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Applicable Law

⚖️ Applicable Law

The Law Surrounding Prosecutorial Misconduct, Perjury and Presenting Manufactured or False Testimony

The law surrounding prosecutorial misconduct and perjury or presenting manufactured or false testimony is set forth quite well in the case of: 

243 F.3d 1109; 2001 US App LEXIS 4366
No. 99-10552
November 13, 2000, Argued and Submitted, Honolulu, Hawaii
January 10, 2001, Filed

There, the Ninth Circuit Court of Appeals stated: 


Few things are more repugnant to the constitutional expectations of our criminal justice system than covert perjury, and especially perjury that flows from a concerted effort by rewarded criminals to frame a defendant. The ultimate mission of the system upon which we rely to protect the liberty of the accused as well as the welfare of society is to ascertain the factual truth, and to do so in a manner that comports with due process of law as defined by our Constitution. This important mission is utterly derailed by unchecked lying witnesses, and by any law enforcement officer or prosecutor who finds it tactically advantageous to tum a blind eye to the manifest potential for malevolent disinformation. See United States v. Wallach, 935 F.2d 445 (2nd Cir. 1991) ("Indeed, if it is established that the government knowingly permitted the introduction of false testimony 'reversal is virtually automatic."') (citations omitted); Cf. Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978) ("It would be an unthinkable imposition upon [the authority of a magistrate judge] if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment."). 

Because of the gravity of depriving a person of liberty on the basis of false testimony, the Supreme Court and the United States Courts of Appeal have fashioned over the years a workable set of precise rules designed not only to remedy egregious wrongs that have already occurred, but also prophylactically to prevent damaging false testimony from happening in the first place. In Mooney v. Holohan, 294 U.S. 103, 104, 79 L. Ed. 791, 55 S. Ct. 340 (1935), for example, petitioner Mooney alleged that "the sole basis of his conviction was perjured testimony, which was knowingly used by prosecuting authorities in order to obtain that conviction .... " He argued to the Court that the conscious use by the state of perjured testimony and the deliberate suppression of evidence to impeach that testimony constituted a denial of due process of law. Id. The Attorney General of California, on behalf of Warden Holohan of San Quentin Penitentiary, argued in response that "it is only where an act or omission operates so as to deprive a defendant of notice or so as to deprive him of an opportunity to present such evidence as he has, that it can be said that due process of law has been denied." Id. at 112. 

The Court rejected this cramped view of the guarantee, saying that due process: 

cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is inconsistent with the rudimentary demands of justice . . ..And the action of prosecuting officers on behalf of the state . . .may constitute state action within the purview of the Fourteenth Amendment. Id. at 112-113. 

Seven years later, in Pyle v. Kansas, 317 U.S. 213, 87 L. Ed. 214, 63 S. Ct. 177 (1942), the Court emphasized this theme: 

Petitioner's papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. Id. at 215- 216. 

In Alcorta v. Texas, 355 U.S. 28, 2 L. Ed. 2d 9, 78 S. Ct. 103 (1957), the Court was confronted with a prosecutor who on direct examination knowingly allowed a witness to create a false impression of his disputed relationship with the defendant's murdered wife. The witness told the prosecutor before trial that he had had sexual intercourse with the wife on five or six occasions, which, if true, would have corroborated the defendant's mitigating version of the reason why he stabbed and killed her. The prosecutor told the witness not to volunteer any information about the sexual aspect of his relationship with the decedent, and then sat quietly by while his witness lied under oath, claiming that his relationship with the defendant's wife was just a "casual friendship." Influenced by the false testimony, the jurors rejected Alcorta's bid for a manslaughter conviction and found him guilty of capital murder. In granting Alcorta's petition for a writ of habeas corpus, the court held that the false impression given to the jury by the prosecutor and the State violated his right to due process. Alcorta, 355 U.S. at 31. 

In Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959), Chief Justice Warren reinforced this constitutional imperative. He quoted from a New York Court of Appeals case involving false testimony from a witness who had been given substantial consideration for his testimony: 

A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. Id. at 269-270 (quoting People v. Savvides, 1 N.Y.2d 554, 557, 136 N.E.2d 853, 854-855, 154 N.Y.S.2d 885 (N. Y. Ct. App. 1956) (holding that where witness for the prosecution falsely testified that there was no agreement that he was to receive lenient treatment for testifying against defendant, Assistant District Attorney should have exposed the lie of the witness)) (emphasis added). 

In 1976, the Court was called on yet again to visit this recurring issue, noting that it "has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). The Court observed that the Mooney line of cases applied this strict standard "not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process." Id. 

