by Douglas Ankney

In a case involving an issue of first impression in Utah, the Supreme Court of Utah adopted a two-step analytical framework for evaluating prejudice when both Brady and Napue violations are present, drawing from approaches utilized by several United States Courts of Appeals. Applying the new framework to Utah’s Post-Conviction Remedies Act (“PCRA”), the Court concluded that the State’s due process violations, including suppression of favorable evidence and the prosecutor’s knowing failure to correct false testimony, prejudiced the defendant at both the guilt and sentencing phases of his capital case.

Background

Eva Olesen was murdered in her Provo, Utah, home in 1985. Douglas Carter was subsequently convicted and sentenced to death for the crime. No physical evidence connected Carter to the murder scene. The prosecution’s case instead rested primarily on Carter’s confession, which Lieutenant George Pierpont, the lead investigator, obtained during a 30-minute unrecorded interrogation in Tennessee after local officers had questioned Carter for approximately six hours over two days without securing any admissions.

Epifanio Tovar and his wife Lucia provided critical corroborating testimony. Epifanio testified that Carter visited his home on the night of the murder, announced he was going to “rape, break, and drive,” departed for approximately two hours, then returned and confessed to killing a woman by stabbing and shooting her. Lucia testified about observing Carter demonstrate how he had committed the crime while laughing.

Decades later, both Epifanio and Lucia signed sworn declarations revealing that police had threatened them with deportation, arrest, and separation from their infant son during the investigation and prosecution. The declarations also disclosed that police had provided the couple with substantial financial support and instructed them to deny receiving any benefits if asked at trial.

Carter petitioned for postconviction relief. Following a four-day evidentiary hearing, the postconviction court made extensive factual findings. It determined that at Pierpont’s direction, Officer Richard Mack paid the Tovars over $4,000 in living expenses during the eight to nine months preceding trial, covering rent, utilities, groceries, and phone service. The court concluded these payments were designed to ensure the Tovars’ continued availability and cooperation as witnesses, rendering them dependent upon and beholden to law enforcement.

The postconviction court further found that Mack and Pierpont had threatened the Tovars with deportation, arrest, and family separation on multiple occasions. Mack told the couple that deportation would not occur as long as they cooperated with police, language the court interpreted as an implicit threat of consequences should cooperation cease.

Most significantly, the court concluded that police had instructed the Tovars to provide false testimony. Mack directed both Tovars to deny receiving financial benefits if questioned at trial. Pierpont separately coached Epifanio to testify falsely that Carter had announced an intent to “rape, break, and drive” before the murder, a statement Carter never actually made. At trial, Epifanio complied with both instructions. When defense counsel asked whether he or his family had received financial support from police, Epifanio falsely claimed they had received nothing beyond $14 witness fees. He also testified that Carter uttered the fabricated “rape, break, and drive” statement.

The prosecutor, Wayne Watson, knew the Tovars had received financial assistance but did nothing to correct Epifanio’s false denial. Watson was present at a pretrial meeting where the phrase “rape, break, and drive” was discussed, though the postconviction court found insufficient evidence that Watson personally knew this testimony was fabricated.

The postconviction court ruled that these actions violated Carter’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959). It vacated Carter’s conviction and death sentence and ordered a new trial. The State timely appealed, challenging primarily the prejudice determination.

Analysis

Because Carter sought relief under Utah’s PCRA, the Court explained that the petitioner must establish prejudice under the statute and that a court “may not grant relief from a conviction or sentence unless,” in light of the facts proved in the postconviction proceeding (viewed with the evidence and facts introduced at trial or during sentencing), either (1) “the petitioner establishes that there would be a reasonable likelihood of a more favorable outcome” or (2) if the petitioner challenges the conviction or the sentence on grounds that the prosecutor knowingly failed to correct false testimony at trial or at sentencing, “the petitioner establishes that the false testimony, in any reasonable likelihood, could have affected the judgment of the fact finder.” Utah Code § 78B-9-104(2)(a)-(b). The Court added that the PCRA’s prejudice standards “mirror” the materiality standards found in Brady and Napue.

