Sunday, May 14, 2006

Case o' The Week: Morris Finicky About Gov't-Witness Perjury

In Morris, the Ninth turns up its nose to a prosecutor’s failure to pursue suspicions of government-witness perjury. Morris v. Ylst, __ F.3d __, 06 Cal. Daily Op. Serv. 5195 (9th Cir. May 9, 2006), opinion available here. The new, good rule is this: a prosecutor must investigate suspicions of government-witness perjury, and report incidents of perjured testimony.

Players: Author, Graber; righteous concurrence by Ferguson attacking the fairness of the death penalty prosecution in this case.

Facts: Habeas petitioner Morris got a death sentence for beating a hitchhiker to death with a rock and a stick. Id. at 5201. His trial defense was straight innocence. He testified that his girlfriend – Barrett – and her sister were the killers. Id. at 5202. At trial the girlfriend flipped and testified against Morris. Id. at 5203.
After trial, the prosecutor’s legal assistant wrote a memo explaining, “[Barrett] perjured herself at trial,” talked about getting transcripts, and “determination of Barrett’s perjury.” Id. at 5203. There was, however, no investigation into the perjury. The memo itself was only disclosed years later, on habeas. Id. at 5204.

Issue(s): “[W]e must decide whether the prosecution had a duty to investigate an allegation or suspicion of perjury, separate from its duty to disclose perjury that has definitely taken place.” Id. at 5210.

Held:.“When a prosecutor suspects perjury, the prosecutor must at least investigate. The duty to act is not discharged by attempting to finesse the problem by pressing ahead without a diligent and good faith attempt to resolve it. A prosecutor cannot avoid this obligation by refusing to search for the truth and remaining willfully ignorant of the facts. Id. . . . . The Court has emphasized that the presentation of false evidence involves a corruption of the truth-seeking function of the trial process. This truth-seeking function cannot be fulfilled when the state, knowing that a witness may have perjured herself, proceeds without conducting an investigation to ensure that a new trial is not warranted. The duty to investigate flows from the constitutional obligation of the State and its representatives to collect potentially exculpatory evidence, to prevent fraud upon the court, and to elicit the truth. Id. at 5211 (internal quotations and citations omitted). {But, in this habeas petition no sufficient showing of prejudice, so no ultimate habeas relief. Id. at 5214.}

Of Note: This dense opinion bristles with issues and rules. An interesting parallel issue to the perjury question is whether a prosecutor must disclose work product that opines his witness perjured himself? Id. at 5207. The answer, disappointingly, is no. The Ninth adopts a new rule, agreeing with the 11th Circuit: “Thus, in general, a prosecutor’s opinions and mental impressions of the case are not discoverable under Brady unless they contain underlying exculpatory facts.” Id. at 5208. In this case, the opinion regarding perjury was not based on facts unknown to the defense, so it was not Brady.

How to Use: All prosecutors know that they have to disclose their witness’s perjury – they just don’t recognize perjury unless their witnesses spontaneously confess to such in a signed, red-ink declaration in size 42 font (twice notarized). The Morris rule is that a prosecutor has to affirmatively investigate suspicions of government witness perjury. “Wilful ignorance” won’t cut it. Quote this good Morris rule in discovery letters to remind prosecutors of their obligations.

For Further Reading: As noted above, Judge Ferguson has a dead-on concurrence to the main opinion. Id. at 5215. He explains, “I write separately to underscore the prosecutor’s abuse of his discretion in singling out the Petitioner for the death penalty, when it is the state’s position that the three defendants are equally guilty of . . . felony murder.” Id. Morris’s girlfriend got three years out of the case for a vehicle code violation; her sister was never prosecuted. Id. at 5216.

Is Lizzie Borden haunting death penalty litigation? See discussion of sex bias and death sentences here.

If you really needed one, here’s yet another reason oppose the death penalty.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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