recent developments” were that the District Attorney had discovered new

evidence “suggesting that former Harris County District Attorney Dan Rizzo was informed about the existence of the phone records well before trial, yet failed to disclose

or provide them to defense counsel or the jury.” That discovery prompted the District

Attorney to notify the State Bar of Texas “so that it may investigate the former prosecutor’s professional conduct while handling the Brown case.” The District Attorney

also appointed Special Prosecutor John Raley to review Brown’s claim of actual innocence. Id. at 2-3. Brown had sued the District Attorney and Rizzo for federal civil

rights violations. The defendants in Brown’s civil suit had filed a motion to dismiss

premised on an expert’s opinion that the withheld phone records could be interpreted

as inculpatory of Brown. Ibid.

The State offered three exhibits in support of its motion:

A news release dated March 2, 2018, titled “Statement from Harris County District Attorney Kim Ogg Regarding Newly Discovered Evidence in Alfred Brown Case.”

A press release dated May 2, 2018, tilted “DA Ogg announces review of Alfred Brown case.”

3) “Defendant Harris County’s Rule 12(b)(6) Motion to Dismiss Claims

Related to Alleged Brady Violations,” dated March 1, 2019.

On March 1, 2019, Special Prosecutor Raley issued a 179-page report on

Brown’s case. Raley found that Rizzo had abused Dockery and Hutchins before the

grand jury, and threatened and intimidated them into corroborating Glaspie’s account of Brown’s participation. Raley also found that after McDaniel informed Rizzo

that phone records corroborated Dockery, Rizzo gathered more evidence, and suppressed it. Raley found that Rizzo knew Glaspie and other witnesses testified falsely

about Brown in both Petitioner’s trial and Brown’s, and that Glaspie had lied about

Petitioner shooting Jones. Raley concluded that Brown was actually innocent of the

robbery/murders.

On the day the Raley report was issued, the State filed an Amended Motion to

Dismiss Alfred Brown’s case. The State averred that “no credible evidence exists that

inculpates Alfred Brown in the April 3, 2003 murder of Charles Clark as alleged in

Cause No. 1035159,” and that Brown is “actually innocent.” State v. Brown, No.

1035159, St. Am. Mot. Dismiss at 4 (Mar. 1, 2019). The State submitted the Raley

Report as an exhibit in support of its Amended Motion. Id. at Ex. A.

That same week, the State renewed its request for Petitioner’s case to be returned the trial court, adding the Raley Report to the list of exhibits. Ex parte Joubert,

WR,78-119-02, State’s Renewed Mot. Remand (March 8, 2019).

On May 3, 2019, the trial court withdrew its June 2015 Order of Dismissal and,

“[f]or the reasons stated in the State’s Amended Motion to Dismiss,” ordered that

Brown’s case be dismissed “due to Alfred Dewayne Brown’s actual innocence.” State

v. Brown, No. 1035159, Order (May 3, 2019).

In June 2019, the TCCA remanded Petitioner’s case to the trial court. Referring to the State’s exhibits, it ordered the trial judge to make findings of fact and

conclusions of law “regarding whether the filed evidence should be considered and if

it had any effect on Claims One and Two in [Petitioner]’s case.” Ex parte Joubert, WR78,119-02 (Tex. Crim. App. Jun. 12, 2019) (not designated for publication).

On November 2, 2020, the court indicated it had reviewed the evidence and

directed the parties to submit new proposed findings of fact and conclusions of law

reflecting their views on the new evidence.

In December 2020, the trial court withdrew its previous Findings of Fact and

Conclusions of Law, and entered new ones, recommending that relief be granted on

Petitioner’s Claims One and Two. App. 73a.

The TCCA disagreed. As to Petitioner’s Brady claim, the court acknowledged

that the State conceded that it suppressed favorable evidence, but concluded that “the

suppressed evidence, considered collectively and balanced against the evidence supporting [Petitioner]’s conviction, is not material.” App. 4a.

The court found that “the true identity of the third participant does not ultimately matter in light of [Petitioner]’s own statement to the police.” App. 4a. Because

Petitioner had “admitted that he actively participated in the offense and he knew

Jones was ‘gonna die’ if the police came to the scene,” the court held that “the suppressed evidence supporting Brown’s alibi does not undermine our confidence in the

outcome of [Petitioner]’s trial.” App. 5a.

As to his Napue claim, the TCCA said Petitioner had to “show by a preponderance of the evidence that (1) false testimony was presented at trial and (2) the false

testimony was material to the jury’s verdict.” App. 5a (citing Ex parte De La Cruz,

466 S.W.3d 855, 866 (Tex. Crim. App. 2015); Ex parte Weinstein, 421 S.W.3d 656, 659,

665 (Tex. Crim. App. 2014)).

