Vol. 10, Nos. 26 & 27	Covering Cases Published in the Advance Sheets through July 7, 2003

Highlights of this Issue:

Getting Convictions the Old-Fashioned Way - Through Perjury

• Two cases this week explore the scope of the woefully limited remedies that are available to defendants who have been falsely convicted of crimes through the Government’s knowing use of perjured testimony. Limone involved the efforts of three plaintiffs to collect damages under the Federal Tort Claims Act from the Government and various law enforcement personnel, who participated in a broad conspiracy to convict them for a murder they did not commit. Then, over the next several decades, the state and Federal defendants repeatedly and effectively blocked all efforts to reverse the conviction by covering up the true facts in order to protect the identity of the real killers, who were long-time secret informants of the FBI. In that case, Judge Gertner of the D.Mass. firmly rejected a series of sometimes mind-boggling arguments raised by the various defendants in their efforts to dismiss the complaint. Calling those warped arguments a challenge to “this nation’s most basic assumptions of honesty, fairness, and trust in the administration of justice,” Judge Gertner effectively ordered the case to the very trial that the Government has fought so desperately and pathetically to avoid.
  
  
• Spurlock involved the efforts of two falsely accused defendants to collect damages in a civil rights suit from a prosecutor who participated in a “persistent and pervasive conspiracy” to convict them through perjured testimony. The Sixth Circuit held that the prosecutor was entitled to assert the defense of absolute immunity for all but one of his actions because, even if he knowingly procured and suborned false testimony, those actions were undertaken in connection with his duties in functioning as a prosecutor and, under established Supreme Court precedent, they are therefore absolutely immune from most malicious prosecution claims.

Bartered Testimony - Two Views

• Two cases this week emphasize some of the inherent problems and difficulties that defendants face when dealing with witnesses who have agreed to testify on behalf of the Government in exchange for leniency in criminal charges pending against them. Both of these cases address claims that the prosecution failed to disclose fully the terms of the arrangements made with the witnesses; and in both cases the defendant/petitioners alleged that the witnesses gave false testimony regarding the nature of their plea agreements and their expectations of receiving favorable treatment in exchange for their testimony. In Shabazz, a panel from the Second Circuit addressed allegations that the prosecution had allowed three key witnesses to testify falsely about the promises made to them for their testimony. The Court denied any relief because, even though the facts of the case were “troubling” and raised “serious questions,” it concluded the petitioner had failed to prove the existence of undisclosed promises of leniency. In Su, a different panel from the same Circuit concluded that the prosecution had indeed knowingly elicited false testimony; and in that case it concluded that the false testimony had sufficiently prejudiced the defendant to warrant a new trial.

The Lynne Stewart Case

• In Sattar, Judge Koeltl of the S.D.N.Y. dismissed the two main terrorist charges filed against New York criminal defense attorney Lynne Stewart which accused her of helping an imprisoned sheik direct terrorist operations in Egypt, on the grounds that the charges were unconstitutionally vague.

Limone v. U.S., Civ. No. 02-10890-NG (D.Mass. 7/17/2003) (Judge Gertner)

On March 12, 1965, a man named Teddy Deegan was murdered in Massachusetts. FBI agents in Boston had immediate, specific information that the murder was in fact carried out by several undercover FBI informants, including Vincent “Jimmy” Flemmi and Joseph Barboza, who were long time members of a New England organized crime gang that the FBI had been investigating for years. However, the FBI agents were unwilling to risk exposing or losing the assistance of their undercover agents. As Judge Gertner explained:

“While working with the FBI in [their secret] capacity, Flemmi and Barboza were allowed and perhaps even encouraged to engage in various illegal activities, including murder, conspiracy, perjury, and other crimes. When Deegan was murdered, the defendants developed Barboza as a witness in the case in order to procure indictments against and convictions of [Louis] Greco, [Peter] Limone, and [Henry] Tameleo, and others even though the defendants knew that Barboza's testimony was fabricated. Moreover, in the succeeding decades the defendants engaged in an active cover-up and repeatedly failed to turn over information that they had received from informants concerning Deegan's actual killers, information that was exculpatory of Greco, Limone, and Tameleo.”

