Paysun Long v. Rick Harrington
Filed opinion of the court by Judge Easterbrook. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge; Frank H. Easterbrook, Circuit Judge; Michael S. Kanne, Circuit Judge; Ilana Diamond Rovner, Circuit Judge; Ann Claire Williams, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge, dissenting. (Circuit Judge Hamilton, joined by Circuit Judges Rovner and Williams dissenting.) [6878026-1]  [13-3327]
United States Court of Appeals
For the Seventh Circuit
RANDY PFISTER, Warden, Stateville Correctional Center,
Appeal from the United States District Court
for the Central District of Illinois.
No. 11‐CV‐1265 — Michael M. Mihm, Judge.
ARGUED SEPTEMBER 7, 2016 — DECIDED OCTOBER 20, 2017
Before WOOD, Chief Judge, and BAUER, EASTERBROOK,
KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit
EASTERBROOK, Circuit Judge. Larriec Sherman was shot to
death in June 2001. Four witnesses identified Paysun Long as
Circuit Judge Flaum heard argument in this appeal but later
recused himself and has not participated in its decision.
the gunman; their statements were recorded on video. Two
of the four recanted before Long’s trial. The other two—
Keyonna Edwards and Brooklyn Irby—testified, while the
video statements of the two recanting witnesses were intro‐
duced. Irby, too, had recanted before trial, telling Frank Wal‐
ter, an investigator for the State’s Attorney, that police offic‐
ers had coerced her to name Long as the shooter. But Irby
testified consistently with her video statement. On cross‐
examination she conceded recanting but told the jury that
her original statement was true and her recantation false.
The jury believed the testimony that Irby and Edwards gave
in open court, convicting Long of murder.
A state court vacated this conviction because the prosecu‐
tor had argued, without support in the record, that the re‐
canting witnesses feared Long and his friends. At Long’s
second trial the evidence proceeded as at the first. Edwards
and Irby identified Long in court as the killer; the other wit‐
nesses’ video statements were introduced. But this time,
when asked on cross‐examination about her recantation, Ir‐
by denied telling Walter that she had been coerced to identi‐
fy Long. The defense called Walter, who testified that Irby
had indeed told him that her identification had been co‐
erced. The prosecutor did not contest Walter’s testimony ei‐
ther on cross‐examination or during closing argument. The
jury convicted Long a second time, and he was sentenced to
51 years in prison. The state’s appellate court affirmed on di‐
rect appeal and affirmed again after a judge denied Long’s
application for collateral relief. 409 Ill. App. 3d 1178 (2011).
A district court denied Long’s application for relief under
28 U.S.C. §2254, but a panel of this court reversed. 809 F.3d
299 (7th Cir. 2015). The panel concluded that, by not sponta‐
neously correcting Irby’s testimony, the prosecutor violated
the rule of Napue v. Illinois, 360 U.S. 264 (1959), and succes‐
sors such as Giglio v. United States, 405 U.S. 150 (1972). The
panel understood these cases to establish that, whenever any
witness makes a statement that the prosecutor knows is un‐
true, the Due Process Clause of the Fourteenth Amendment
requires the prosecutor to correct that statement immediate‐
ly. That was not done in Long’s second trial, and the panel
held that Long therefore is entitled to collateral relief. To
reach this conclusion the panel also had to address Long’s
procedural default in state court, which it did by holding
that Long’s appellate lawyer had rendered ineffective assis‐
tance by not making a Napue argument on direct appeal.
Because this case entails federal collateral review of a
state conviction, we start with 28 U.S.C. §2254(d), which as
amended in 1996 by the Antiterrorism and Effective Death
Penalty Act (AEDPA) provides:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim—(1) resulted in a decision that was contrary to, or in‐
volved an unreasonable application of, clearly established Fed‐
eral law, as determined by the Supreme Court of the United
The Appellate Court of Illinois ruled that any error was
harmless in light of the other evidence inculpating Long.
Davis v. Ayala, 135 S. Ct. 2187 (2015), holds that a harmless‐
error decision is one “on the merits” as §2254(d) uses that
phrase. The state court concluded that Long had a good po‐
sition as a matter of state law, because People v. Lucas, 203 Ill.