The court acknowledged that the State “conceded that Glaspie falsely testified

at [Petitioner]’s trial about Brown’s participation in the instant offense.” App. 5a (emphasis added). Without explanation, the court then concluded that “it is not reasonably likely that Glaspie’s false testimony about Brown’s participation in the offense

affected the judgment of the jury in [Petitioner]’s trial.” App. 5a (citing Weinstein, 421

S.W.3d at 665) (emphasis added). The court thus denied Claims One and Two. App.

5a.

REASONS FOR GRANTING THE PETITION

I. The TCCA decided Petitioner’s false-testimony claim in a way

that conflicts with the relevant decisions of this Court

Under the Texas precedent applied in this case, a state-habeas petitioner raising a claim under Napue “must show by a preponderance of the evidence that (1) false

testimony was presented at his trial and (2) the false testimony was mate-rial to the

jury’s verdict.” App. 5a. Although the TCCA acknowledged that the State had “concede[d] that Glaspie falsely testified at [Joubert’s] trial about Brown’s participation

in the instant office,” it omitted other examples of false testimony. Ibid. The trial

court found Rizzo knowingly presented false testimony from five other witnesses who

implicated Brown, the lead detective regarding phone records, and that Rizzo

prompted Glaspie to give false testimony about his incentive to be truthful. App. 52a55a. The TCCA “disagree[d]” with the trial court’s conclusions, but neither rejected

nor otherwise took account of its findings regarding falsity and knowledge. App. 5a.

As to materiality, the TCCA relied upon its own cases for the proposition that

“false testimony is ‘material’ only if there is a ‘reasonably likelihood’ that it affected

the judgment of jury.” Ibid. (citing Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex.

Crim. App. 2014)). The court concluded “it is not reasonably likely that Glaspie’s false

testimony about Brown’s participation in the offense affected the judgment of the jury

in [Joubert]’s trial.” Ibid.

The TCCA’s review of Joubert’s false-testimony claim failed to follow this

Court’s precedent in several ways. First, this Court’s cases require that the prosecutor knew that testimony presented by the State was false. Mooney v. Holohan, 294

U.S. 103, 112 (1935); Napue, 360 U.S. at 269. Under state precedent, “[t]he Due Process Clause of the Fourteenth Amendment can be violated when the State uses false

testimony to obtain a conviction, regardless of whether it does so knowingly or unknowingly.” Ex parte Robbins, 360 S.W.3d 446, 459 (Tex. Crim. App. 2011) (footnotes

omitted); Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015) (cited in

App. 5a).

Second, this Court’s cases require that courts assess the impact on a witness’s

credibility of having his falsehoods exposed, Napue, 360 U.S. at 272, and that the

“materiality … of suppressed evidence collectively, not item by item.” 3 Kyles v. Whitley, 514 U.S. 419, 436 (1996); Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1334 (11th

Cir. 2009) (Carnes, J.). Although the State conceded, and the trial court found, the

State presented false testimony from five witnesses other than Glaspie, and that

Glaspie’s testimony about his plea was false, the TCCA considered only Glaspie’s testimony about Brown.

Third, this Court’s cases hold that when the prosecution knowingly relies on

false testimony, “[a] new trial is required if ‘the false testimony could … in any reasonably likelihood have affected the judgment of the jury.’” Giglio v. United States,

405 U.S. 150, 154 (1972) (quoting Napue, 360 U.S. at 271); United States v. Agurs,

427 U.S. 97, 103 (1976) (“a conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonably likelihood that the false testimony

could have affected the judgment”); Wearry v. Cain, 577 U.S. 385, 393 (2016). That

“strict standard of materiality” applies because the knowing use of false testimony

“involve[s] a corruption of the truth-seeking function of the trial process,” but “is not

necessarily applicable” when a case involves the suppression of evidence and no

knowing use of false testimony. Agurs, 427 U.S. at 104.

3 Although Kyles is a Brady case that did not involve the use of false testimony, this

Court said in Agurs, “[t]he rule of Brady … arguably applies … [i]n the … situation[] typified by Mooney.” 427 U.S. at 103. See Smith, supra, 572 F.3d at 1332-33.

See also Pyle v. Kansas, 317 U.S. 213, 216 (1941).

In ordinary suppression cases that don’t involve the knowing use of false evidence, courts must apply the reasonable-probability standard from Strickland v.

Washington, 466 U.S. 668 (1984). Kyles, 514 U.S. at 434. Under that standard, a postconviction petitioner “need not show that he ‘more likely than not’ would have been

acquitted had the new evidence been admitted.” Wearry, 577 U.S. at 392 (quoting

Kyles, 415 U.S. at 434). The petitioner “need not demonstrate that after discounting

the inculpatory evidence in light of the undisclosed evidence, there would not have

been enough to convict.” Kyles, 514 U.S. at 434-35. Under Brady a petitioner “can

prevail even if … the undisclosed information may not have affected the jury’s verdict.” Wearry, 577 U.S. at 392 n.6 (emphasis added).

