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Keith Bland, Jr. v. Hardy, 7th Cir No. 10-1566, 2/13/12

seventh circuit decision

Habeas – Knowing Use of False Testimony (“Napue”) 

Due process prohibits knowing prosecutorial use of false testimony, Napue v. Illinois, 360 U.S. 264, 269 (1959). However, the prosecutor’s exploitation of Bland’s incorrect testimony on a potentially important point (the date his gun was confiscated) doesn’t support habeas relief on a Napue-type theory.

Napue and Giglio hold that a prosecutor may not offer testimony that the prosecutor knows to be false. They do not hold that a prosecutor is forbidden to exploit errors in testimony adduced by the defense. Prosecutors often know that defense testimony is wrong. For example, a defendant may testify to a false alibi. A prosecutor who knows that the defendant’s testimony is bogus is entitled to take advantage of the opportunity to undermine the defense, perhaps by arguing that the testimony conflicts with that of other witnesses and that someone must be lying, or perhaps (parallel to the situation here) by arguing that, if the alibi is truthful, it shows that the defendant had a motive, or was committing some other crime that reflects poorly on his honesty. The prosecutor not only argued that the supposed arrest in January 2000 was evidence of motive but also tried to exploit an alibi that the prosecutor thought fishy: Bland testified that he was selling cocaine when the murder occurred. The prosecutor, who did not believe that alibi, nonetheless used it to contend that Bland had depicted himself as a person who would violate the law, including the laws against murder and perjury, whenever he thought he could get away with it. Bland does not contend that this use of his testimony violated Napue; it is hard to see why the use of his testimony about the date a gun had been confiscated from him would do so.

Habeas review is nothing if not straitened. Just because Napue doesn’t prevent the prosecutor from using a defendant’s faulty memory against him, doesn’t mean that a direct-appeal court will swallow whole the idea that a conviction should be premised on an indisputable falsehood. Indeed, the Seventh Circuit acknowledges: “And there is something unsettling about a prosecutor using a defendant’s testimony to contradict a known fact.”

Habeas – Comment on Silence 

Due process prevents a prosecutor from urging the fact-finder to infer guilt from the defendant’s exercise of the right to silence after being administered Miranda warnings, Doyle v. Ohio, 426 U.S. 610 (1976). However, the same rule doesn’t apply once the defendant has waived his rights and begun talking – therefore, evidence that after answering questions Bland stuck his fingers in his ears and began making noise was fair game.

… We therefore do not have a situation in which a suspect was silent throughout; we have instead a situation in which the suspect said some things, and a later decision to clam up may illuminate the significance of what was said.

Anderson v. Charles, 447 U.S. 404 (1980), holds that Doyle does not prevent a prosecutor from using a decision to stop talking as the basis for an inference that what the suspect had said earlier was false—or perhaps that the suspect was implying its truth by refusing to add corroborating detail. See also Fletcher v. Weir, 455 U.S. 603 (1982); Jenkins v. Anderson, 447 U.S. 231 (1980). Prosecutors always can put in evidence of, and make arguments about, what suspects actually say. Just as flight to avoid apprehension can reflect consciousness of guilt, so a sudden silence can reflect a suspect’s consciousness that he has dug himself into a hole and cannot see an exit. That’s a fair subject for comment, Charles holds, though an express invocation of the right to remain silent might not be. Doyle and Charles show that, when a suspect in custody starts talking and then stops, the constitutional line can be a fine one. Given the deferential standard we apply on collateral review, see 28 U.S.C. §2254(d), it is enough to conclude here that the state courts’ decision was not contrary to, or an unreasonable application of, the Supreme Court’s clearly established law.

