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The Seventh Circuit endorses prosecutor’s lie:  Long v. Pfister, No. 13-3327 (7th Cir. October 20, 2017)

On Behalf of | Nov 6, 2017 | Firm News

Getting Away with Perjury: If a witness lies, whose job is it to say so?

The state presented four witnesses; two recanted at trial. In closing argument, the prosecutor made improper statements, resulting in a new trial. At Long’s second trial, the state again presented the four eyewitnesses. One maintained her identification of Long. Two, having previously recanted, continued to deny having seen Long shoot Sherman, despite their prior videotaped statements. The prosecutor failed to correct Irby when she claimed that she had not previously stated that her identification was coerced; defense counsel impeached that testimony. During closing arguments, the prosecutor made comments that no evidence was presented that another individual committed the crime and referenced the contents of a letter written by Irby that had not been admitted into evidence. The jury found Long guilty. His state court appeals and post-conviction petitions were unsuccessful. On rehearing en banc, the Seventh Circuit affirmed the dismissal of Long’s federal habeas petition, finding the prosecutorial misconduct claims procedurally defaulted and that Long had not shown a reasonable likelihood that Irby’s testimony or the closing argument prejudiced the outcome; and that Long’s ineffective assistance claim was without merit. “[W]hat occurred [Irby’s testimony] may well have helped the defense rather than the prosecutor.”

​Somehow the seventh Circuit thought this was  different than “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959), citing Mooney v. Holohan, 294 U.S. 103 (1935), and other cases.  Napue then rejected other attempts to excuse the use of the false testimony. First, it made no difference that the false testimony addressed  credibility rather than his substantive testimony. 360 U.S. at 269. “A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.” Id. at 269-70, quoting People v. Savvides, 136 N.E.2d 853, 854 (N.Y. 1956).