Tag Archives: Giglio

We’re Ba-a-a-ck – Update for July 25, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HOBBLED BY TECHNOLOGY AND BUREAUCRATIC INCOMPETENCE

After seven years, over 1,400 posts and (this coming Sunday) our 400th weekly newsletter, our website crashed late last week. Our outstanding web host, which I won’t name but rhymes with “Bluehost,” only required five contacts and 96 hours to restore us.

Makes me proud to have sent the company all that money for so many years…

ALL IN THE FAMILY

Gilbert Bicknell and his son Junior ran a drug distribution business. Nothing wrong with that: Eli Lilly, Abbott Labs, and Pfizer do the same, earning substantial profits for their shareholders.

But Gil and Junior operated on a much smaller and less legal scale. They sold methamphetamines (and not from a licensed pharmacy, either). In July 2020, the police saw the pair passing around meth at a gas station. When the duo left in separate cars, the police gave chase to Junior (who was holding the bag). Gil swerved to cut off the pursuing cruisers to no avail, and both were arrested.

snitchin200309Gil pleaded guilty and, to avoid the 10-year mandatory minimum, gave the authorities a statement to qualify for the 18 U.S.C. § 3553(f) safety valve, which lets a district court impose a sentence below the otherwise mandatory minimum to low-level drug defendants who “truthfully provide to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” Gil debriefed and then claimed at sentencing that he should receive relief from the 21 U.S.C. § 841(b)(1)(A) 10-year mandatory minimum.

But Gil didn’t reckon on Junior, who cut his own deal and told the government that his dad had been less than candid in his debrief, leaving out a lot of criminal mischief from his admission of wrongdoing. At Dad’s sentencing, Junior testified against his father. Gil got 151 months.

But the government wasn’t without blemish. It signed a written plea agreement with Junior which he agreed to cooperate with the government by providing information about his father’s criminal conduct. But “perhaps owing to a clerical oversight,” the appellate decision helpfully suggests, “the plea agreement itself was not entered into the district court’s docket.” The government never disclosed the agreement to Gil.

At Gil’s sentencing, Junior testified against his father. What’s more, the boy falsely and repeatedly claimed he had entered an “open” plea of guilty – a plea not made pursuant to a plea agreement. The Assistant U.S. Attorney – who was the same one who signed Junior’s plea agreement on behalf of the government – suborned the perjury.

The government also put the case agent who had conducted Gil’s safety-valve proffer on the stand. He testified that based on watching the interview, he thought Gil had “tried to minimize his own criminal conduct and that he generally came across as not credible.”

snitch160802The district court smelled a rat. During a break in the proceedings following Junior’s testimony against his father, the Court managed to locate a copy of the written plea agreement. The judge told the parties what he discovered, but Gil’s lawyer inexplicably did not recall Junior to the stand to confront the boy about his lies.

On appeal, Gil argued that his Brady and Giglio rights had been violated. A couple of days ago, the 7th Circuit agreed, but said “so what?”

In the 1962 Brady v. Maryland decision, the Supreme Court ruled that the government violates a defendant’s 5th Amendment due process rights when it suppresses evidence favorable to the defendant. A decade later, in Giglio v. United States, the Court confirmed that Brady’s disclosure requirement applies to evidence that could be used to impeach a government witness. In order to make a showing that his or her Brady/Giglio rights were violated, “a defendant must show that undisclosed information was ‘material either to guilt or to punishment.’”

The Circuit said, “Brady’s materiality requirement explains the result here. Gilbert Bicknell was left completely in the dark about evidence that would have been useful to impeach a witness who testified against him at sentencing. That evidence would not have affected the outcome of his sentencing, though, so the government’s failure to disclose does not lead to relief under Brady or Giglio.”

The 7th said that Junior’s plea agreement would have been “useful impeachment evidence, as it would have definitively shown that he was co-operating with the government and, in the interest of receiving a reduced sentence, may have had an incentive to slant his testimony. But the fact that Junior testified as a government witness was itself enough to make plain to anyone at the hearing—including Gilbert, his lawyer, and the district court—that he was cooperating with the government. Remember too that Junior admitted his desire for a reduced sentence while on the witness stand.”

The boy’s stated hope for a lesser sentence gave Gil’s lawyer plenty of ammo to cross-examine Junior on his credibility even without the plea agreement. Gil’s lawyer, the Circuit said, “opted not to challenge Junior’s credibility based on the information he had available to him, but his decision not to use that evidence does not make the plea agreement any less cumulative.”

brady160314The case was not a slam-dunk. The 7th Circuit said at the outset: “But make no mistake: the government’s failure to adhere to its disclosure obligation deeply troubles us. It failed to inform a criminal defendant before sentencing that one of the government’s key witnesses—the defendant’s own son—would be testifying pursuant to a cooperation agreement. That agreement was a textbook example of Giglio information, and it is very unsettling that more care was not taken to ensure its disclosure before sentencing. Though we must affirm, we do so reluctantly.”

To be sure, Gil has ample basis to question his lawyer’s failure to pursue the blatantly false statements, and he can do so in a 28 USC § 2255 motion. But the Circuit’s ruling glosses over an important question: Junior lied, but so did the Assistant U.S. Attorney. Without penalizing the government for its attempted cheat, the 7th’s decision suggests that there is no downside to the prosecution for getting caught.

