EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, December 4, 2014

The Serial Podcast, Episode 10: The Supreme Court's Framework for Prosecution Witness Plea Bargains

I've been getting a lot of e-mail today about a prior post of mine entitled, "The Serial Podcast, Take 4: Did the Prosecution Violate the Brady Doctrine in Connection With Jay's Plea Deal?" It seems that the impetus is this morning's tenth episode of the Serial Podcast, "The Best Defense is a Good Defense," which touches upon this very issue. I have not listened to this episode yet, so I don't have any insight into what specifically happened at Adnan's trial. What I do know is that, in Napue v. Illinois, 360 U.S. 264 (1959), "[t]he Supreme Court established a framework for the application of Brady to witness plea agreements...." State v. Oulette, 989 A.2d 1048, 1056 (Conn. 2010). For now, I'll leave it to readers to decide where the prosecution's behavior at Adnan's trial falls within that framework.

As I noted in that prior post,

In Brady v. Maryland, the Supreme Court held that the prosecution violates the Due Process Clause when it fails to timely disclose material exculpatory evidence to the defendant. Evidence is material when it creates the reasonable probability of a different outcome at trial. In United States v. Bagley, the Supreme Court held that material exculpatory evidence includes evidence that could be used to impeach a key witness for the prosecution.

This takes us to Napue v. Illinois. In Napue, the defendant, Henry Napue, was charged with murder. The key witness for the prosecution was George Hamer, who was already serving a 199-year sentence for that same murder, which he claimed that he committed with the defendant. At the defendant's trial, Hamer testified as follows:

Q. Did anybody give you a reward or promise you a reward for testifying?

A. There ain't nobody promised me anything.

On redirect examination the Assistant State's Attorney again elicited the same false answer.

Q....Have I promised you that I would recommend any reduction of sentence to anybody?

A. You did not.

On cross-examination, however, the following testimony was elicited from Hamer:

Q....And didn't you tell him (one of Napue's attorneys) that you wouldn't testify in this case unless you got some consideration for it?

A. * * * Yes, I did; I told him that.

Q. What are you sentenced for?

A. One Hundred and Ninety-Nine Years.

Q. You hope to have that reduced, don't you?

A. Well, if anybody would help me or do anything for me, why certainly I would.

Q. Weren't you expecting that when you came here today?

A. There haven't no one told me anything, no more than the lawyer. The lawyer come in and talked to me a while ago and said he was going to do what he could.

Q. Which lawyer was that?

A. I don't know; it was a Public Defender. I don't see him in here.

Q. You mean he was from the Public Defender's office?

A. I imagine that is where he was from, I don't know.

Q. And he was the one who told you that?

A. Yes, he told me he was trying to get something did for me.

Q. * * * And he told you he was going to do something for you?

A. He said he was going to try to.

Q. And you told them (police officers) you would (testify at the trial of Napue) but you expected some consideration for it?

A. I asked them was there any chance of me getting any. The man told me he didn't know, that he couldn't promise me anything.

Q. Then you spoke to a lawyer today who said he would try to get your time cut?

A. That was this Public Defender. I don't even know his name.

After he was convicted of the murder, the defendant "filed a post-conviction petition, in which he alleged that Hamer had falsely testified that he had been promised no consideration for his testimony...." The former Assistant State's Attorney handling Napue's case initially indicated that "he had promised Hamer that if he would testify against Napue, 'a recommendation for a reduction of his (Hamer's) sentence would be made and, if possible effectuated.'" Later, at the defendants PCR hearing, the former ASA testified "that he had only promised to help Hamer if Hamer's story ‘about being a reluctant participant’ in the robbery was borne out, and not merely if Hamer would testify at petitioner's trial."

The defendant was unsuccessful in appealing his conviction in state court, with the Supreme Court of Illinois (1) acknowledging that Hamer lied about being promised no consideration by the ASA; but (2) concluding that the defendant "was entitled to no relief since the jury had already been apprised that someone whom Hamer had tentatively identified as being a public defender 'was going to do what he could' in aid of Hamer, and 'was trying to get something did' for him."

The United States Supreme Court disagreed and granted the defendant relief. Here's a condensed version of the Court's conclusion:

First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment....The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.