Ultimately, the Government secured the conviction of Greco, Limone and Tameleo in 1968, based on its perjured testimony and suppressed exculpatory evidence. All three were sent to prison. Sadly, Tameleo died in prison and 1985; and Greco died in prison in 1995. In 2001, after serving nearly 30 years in prison for a crime he did not commit, Limone was released, his convictions were vacated, and all charges against him were dropped after he was able to show the massiveness of the Government’s perjured testimony and its concerted, repeated efforts to suppress the exculpatory evidence it had about the real killers.

Framing the defendants for a crime they did not commit was not enough. Over the next 30 years, the Government engaged in a cover up that was so pervasive that it almost defies belief. For example, in 1982, when Limone sought a commutation of his sentence - with the support of Teddy Deegan’s family, who believed in his innocence - FBI agents channeled false information to Governor Dukakis, who promptly denied the petition for commutation. Then, in 1987, in what Judge Gertner described as “an attempt at intimidation,” FBI agents “caused state law enforcement officials and agents to investigate members of the Advisory Board of Pardons who had voted in favor of commutation to determine if they were influenced by organized crime.” After the receipt of more false information from the FBI, that Board quickly got the message: it unanimously denied Limone’s second petition for commutation.

Judge Gertner summarized the impact of the Government’s misconduct by stating: “It is hard to conceive of accusations that shake the legal system closer to its foundation, that would do more to challenge this nation's most basic assumptions of honesty, fairness, and trust in the administration of justice. And if they prove true -- which is the subject of proceedings for another day -- they offer a cautionary tale at a time when courts and legislatures seem more and more prone to arrogate unchecked authority to law enforcement officers and prosecutors -- all in the name of ‘national security’.”

The instant decision relates to the efforts of Limone, and the estates of the two deceased defendants, Greco and Tameleo, to collect damages from the Government and various federal and state officials under the Federal Tort Claims Act (18 U.S.C. §§ 1346 and 2671-2680) (“FTCA”).

By the time of the instant lawsuit, much of the evidence of the FBI’s sordid and shameful relationship with its trusted gangster informants had come to light - and even led to a number of highly-publicized convictions. Because of that, one would have thought that a chastened Government would have rushed to pay the plaintiffs in this case if only to keep quiet the sordid details of its role in securing the wrongful convictions and imprisonments of Limone, Greco and Tameleo. The arrogance of Government power prevented such a disposition.

The defendants decided to fight paying any damages by filing a series of “voluminous” motions to dismiss this lawsuit on various grounds - some of which are so specious that they would be comical in almost any other context - but not in the context of a Government charged with dispensing justice to its citizens. Simply put, some of the defendant’s arguments are revealing examples of a very sick, very sad, and very hypocritical law enforcement system.

In her 59-page decision, Judge Gertner addressed the defendants’ assorted arguments - and she rejected all of them - stating that they “miss the forest for the trees.” While space does not permit a detailed analysis of each of the defendants’ myriad defenses, a sampling provides the flavor of the Government’s speciousness:

• The Government argued that Federal investigators had no obligation to disclose exculpatory information to state prosecutors “because the reported cases on disclosure obligations typically deal with disclosures from federal investigators to federal prosecutors or from state investigators to state prosecutors.”

  Judge Gertner rejected that argument, stating: “But the government offers no cogent analysis of why this distinction should make the least bit of legal difference, particularly in a case such as this one, where federal investigators worked integrally with state prosecutors from the beginning.”

• The Government argued that perjury and subornation of perjury are not, themselves, actionable torts under state law - and therefore perjury cannot be the basis for liability under the FTCA.

  Judge Gertner rejected that argument, stating: “A simple analogy reveals the vacuity of this approach. For example, firing a gun may not, in itself, be actionable in tort, but the fact that a gun was fired is surely relevant to a civil assault claim. Similarly, even though perjury is not independently actionable in tort, the fact of perjury is surely relevant to a malicious prosecution claim. In other words, the fact that a certain subset of conduct, viewed in isolation, is not actionable in tort does not somehow immunize the tortious end to which that conduct is directed.”

• The Government argued that the tort of malicious prosecution cannot lie because the Federal defendants did not “initiate” the state murder prosecution.

