Paysun Long v. Randy Pfister
874 F.3d 544, 2017 U.S. App. LEXIS 20611, 2017 WL 4707324 (2017)
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Rule of Law:
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a prosecutor's failure to correct a witness's known false testimony does not violate clearly established federal law if the defense elicited the falsehood, knew the truth, and presented evidence to the jury that corrected the falsehood before deliberations.
Facts:
- Larriec Sherman was shot to death in June 2001.
- Four witnesses, including Brooklyn Irby, identified Paysun Long as the gunman in recorded video statements.
- Before trial, Irby recanted her statement to Frank Walter, an investigator for the State's Attorney, claiming police had coerced her to name Long.
- At Long's second trial, Irby testified for the prosecution, identifying Long as the shooter.
- On cross-examination by defense counsel, Irby falsely denied ever telling investigator Walter that she had been coerced or had recanted her identification.
- The prosecutor, who knew Irby was lying about the recantation, did not correct her testimony.
- The defense later called investigator Walter as a witness, and he testified that Irby had indeed told him her identification had been coerced.
Procedural Posture:
- Paysun Long was convicted of murder in an Illinois state trial court.
- A state court vacated this first conviction due to prosecutorial misconduct during closing arguments.
- Long was convicted of murder a second time in a new trial in the state trial court.
- The Appellate Court of Illinois, an intermediate appellate court, affirmed the second conviction on direct appeal.
- Long's subsequent application for state collateral relief was denied by a state trial court judge.
- The Appellate Court of Illinois affirmed the denial of collateral relief.
- Long filed an application for a writ of habeas corpus in the U.S. District Court, which the court denied.
- Long, as appellant, appealed to the U.S. Court of Appeals for the Seventh Circuit, where a three-judge panel reversed the district court's decision, siding with Long.
- The Seventh Circuit then voted to rehear the case en banc, which vacated the panel's decision and brought the case before the full court for a new decision.
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Issue:
Does a prosecutor's failure to correct a witness's false testimony, elicited by the defense, violate the Due Process Clause under Napue v. Illinois when the defense knows the testimony is false and introduces its own evidence to correct it before the jury deliberates?
Opinions:
Majority - Easterbrook, Circuit Judge.
No, the prosecutor's failure to correct the false testimony did not violate clearly established federal law under Napue v. Illinois. The Supreme Court's precedents in Napue and Giglio do not clearly establish a due process violation in circumstances where: (1) the false testimony was elicited by the defense, not the prosecution; (2) the defense already knew the truth; (3) the prosecutor did not rely on the falsehood in arguments to the jury; and (4) the defense corrected the falsehood by presenting contrary evidence to the jury before deliberations. The Napue line of cases involved situations where the prosecution either elicited or relied on the false testimony and the truth was unknown to the defense or the jury. Given AEDPA's strict requirement that a state court decision must be contrary to law "clearly established ... by the Supreme Court," the lack of a Supreme Court ruling on this specific factual scenario means no such clearly established law exists. The court analogized to the Brady doctrine, under which there is no constitutional violation for failing to disclose exculpatory information already known to the defense.
Dissenting - Hamilton, Circuit Judge
Yes, the prosecutor's failure to correct known perjury violates the Due Process Clause under Napue v. Illinois. The majority creates artificial distinctions to improperly narrow Napue's core holding, which is that a prosecutor may not allow false evidence "to go uncorrected when it appears," regardless of who elicits it. The prosecutor's duty is to the court and the integrity of the trial, not just to inform the defense. Simply allowing the defense to present contradictory evidence does not fulfill the state's duty to correct the record; it merely leaves the jury to weigh conflicting testimony. The jury never heard an authoritative correction from the prosecutor or judge, which would have established that Irby had lied under oath. Given the weak, purely eyewitness-based case against Long, this uncorrected perjury cannot be considered harmless.
Analysis:
This decision significantly limits the application of the Napue doctrine in federal habeas corpus proceedings governed by AEDPA. It establishes that a prosecutor's duty to correct known perjury is not considered 'clearly established' law in situations where the defense is aware of the falsehood and has the means to correct it. This holding increases the burden on defense counsel to police witness testimony and may insulate prosecutorial inaction from constitutional challenge on collateral review. The ruling emphasizes the high bar for habeas relief under AEDPA, requiring an almost identical factual precedent from the Supreme Court to find a state court's decision unreasonable.
