Third Circuit Holds Habeas Petitioner’s Claim Based on Prosecutor Knowingly Using Perjured Testimony Not Subject to Brecht “Actual Prejudice” Standard
by Richard Resch
The U.S. Court of Appeals for the Third Circuit held that when the prosecution knowingly presents or fails to correct perjured testimony, the defendant is entitled to relief upon establishing a reasonable likelihood the false testimony could have affected the jury’s judgment and does not have to show “actual prejudice.”
In December 1994, Darrell Cooley was fatally shot outside a bar in Erie, Pennsylvania. Four years later, Vance Haskell was tried for Cooley’s murder. The prosecution presented four eyewitnesses who identified Haskell as the shooter, but all four were problematic witnesses. One recanted, and two had previously denied they could identify the shooter. The fourth eyewitness, Antoinette Blue, was purportedly consistent in identifying Haskell and claimed that she expected nothing in return for her testimony.
However, her testimony was not true, and the prosecutor knew that the testimony was perjurious. Despite Blue’s claim to the contrary, she expected to receive help in her pending criminal case in exchange for her testimony. The prosecutor failed to correct Blue’s testimony and even vouched for her veracity during closing argument. She subsequently received very favorable treatment in her own criminal case.
Haskell was convicted and filed a habeas petition, arguing that his conviction was tainted by perjured testimony in violation of his Fourteenth Amendment right to due process.
The Third Circuit determined that Blue provided perjured testimony, and the prosecutor failed to correct it even though he was aware that she had lied under oath. The Court explained that ordinarily the standard for relief under these facts is whether “there is a reasonable likelihood that the perjured testimony could have affected the judgment of the jury.” The standard was first articulated by the U.S. Supreme Court in Napue v. Illinois, 360 U.S. 264 (1954). But because Haskell’s challenge was raised in habeas proceedings (collateral review) rather than direct review, the Commonwealth argued that the more rigorous “actual prejudice” standard announced by the U.S. Supreme Court in Brecht v. Abrahamson, 507 U.S. 619 (1993), was the applicable standard for relief.
The Court rejected the Commonwealth’s argument. It noted that the Supreme Court held that the Brecht standard does not apply when the government violates Brady by suppressing exculpatory evidence. Kyles v. Whitley, 514 U.S. 419 (1995). The appellate court then likened the presentation of perjured testimony to the suppression of exculpatory evidence and reasoned that both forms of prosecutorial misconduct violate Brady. In fact, the Court observed that Brady itself was the result of a series of cases in which convictions were based upon the prosecution knowingly using perjured testimony.
The Third Circuit concluded by announcing “we hold that the actual-prejudice standard of Brecht does not apply to claims on habeas that the state has knowingly presented or knowingly failed to correct perjured testimony. A reasonable likelihood that the perjured testimony affected the judgment of the jury is all that is required.”
Consequently, the Court granted Haskell’s habeas petition and remanded for further proceedings consistent with its opinion.
It should be noted that the U.S. Courts of Appeals are split on this issue. With its decision in Haskell, the Third Circuit joined the Ninth in holding that Brecht does not apply to these facts, which seem to occur with alarming regularity. In contrast, the First, Sixth, Eighth, and Eleventh Circuits held that Brecht does apply. See: Haskell v. Superintendent Greene SCI, 866 F.3d 139, (3d Cir. 2017).
Additional sources: Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005); Gilday v. Callahan, 59 F.3d 257 (1st Cir. 1995); Rosencrantz v. Lafler, 568 F.3d 577 (6th Cir. 2009); United States v. Clay, 720 F.3d 1021 (8th Cir. 2013); Trepal v. Secretary, Florida Department of Corrections, 684 F.3d 1088 (11th Cir. 2012)
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