The Court began by discussing the distinct standards governing Brady and Napue claims. Under Brady, the prosecution violates due process by suppressing evidence favorable to the accused that is material to guilt or punishment, regardless of the “good faith or bad faith of the prosecution.” The Court noted that the materiality standard requires demonstrating “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667 (1985).

Napue applies more broadly to circumstances involving false evidence known to the prosecution, including situations where the prosecutor knowingly uses perjured testimony, knowingly fails to disclose that conviction testimony was false, or allows false evidence to go uncorrected, the Court observed. The materiality threshold for Napue claims is less demanding. The violation requires reversal if the false testimony “in any reasonable likelihood could have affected the judgment of the jury.” Glossip v. Oklahoma, 145 S. Ct. 612 (2025). The Court explained that this lower standard reflects how deploying perjured testimony constitutes misconduct extending beyond the denial of a fair trial. It fundamentally corrupts the justice system’s truth-seeking function.

Unresolved Circuit Split

The State contested whether Watson’s failure to correct Epifanio’s fabricated “rape, break, and drive” testimony constituted a Napue violation, given that the postconviction court found Watson did not personally know this statement was false. The postconviction court had imputed Pierpont’s knowledge to Watson based on Pierpont’s status as a member of the prosecution team, reasoning that imputation principles applicable to Brady claims should extend to Napue analysis.

The Court acknowledged that this imputation question has generated disagreement among the U.S. Courts of Appeals. The Tenth Circuit in Smith v. Massey, 235 F.3d 1259 (10th Cir. 2000), refused to attribute law enforcement officers’ knowledge of false testimony to prosecutors for Napue purposes. That court noted the Fifth Circuit had adopted a similar position. [Ed.: Koch v. Puckett, 907 F.2d 524 (5th Cir. 1990).] In contrast, at least one Circuit has reached the opposite conclusion on the issue of imputation. [Ed.: Boyd v. French, 147 F.3d 319 (4th Cir. 1998), cert. denied, 525 U.S. 1150 (1999).]

The Court observed that the U.S. Supreme Court has not specifically resolved whether knowledge held by prosecution team members should be attributed to the prosecutor in Napue cases. In Briscoe v. LaHue, 460 U.S. 325 (1983), the Supreme Court noted it had addressed prosecutorial use of perjured testimony but had not determined whether police officers’ false testimony independently violates constitutional rights.

Rather than deciding this contested question, the Court concluded that resolution was unnecessary because analyzing the disputed testimony under the more demanding Brady standard, rather than the comparatively lenient Napue standard, would not change the outcome. The cumulative effect of all violations remained prejudicial regardless of which standard applied to this particular piece of evidence, the Court reasoned.

Framework for
Combined Violations

The Court confronted an analytical challenge that arises when cases involve both Brady and Napue violations subject to different materiality tests. Determining collective prejudice becomes complicated because applying the more lenient Napue standard universally would overweight Brady violations, while segregating the violations into separate groups would fail to capture their combined impact, the Court explained.

Drawing from the Ninth Circuit’s approach in Jackson v. Brown, 513 F.3d 1057 (9th Cir. 2008), and similar methodologies utilized by the Second and Fourth Circuits, the Court adopted a two-step framework. Juniper v. Davis, 74 F.4th 196 (4th Cir. 2023); United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997). The Court instructed that courts should first evaluate Napue violations collectively under the Napue standard. If those violations standing alone satisfy the materiality threshold, the analysis ends. If not, courts should then consider all Napue and Brady violations together under the more demanding Brady standard. The Court added flexibility to this framework by permitting courts to proceed directly to cumulative Brady analysis when that approach better suits a particular case.

Application to Prejudice Determination

The Court agreed with the State that the postconviction court had erred by applying an improper burden-shifting analysis to certain Brady violations. The postconviction court had used the harmless-beyond-a-reasonable-doubt standard, equivalent to Napue’s materiality test, for the suppressed coaching evidence and shifted the burden to the State. However, under the PCRA, the petitioner bears the burden of establishing prejudice.