2d 410, 424 (2002), holds that a prosecutor must correct false
testimony that the defense elicits. Given the harmless‐error
ruling, however, that conclusion did not benefit Long. The
panel of our court, by contrast, went straight to federal law
under Napue and its successors, and after holding that the
prosecutor had violated the rule of Napue stated that Long is
entitled to a new trial. The panel did not mention the doc‐
trine of harmless error or apply the standard of Brecht v.
Abrahamson, 507 U.S. 619 (1993). Our order setting this case
for rehearing en banc vacated the panel’s decision.
Long contends that the state courts rendered decisions
“contrary to” Napue and similar decisions. Of course the
state judges didn’t disparage or contradict Napue; by citing
Lucas the Appellate Court ruled in Long’s favor, though as a
matter of state law. The state court did not analyze Napue at
all. (It was cited once but not elaborated on, given Lucas.) But
we know from Harrington v. Richter, 562 U.S. 86, 97–100
(2011), that it does not matter whether a state court discusses
federal precedent; §2254(d)(1) applies whenever the state
court makes a decision on the merits, no matter what the
state judiciary says. See also Johnson v. Williams, 568 U.S. 289
(2013). So we start with the merits—and because we con‐
clude that the Supreme Court has not “clearly established”
that the doctrine of Lucas is a rule of federal constitutional
law, we need not address harmless error (or for that matter
the procedural‐default issue).
Long understands Napue and its successors to establish
that the prosecutor must immediately correct any false tes‐
timony—and that it does not matter whether the defense al‐
ready knows the truth, or whether the jury learns the truth
before deliberating. It is not hard to find statements that,
taken at a high level of generality, could be so understood.
The Court summarized the Napue principle this way
in California v. Trombetta, 467 U.S. 479, 485 (1984): “The most
rudimentary of the access‐to‐evidence cases impose upon
the prosecution a constitutional obligation to report to the
defendant and to the trial court whenever government wit‐
nesses lie under oath.” This statement does not contain ex‐
ceptions for testimony elicited by the defense, or testimony
known by the defense to be false, or testimony corrected be‐
fore the jury deliberates. But then the Supreme Court has
never considered any of those possible qualifications. All
Napue itself holds is that perjury known to the prosecution
must be corrected before the jury retires. The Court did not
say when or by whom. And Giglio identifies as the constitu‐
tional problem a prosecutor’s deliberate deception of the ju‐
rors, which can’t occur when the truth comes out at trial and
the prosecutor does not rely on the falsehood.
In Napue and its successors: (a) the false testimony was
elicited by the prosecutor (we discuss an exception shortly);
(b) the truth was unknown to the defense; (c) the prosecutor
asked the jury to rely on the false testimony; and (d) the jury
never learned the truth. In this case, by contrast, the false tes‐
timony was elicited by the defense, which knew the truth,
and the prosecutor, instead of relying on the false testimony,
accepted Walter’s testimony about Irby’s recantation but ar‐
gued that her in‐court identification was nonetheless correct.
One passage in Napue, 360 U.S. at 269, could be read to
imply that a prosecutor must correct testimony no matter
who solicited it. The Court wrote: “The same result obtains
when the State, although not soliciting false evidence, allows
it to go uncorrected”. This language must be understood in
light of the citation the Court gave: Alcorta v. Texas, 355 U.S.
28 (1957). In Alcorta the prosecutor had told the witness not
to be forthcoming and deliberately elicited a misleading
statement; the defense and the jury never learned the truth,
something Alcorta stressed. Read in context, the passage in
Napue implies that a prosecutor must furnish the truth
whether a falsehood had been elicited deliberately (in bad
faith) or inadvertently. This is how Brady v. Maryland, 373
U.S. 83, 87 (1963), understood it, remarking that when the
prosecution withholds exculpatory evidence there is a con‐
stitutional problem “irrespective of the good faith or bad
faith of the prosecution.” It is accordingly not proper to read
this passage of Napue as establishing that it is irrelevant who
elicits the false testimony, whether the defense knows the
truth, and whether the truth is presented to the jury. Those
issues were not before the Court or expressly decided.