The TCCA has excised the probabilistic terms “any” and “could have” from the

Napue standard so that a state-habeas petitioner like Joubert “must show by a preponderance of the evidence” that “there is a ‘reasonably likelihood’ that [the false

testimony] affected the judgment of the jury.” App. 5a (emphasis added). Cases from

the TCCA make clear that the “could have” inquiry has been excised with the words,

creating a higher burden for petitioners like Joubert than the reasonable-probability

standard applied in Kyles.

For example, when describing the test for false-testimony cases in Robbins,

supra, the TCCA said, “We have also used … ‘more likely than not’ in lieu of ‘reasonable likelihood.’” 360 S.W.3d at 459 n.13 (citing Ex parte Chabot, 300 S.W.3d 768, 772

(Tex. Crim. App. 2009)). 4 In De La Cruz, which the TCCA cited in Petitioner’s case,

App. 5a, the court applied the sufficiency-of-the-evidence test that this Court disapproved in Kyles. The TCCA found the false testimony was not material because, “the

4 For many years, the TCCA only recognized a claim for the knowing use of false

testimony, and followed this Court’s decision in Napue in holding “[t]he standard

applied in such cases [i]s … whether the testimony ‘may have had an effect on the

outcome of the trial.’” Means v. State, 429 S.W.2d 490, 494 (Tex. Crim. App. 1968)

(citing Napue) (emphasis added). See also, e.g., Ex parte Cherry, 456 S.W.2d 949

(Tex. Crim. App. 1970); Crutcher v. State, 481 S.W.2d 113, 117 (Tex. Crim. App.

1972); Ex parte Adams, 768 S.W.2d 281, 289 (Tex. Crim. App. 1989) (en banc).

The TCCA recognized that the Napue standard was equivalent to the harmless-error standard adopted in Chapman v. California, 386 U.S. 18 (1967). Adams,

768 S.W.3d at 292 (quoting United States v. Bagley, 473 U.S. 667, 679 n.9 (1985)

(op. of Blackmun, J.). See also id. at 293. Occasionally, it still does, while also applying a different standard for unknowing-use cases. See Ex parte McGregor, No. WR85,833-01, 2019 WL 2439453, at *2 (Tex. Crim. App. June 12, 2019).

When the TCCA first recognized that the unknowing use of false testimony

could deny a defendant due process of law, the court saw “no reason for subjecting

the two types of errors [knowing and unknowing use] to different standards of

harm.” Chabot, supra, 300 S.W.3d at 771. However, even then, the court misstated

this Court’s standard under Napue as requiring that the petitioner satisfy “‘the burden to prove by a preponderance of the evidence that the error contributed to his

conviction or punishment.’” Ibid. (quoting Ex parte Fierro, 934 S.W.2d 370, 374

(Tex. Crim. App. 1996). The court explained that is “the normal standard on habeas

review,” as distinct from the Chapman standard applied on direct appeal. Napper,

supra, 322 S.W.3d at 242.

But later, the TCCA held that whether the evidence showed knowing or unknowing use was “crucial to determining the standard of materiality or harm to be

applied.” Ex parte Napper, 322 S.W.3d 202, 241 (Tex. Crim. App. 2010). Unknowing

use cases required a higher showing from the petitioner. See id. at 242 (“It remains

unsettled whether a more favorable standard might be available to a defendant in

the ‘knowing use’ context.”).

Although Fierro “left open the possibility that [a habeas petitioner] might

‘avail himself of the Chapman harmless error standard,’” if he had no opportunity to

raise his false-testimony claim at trial or on appeal, Napper, 322 S.W.3d at 242

(quoting Fierro, 934 S.W.2d at 374 n.10) (emphasis added), the court believed “the

Chapman standard need not apply” to false-testimony claims raised in habeas proceedings because “Napue and Bagley both involved direct rather than collateral attacks.” Fierro, 934 S.W.2d at 372. Of course, that is wrong. Both Napue and Bagley

involved collateral attacks. Napue, 360 U.S. at 267; Bagley, 473 U.S. at 671-72.

jury could have convicted applicant of … murder even if” the allegedly false testimony

had not been admitted. 466 S.W.3d at 871. The court illustrated that it required an

actual, outcome-determinative effect—as opposed to a showing that it was reasonably

likely the false testimony could have had an effect—when it upheld De La Cruz’s

conviction because it

could not conclude that any such false evidence tipped the scales in favor

of persuading the jury to believe [prosecution] testimony or to convict

applicant. Thus, even were we to accept that this limited aspect of [the

witness]’s testimony has been proven false, we could not now conclude

that it would have been materially false.” Ibid. (emphasis added).