Despite this methodological error, the Court concluded that the postconviction court reached the correct ultimate determination. Applying the proper framework, the Court assumed without deciding that Watson’s knowing failure to correct Epifanio’s false denial of financial benefits, the only undisputed Napue violation, was insufficient standing alone to satisfy that standard’s materiality requirement. It then considered all violations cumulatively under the Brady standard.

Regarding sentencing, the Court found clear prejudice. The prosecutor at Carter’s 1992 resentencing had argued that Carter harbored premeditated intent to “rape” and “hurt someone” and “went in there intending to do violence.” This characterization rested entirely on Epifanio’s fabricated testimony about the “rape, break, and drive” statement, testimony Pierpont had coached him to provide. In reality, Carter had told Epifanio only that he intended to break into a car and steal. Being falsely portrayed to a capital sentencing jury as someone who deliberately sought a victim to sexually assault and harm, when no such intent existed, created a reasonable likelihood of a more favorable outcome at sentencing, according to the Court.

At the guilt phase, the Court determined that cumulative prejudice undermined confidence in the verdict. Because no physical evidence connected Carter to the crime scene, the prosecution’s case depended on his confession and the Tovars’ corroborating testimony. The suppressed evidence damaged both pillars.

Carter’s confession was allegedly obtained by Pierpont, who was the sole witness to Carter’s initial oral statements and who dictated the written summary Carter signed. The defense theory portrayed Carter’s confession as coerced by unscrupulous officers. Disclosure that Pierpont had coached Epifanio to lie, pressured the Tovars through deportation threats, and knew about the fabricated denial of police payments would have provided powerful cross-examination material. This evidence would have seriously damaged Pierpont’s credibility and, by extension, diminished the weight jurors assigned to the confession he alone witnessed and transcribed, the Court stated.

The Tovars’ testimony provided essential corroboration. Disclosing the threats, payments, coaching, and resulting perjury would have enabled the defense to demonstrate that Epifanio actually committed perjury at trial, transforming their strategy from merely arguing he was untruthful to proving he lied under oath. Evidence of the Tovars’ financial dependence on police and their fear of deportation and family separation would have supplied compelling explanations for why Epifanio might fabricate testimony. At the evidentiary hearing, Epifanio himself explained he lied because he feared that without catching someone else, police would arrest him for the murder.

Lucia’s testimony also warranted scrutiny. At the evidentiary hearing, she retreated from significant portions of her trial testimony. She acknowledged not understanding the English conversation between her husband and Carter, though at trial she had recounted specific statements from that exchange. She could not recall what Carter was demonstrating when he lay on the floor, contradicting her trial testimony that Carter showed exactly how he forced the victim down and tied her hands.

The State argued that Perla’s testimony could have offset any credibility damage to Pierpont and the Tovars. The Court assumed Perla might have testified effectively had she been called in 1985 but concluded her testimony would have been insufficient to counterbalance the cumulative impact of the undisclosed evidence. The disclosure that law enforcement officers were willing to coach witnesses to commit perjury, confirmed by Epifanio’s actual false testimony, would have called into question the entire investigation’s integrity, according to the Court.

Conclusion

The Court characterized the constitutional violations as serious, noting the rarity of cases involving multiple instances of intentional misconduct by two police officers, including the lead investigator, and a prosecutor. Officers instructed important witnesses to lie about receiving benefits and, in Epifanio’s case, to fabricate evidence of Carter’s premeditated intent to commit rape. The prosecutor observed Epifanio’s false denial of financial support but remained silent despite knowing the testimony was untrue. Thus, the Court concluded that “Carter has established that if the Brady and Napue evidence had been disclosed, ‘there would be a reasonable likelihood of a more favorable outcome,’” § 78B-9-104(2)(a), and that its confidence in both the conviction and sentence was undermined.

Accordingly, the Court affirmed the grant of postconviction relief. See: Carter v. State, 570 P.3d 315 (Utah 2025).

Editor’s Note: Anyone interested in the analytical framework in cases involving both Brady and Napue violations subject to different materiality tests is encouraged to read the Court’s full opinion.   

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