It is similarly inappropriate to understand Giglio as hold‐
ing anything about these matters. There the false testimony
was elicited by defense counsel, but the Court made nothing
of that fact, whose significance the parties had not briefed;
instead it ruled for the defense because the prosecutor em‐
braced the witness’s false statement and argued it to the jury
as a basis of conviction, even though at least one of the pros‐
ecutors understood that the truth was exculpatory and un‐
known to the defense. The witness testified that no promises
had been made; one prosecutor (who made them) knew oth‐
erwise, yet at trial the prosecution told the jury that the ab‐
sence of a promise made the witness’s testimony especially
credible. The Justices concluded that Brady required the
truth’s disclosure and forbade the prosecutor from arguing
that the witness had not been promised favorable treatment.
This case therefore entails four questions that have never
been expressly decided by the Supreme Court:
• Do Napue and its successors apply when the defense
rather than the prosecutor elicits the false testimo‐
• Must the prosecutor correct false testimony when
defense counsel already knows the truth?
• Does the Constitution forbid a conviction obtained
when the prosecutor does not correct but also does
not rely on the falsehood?
• Does the Constitution forbid a conviction obtained
when all material evidence is presented to the jury
before it deliberates?
Long believes that all four of these questions should be an‐
swered yes but does not contend that any of them has been
answered in the defendant’s favor by the Supreme Court.
Instead he believes that, once a general principle has been
established, a court of appeals can resolve subsidiary issues
such as these. That’s a possibility the Supreme Court has re‐
jected as inconsistent with the statutory rule that, to support
collateral relief, a principle must be “clearly established …
by the Supreme Court of the United States” rather than by
an intermediate federal court. The Justices insist that a prin‐
ciple be made concretely applicable to the problem at hand
before it may be used on collateral review. A recent example
in this sequence said, when summarily reversing an appel‐
The Ninth Circuit pointed to no case of ours holding [that the
prosecutor must specify in advance of trial the precise theory of
liability on which it would rely]. Instead, the Court of Appeals
cited three older cases that stand for nothing more than the gen‐
eral proposition that a defendant must have adequate notice of
the charges against him. … This proposition is far too abstract to
establish clearly the specific rule respondent needs. We have be‐
fore cautioned the lower courts … against “framing our prece‐
dents at such a high level of generality.” Nevada v. Jackson, 133 S.
Ct. 1990, 1994 (2013).
Lopez v. Smith, 135 S. Ct. 1, 4 (2014). See also, e.g., Woods v.
Donald, 135 S. Ct. 1372 (2015).
We appreciate that, if a general proposition inevitably en‐
tails some concrete application, then there’s no need to wait
for the Justices to apply the principle in the inevitable way.
But it is not obvious to us that the Napue principle requires a
new trial when the prosecutor fails to correct a falsehood,
but the defense knows about that falsehood and corrects it.
To the contrary, this court held in United States v. Saadeh, 61
F.3d 510, 523 (7th Cir. 1995), that there is no constitutional
violation in that situation. See also United States v. Adcox, 19
F.3d 290, 296 (7th Cir. 1994). The proposition that defense
counsel’s knowledge of the truth is irrelevant therefore can‐
not be taken as clearly established by the Napue principle it‐
self. Nor does the Napue principle establish that it is irrele‐
vant whether the truth is presented in open court before the
Another way to ask whether the application of Napue
when the defense knows the truth is so obvious that it must
be taken as already established is to examine how the Justic‐
es have handled a related subject. The Napue‐Giglio rule is a
cousin to the Brady doctrine, which requires the prosecution
to reveal material exculpatory evidence. The Justices them‐
selves treat Napue and Brady as two manifestations of a prin‐
ciple that prosecutors must expose material weaknesses in
their positions. See, e.g., Strickler v. Greene, 527 U.S. 263, 298–
The Supreme Court has considered whether Brady re‐
quires the prosecution to disclose (or put before the jury) ex‐
culpatory or impeaching information known to the defense.