Agurs rejected for ordinary Brady suppression cases the Napue standard for

setting aside a judgment based on the prosecution’s knowing use of false testimony.

Agurs, 427 U.S. at 103. It did so because those cases “involve[] no misconduct, and …

no reason to question the veracity of any of the prosecution witnesses.” Id. at 103-04.

Agurs thus left no doubt that a criminal judgment falls more easily when it rests on

the knowing use of false evidence, than when evidence favorable to the defense was

Nevertheless, the TCCA held that its version of the harmless-error standard

applied in habeas proceedings where the petitioner could not have raised his falsetestimony claim on direct appeal. In re Ghahremani, 332 S.W.3d 470, 483 (Tex.

Crim. App. 2011).

At the same time, though, the court raised the standard of materiality for

knowing false-testimony claims so that they require the same showing from the petitioner/defendant as unknowing false-testimony claims. A few months after its decision in Ghahremani, the court explained that the “reasonable likelihood” standard

from Napue is used interchangeably with the “more likely than not” standard from

Chabot. Robbins, supra, 360 S.W.3d at 449 n.13. See also Weinstein, supra, 421

S.W.3d at 669-674 (Keller, J., concurring).

Thus, the TCCA abandoned its previously observed distinction between materiality and harm. In Weinstein, one of the two cases cited in Joubert’s case, App. 5a,

the court explained that on habeas review, “The issue in false-testimony claims is

‘materiality’ not ‘harm.’” Weinstein, 421 S.W.3d at 664.

suppressed. The question remains where the Napue standard—“any reasonable likelihood that the false testimony could have affected the judgment of the jury,” id. at

103—sits in relation to other standards for reversal. 5

At least four Justices of this Court have equated the Napue standard with the

“harmless beyond a reasonable doubt” standard adopted in Chapman v. California,

386 U.S. 18, 24 (1967). Bagley, 473 U.S. at 679 n.9 (1985) (opinion of Blackmun, J.);

Strickler v. Greene, 527 U.S. 263, 298-99 (1999) (Souter, J., dissenting).

Those Justices relied on Chapman’s assertion that

[t]here is little, if any, difference between … [asking] “whether there is

a reasonable possibility that the evidence complained of might have contributed to the conviction” and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

Chapman, 386 U.S. at 24 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1964)).

Indeed, there is little, if any, difference between asking whether there is “any reasonable likelihood that the false testimony could have affected the judgment,” Agurs, 427

U.S. at 103 (emphasis added), and asking whether there is a reasonable possibility

that the evidence complained of might have contributed to the conviction. “Could”

connotes

“possibility.”

Merriam-Webster.com

Dictionary,

Merriam-Webster,

https://www.merriam-webster.com/dictionary/could (stating that “can”—the present

tense of “could”—is used to indicate possibility). “Affected,” the word used by the

TCCA means “act[ed] on and cause[d] a change in (someone or something).” Merriam-

5 As noted above the Court of Criminal Appeals has variously equated and distin-

guished the issues of materiality and harm or harmlessness when evaluating falsetestimony claims.

Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/affect.

The TCCA’s shift to an outcome-determinative test fails to protect fundamental fairness and the trial’s truth-seeking function, the central concerns of this Court’s

cases. Mooney held that “the requirement of due process … cannot be deemed to be

satisfied … if a state has contrived a conviction … through a deliberate deception of

testimony known to be perjury.” 294 U.S. at 112. “Such a contrivance by a state,” is

not a real trial, but “the pretense of a trial.” Ibid.

Alcorta v. Texas, 355 U.S. 28 (1957), another state-habeas case, closed two loopholes left by Mooney and Pyle v. Kansas, 317 U.S. 213, 216 (1941). One concerned

testimony that, although true on its face, left a false impression. The other concerned

whether due process was violated by the use of false testimony that bore on the degree

of the offense alone. This Court held that “[u]nder the general principles laid down”

in Mooney and Pyle, Alcorta “was not accorded due process of law” because a prosecution witness’s testimony, “taken as a whole, gave the jury the false impression that

his relationship with [the] petitioner’s wife was nothing more than that of casual

friendship.” 355 U.S. at 31. If that relationship “had been truthfully portrayed to the

jury, it would have, apart from impeaching [the witness’s] credibility, tended to corroborate” Alcorta’s heat-of-passion defense that, if accepted, would have reduced his

crime “to ‘murder without malice’ precluding the death penalty.” Id. at 31-32. See also

Giles v. Maryland, 386 U.S. 66, 79 n.11 (1967) (stating test for whether a state court

must inquire into the suppression of police reports from a rape investigation “cannot

be … that a remand would be justified only if the evidence presented necessarily excludes the conclusion” that the defendant penetrated the alleged victim) (internal

quotation marks omitted).

