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Habeas petitioner entitled to hearing on “textbook” improper vouching claim

Joseph J. Jordan v. Randall R. Hepp, 7th Circuit Court of Appeals No. 14-3613, 2016 WL 4119862, 8/3/16

Jordan claims the Wisconsin courts unreasonably applied clearly established federal law when they held that he was not denied the right to represent himself and that his trial lawyer was not ineffective for failing to object to the prosecutor’s improper vouching for a police witness’s credibility. The Seventh Circuit okays the state courts’ decision on self-representation but orders a hearing on Jordan’s ineffective assistance claim.

Taking the claims in reverse order, at Jordan’s trial for reckless homicide Jordan denied he had made the inculpatory statements in his written “confession,” which he signed without reading because he is illiterate. He said he never admitted to shooting the victim and that the police falsely assured him it contained only what he and the police had talked about. The police, of course, said Jordan confessed and that they accurately transcribed Jordan’s statements. (Apparently there was no recording of the interrogation.) (Slip op at 2-3).

During closing the prosecutor made this argument regarding why the jury should accept the veracity of the state’s version of the “confession”:

Now, the big question here is the credibility. Who do you believe? … Somebody’s lying. Who is it? [The detective’s] going to put her whole career and her future on the line for this case? She does this everyday. She’s investigating homicide cases everyday for years. Who has the most to lose based on your verdict in this case? Her or him? … It boils down to credibility.

(Slip op. at 15). The court concludes this argument was improper because it invited the jury to rely on evidence known to the prosecutor but not presented at trial:

…. The Court expresses its concerns about vouching in constitutional terms: “Due process requires that the accused receive a trial by an impartial jury free from outside influences.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 553 (1976). The jury may not decide the case based on evidence that never made it into the record, either real or imagined. The right to a trial by jury includes the right to the jury’s own decision, not a decision dictated or unduly influenced by the prosecutor. [United States v.] Young, 470 U.S. [1,] 18–19 [(1985)] (citing Berger [v. United States], 295 U.S. [78,] 88–89 [(1935)]).


[The prosecutor’s argument in this case] is a textbook case of improper vouching. The prosecutor engaged in one of the forms of argumentation that the Supreme Court repeatedly has identified as improper: implying that the jury should believe a witness based on evidence that was not presented to the jury. See Berger, 295 U.S. at 88; Young, 470 U.S. at 18. By arguing that the detective would lose her job by giving false testimony, the prosecutor “convey[ed] the impression that evidence not known to the jury”—namely, that the detective would face career repercussions for false testimony—“supports the charges against the defendant.” See Young, 470 U.S. at 18. The prosecutor left no room for doubt about his message: he stated three times that she has more to lose than the defendant, and is therefore more likely to be telling the truth.

As Young recognizes, this is the type of misconduct that the Supreme Court forbade in Berger. There, a prosecutor stated his personal opinion that a witness was lying about whether she knew the defendant. The prosecutor implied that he knew the witness was lying; that evidentiary rules did not permit the jury to hear that evidence; and that the jury should instead just trust him. Berger, 295 U.S. at 86–88. The Supreme Court pinpointed the troubling aspect of this argument: “The jury was thus invited to conclude that the witness … knew [the defendant] well but pretended otherwise; and that this was within the personal knowledge of the prosecuting attorney.” Id. at 88. The same concern arises in Jordan’s case. The prosecutor relied on evidence not in the record but that appeared to be within his personal knowledge: that the detective would lose her job if she wasn’t telling the truth.

Due process therefore forbids a prosecutor to urge a jury to rely on evidence that is not in the record, whether that evidence is from newspaper accounts, the Internet, or the prosecutor’s own mouth. It requires the jury to be left alone to do its own job, evaluating the evidence the trial judge admitted, and coming to its own independent conclusion (as opposed to one dictated by the prosecutor).

(Slip op. at 14-16).

Trial counsel didn’t object to the prosecutor’s argument, but there’s nothing in the record regarding whether trial counsel had a strategic reason for not objecting. Jordan is entitled to an evidentiary hearing on that issue because if trial counsel was deficient for failing to object, the deficiency was prejudicial:

The Supreme Court has stated that when a prosecutor improperly vouches for a witness’s credibility, and the case is not otherwise a strong one, “prejudice to the cause of the accused is so highly probable that we are not justified in assuming its nonexistence.” Berger, 295 U.S. at 89. This is such a case. On this record, the prosecutor’s improper vouching for the credibility of one of the detectives went to the heart of the matter. Had defense counsel taken steps to cure that error, there is at least a “reasonable probability”—that is, “a probability sufficient to undermine confidence in the outcome,” see [Harrington v.] Richter, 562 U.S. [86,] 104 [(2011)]—that the result of the proceeding would have been different.

We recognize that the trial court instructed the jury that “the words of the attorneys are not the evidence in this case and their arguments and conclusions that they’re entitled to express at this stage are not evidence and must not be considered by you as evidence.” But this instruction did not identify the prosecutor’s remarks as improper statements that should be disregarded, for the obvious reason that those remarks had not yet been made. Nor was this or any other instruction given contemporaneously with, or immediately after, the prosecutor’s inappropriate comments. We cannot assume that a prompt objection, followed by a curative instruction, would have been ineffective; indeed, a prompt objection would have cut off a good part of the vouching. When the whole case turns on witness credibility, standing silent while the state vouches for its witnesses cannot be justified by reliance on a generic, non-contemporaneous instruction. …. The state trial court’s finding (adopted by the Court of Appeals) that counsel’s failure to object was not prejudicial is an unreasonable finding in the context of this case.

(Slip op. at 18-19).

As to Jordan’s right to represent himself, the court notes its recent decision in Imani v. Pollard, 2016 WL 3434673 (June 22, 2016), which found the Wisconsin Supreme Court unreasonably applied Faretta v. California, 422 U.S. 806 (1975), by not allowing a competent defendant to proceed pro se, and says that “[i]f it were up to us, we would find Jordan’s Faretta rights were violated” because the state courts denied him the right to represent himself based primarily on the effect his illiteracy might have on his ability to conduct a trial, rather than his lack of competency to proceed pro se. (Slip op. at 8-11).

But AEDPA does not permit us to apply our independent assessment of this case. Instead, we must decide whether the state court’s decision was so far beyond the pale that it was “unreasonable.” See Richter, 562 U.S. at 103. The fact that the Supreme Court itself recognized that certain forms of mental disability deserved special consideration suggests that the approach of the Wisconsin courts was not so utterly without support that it cannot stand. Jordan’s problem went well beyond the lack of knowledge of court procedure or an ability to make strategic judgments. Despite his bravado, Jordan was unlikely to be able to avoid confronting the written evidence in his case—evidence that was functionally unavailable to him because of his near-illiteracy. The state court thought that Jordan could not put on a defense without another person’s assistance, and that other person had to be a member of the bar. We feel compelled by AEDPA to hold that this was not an unreasonable interpretation of Faretta and Godinez [v. United States, 509 U.S. 389 (1993), which suggests states might be able to adopt more “elaborate” competency standards than Faretta set forth], and thus neither contrary to those decisions nor an unreasonable application of their holdings.

(Slip op. at 11-12).

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