  Judge Gertner replied: “If the federal officers did not ‘initiate’ the prosecution, who did? . . .[T]he FBI agents in this case are alleged to have done much more than merely transmit information; they played a multifaceted ‘active role’ in the prosecution. Essentially, plaintiffs contend, the defendants systematically manufactured evidence and cultivated witnesses from whom they suborned perjury. They then packaged and presented this information to state authorities with the specific intent of provoking the prosecution of Limone, Greco, and Tameleo while covering up the roles of Flemmi and Barboza. Thereafter, they continued to collaborate closely with state prosecutors and worked assiduously to cover their tracks in the decades that followed. Even if defendants did not, by themselves, ‘initiate’ the prosecution, a person ‘who takes an active part in continuing or procuring the continuation of criminal proceedings initiated . . . by another is subject to the same liability for malicious prosecution as if he had then initiated the proceedings’.”

• In perhaps the most heartless of its arguments, the Government argued that the claims made by the estates of Tameleo and Greco must be dismissed because “unlike Limone, Tameleo and Greco died in prison before their convictions could be officially reversed. According to the defendants, the law always requires a ‘favorable termination’ of the criminal prosecution before plaintiffs can bring a civil tort action based on those proceedings. Since Tameleo and Greco died in prison, the government argues, they were never officially exonerated (as was Limone) and thus plaintiffs may not bring claims arising from their prosecution.”

  Judge Gertner responded: “While this argument has the most legal heft of any that defendants proffer, it also is ultimately unavailing -- not to mention, profoundly unfair.”

Among the many gems contained in this decision, one of the most useful is Judge Gertner’s detailed and profound analysis of the “discretionary function exception” to liability under the FTCA. The Government argued that it was immune from liability under the FTCA “because its decisions about matters such as how to conduct investigations, whom to prosecute, whether to disclose exculpatory evidence, and how to manage informants are ‘discretionary functions’ in the meaning of the FTCA.”

Judge Gertner rejected that approach, stating that the Government’s various characterizations of the plaintiffs’ allegations were “at once, both too broad and too narrow. . . . At root, nothing about the outrageous and unconstitutional course of conduct alleged by the plaintiffs' implicates an actual exercise of choice or discretion that enjoys immunity under the statute. As I recently explained in another case: ‘It is vitally important to recognize that the government may not immunize an otherwise tortious action simply by showing that the government took the action in order to implement some policy purpose. Instead, the courts must carefully disaggregate the government's course of conduct in order to focus on the specific action at issue and determine whether the action was truly grounded in policy’.”

Shabazz v. Atruz, No. 02-2320 (2nd Cir. 07/18/2003) (Judge Pooler)
Su v. Filion, No. 02-2683 (2nd Cir. 07/11/03) (Judge Calabresi)

Promises of leniency given by the Government to cooperating witnesses have long been an integral part of the prosecution of crimes - but they are not without controversy. Some jurists have even argued that such arrangements are improper per se because the are tantamount to the “virtual purchase of perjury”; (see the Quote of the Week, below). However, in general, most courts approve such arrangements as a necessary component of the criminal justice system - so long as the jury is given a chance to evaluate the credibility of the witness’ testimony in light of the benefits that the witness will receive in exchange for his or her testimony.

And therein lies the problem: it is not always easy to let the jury know what benefits the witness will receive in exchange for his or her testimony because, as a practical matter, the sentencing of most cooperating witnesses is deferred until after they have testified against others to the Government’s satisfaction. For obvious reasons, most prosecutors are unwilling to give the witness his or her benefits before he or she has testified - since otherwise they might not get the testimony they expect or need to obtain the conviction at issue. As a result, the disclosures made to the jury about what has been promised to a cooperating witness often depend, to a large degree, on the honesty of both the prosecutor and the witness in describing what agreements have been reached. And sometimes, especially in cases where the prosecutor’s case is weak, there is a great incentive to fudge the real terms of the promises that have been made so the jury won’t think that the witness’ testimony has been unduly flavored or influenced by the sometimes extraordinary benefits that the witnesses expect to - and actually do - receive in exchange for their testimony.

The case law is clear that the prosecution cannot avoid its duty to disclose simply by keeping its promises to a witness unduly vague and general (see, e.g.,.DuBose v. Lefevre, 619 F.2d 973, 979 (2nd Cir. 1980)). But that legal principle still leaves a lot of room for creative maneuverability - and it was such creative maneuverability was precisely at issue before the court in these two cases.