Napue added that a conviction “must fall under the Fourteenth Amendment …

when the State, although not soliciting false evidence, allows it to go uncorrected

when it appears,” 360 U.S. at 269; Brady, 363 U.S. at 87, “even though the testimony

may be relevant only to the credibility of a witness.” Giles, 386 U.S. at 74. In Napue,

the prosecutor allowed a key witness to lie about whether the witness “had been

promised consideration” for his testimony. Napue, 360 U.S. at 268. After finding that

a jury “apprised of the true facts … might well have concluded that [the witness] had

fabricated testimony in order to curry the favor of the very representative of the State

who was prosecuting the case,” id. at 270, the Court concluded the “false testimony

… may have had an effect on the outcome of the trial. Accordingly, the judgment

below must be reversed.” Id. at 272 (emphasis added).

The TCCA’s decision in Joubert’s case, by focusing solely on Glaspie’s false testimony “about Brown’s participation in the instant offense,” and ignoring how the

falsity would have impacted his credibility on other issues such as whether he or

Joubert shot Jones, failed to follow Napue.

II. The TCCA’s Decision in Joubert’s Case Conflicts with the Decisions of Courts of Last Resort in Other States, and with Decisions of Federal Circuits

Lower court decisions conflict with the TCCA’s decision in Joubert’s case, and

with each other. The split appears in each area discussed above: (1) whether Napue

error requires reversal at a lower threshold than Bagley’s reasonable-probability

standard; (2) if so, whether (a) Napue is equivalent to Chapman, and, if so, (b)

whether the defendant/petitioner or the State has the burden to demonstrate materiality or harmlessness, respectively, and; (3) whether false-testimony claims, like

ordinary Brady claims, require a cumulative assessment of materiality or harm.

A. Most courts agree Napue claims pose a lower hurdle for

defendants than Brady claims that do not involve the

use of false evidence.

The materiality standard for ordinary Brady claims “‘impose[s] a higher burden on the defendant,’” than the harmless-error standard of Brecht v. Abrahamson,

507 U.S. 619 (1993). Kyles, 514 U.S. at 436 (quoting Agurs, 427 U.S. at 112). Thus, a

finding of materiality under Brady “necessarily entails the conclusion that the suppression must have had ‘substantial and injurious effect or influence in determining

the jury’s verdict.’” Kyles, 514 U.S. at 435 (quoting Brecht, 507 U.S. at 623) (internal

quotation marks and citation omitted). Brecht adopted for purposes of federal habeas

cases the standard applied to non-constitutional errors in direct appeals, Kotteakos v.

United States, 328 U.S. 750 (1947), which is less favorable to defendants than Chapman. Kyles, 514 U.S. at 437 (discussing Brecht, 507 U.S. at 522-23). That raises the

question whether a habeas petitioner who has satisfied Napue’s “any reasonable likelihood” standard must also satisfy Brecht.

All federal Circuits that have addressed the issue have held that the Napue

standard for setting aside a judgment is easier for the defendant/petitioner to meet

than Bagley and Brecht. See Haskell v. Superintendent Greene SCI, 866 F.3d 139,

150–51 (3d Cir. 2017) (discussing cases from other Circuits); Rosencrantz v. Lafler,

568 F.3d 577, 587 (6th Cir. 2009) (agreeing with Gilday v. Callahan, 59 F.3d 257, 268

(1st Cir. 1995), and Ventura v. Attorney General, Fla., 419 F.3d 1269, 1283-84 (11th

Cir. 2005)). Thus, most of those Circuits require habeas petitioners whose claims satisfy Napue to satisfy Brecht, as well. Gilday, 59 F.3d at 268; Barrientes v. Johnson,

221 F.3d 741, 756–57 (5th Cir. 2000); Rosencrantz, 568 F.3d at 584; United States v.

Clay, 720 F.3d 1021, 1026-27 (8th Cir. 2013); Douglas v. Workman, 560 F.3d 1156,

1173 n.12 (10th Cir. 2009); Trepal v. Sec’y, Florida Dep’t of Corr., 684 F.3d 1088,

1111–13 (11th Cir. 2012). The Third Circuit and the Ninth do not. See Haskell, 866

F.3d at 145-46; Hayes v. Brown, 399 F.3d 972, 984-85 (9th Cir. 2005) (en banc). The

Circuits’ application of a lower threshold for reversal than Kyles shows the TCCA

applied a conflicting standard in Petitioner’s case.