The answer is no. See, e.g., United States v. Agurs, 427 U.S. 97,
103 (1976) (Brady applies only to information “unknown to
the defense”). Our circuit has made the same point and add‐
ed that there is no disclosure obligation under Brady if the
defense easily could have found the information, even if it
didn’t find it in fact. See, e.g., United States v. Morris, 80 F.3d
1151, 1170 (7th Cir. 1996). Other circuits agree. See, e.g., Unit‐
ed States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990). Given
how Brady is understood, an intermediate appellate court
could not confidently predict that Napue and Giglio will be
treated differently—let alone so confident that we could de‐
clare (as §2254(d) requires) that this has already been clearly
established by the Supreme Court.
In this case what occurred may well have helped the de‐
fense rather than the prosecutor. Irby’s false testimony ena‐
bled the defense to depict her either as a perjurer (if she re‐
membered what had happened) or as having a faulty
memory (if she had forgotten); this could have helped the
defense diminish the force of Irby’s identification. It is awful‐
ly hard to see why events that may have helped the defense
should lead to collateral relief in the absence of any clearly
established legal transgression.
When presented with the four open issues we have iden‐
tified, the Supreme Court may resolve some or all of them in
favor of a defendant in Long’s position. But it has not done
so to date, and §2254(d)(1) accordingly prohibits a grant of
collateral relief. We do not attempt to determine how those
questions would or should be resolved.
Long presents other contentions that the panel resolved
against him. 809 F.3d at 313–16 (quotation from Gone with the
Wind; prosecutor’s anecdote; prosecutor’s reference to a let‐
ter not in evidence; ineffective assistance of trial counsel). We
agree with the panel’s resolution of those issues and reinstate
that portion of its opinion without reproducing the discus‐
HAMILTON, Circuit Judge, joined by ROVNER and WILLIAMS,
Circuit Judges, dissenting. The bar for federal habeas relief is
high, requiring the petitioner to show the state courts unrea‐
sonably applied controlling Supreme Court precedent. 28
U.S.C. § 2254(d)(1). Petitioner Long has cleared that high bar.
I respectfully dissent.
Nearly sixty years ago, the Supreme Court held that a
State deprives a person of liberty without due process of law
if it convicts him by knowingly using false testimony, and it
imposed on the prosecutor the duty to see that perjured testi‐
mony is corrected. Napue v. Illinois, 360 U.S. 264, 269 (1959). In
this case, a key prosecution witness lied about a point critical
to her credibility. She swore to the jury, repeatedly, that she
had been consistent in identifying petitioner Long as the per‐
son who murdered Sherman. Those were lies, and the prose‐
cutors knew they were lies. Yet the prosecutors did nothing to
see that the lies were corrected.
The state courts actually recognized the due process vio‐
lation but erred, as our panel explained, by excusing the vio‐
lation as harmless. The majority affirms the results in the state
court by first rejecting the state courts’ actual reasoning and
then hypothesizing possible distinctions that might be drawn
between this case and the Napue line of cases.
Yet Napue itself considered and rejected the grounds the
majority relies upon to excuse the Illinois courts’ failure to fol‐
low it. It does not matter, the Supreme Court said, which side
elicited the false testimony. Id. at 269. Nor does it matter
whether the defense knew of the false testimony or whether
the jury heard evidence contradicting the false testimony. See
id. at 269–70. What this jury never heard was a prosecutor or
judge saying that the witness had lied to the jury. Moreover,
the case against Long was so fragile that the Napue violation
cannot reasonably be deemed harmless. The state courts’ de‐
nial of post‐conviction relief to Long was contrary to Napue,
so federal habeas relief is necessary under 28 U.S.C. § 2254.
Part I of this dissent lays out the facts of the witness’s per‐
jury during Long’s trial. Part II summarizes the Supreme
Court’s decision in Napue. Part III rejects the majority’s efforts
to limit Napue to excuse the state courts’ failure to follow it.