Shabazz v. Artuz

The petitioner in this case, Faiz Shabazz, sought habeas relief in the Federal courts after his state appeals to reverse his convictions were denied. His principal contentions were that the district attorney had violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, by (1) promising three prosecution witnesses leniency in their pending criminal cases in exchange for their testimony at petitioner’s trial without exposing those alleged promises to him; and (2) allowing those witnesses to testify falsely concerning the nature of their plea agreements and/or their expectations of receiving favorable treatment in exchange for their testimony.

The petitioner and all three witnesses were arrested in connection with their participation in a drug purchase that went bad. After going to the apartment of a man named Troutman to buy drugs, one of the witnesses, Florence Boone, decided to rob Troutman and, when he resisted, she shot and killed him. After her arrest, she agreed to testify against the petitioner (who had been waiting in a car downstairs) in exchange for which the DA agreed to reduce the charges against her to manslaughter in the first degree - a crimes that carries a maximum sentence of 8-1/3 to 25 years in prison. At trial she testified that she expected to receive the maximum penalty associated with that charge; but after testifying she received a sentence of 7 to 21 years in prison.

The other two witnesses, Louis Landers and Sylvia Pullum, who were present in the apartment when the shooting took place, were also charged with a number of unrelated drug crimes and with possession of stolen credit cards. At trial they both testified that the DA had not promised them any leniency with respect to their pending cases; and they both said that they did not expect to receive any benefit by virtue of their testimony against the petitioner.

Four days after the petitioner was convicted (and sentenced to 22 years to life imprisonment), Landers and Pullum were released from custody on their own recognizance. Shortly afterwards, Landers pled guilty to all the charges pending against him and the DA recommended a sentence of 60 days in prison. Since he had already spent 77 days in prison, the court sentenced him to time served, and it specifically noted that Landers had “made a lot of [deals] here.” The DA also recommended that Pullum be granted an unconditional discharge, and the sentencing court accepted that recommendation.

In addition to the mild sentences that were imposed, the petitioner noted that the state judge who presided over the cases against Landers and Pullum specifically stated, during a pre-trial hearing, that he understood they were both “getting some kind of a break”; and the prosecutors handling their cases “repeatedly told the judges that both defendants were cooperating witnesses in a homicide investigation.”

Citing all of those facts, the petitioner argued that the DA’s office had made undisclosed promises of leniency to Boone, Landers and Pullum in exchange for their testimony; that both Landers and Pullum had committed perjury when they testified that they had received no promises of leniency; and that the DA knew or should have known about that alleged perjury.

The lower state courts rejected those arguments on appeal, concluding that there was insufficient evidence to establish the existence of any undisclosed promises of leniency. Shabazz then sought habeas relief in the Federal district court; and, when that was denied, he appealed to the Second Circuit. That Court acknowledged that some of the circumstances surrounding the disposition of the criminal cases against Landers and Pullum were “troubling” and raised “serious questions” - but it concluded that Shabazz had failed to present sufficient evidence to establish that the lower court rulings were “clearly erroneous”; and that he had also failed “to demonstrate that the allegedly undisclosed information was material.”

With sweeping language, the panel created a nearly insurmountable burden of proof for Shabazz, stating: “Petitioner is correct that Landers and Pullum received a benefit because they testified against him. However, this fact, standing alone, does not establish that, prior to petitioner's trial, the District Attorney's Office promised Landers and Pullum leniency. The government is free to reward witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing to the defendant its intention to do so, provided that it does not promise anything to the witnesses prior to their testimony.”

Su v. Filion

The petitioner in this case, Shih Wei Su, was convicted of several crimes arising out of a shooting that occurred at a pool hall in Queens, NY in 1991. On appeal, he contended that the prosecution had misled the trial court concerning a cooperation agreement that it had with a key witness, Jeffrey Tom, and that the prosecution had knowingly allowed Tom to perjure himself. After the state courts rejected those arguments, Judge Ross of the E.D.N.Y. agreed that the prosecution had breached both its duty to disclose exculpatory evidence and its duty not to elicit testimony it knows to be false. However, Judge Ross refused to grant a writ of habeas corpus, on the grounds that Su had failed to show sufficient prejudice to justify overturning his conviction.

The panel agreed with Judge Ross that the prosecution had “knowingly elicited false testimony from a crucial witness with regard to a cooperation agreement that existed between the witness and the prosecution”; but it also concluded that the district court had erred “in its analysis of the prejudice stemming from the prosecutor’s misconduct.” Accordingly, it reversed the denial of Su’s request for a writ of habeas corpus, and ordered that he be released within 60 days unless the state grants him a new trial within that time.