Habeas – Stun Belt – Ineffective Assistance of Counsel 

Bland’s claim that he was forced to wear a stun belt during trial, without a hearing to determine its necessity, is doomed by his failure to request such a hearing. The need for a particularized showing of dangerousness is settled, Deck v. Missouri, 544 U.S. 622, 626–29 (2005); Stephenson v. Wilson, 619 F.3d 664 (7th Cir. 2010), but so is the idea that habeas review proceeds on the record compiled in state court, Cullen v. Pinholster, 131 S.Ct. 1388 (2011). Bland’s failure to request a hearing in state court has two adverse consequences: he must make an IAC showing (deficient performance and prejudice) and do so in the face of a barren record.

… [I]t does not follow that a word from counsel would have eliminated the stun belt; instead a word from counsel might have precipitated a hearing, the outcome of which may have been to proceed with the stun belt, or perhaps to make it less visible. … Even if Bland could have established that a hearing would have required the state to get rid of all physical restraints (relying instead on guards in the courtroom) or to use a less bulky, and hence less visible, restraint, it would not follow that counsel had furnished ineffective assistance. A stun belt may be less prejudicial to a defendant than a courtroom full of armed guards. …

… What do we know from the record about whether the state could have shown Bland to be dangerous enough to warrant use of a visible restraint? Nothing. What do we know from the record about whether people in the jury box (the actual jurors, or surrogates participating in a test) would have inferred that the bulge was a stun belt as opposed to a back brace? Nothing. (Bland filed his own affidavit asserting that the jurors must have inferred from the bulk under his shirt that he had a stun belt, but this issue should be examined from the jurors’ perspective, not from the defendant’s.) What do we know from the record about what alternative security steps the state would have used had the judge ruled out a stun belt? Nothing. These omissions are no fault of the state judiciary; they reflect the absence of any effort by Bland to provide the information to the state judges. This makes it very hard for a federal court to say that counsel missed an easy and important strategic victory by withholding an objection to the stun belt.

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{ 1 comment… add one }
  • Andrew M. Morgan February 14, 2012, 8:47 pm

    Citations from a motion I made circa 2004, offered here for perspective:

    “Silence at the time of arrest may be inherently ambiguous, even apart from the effect of Miranda warnings, for in a given case there may be several explanations for silence that are consistent with the existence of an exculpatory explanation.” United States ex rel. Allen v. Rowe, 591 F.2d 391, 398 (7th Cir. 1979)(citations omitted). “Silence is the right of the innocent as well as of the guilty.” Id. at 399. The Fifth Amendment protects the right to remain silent at all times, before, during and after arrest, and irrespective of Miranda warnings. See State v. Fencl, 109 Wis. 2d 224, 237, 325 N.W.2d 703 (1982). A defendant can “invoke” his right to remain silent simply by refusing to answer particular questions. See State v. Robinson, 140 Wis. 2d 673, 682, 412 N.W.2d 535 (Ct. App. 1987). He can answer some questions, then stop at any time, preserving his right to remain silent. See Odell v. State, 90 Wis. 2d 149, 155, 279 N.W.2d 706 (1979).

    “No inference whatsoever can be drawn from the defendant’s silence prior to trial.” Neely v. State, 86 Wis. 2d 304, 316, 272 N.W.2d 381 (Ct. App. 1978). When a defendant testifies at trial, however, the State may cross-examine him and comment on his silence for the purpose of impeaching his credibility. See Jenkins v. Anderson, 447 U.S. 231, 238 (1980). Comment by the State concerning the defendant’s silence is disallowed in the State’s case in chief. See Rudolph v. State, 78 Wis. 2d 435, 442, 254 N.W.2d 471 (1977)(citing Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229 (1965)). Even when attacking a defendant’s credibility, the State must not argue that the defendant’s silence is inconsistent with his claim of innocence. See State v. Wulff, 200 Wis. 2d 318, 340-341, 546 N.W.2d 522 (Ct. App. 1996). The prosecutor must not suggest that, “unlike the defendant, an innocent person would not have remained silent.” See State v. Fencl, 109 Wis. 2d 224, 240 n.11, 325 N.W.2d 703 (1982)(distinguishing Reichhoff v. State, 76 Wis. 2d 375, 251 N.W.2d 470 (1977)).

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