United States v. Bicknell, No. 22-2268, 2023 U.S. App. LEXIS 18300, at *9 (7th Cir. July 19, 2023)

– Thomas L. Root

Pay No Attention to the Witness’s Lie – Update for November 6, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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WHOSE PANTS ARE ON FIRE?

corso170112You’d think that when a key prosecution witness lies on the stand during a murder trial, and the prosecutor knows it and the judge knows it and everyone except the jury knows it, the judge or the prosecutor would jump up and say, “Not so fast!”

After all, the obligation of someone – and that someone is supposed to be the prosecutor – to tell the jury the witness is lying is pretty well established after Napue v. Illinois and Giglio v. United States.

lies171106It’s pretty important that the prosecutor tell the jury his or her witness is lying. The defense attorney can do that, and often does, but somehow the punch of branding the other side’s witness a liar is not quite as effective as telling the jury your own witness is a liar. And even if the lie is about something tangential to the meat of the testimony, it’s important that the jury know about it. You lie about a little thing, you may lie about big things, too.

Consider the fate of poor Lariec Sherman, shot to death 18 years ago in a Peoria, Illinois, housing project. Although there was no physical evidence, the State of Illinois quickly rustled up four people who said Paysun Long was the shooter.

At Paysun’s first trial, two witnesses changed their stories, but the prosecutors playing the recordings of their statements made before they had recanted. One of the remaining two witnesses, Brooklyn Irby, first fingered Paysun but then then changed her story. She ultimately testified that before the trial, she told prosecutors her story about Paysun being the shooter was a lie.

Paysun was convicted, but it was overturned on appeal.

When Paysun was retried, prosecutors used the recorded testimony of two witnesses and live testimony from the other two. The defense again told jurors about how two witnesses had recanted. When Irby testified, she told the jury that Paysun was the shooter, but her account of the crime differed from what the other eyewitness said. The most damaging witness said Paysun shot the victim from behind.

pantsonfire160805It was Irby’s cross-examination that was interesting. She denied she had ever told the police and prosecutors that her initial identification was a lie. Although the prosecutor did nothing to correct her testimony, Paysun’s attorney didn’t sit on his hands. He called the prosecution’s own investigator as a witness, who admitted to jurors that Irby had indeed recanted her incriminating testimony during the first trial.

Even during closing arguments, the prosecutor never acknowledged that Irby had lied. Instead, he told the jury about a letter Irby had written that was even not in evidence. The judge interrupted, telling the jury to disregard the State’s attempt to put unadmitted hearsay in front of the jury, but all the instruction did was to get the jury’s attention. So much so, in fact, that during deliberations, the jury  asked to see the letter that was not part of the record.

Unsurprisingly, Paysun lost the second trial, too.

Paysun filed a post-conviction motion in state court, arguing the prosecutor violated Napue v. Illinois, which holds that the a prosecutor’s failure to correct a government witness’s false testimony is a due process violation. For good measure, Paysun complained that the State violated Giglio v. United States as well, which held that prosecutors have a duty to disclose to deals they make to get witnesses to testify.

Illinois courts ruled Paysun’s prosecutor had violated Napue and Giglio, but that it was “harmless error” because of other evidence in the case (that being the shaky testimony of the only eyewitness who had not recanted) that proved Paysun’s guilt. After appeal failed, Paysun filed a 28 USC 2254 motion in federal court, seeking review of the Illinois courts’ denial of habeas.

The district court agreed that the Napue and Giglio violations were presumed to prejudice Paysun, without any harmless error analysis allowed. Last year, the 7th Circuit agreed, but then the State won the right to an en banc rehearing.

Late last month, an en banc panel of the Circuit decided 5-3 that Napue and Giglio did not necessarily mean a defendant had a due process claim if the false testimony wasn’t elicited by prosecutors, if the truth was already known to the defense during trial, if the prosecutor did not ask jurors to rely on the false testimony, or if the jury learned the truth anyway.

cmon161027Here, the panel said, although the prosecutor remained silent about Irby’s perjury, Paysun’s lawyers exposed it. Plus, the prosecutor didn’t specifically rely on Irby’s false testimony, but instead just talked around it, arguing that her identification of Paysun as the gunman was true regardless of whatever the jury might think about the rest of what she said. In fact, the majority hypothesized, maybe the prosecutor’s refusal to correct Irby’s testimony actually helped Paysun because it allowed his attorneys to be the ones to portray Irby as a perjurer.

“C’mon, man,” the three dissenting judges seemed to say. The dissent was puzzled, dismayed maybe, that the majority would let a prosecutor get away with a lie. They said, “the majority’s suggestions that Napue leaves the state courts room to avoid following it on the facts of this case are without support. Napue expressly rejected several of the suggestions, and its logic clearly rejects the last.”

Paysun’s attorneys have not revealed whether they plan to seek Supreme Court review. However, one commentator said, “it seems an obvious avenue of appeal, giving the justices an opportunity to reaffirm the principle they announced in 1959 and in 1972, that the government has a constitutional and ethical obligation to ensure that it speaks out against perjury when it unfolds in the middle of a trial in front of the jury.”

Long v. Pfister, Case No. 13-3327 (7th Cir., Oct. 20, 2017) (en banc)

The Marshall Project, Getting Away with Perjury (Oct. 30, 2017)

– Thomas L. Root

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