I. The Perjury in Long’s Trial
We review here the conviction of Paysun Long for the
murder of Sherman in Long’s second trial. (The second trial
was needed because of prosecutorial misconduct in closing
argument in the first trial.) No physical evidence tied Long to
the murder. The prosecution relied heavily on two
witnesses—Keyonna Edwards and Brooklyn Irby—who
testified that they had seen Long shoot Sherman. Edwards
had her own credibility issues, since some details of her
account were not corroborated by anyone else present, but
our focus here is on Irby.1
Irby testified that she was walking through the Taft Homes
housing development in Peoria on June 11, 2001 when she
saw Long shoot Sherman. On cross‐examination, defense
counsel asked Irby whether she had previously told the pros‐
ecutor herself and an investigator that she had lied when she
first told investigators in June 2001 that she had seen Long
shoot Sherman. Supp. App. 132–36. Irby repeatedly denied
that she had done so. Those sworn answers were lies, and the
1 Two other prosecution witnesses testified that Long was not the
shooter, but the prosecution was allowed to put into evidence earlier rec‐
orded statements by those witnesses saying that he was.
prosecutor knew it. Yet the prosecutor did nothing to correct
Irby’s false denials of having changed her story, even in redi‐
rect examination of Irby.
Long’s attorney did what he could to attack Irby’s lies and
thus her credibility. After the State had finished presenting its
case, the defense called Frank Walter, the prosecution’s
investigator who had talked with Irby. Walter testified that
Irby had recanted her identification of Long. App. Dkt. 13–12
at 330–34. That’s how the evidence closed: Irby said she had
never changed her story, and Walter said she had.
During closing arguments, the prosecution did not even
acknowledge Irby’s lies, let alone correct them. The prosecu‐
tion first tried to finesse the problem, saying that the defense
argue that Brooklyn Irby came to the State’s At‐
torney’s Office and said on an earlier occasion
prior to her testifying and said I wasn’t telling
the police the truth. Well, she came in here and
raised her hand and told you what happened and
you saw her testimony. Maybe she thought if
she told the State’s Attorney’s Office she wasn’t
telling the truth she wouldn’t have to testify. But
when she came in here and was under oath, she told
you what she saw and that was consistent with
what Keyonna [Edwards] told you and that was
consistent with what she has told you and that
was consistent with what Shawanda [Walker]
told you and that was consistent with the phys‐
Supp. App. 149–50 (emphases added). Missing from that care‐
ful dance around Irby’s perjury is any acknowledgment that
Irby had lied under oath to the jury. The prosecutors’ handling
of Irby contrasts with their sharp attacks on other witnesses,
including prosecution witnesses, for being untruthful. See
App. Dkt. 13–12 at 349–51. The prosecutors knew how to tell
the jury that other witnesses had lied to them, but they never
admitted to the jury that Irby had lied to the jury.
During the defense closing argument, the defense pointed
out Irby’s lies and reminded the jury that Walter, the prosecu‐
tion’s investigator, had testified that Irby had changed her
story: she had told him and the prosecutor that she had lied
in June 2001 about seeing Long shoot Sherman. Yet in her trial
testimony she lied by denying that.
During the rebuttal argument, the prosecutor soft‐pedaled
the perjury. She said that Irby had recanted her story back in
November 2001 when she was served with a subpoena, but
immediately emphasized that Irby had (supposedly) told the
truth when she was under oath. Supp. App. 171. The prosecu‐
tor still never acknowledged that Irby had lied to the jury in
her trial testimony.
To sum up, then, a key prosecution witness lied about a
point critical to her credibility, and the prosecution knew she
was lying. Yet the prosecution took no steps to correct the per‐
II. Napue v. Illinois
Under the Antiterrorism and Effective Death Penalty Act
of 1996, known as AEDPA, federal courts must accept a state
court’s decision on the merits of a habeas petitioner’s claim
unless the state court decision was contrary to or an unrea‐
sonable application of clearly established law under Supreme
Court authority, or based on an unreasonable finding of fact.
28 U.S.C. § 2254(d). Petitioner Long is not asking the federal
courts to make new law on his behalf. He asks us only to en‐
force the Supreme Court’s 1959 decision in Napue v. Illinois.
Napue was, like this case, a murder prosecution in Illinois.