A large number of state and federal courts place the burden on the defendant

or petitioner to show Napue materiality in order to obtain relief. 6 In doing so, and

consistent with this Court’s decisions, those courts have set such a low bar that materiality is “readily shown,” Shih Wei Su v. Filion, 335 F.3d 119, 127 (2d Cir. 2003),

such that “reversal is virtually automatic,” Hayes v. Brown, 399 F.3d 972, 978 (9th

6 See Harris v. State, 847 S.E.2d 563, 571 (Ga. 2020); State v. Lankford, 399 P.3d

804, 830 (Idaho 2017); State v. Kimble, 833 S.E.2d 814, 816 (N.C. 2019); Com. v.

Spaulding, 991 S.W.2d 651, 657 (Ky. 1999); Tiner v. Premo, 391 P.3d 816, 827 (Or.

2017); State v. Blank, 192 So.3d 93, 101 (La. 2016); State v. Mildenhall, 747 P.2d

422, 425 (Utah 1987); State v. Dockery, 2018 WL 4603139 (Wash. Ct. App. Sept. 25,

2018); State v. Robinson, 2005 WL 20088186 (Tenn. Crim. App. Aug. 17, 2005) (citing State v. Cureton, 38 S.W.3d 64, 74-75 (Tenn. Crim. App. 2000)); State v. Johnson, 45 N.E.3d 208, 531-32 (Ohio 2015); State v. Yates, 629 A.2d 807, 809 (N.H.

1993); Gratzer v. State, 71 P.3d 1221, 1225 (Mont. 2003); State v. Kolbet, 638

N.W.2d 653, 659 (Iowa 2001); Jones v. State, 479 N.W.2d 265, 275 (Iowa 1991).

Cir. 2005), unless the prosecution’s case is “so overwhelming that there is no reasonable likelihood that the false testimony could have affected the judgment of the jury.”

Shih Wei Su, 335 F.3d at 129.

These courts follow Agurs in reasoning that the knowing use of false evidence

must “invoke[] the highest level of appellate scrutiny.” Azania v. State, 730 N.E.2d

646, 652 (Ind. 2000). For these courts, a “strict standard of materiality espous[es] the

view that the use of perjured testimony is fundamentally unfair and a corruption of

the truth-seeking function of the trial process.” State v. Eugene, 340 N.W.2d 18, 25

(N.D. 1983) (citing Agurs, supra).

Whether courts require the State to prove harmlessness of the false testimony

beyond a reasonable doubt, or have the defendant show “any reasonable likelihood”

that the false testimony “could have affected the judgment of the jury,” the net result

is the same: the materiality standard needed to obtain relief is significantly more

favorable to the defendant. 7

Many lower courts correctly follow Justice Blackmun’s separate opinion in

Bagley, and Justice Souter’s dissenting opinion in Strickler, and hold Napue requires

reversal as readily as Chapman. Chapman established a rule “requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24. Accordingly, the

7 Courts also apply the “reasonable likelihood” standard without explicitly placing

the burden on the defendant but imply it is a showing the defendant must make.

See, e.g., State v. Towns, 432 A,2d 688, 691 (R.I. 1981); State v. Brunette, 501 A.2d

419, 423 (Me. 1985); Gates v. State, 754 P.2d 882, 886 (Okla. Crim. App. 1988);

Manning v. State, 884 So.2d 717, 726 (Miss. 2004).

State, as beneficiary of the error, would have the burden to prove beyond a reasonable

doubt that the knowing use of false testimony by the prosecution did not contribute

to Petitioner’s guilty verdict or death sentence.

In Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1333 (11th Cir. 2009), the Eleventh Circuit held that a new trial is required “unless the prosecution persuades the

court that the false testimony was harmless beyond a reasonable doubt.” The court

distinguished “two categories of Brady violations, each with its own standard for determining whether undisclosed evidence is material and merits a new trial.” Ibid. The

first category (what it called Giglio claims) involves undisclosed evidence that “reveals that the prosecution knowingly made false statements or introduced or allowed

trial testimony that it knew or should have known was false.” Ibid. Under this category of constitutional violation a new trial is required “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Ibid.

(quoting Agurs, 427 U.S. at 103). This “could have” standard requires a new trial

unless the prosecution persuades the court that the false testimony was “harmless

beyond a reasonable doubt.” Ibid. The caselaw adopting this more stringent standard

“is shaped by the realization that ‘deliberate deception of a court and jurors by the

presentation of known false evidence is incompatible with rudimentary demands of

justice.’” Id. at 1333-34 (quoting Giglio, 405 U.S. at 153).

