A Little More On Napue – When “Facts” Are Not Facts

There’s even a little more going on in that Napue opinion.

Technically, the SCOTUS didn’t independently find as a fact that the prosecutor’s retreat, when he testified at Napue’s state court hearing, from what he had said in his earlier coram nobis petition for Hamer was simply incredible, as a matter of law.  They didn’t have to:

On appeal, the Illinois Supreme Court affirmed on different grounds over two dissents. 13 Ill. 2d 566, 150 N. E. 2d 613. It found, contrary to the trial court, that the attorney had promised Hamer consideration if he would testify at petitioner’s trial, a finding which the State does not contest here.


Emphasis supplied.

Once the State conceded the point there was no basis for the SCOTUS to discuss it.  But the State tried to get the win in the SCOTUS through the back door, so to speak, by arguing that the SCOTUS was bound by the Illinois State Supreme Court’s finding that the now admitted perjury had not affected the outcome in Napue’s trial.

Fair reading:  When the SCOTUS launched into the discussion of how they would independently review the factual record and make their own determinations, it was animated not just by the explicit fact finding they were discussing – that is, the determination that the perjury had not affected the outcome of Napue’s trial – but also by the outrageous lying and dishonesty of the prosecutor in the first place:  suborning perjury, exposing himself in his coram nobis petition, and then having the gall to shade his testimony at Napue’s hearing.

And more than that, it was a shot across the bow to the Illinois courts, that ridiculous “fact findings” were unacceptable.  After all, the Illinois trial court had gone along with the prosecutor’s glaring misconduct.

The State of Illinois conceded the prosecutor’s subornation of perjury because any contrary position was utterly indefensible.  It would leave the State’s advocate in the well at the SCOTUS arguing the petition under a withering barrage he would have had no hope of fending off.  The point was conceded, in other words, out of self interest.

Some attorneys have been having trouble understanding the significance of the Ashley Baker statement, seeing it at first blush as just another account of a witness to be tested for truthfulness in the usual way – through cross examination and so on.  This is a grave error that needs to be addressed.

When the prosecutor took the stand in Napue’s hearing and tried to undercut what he had previously said unequivocally in Hamer’s coram nobis petition, was he just another recanting witness?  So now we have a “fact dispute”, and the Illinois trial court can “assess the credibility” of the witness, determine which of the conflicting versions is correct, and then this determination of “fact” will not be disturbed on appeal?

Of course not.  The circumstances matter.  When he filed the coram nobis petition the prosecutor would not have reasonably expected anything to come of it other than what he wanted, which was to honor his deal with Hamer.  But the petition came to Napue’s attention by chance.  Now there was a problem, but really how big of a problem was it?  As the “hearing” at the Illinois trial court showed, the prosecutor had every reason to expect that the judges of Illinois would back him up, even though it was obvious that he had suborned perjury.

The coram nobis petition was the best and most reliable kind of admission:  inadvertent.  The declarant is setting forth the facts as he knows them to be for one purpose, not thinking about the adverse purpose those same facts can be used for.  It’s a perfect “gotcha”.  There is no going back, unless we are complete morons and let him.

Back in the days when we had a real best evidence rule, the “hearing” held in the Illinois trial court wouldn’t even have happened.  There was no need for it, and it was doomed to be just another opportunity for official mischief and more perjury.  The best evidence of the relevant facts, unquestionably, was what the prosecutor had put in the coram nobis petition.  Those facts might just as well have been carved in stone at that point.  There was no getting away from them.

Beyond all this, though, there are important lessons here for practitioners.  When you run into a coordinated perjury scheme it’s a whole different universe where nothing is as it seems, and you have to stop thinking like a trial lawyer, and start thinking like…..a cop.

Next post.


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Filed under financial crisis, Judicial lying/cheating, Striking lawyers, wrongful convictions

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