A police officer had been fatally shot in a robbery attempted
by several men. The principal State’s witness was a man
named Hamer who was already serving a prison sentence for
the same murder. Hamer testified that Napue had been one of
the robbers. During Napue’s trial, the prosecutor asked
Hamer whether he had received any promises of leniency in
return for his testimony. Hamer said no. But that was false,
and the prosecutor did nothing to correct that lie. The jury
was told, however, that a public defender had promised “to
do what he could” for Hamer.
The prosecution later asked to have Hamer’s sentence re‐
duced based on the promise that Hamer had denied receiving
in Napue’s trial. When Napue heard of the effort to reduce
Hamer’s sentence, he sought relief from his own conviction.
The state courts denied relief, but the Supreme Court reversed
in a unanimous opinion by Chief Justice Warren. The Court
began from the foundation that “a conviction obtained
through use of false evidence, known to be such by represent‐
atives of the State, must fall under the Fourteenth Amend‐
ment.” 360 U.S. at 269, citing Mooney v. Holohan, 294 U.S. 103
(1935), and other cases.
The next sentence in the opinion addresses the problem
here: “The same result obtains when the State, although not so‐
liciting false evidence, allows it to go uncorrected when it ap‐
pears.” Id. (emphasis added), citing Alcorta v. Texas, 355 U.S.
28 (1957), and other cases. (The Court later explained that this
holding in Napue was a deliberate extension of the older rul‐
ing in Mooney. Brady v. Maryland, 373 U.S. 83, 87 (1963).)
Napue then rejected other attempts to excuse the use of the
false testimony. First, it made no difference that the false tes‐
timony addressed Hamer’s credibility rather than his sub‐
stantive testimony. 360 U.S. at 269. “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 269–70,
quoting People v. Savvides, 136 N.E.2d 853, 854 (N.Y. 1956).
Then the Court rejected another theory for avoiding the
perjury, that merely contradictory evidence would correct the
problem: “we do not believe that the fact that the jury was
apprised of other grounds for believing that the witness
Hamer may have had an interest in testifying against
petitioner [Napue] turned what was otherwise a tainted trial
into a fair one.” Id. at 270. The Court finally rejected the state
court’s conclusion that the false testimony would not have
affected the verdict, id. at 271–72, since the conviction of
Napue depended so heavily on whether the jury believed
Hamer. See also Wearry v. Cain, 577 U.S. —, —, 136 S. Ct. 1002,
1006 (2016) (noting that Napue harmless error standard also
applies to Brady claims).
III. The Majority’s Efforts to Limit Napue
Since 1959, Napue has been understood to impose on pros‐
ecutors an obligation to correct prosecution evidence that they
know is false. In this case, the prosecution failed to fulfill that
obligation. The state appellate court actually acknowledged
the Napue violation, but refused, over a powerful dissent, to
correct the error on the theory that the violation was harmless.
People v. Long, 2011 WL 10457885, at *3, *4 (Ill. App. Jan. 21,
2011) (citing state cases that applied Napue).2
The majority does not try to excuse the Napue due process
violation as harmless, as the state court did. Instead, the ma‐
jority offers four supposed distinctions that might allow some
other hypothetical state court to deny relief to Long and thus
to avoid federal habeas relief in light of 28 U.S.C. § 2254(d)(1).
On examination, however, it becomes clear that Napue re‐
jected the most important of them. The last distinction evapo‐
rates when we ask what it means to present “the truth” in an
adversarial trial and what counts as “correcting” perjury un‐
The majority first asks whether “Napue and its successors
apply when the defense rather than the prosecutor elicits the
2 The majority cites Harrington v. Richter and Johnson v. Williams, ante
at 4, for the idea that AEDPA deference under § 2254(d)(1) applies “when‐
ever the state court makes a decision on the merits, no matter what the
state judiciary says.” Both cases dealt with summary, unexplained orders
issued by busy state courts. In such cases, considering possible explana‐
tions for a state court’s unexplained denial of a federal constitutional claim
helps preserve comity between federal state courts. Here, however, the
Illinois court actually acknowledged the constitutional problem. It found
a due process violation but concluded that the violation did not matter. In
a case such as this, “where the state court’s real reasons can be ascer‐
tained,” we should look to the “actual arguments or theories that sup‐
ported the state court’s decision” and not to secondary or hypothetical ra‐
tionales. Hittson v. Chatman, 576 U.S. —, —, 135 S. Ct. 2126, 2127–28 (2015)
(Ginsburg, J. concurring in denial of certiorari) (internal quotations and
false testimony?” Ante at 8. Napue itself answered that ques‐
tion: “The same result obtains when the State, although not
soliciting false evidence, allows it to go uncorrected when it
appears.” 360 U.S. at 269. Nothing in the Napue opinion sug‐
gests that the prosecution’s constitutional duty of candor de‐
pends on which lawyer asked the question that drew the lie.