Essentially, the witness plainly and obviously lied when he testified for the prosecution - not only by asserting that he had not been promised anything by the sentencing judge or the prosecution in exchange for his testimony, but also about the nature and details of the separate criminal charges for grand larceny that had been filed against him. The panel then concluded: “The prosecution not only allowed both of these misrepresentations to go uncorrected, but it bolstered Tom's credibility in summation, even going so far as to object when Petitioner's defense counsel expressed incredulity that Tom's larceny arrest came after he ‘politely’ asked the restaurant proprietor for money.”

Having concluded that the prosecutor “failed in its duty to avoid eliciting false testimony,” the panel then addressed the question whether that false testimony was prejudicial in the sense defined by the Supreme Court,” particularly in Giglio v. U.S., 405 U.S. 150 (1972) and U.S. v. Agurs, 427 U.S. 97 (1976). Under that standard, the panel stated that “if it is established that the government knowingly permitted the introduction of false testimony reversal is virtually automatic” and a new trial is required “if the false testimony could in any reasonable likelihood have affected the judgment of the jury.”

In the instant case, the panel concluded that it was “not disputed” that the petitioner’s conviction “depended significantly on Tom’s testimony. Indeed, the district court described him as ‘the prosecution’s chief witness against petitioner.” The panel then ruled: “There being no question that false testimony was introduced to bolster the credibility of the principal prosecution witness and there being no reasonable application of federal law under which it could be said that the prejudice suffered by Petitioner fell short of the legal standard established by the Supreme Court of the United States, we REVERSE the district court's denial of Petitioner's request for a writ of habeas corpus.”

The differing results of these two cases show that sometimes the zig-zag path between what is permissible and what is prohibited can really only be seen through those specially-crafted “hindsight lenses” that must be given to all appellate judges.

In Brief

Feeney Amendment: U.S. v. Flores, No. 02-3380 (8th Cir. 07/18/2003) - This case is noted for Judge Bright’s remarkably candid concurring opinion in which he warned that the Feeney Amendment “creates new and greater problems in federal sentencing” and in which issued a call to arms to his fellow judges: “Let your opinions disclose your views about the injustice in the sentencing decision or decisions you are obligated to impose by Congressional mandate and/or the Sentencing Guidelines.”

Felon Disenfranchisement: Farrakhan v. State of Washington, No. 01-35032 (9th Cir. 07/25/2003) - Here the Ninth Circuit held that the district court had erred when it concluded that Washington State’s felon disenfranchisement scheme did not violate the federal Voting Rights Act (42 U.S.C. § 1973) (VRA). The district court agreed that the state scheme disenfranchises a disproportionate number of African-American, Hispanic-American, and Native-American minorities - but concluded that was not enough to provide the requisite causal link between the voting qualification and the prohibited discriminatory result for purposes of the VRA. The Court stated that, under Section 2 of the VRA a "totality of the circumstances" inquiry "requires courts to consider how a challenged voting practice interacts with external factors such as 'social and historical conditions' to result in denial of the right to vote on account of race or color." The court further held that "evidence of discrimination within the criminal justice system can be relevant to a Section 2 analysis."

Supervised Release: U.S. v. T.M., 330 F.3d 1235 (9th Cir. 2003) - Here the Court vacated a series of onerous and incredibly broad special conditions of supervised release that were imposed on a defendant convicted of a drug offense, which required him, inter alia, to participate in a sex offender treatment program and register as a sex offender, based on a 20-year old kidnapping conviction and a 40-year old child molestation charge (that was dismissed), on the grounds that the imposition of such conditions were an abuse of discretion since they were not reasonably related to the goals of deterrence, public protection, or rehabilitation.

Quote of the Week

“One of the basics of our jurisprudence is the search for truth, and by this is meant not the purchased truth, the bartered-for truth, but the unvarnished truth that comes from the lips of a man who is known for his integrity. . . . Trustworthiness is a keystone and a hallmark of any judicial system that seeks recognition for its role in a civilized society. The time has come to announce boldly and firmly that our juridical search for truth cannot be reconciled with the virtual purchase of perjury.” Judge Irving Loeb Goldberg in U.S. v. Cervantes-Pacheco, 800 F.2d 452, 460-61 (5th Cir. 1986).

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