Habeas – Napue Issue
The Supreme Court has held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959) …. Thus, a new trial is required if a petitioner establishes that (1) the prosecution presented false testimony or failed to disclose that false testimony was used to convict, (2) the prosecution knew or should have known that the testimony was false, and (3) there is a reasonable likelihood that the testimony could have affected the jury’s judgment. …
The court assumes the first two steps of the test, denying relief because Griffin can’t show sufficient impact of the assertedly false testimony. The particulars of this narrow, fact-specific holding needn’t be discussed, except to say that Griffin confessed, something that independent witnesses confirmed, quite apart from the challenged testimony. United States v. Boyd, 55 F.3d 239 (7th Cir. 1995), distinguished, as “an extreme example of gross prosecutorial misconduct.”
Not terribly much Wisconsin caselaw discussion on Napue violations, which suggests it to be a rare visitor to our courts; footnoted mention of doctrine, in State v. Delgado, 194 Wis.2d 737 , 535 N.W.2d 450 (1995).
Habeas – Ineffective Assistance of Counsel
Counsel’s non-tactical failure to investigate potential mitigation in this capital case was prejudicial, notwithstanding state court conclusion to the contrary.
The Illinois Supreme Court concluded that there was no reasonable probability that absent counsel’s alleged errors, the sentencing court would have found that the mitigating evidence precluded the death penalty. The first problem with that assessment is that it is unclear to us how much weight the state supreme court gave to Judge Strayhorn’s statement that the introduction of the proffered evidence would not have changed Griffin’s sentence. Though we, and the Illinois Supreme Court, may give weight to such a statement, it is not conclusive. Raygoza v. Hulick, 474 F.3d 958, 964 (7th Cir. 2007) (stating that where the same judge presides over both the post- conviction proceeding and trial, “we cannot accept as conclusive the judge’s statement that the new evidence would not have made any difference”). The question is not whether a particular judge would have imposed a different sentence, but rather whether there was a “reasonable probability” that the sentence would have been different. In assessing that probability we conduct an objective evaluation of the evidence. Id. at 964-65.
Also, the state court’s conclusion that the proffered mitigation was merely cumulative was unreasonable: “The state supreme court thought that the information about Griffin’s personal history was included in the presentence report … , but the report was an incomplete and at times inaccurate reflection of Griffin’s tragic personal history.”