Running parallel to this line of authority is a related series of cases casting light on the responsibility of prosecutors exercising the executive power of the state. The seminal case in this line is Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), the message of which we summarized in Commonwealth of The Northern Mariana Islands v. Mendiola, 976 F.2d 475 (9th Cir. 1992) (overruled on other grounds in George v. Camacho, 119 F.3d 1393 (9th Cir. 1997)) 

The prosecuting attorney represents a sovereign whose obligation is to govern impartially and whose interest in a particular case is not necessarily to win, but to do justice. It is the sworn duty of the prosecutor to assure that the defendant has a fair and impartial trial. Id. at 486 (internal citation omitted). See also United States v. LaPage, 231 F.3d 488,492 (9th Cir. 2000) ("A prosecutor has a special duty commensurate with a prosecutor's unique power, to assure that defendants receive fair trials.") 

In Nix v. Whiteside, 475 U.S. 157, 89 L. Ed. 2d 123, 106 S. Ct. 988 (1986), a case in which a defense attorney balked at his client's insistence on committing perjury, the Supreme Court amplified the dimensions of every lawyer's duty to prevent fraud upon a court. In upholding the attorney's ethical decision against his client's claim that the attorney's conduct violated his Sixth Amendment right to effective representation of counsel, the Court articulated standards found in the Canons of Professional Ethics of the American Bar Association and the Model Code of Professional Responsibility, in stating: 

These standards confirm that the legal profession has accepted that an attorney's ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct; it specifically ensures that the client may not use false evidence. This special duty of an attorney to prevent and disclose frauds upon the court derives from the recognition that perjury is as much a crime as tampering with witnesses or jurors by way of promises and threats, and undermines the administration of justice. Id. at 168-169 (emphasis added). Following these cases, we observed in 1993 that a "prosecutor who does not appreciate the perils of using rewarded criminals as witnesses risks compromising the truth-seeking mission of our criminal justice system," and we indicated that "we expect prosecutors and investigators to take all reasonable measures to safeguard the system against treachery." United States v. Bernal-Obeso, 989 F.2d 331,333 (9th Cir. 1993). 

Finally, we come to the rule that "a bad faith failure to collect potentially exculpatory evidence would violate the due process clause." Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989). Relying on Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), we made it abundantly clear that due process requires law enforcement not just to preserve evidence already in hand, but to gather and to collect evidence in "those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." Miller, 868 F.2d at 1121 (citing Youngblood, 488 U.S. at 58). Cf. Kyles v. Whitley, 514 U.S. 419,437, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995) (an individual prosecutor has "a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."). 

There is yet more law on the subject of prosecutorial misconduct.

Let's say that the prosecution's case turns on whether or not a defendant suffers from some type of mental abnormality or personality disorder. A prosecutor who is fair and plays by the book would look to obtain a respectable, competent expert to evaluate the defendant. But some prosecutors would search out an expert based upon the expert's willingness to support the prosecution's theory of the case regardless of the correctness of the expert's view. This is called "doctor shopping" and can result in the presentation of false or misleading evidence to a jury. 

Does this happen? You bet it does. 

To begin with it is happening in my civil commitment case. Prosecutors Bruce Bartlett and Kendall Davidson went doctor shopping until they found a psychiatrist known to be a "hired gun" favorable to State prosecutors. This psychiatrist has never diagnosed or treated sex offenders, although she has stated she has made a "cameo appearance" during a sex offender treatment session. She has never conducted an evaluation to determine if a person meets the criteria for commitment as a sexually violent predator. This is a classic case of "doctor shopping" in which Bartlett and Davidson are using this psychiatrist as an "expert" who is basing her opinion on the false allegations of my ex-wives and ex-girlfriends (who never reported any sexual assault to police) which were manufactured with the help of the former State Attorney employees Robert Lewis, Magda McSwain and Scott Hopkins. It's just more corruption piled atop more corruption, piled atop yet more corruption. Its corruption that never ends. 

During my deposition of this State psychiatrist concerning her qualifications, I asked the good doctor if she had ever been the victim of a sexual offense. I thought prosecutor Kendall Davidson was going to fall out of his chair when I asked that question. Davidson started objecting, trying to get his doctor to not answer the question. But I persisted and the psychiatrist answered my question, stating that she had been the victim of sexual molestation when she was a child which she never reported. Thus, why are Bartlett and Davidson even using her as an expert in a civil commitment sex case? There is only one answer. She is biased and prejudiced against anyone accused of committing a sex offense and will provide Bartlett and Davidson with the kind of report they are seeking. 

Here are more examples of prosecutorial misconduct. 

In 1983, Stephen Buckley, along with Rolando Cruz and Alejandro Hernandez, was indicted for a very highly publicized murder trial in Illinois. See Buckley v. Fitzsimmons, 509 U.S. 259 (1993).The prosecution's case turned on a boot print left by the killer on the door of the victim's home when the killer kicked the door in. Experts from the county and state crime labs, as well as the Kansas Bureau of Identification, were unable to identify Buckley's boot as the source of the boot print. Ignoring these government experts, corrupt prosecutors shopped for a positive identification from a controversial expert, Dr. Louise Robbins. 