The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend....

Second, we do not believe that the fact that the jury was apprised of other grounds for believing that the witness Hamer may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one. As Mr. Justice Schaefer, joined by Chief Justice Davis, rightly put it in his dissenting opinion below...:

‘What is overlooked here is that Hamer clearly testified that no one had offered to help him except an unidentified lawyer from the public defender's office.’

Had the jury been apprised of the true facts, however, it might well have concluded that Hamer had fabricated testimony in order to curry the favor of the very representative of the State who was prosecuting the case in which Hamer was testifying, for Hamer might have believed that such a representative was in a position to implement (as he ultimately attempted to do) any promise of consideration.

As noted in the introduction, Napue "established a framework for the application of Brady to witness plea agreements...." And here is the Supreme Court of Connecticut's explanation of that framework in State v. Oulette:

[T]his court has stated: "[D]ue process is...offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears....If a government witness falsely denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception....Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading....A new trial is required if the false testimony could...in any reasonable likelihood have affected the judgment of the jury

So, does the behavior of the prosecution and Jay at Adnan's trial fall within this framework? Did Jay substantially mischaracterize the nature of the plea deal, and did the prosecution fail to correct him? As I said, I haven't yet listened to the tenth episode yet, but I have read the appellate briefs. And, as I noted in my prior post, Adnan's claim on appeal seemed to be that the prosecution/Jay lied about the prosecution hiring a private attorney for Jay. Obviously, there are many differences between Adnan's trial and Napue, in which the prosecution witness claimed that there was not even a deal between him and the prosecutor. But at the heart of both cases, there's the issue of the prosecution possibly not disclosing arrangements it made between the witness and an attorney. I'll wait until I listen to the episode before drawing any final conclusions.



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It is frustrating to try and figure out what was going on with Jay's plea agreement and prosecution-provided counsel when there aren't transcripts to review, and when the appellate briefs are being vague about what the deal was. I think Jay was right, though, when he testified that something about it smelled fishy.

Do you have any thoughts on how Jenn was permitted to testify about Jay's statements to her concerning Adnan strangling Hae in the Best Buy parking lot? Would love to hear, if so. There is nothing else that I have seen to show the context of that testimony, so maybe there was something else going on to explain it, but I'm having trouble trying to figure out what.

Posted by: Susan | Dec 4, 2014 10:22:13 AM

Susan, I'm assuming that you're referring to this testimony you cited on your blog:

At trial, Jenn testified that “[b]etween 8:00-8:15 p.m., [she] got a message from [Jay] to pick him up at Westview [“WV”] Mall in 15 minutes, so she left and picked him up in front of Value City.” (Brief of Appellant at 13.) Jenn arrived there first. When Jay and Adnan arrived, “[Adnan] was . . . driving, and said hello to [Jenn]. [Jay] got in her car and said . . . ‘[Adnan] strangled Hae in the Best Buy parking lot. [I] saw her body in the trunk.’ . . . [Adnan] used [Jay’s] shovels to bury her and [Jay] wanted to make sure there were no fingerprints on them.” (Brief of Appellant at 13.) Jenn further “testified [Jay] told her he wanted to go check on Stephanie to make sure she was okay. They went to Stephanie’s house between 8:30-9:00 p.m.”

I don't see how this testimony was admitted unless defense counsel failed to object. Maryland Rule of Evidence 5-805 states that "[i]f one or more hearsay statements are contained within another hearsay statement, each must fall within an exception to the hearsay rule in order not to be excluded by that rule."

Let's start with Adnan's alleged statement. That would be covered by Maryland Rule of Evidence 5-803(a)(1), which indicates that a statement is not hearsay if it "is offered against a party and is...[t]he party's own statement, in either an individual or representative capacity...." Because the statement is Adnan's own (alleged) statement and is being offered against him by the prosecution, it satisfies Rule 5-803(a)(1).

