Twenty years later, a detective's lie is uncovered and leads to a new trial

Gary Gathers & Keith Mitchell v.United States, Nos. 09-CO-422, 11-CO-1676, 11-CO-1677, 12-CO-1411, 12-CO-1412 (decided October 23, 2014).

Players: Associate Judges Blackburne-Rigsby and Beckwith; Senior Judge Steadman. Opinion by Judge Steadman. Seth Rosenthal for Mr. Gathers. Amit Mehta for Mr. Mitchell. David Goodhand for the United States. Post-Trial Motions Judge Russell Canan.

Facts: Wayne Ballard was killed while inside his car during a driveby shooting in 1993. The government’s case against Mr. Gathers and Mr. Mitchell rested on two foundations. First, the passenger in Mr. Ballard’s car identified appellants as the culprits. But his identification was “attacked in significant respects” at trial. Second, the government’s theory of motive was that appellants killed Mr. Ballard to prevent him from testifying against Mr. Gathers’s brother, Gregory, in Gregory’s trial for a different murder. To show that appellants knew Mr. Ballard would testify against Gregory, the government presented Detective Crawford’s testimony that, during the preliminary hearing in Gregory’s murder case, Detective Crawford had named Mr. Ballard in open court as the government’s eyewitness to the murder. But Detective Crawford’s trial testimony was false, as Detective Crawford had not identified Mr. Ballard by name during Gregory’s preliminary hearing. During a pretrial motions hearing in appellants’ case, the prosecutor represented that Detective Crawford did not identify Mr. Ballard by name during Gregory’s preliminary hearing. But after Detective Crawford falsely testified inconsistently with this representation, the prosecutor did nothing to correct his error, and instead relied on it to convict appellants.

Issues:

• Was the government’s conceded violation of Napue v. Illinois, 360 U.S. 264 (1959), harmless, as the trial court held?

• Was this Napue claim procedurally barred under Shepard v. United States, 533 A.2d 1278 (1987), because appellants either knew or should have known of the factual basis for the claim during the pendency of their direct appeal and thus could not show “cause” and “prejudice” to excuse their failure to raise the claim at that time?

Holding:

• No. The trial court erred by placing the burden of showing prejudice on appellants. Once a defendant establishes a Napue violation, the burden falls on the government to prove “beyond a reasonable doubt” that the error did not affect the verdict. And the government could not make that showing here.

•  No. The Court assumed, without deciding, that belatedly filed Napue claims are subject to the cause and prejudice requirements of Shepard, but held that appellants satisfied these requirements here.
• Appellants showed “cause” for two reasons. 
• Appellants were not “on notice” that Detective Crawford’s trial testimony was false. Even though the prosecutor represented before trial that Detective Crawford had not identified Mr. Ballard by name at the preliminary hearing in Gregory Gathers’s case, defense counsel did not act unreasonably by “accept[ing] that the first-hand testimony from Detective Crawford on the stand . . . was accurate rather than that of the prosecutor made orally in a somewhat confused earlier discussion[.]”  Slip op. at 15. 
• “[A]ny negligence by defense counsel was utterly outweighed by that of the government.”  Id. at 16.

• Appellants showed “prejudice” because, at least for Napue claims, the test is “equivalent to that on the merits,” i.e. that the error must be harmless beyond a reasonable doubt.  Id. at 18 n.15.

Practice tip: Argue that Shepard’s requirements do not apply — or, at the very least, do not apply in their usual way — outside the ineffective assistance of counsel context.  JM

Read full opinion here.