The Supreme Court of Florida has also held that once the petitioner shows

falsity and knowledge, the State “must prove that the presentation of the false testimony was harmless beyond a reasonable doubt,” and to meet that standard, “the

State must establish that ‘there is no reasonable possibility that the error contributed

to the conviction.’” Guzman v. State, 941 So.2d 1045, 1050, 1138 (Fla. 2006) (quoting

State v. DiGuillio, 491 So.2d 1129, 1138 (Fla. 1986)).

The District of Columbia Court of Appeals, citing Justice Blackmun’s statement in Bagley, explained that “[b]ecause a prosecutor’s failure to correct known false

or misleading testimony of a government witness violates due process, such failure

requires reversal of a conviction unless there is no reasonable possibility that the

falsehood affected the jury’s verdict.” Woodall v. United States, 842 A.2d 690, 696

(D.C. 2004) (citing Bagley, 473 U.S. at 678-79 n.9). See also Mitchell v. United States,

101 A.3d 1004, 1008 (D.C. 2014) (“Once the appellant has made sufficient demonstration of uncorrected false testimony then the burden shifts to the government to ‘show,

beyond a reasonable doubt, that the false testimony was harmless in the context of

appellant’s trial.’”) (quoting Longus v. United States, 52 A.3d 836, 845 (D.C. 2012)). 8

In Adams v. Commissioner of Correction, the Supreme Court of Connecticut

explained that the standard for reversal in a false testimony case (“any reasonable

likelihood that the false testimony could have affected the judgment of the jury”) “is

not substantively different from the test that permits the state to avoid having a conviction set aside, notwithstanding a violation of constitutional magnitude, upon a

showing that the violation was harmless beyond a reasonable doubt.” 71 A.3d 512,

8 But see, Jones v. United States, 202 A.3d 1154, 1168 (D.C. 2019); United States v.

Nelson, 217 A.3d 717, 723 (D.C. 2019); Powell v. United States, 880 A.2d 248, 257

(D.C. 2005) (“burden is on the appellant to demonstrate that he is entitled to relief”).

520 (Conn. 2013). The court reasoned that this “‘strict standard of materiality’ is appropriate in such cases ‘not just because they involve prosecutorial misconduct, but

more importantly because they involve a corruption of the truth-seeking function of

the trial process.’” Id. at 521 (quoting Agurs, 427 U.S. at 104).

Prior to Chapman, the Illinois state courts “placed the burden on the defendant

to show by clear and convincing proof that the testimony was perjured and that it

was so material to the issue as to have probably controlled the result.” People v.

Bracey, 283 N.E.2d 685, 689 (Ill. 1972). However, post-Chapman, the Illinois high

court explained that, while a defendant should have the burden to prove

that perjured testimony was used in a manner proscribed by Napue . . .

we do not believe that in line with Chapman the defendant can be required to sustain the further burden of proving that the perjured testimony was so material to the issue as to have probably controlled the

result . . . or that there was a reasonable possibility that the evidence

complained of might have contributed to the conviction. Id. at 690.

The court explained, “Once the condumned [sic] use of perjured testimony has been

established, Chapman dictated that the burden then be placed on the State to establish beyond a reasonable doubt that the perjured testimony did not contribute to the

conviction.” Ibid.

B. The courts of last resort in Florida and Illinois, and the

Ninth and Eleventh Circuits, hold Napue claims require

a cumulative materiality/harm analysis, like Brady

claims.

The TCCA in Petitioner’s case considered only Glaspie’s false testimony about

Brown’s participation in the robbery and not the other false testimony about Brown

or Glaspie’s false testimony about his incentive to be honest. Thus the TCCA failed

to consider the impact on Glaspie’s credibility in general, or his claim that Petitioner

shot Jones, in particular.

Like this Court in Napue, 360 U.S. at 269, lower courts recognize that exposing

a false testimony on one topic undermines the credibility of the witness on others. For

example, in Hayes, supra, the Ninth Circuit considered how the revelation of a secret

deal with a prosecution witness would have impacted his credibility including how

the State “had falsely buttressed his credibility before the jury” by allowing him to

deny the deal it made with him. 399 F.3d at 987-88. Also unlike the court in Petitioner’s case, the Ninth Circuit considered how “the State’s independent duty under

Alcorta and Pyle … would have … forced [the prosecutor] to disclose to the jury” that

it allowed its witness to lie. Id. at 988.

The Illinois Supreme Court employed a similar approach in People v. Olinger,

176 Ill. 2d 326 (1997), holding that a post-conviction petitioner would demonstrate an

entitlement to relief if he proved the prosecution allowed an informant to lie about

the favorable treatment he would receive for his testimony. The court found the jury

could have found the informant “was unworthy of belief because he had an overwhelming incentive to fabricate testimony.” Id. at 349.

