Prosecutorial Misconduct - Case Alert

Attention Prosecutors, Judicial Officers, and Private Counsel

By Robert Phillips, Deputy District Attorney (Ret.)

A Prosecutor Allowing the Use of False Testimony and Failing to Provide Relevant Evidence: In the U.S. Supreme Court decision of Napue v. Illinois (1959) 360 U.S. 264, 269, it was held that a conviction obtained through the knowing use of false evidence violates the Fourteenth Amendment’s Due Process Clause. To establish a Napue violation, a defendant must show that the prosecution knowingly solicited or allowed false testimony to go uncorrected. If a violation is established, a new trial is warranted, at least where the false testimony could in any reasonable likelihood have affected the jury’s judgment. In such a case, it becomes the prosecution’s burden to establish harmlessness beyond a reasonable doubt. (See United States v. Bagley (1985) 473 U.S. 667, 680, fn. 9; and Chapman v. California (1967) 386 U.S. 18, 24.)

In the very recent U.S. Supreme Court death penalty case of Glossip v. Oklahoma (Feb. 25, 2025) __ U.S. __ [__ S.Ct. __; __ L.Ed.2nd __; 2025 U.S. LEXIS 865], Oklahoma’s attorney conceded Napue error, agreeing that an important government witness, Justin Sneed, who defendant allegedly paid to murder the victim, possibly lied about a lithium prescription he had allegedly received and that the prosecution knowingly failed to correct this testimony. The Supreme Court found that the record supports the AG’s confession of error.

Nearly two decades after defendant’ conviction, the State disclosed eight boxes of previously withheld documents. The information in these boxes showed that Sneed had been prescribed lithium to treat bipolar disorder, not merely a cold medicine as he had claimed at trial. The evidence obtained from this withheld discovery further established that the prosecutor (who the Court referred to by name) knew Sneed’s testimony was false. As noted by the U.S. Supreme Court, the prosecution almost certainly had access to Sneed’s medical file through Sneed’s competency evaluation. Also, the prosecutor’s notes show that she had a pre-trial conversation with Sneed at which he mentioned “lithium” and referred to the doctor who allegedly prescribed the medication. The straightforward inference is that the prosecutor was aware before trial that Sneed had received a lithium prescription from Dr. Trombka, a psychiatrist and the sole medical professional at the Oklahoma County jail authorized to prescribe lithium. Sneed was allowed to testify that he had never seen Dr. Trombka; a fact that the delayed discovery showed was false.

Because Sneed’s testimony was the only direct evidence of defendant’s guilt, the jury’s assessment of Sneed’s credibility was material and necessarily determinative. Correcting Sneed’s lies would have undermined his credibility and revealed his willingness to lie under oath. The false testimony also bore on defendant’s guilt because evidence of Sneed’s bipolar disorder, which could trigger impulsive violence when combined with his drug use, would have contradicted the prosecution’s portrayal of Sneed as harmless without defendant’s influence. Hence there was a reasonable likelihood that correcting Sneed’s testimony would have affected the judgment of the jury. Additional prosecutorial misconduct, such as violating the rule of sequestration, destroying evidence, and withholding witness statements, further undermined confidence in the verdict. Consequently, the prosecution’s failure to correct Sneed’s false testimony entitled defendant to a new trial under Napue. Defendant’s conviction, therefore, was reversed and the matter remanded for a new trial.

A warning to prosecutors: Our goal is to do justice; not obtain convictions. It should go without saying that this requires that all potentially exculpatory evidence be revealed prior to trial; not two decades later. (See Brady v. Maryland (1963) 373 U.S. 83.) While we may be convinced of a defendant’s guilt, it is not our job to convict him, but rather to ensure that a jury is provided with all the available relevant information so that the jurors can make that ultimate decision. As to what is “relevant;” it is the trial court’s responsibility to make that decision; not the prosecutor’s. As noted above, the prosecutor was referred to by name in this case decision. As a result, she has been publicly shamed and her entire career is compromised. Was it worth it? I think not.

Click here to review the entire decision