But, under Rule 5-805, the prosecution would also have to establish that Jay's statement about Adnan's statement meets some hearsay exception or exclusion. It's hours after Adnan's alleged statement, so it's not a present sense impression, which is a hearsay exception under Rule 5-803(b)(1). There's no indication that Jay was stressed when he made the statement, which, again, was hours after Adnan's (alleged) statement, so it's not an excited utterance, which is an exception under Rule 5-803(b)(2). It's about a past event, so it's not a statement of existing condition, which is an exception under Rule 5-803(b)(3). And so on and so forth. There's no conceivable hearsay exception or exclusion that covers Jay's statement about Adnan's (alleged) statement.

By the way, great work on your blog. It's an invaluable resource for people looking into the case.

Posted by: Colin Miller | Dec 4, 2014 11:10:41 AM

Likewise with your posts on the state's evidence! Especially since the podcast has hardly mentioned the evidentiary issues at all, even though it was such a huge deal with Syed's trial.

Jenn's testimony has been bothering me ever since I saw the appellate briefs. I keep assuming there had to have been*something* that happened at trial to explain how it got in, but I haven't been able to think of a single exception that could possibly fit. Glad to hear there is nothing obvious I missed. Was defense counsel just asleep at the wheel?

The best explanation I've been able to come up with is that Jenn changed her testimony at trial, and the state was able to somehow get Jay's statements in as excited utterances. But that doesn't match her statements in the police interview, because here is how she described Jay telling her about Adnan killing Hae:

"When he gets in the car, he's like 'okay, put on the seat belt, let's go.' I was like 'alright, let's go' and um he says 'Jen, you got to swear you won't tell nobody what I'm about to tell you' and I was like 'all right.' He's like 'but I got to tell you. I got to tell somebody. I can't, you know' and I was like 'alright, what's up Boo?' He was like 'um Adnan killed Hae' and that's when I was just like 'woo, what do you mean that Adnan killed Hae, why, what, how, when, where' you know. Normal questions I guess you would ask." (Jenn Interview at 15-16.)

There's nothing else in her statement that I can find, whatsoever, that could justify invoking the excited utterance exception. The only thing that even seems to come close comes from when Jenn describes how Jay was acting after he and she returned to Westview Mall, and he went back to the dumpsters to wipe down fingerprints from the "shovels or shovel." She says that:

"So then after that Jay came back to my car and he was really shooken up, he's completely shooken up. He was like 'you have to take me to go see my girlfriend now.' I took him, I'm pretty… I think I… I think that's what he did… I think I took him to see Stephanie 'cause he was very concerned for Stephanie's well being." (Jenn's Interview at 3.)

But obviously Jay is not talking about Adnan killing Hae at that point. So it still doesn't explain how the earlier statements got in.

Posted by: Susan | Dec 4, 2014 12:05:11 PM

Generally, excited utterances need to be made within seconds of minutes of a startling event or condition. In rare, cases, a a couple of hours can pass. Usually, courts require extreme circumstances to allow for several hours to pass between the event/condition and the excited utterance. See, e.g., United States v. Taveras, 380 F.3d 532, 537 (1st Cir. 2004) ("The time lapse in most excited utterance cases is usually a few seconds...or a few minutes...In extreme circumstances, we have even accepted a delay of a few hours."). Here, Jay's delay was of the "a few hours" variety, meaning that the exception was almost certainly inapplicable. Probably the most on point case I could after a quick search was Brooks v. State, 903 So.2d 691 (Miss. 2005). In Brooks, a mother was in a state of hysteria when she relayed her son's murder confession to a third party. The Supreme Court of Mississippi found that the mother's statement wasn't an excited utterance despite the hysteria because 3 days had passed. On the one hand, that's quite a bit longer than in Adnan's case. On the other hand, the mother was much more stressed than Jay appeared to be.

Posted by: Colin Miller | Dec 4, 2014 12:35:38 PM

Cannon v. State, 623 S.W.2d 412, 414 (Tex.Crim.App. 1981), compresses the timeline a bit and also found that the excited utterance exception didn't apply:

"Before the complainant's mother related to the witness Genrich the matters about which he testified, twenty-four hours elapsed from the time she had been told by the appellant that he had punished her son and from the time she first saw her son's injuries. She had tried to resolve the matter with the appellant, 'it ate at her all day' and 'she sat home all day, drinking and she just didn't know what to do about it.'"

Posted by: Colin Miller | Dec 4, 2014 1:01:12 PM

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