Recognizing that all Napue claims are also Brady claims, the Eleventh Circuit

follows Kyles and evaluates both “‘the tendency and force of the undisclosed evidence

[of falsity] item by item,’” and, separately, “‘its cumulative effect for purposes of materiality.’” Smith, 572 F.3d at 1333 (quoting Kyles, 514 U.S. at 436-37 n.10).

Similarly, in Johnson v. State, 44 So. 3d 51 (Fla. 2010), as revised on denial of

reh'g (Sept. 2, 2010), the Florida Supreme Court’s materiality analysis considered

each instance of a jailhouse informant’s false testimony, and the prosecutors allowance of it during a suppression hearing, and reliance upon it at trial, and in closing

argument. 44 So. 3d at 66-70. The false testimony was material to the sentencing

verdict. The informant’s false testimony tended to reinforce the prosecution’s claim

that the crime was deliberate, id. at 71-72, and to undermine Johnson’s claim that he

was mentally ill. Id. at 72.

III.

This case presents an excellent vehicle for resolving the

lower courts’ conflicting applications of Napue

Like Napue itself, Joubert’s case reaches this Court after merits review in state

court. Texas conceded that the evidence of Glaspie’s false testimony had been suppressed, and therefore was not previously available to Joubert. See App. 4a; App. 64a.

The TCCA found the State’s suppression of evidence meant Joubert could not have

raised his claim earlier, and accordingly held that under state law, Joubert was entitled to review on the merits. App. 75a. This Court can resolve the split between the

lower courts without the adjudicative restrictions applicable to federal habeas review.

E.g. 28 U.S.C. § 2254(d).

This case also arrives with detailed, undisturbed findings of fact from a trial

court. There are no findings of fact adverse to Petitioner. On the contrary, the trial

court adopted Petitioner’s proposed findings of fact and conclusions of law. App. 4a.

Although the TCCA disagreed with the trial court’s legal conclusions, it did not reject

the trial judge’s factual findings. App. 5a.

The TCCA correctly found that Texas conceded that Glaspie had falsely accused Brown. However, the court failed to acknowledge that Texas also conceded that

“that the State elicited false testimony from Glaspie that his testimony was entirely

truthful.” State’s Amend. FFCL ¶ 57 (emphasis added). The trial court found 11 examples of false testimony in Petitioner’s trial. App. 50a-51a. Texas made no objection

to those findings. Thus, there can be no dispute before this Court regarding whether

the state court failed to consider all of the false testimony that Texas elicited in Petitioner’s trial.

Since the District Attorney revealed evidence that Rizzo had confirmed

Brown’s alibi through telephone records, Texas has not disputed that Rizzo knew

Glaspie’s testimony was false. On the contrary, as the trial court found, the District

Attorney admitted Rizzo was aware of the telephone records corroborating Brown’s

alibi before he presented Glaspie’s testimony that Brown participated in the robbery.

App. 37a. The trial court made detailed findings regarding Rizzo’s knowledge of the

false testimony. App. 52a-55a. Texas did not object to those findings before the TCCA,

and that court did not reject them.

In sum, this case presents a clear record of a prosecutor going to extraordinary

lengths to frame an innocent man for capital murder, and wrongly attribute a callous

lethal shooting to another. This Court should take advantage of this undisputed record to resolve the meaning of Napue’s standard and bring consistency to the courts

below.

There is at least a reasonably likelihood that Glaspie’s lies could have affected

the verdict. Jurors had to decide whether to believe Glaspie’s false account of himself

as the getaway driver and Joubert as the in-store robber who executed Jones, or

Joubert’s account of himself as the getaway driver. According to the prosecutor,

Glaspie told the truth, and Joubert was Jones’ “cold-blooded killer.” According to

Joubert, although he anticipated that Glaspie would kill Jones if the police arrived,

he also told police that he participated in the robbery because he believed it would

never come to that. The judgment could have turned on the view of a single juror. See

Andrus v. Texas, 140 S. Ct. 1875, 1886 (2020). 9

CONCLUSION

The petition for a writ of certiorari should be granted.

9 As to liability, a finding that the State did not meet its burden under Tison v. Ari-

zona, 481 U.S. 137 (1981), for whatever reason, would have affected the judgment of

the jury. As to sentencing, as this Court observed in Andrus, Texas’ statutory capital punishment scheme is dependent on a unanimous determination by the jurors

that a defendant poses a continuing threat to society, see Tex. Code Crim. Proc. Art.

37.071, § 2(b)(1) & (d)(2), as well as a unanimous verdict that there are no mitigating factors that warrant the imposition of a life sentence, see Tex. Code Crim. Proc.

Art. 37.071, § 2(e)(1) & (f)(2). The failure to reach a unanimous punishment decision

results in a default sentence of life imprisonment.

Respectfully submitted,

/s/ Tivon Schardl