A detective resigned because he believed the wrong people had been charged. He laid it out this way: 

The first lab guy says it's not the boot. We don't like the answer, so there's no report written. We go to a second guy who used to do our lab. He says yes. So we write a report on Mr. Yes. Then Louis Robbins arrives. This is the boot she says. That'll be $10,000. So now we have the evidence. 

Buckley's trial ended in a hung jury but his co-defendants were convicted only to be freed later due to a DNA analysis. Even an appellate prosecutor, just like the detective, resigned in protest. 

The prosecuting attorneys involved in the case were subsequently tried but acquitted for their conduct in prosecuting the codefendants. And guess what! DNA evidence subsequently cleared Buckley. See Pam Belluck, Officials Face Trial in an Alleged Plot to Frame a Man for Murder, N.Y. Times, March 9, 1999, at A19; Eric Herman, Conspiracy Theory, American Law., March, 1998, at 75 (discussing the prosecution of the prosecutors and police officers involved in the alleged conspiracy before their trial). See also People v. Cruz, 643 N.E.2d 636, 644 (Ill. 1994)("Seminal fluid recovered from the victim's body was DNA tested excluding both of the defendant's previous codefendants Alex Hernandez and Steven Buckley but not defendant or Brian Dugan, an individual convicted of several other sexual assaults and murders of young females, who indicated he alone killed Jeanine Nicaico."). 

Corrupt prosecutors select corrupt experts all the time. See for instance, Mark Furman, Death and Justice: An Expose of Oklahoma's Death Row Machine 232 (2003)("[Joyce Gilcrest] appears to have used her lab tests to confirm the detective's hunches rather than seek independent scientific results. She also tried to control the results of her tests ... She treated discovery requests with contempt and kept evidence from the defense. She systematically destroyed evidence at the very time when she knew that much of the evidence might be retested."). Another expert from another government lab filed an ethics complaint against Gilcrest with the Southwestern Association of Forensic Scientists, which conducted an investigation and concluded that Gilcrest had failed to distinguish between her personal and scientific opinions. See McCarty v. State, 765 P.2d 1215, 1219 (Okla. Crim. App. 1998). In reversing the criminal conviction, the Oklahoma Court of Appeals found that Gilcrest had inexcusably delayed sending her laboratory report as well as an evidence sample to a defense expert, McCarty at 1217, and criticized Gilcrest for omitting critical information from the report, labeling her conduct "trial by ambush." McCarty, at 1218. Known as "Black Magic," Gilcrest continued to be a prosecution superstar. See Mark Furman, Death and Justice, supra, at 71. "Homicide detective Bill Cook had given Gilcrest the nickname 'Black Magic' because she was able to get results that no other chemist could. When Cook and other homicide detectives gave Gilcrest hair samples from a suspect, they would often let her know that this was the person they wanted to arrest." Furman, at 91. 

In People v. Cornille, 448 N .E.2d 857, 865 (Ill. 1983) the Illinois Supreme Court stated [T]he prosecutor should not be permitted to avoid responsibility for the false testimony of a government witness by failing to examine readily available information that would establish that the witness is lying ... As a direct result of its failure to do so, false testimony occurred at trial, and a fraud was perpetrated on the court and on the defendant. 

In Imbler v. Craven, 298 F.Supp. 795, 807 (C.D. Cal. 1969), affirmed per curiam, 424 F.2d 631 (9th Cir. 1970) the court held that the reckless use of false testimony violated due process. See also Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1118 (9th Cir. 2001)("[A prosecutor's due process duty] requires a prosecutor to act when put on notice of the real possibility of false testimony. This duty is not discharged by attempting to finesse the problem by pressing ahead without a diligent and good faith attempt to resolve it. A prosecutor cannot avoid this obligation by refusing to search for the truth and remaining willfully ignorant of the facts."). 

In sum, if a prosecutor has an inkling that a witness is lying or is going to lie the prosecutor has a duty to refrain from allowing that witness to get on a stand and lie. 

In my case Assistant State Attorney Robert Lewis, Assistant State Attorney Magda McSwain and State Investigator Scott Hopkins from the Pinellas County, Florida State Attorney's Office were corrupt during my criminal proceedings. They conspired with my ex- wives and my ex-girlfriends to manufacture false allegations against me. Now it is Bruce Bartlett, the State Attorney and his Assistant State Attorney Kendall Davidson who are corrupt because they are using these same witnesses against me, yet again, knowing that the witnesses are lying. 

Bruce Bartlett was the Chief Assistant State Attorney during my criminal proceedings and was the supervisor over Lewis, McSwain and Hopkins. He is now the State Attorney, appointed to that position by Governor Ron DeSantis after Bernie McCabe the State Attorney died. 

The corruption merely continues. 

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