On Point: 32. Prosecutor misconduct

Wetzel v. John Lambert, USSC No. 11-38, 2/21/12, vacating and remanding 633 F.3d 126 (3rd Cir. 2011)

Lambert claimed that state prosecutors withheld exculpatory information: a “police activity sheet” that arguably suggested someone other than, or perhaps in addition to, himself committed the offense (robbery and murder); and that could have been used to impeach the principal state’s witness. The state (Pennsylvania) court deemed the information too ambiguous to show that someone else had committed the robbery,

seventh circuit decision

Habeas – Knowing Use of False Testimony (“Napue”) 

Due process prohibits knowing prosecutorial use of false testimony, Napue v. Illinois, 360 U.S. 264, 269 (1959). However, the prosecutor’s exploitation of Bland’s incorrect testimony on a potentially important point (the date his gun was confiscated) doesn’t support habeas relief on a Napue-type theory.

Napue and Giglio hold that a prosecutor may not offer testimony that the prosecutor knows to be false.

City of Beloit v. Steven A. Herbst, Sr., 2010AP2197, District 4, 1/12/12

court of appeals decision (1-judge, not for publication); for Herbst: Tracey A. Wood; case activity

Evidence held sufficient to support OWI conviction, where Herbst was found in parked car, slumped over the steering wheel with the engine running, along with evidence that the designated driver gave Herbst the keys to the vehicle so he could go to sleep. 

State v. Charles A. Clayton-Jones, 2010AP2239-CR, District 4, 12/15/11

court of appeals decision (not recommended for publication); for Clayton-Jones: Martin E. Kohler, Craig S. Powell; case activity

 Clayton-Jones resolved a 2006 charge (involving sexual assault of a boy) with a plea bargain, in which the state was to recommend 12 years initial confinement. Before sentencing, he allegedly violated bond conditions, and the state sought to be relieved of its bargained-for allocution limit.

Samuel Morgan v. Hardy, 7th Cir No. 10-3155, 11/7/11

seventh circuit decision

Habeas – Recantation 

The Illinois state court didn’t mishandle either the facts or applicable law, and its rejection of State witness Prater’s post-trial recantation as incredible wasn’t unreasonable. The petitioner’s task is to “show[] that the state court determined an underlying factual issue against the clear and convincing weight of the evidence” – though the recantation here is consistent with the physical evidence,

seventh circuit court of appeals decision, denying habeas relief on review of Wis. COA No. 2008AP1533-CR; prior history: 2001AP713-CR, 1995AP1856-CR

Habeas – Exculpatory Evidence – Available to Defendant

Jardine argues that the State suppressed exculpatory evidence, namely that post-conviction testing of the gun he admittedly possessed but denied using to club the victim didn’t reveal the presence of the victim’s DNA.

Florence County Department of Human Services v. Jennifer B., 2011AP88, District 3, 8/19/11

court of appeals decision (1-judge, not for publication); for Jennifer B.: Martha K. Askins, Shelley Fite, SPD, Madison Appellate; case activity

Removal from jury consideration of a ground for termination (CHIPS orders) without prior discussion between court and parties was error:

¶10      While we agree that a directed verdict is available in the grounds phase of a TPR proceeding, 

State v. Richard K. Numrich, 2010AP1544-CR, District 2, 8/3/11

court of appeals decision (1-judge, not for publication); for Numrich: Chad A. Lanning; case activity

Instances of prosecutorial misconduct (objecting in the jury’s presence to a line of questioning that implied the existence of inadmissible evidence; stating in closing argument that it is defense counsel’s “job to create doubt”) warranted neither mistrial, ¶¶15-16 (especially in light of curative instruction);

7th circuit court of appeals decision

Prosecutorial Misconduct – Knowing Use of False Testimony

When the government obtains a conviction through the knowing use of false testimony, it violates a defendant’s due process rights. Napue v. Illinois, 360 U.S. 264, 269 (1959); United States v. Bagley, 473 U.S. 667, 679 n.8 (1984) (discussing the evolution of the rule in Napue).

State v. Keith A. Stich, 2010AP2849-CR, District 2, 6/22/11

court of appeals decision (1-judge, not for publication); for Stich: Andrew Joseph Burgoyne; case activity

Stich’s failure to heed an officer’s instruction to stop – instead, Stich walked away and into his house and encouraged his companion Lidbloom to do likewise – established the crime of obstructing. The police were investigating an earlier incident, and “Stich’s actions, which delayed the deputies’ ability to question Lidbloom,