See Brady, 373 U.S. at 87 (noting that this holding in Napue ex‐
tended prior rule in Mooney that prohibited prosecutors from
offering knowingly perjured testimony). The majority tries to
explain away the broad phrasing of the Napue opinion by
pointing to the citation to Alcorta v. Texas, 355 U.S. 28 (1957),
and reads the teaching of Napue on this point as if it were con‐
fined to the facts of Alcorta. The better course is to assume that
the Supreme Court noticed whether it was phrasing its teach‐
ing in Napue broadly or narrowly. We should not strain so
hard to narrow it.
In fact, the Supreme Court has already confronted a case
in which the prosecution violated Napue without itself offer‐
ing the perjured testimony. In Giglio v. United States, 405 U.S.
150, 151–52 (1972), a key prosecution witness lied on cross‐
examination by denying he had received any promise of leni‐
ency. The prosecution did nothing to correct the lie because
the trial prosecutor did not know of the promise. The Su‐
preme Court reversed and remanded for a trial because of the
perjury brought out by defendant’s cross‐examination.
The majority next asks, “Must the prosecutor correct false
testimony when defense counsel already knows the truth?”
Ante at 7. This is a red herring that simply misses the point of
Napue. The majority bases this supposed distinction on the
theory that the Napue rule is a “cousin to the Brady doctrine.”
Ante at 8, citing Brady, 373 U.S. 83. Brady requires the prose‐
cution to disclose to the defense evidence that tends to excul‐
pate the accused, including evidence relevant to witness cred‐
ibility. The doctrines are in fact linked. In Giglio, the Supreme
Court explained that Mooney had held that deliberately de‐
ceiving a court and jury by presenting evidence known to be
false is incompatible with “rudimentary demands of justice,”
and that Napue had extended that rule to cases where “the
State, although not soliciting false evidence, allows it to go
uncorrected when it appears.” 405 U.S. at 153, quoting Napue,
360 U.S. at 269.
While the doctrines are linked, they are not identical. Gig‐
lio held that Brady applies even where the government’s fail‐
ure to disclose exculpatory evidence was inadvertent, id. at
154, and disclosure to the defense is sufficient to comply with
Brady. E.g., United States v. Walter, 870 F.3d 622, 629 (7th Cir.
2017); Holland v. City of Chicago, 643 F.3d 248, 255 (7th Cir.
2011). That’s why Brady does not apply to information already
known to the defense. United States v. Agurs, 427 U.S. 97, 103
(1976); Walter, 870 F.3d at 629 But when the prosecution knows
that a prosecution witness has lied to the court and jury, which
everyone agrees happened in this case, Napue applies. It im‐
poses a duty on the prosecution not merely to inform the de‐
fense but to ensure that the perjury is corrected. 360 U.S. at 269.
If mere disclosure of the perjury to the defense were
enough, as it is under Brady and as the majority suggests here,
the logic of the rule would allow the prosecution to disclose
the perjury and just stand aside while the defense tries to re‐
but it. That is simply not a reasonable reading of Napue, which
again instructs that the prosecution may not allow the perjury
“to go uncorrected when it appears.” 360 U.S. at 269. In fact,
the majority cites no case that actually interprets Napue as it
suggests, allowing the prosecution merely to disclose the per‐
jury to the defense without actually correcting the perjury.
Napue addresses not what the defense knows but the in‐
tegrity of the evidence before the jury. Napue teaches that the
prosecution has an obligation to ensure that false testimony is
corrected. Nothing in the opinion suggests that the obligation
is removed if the defense knows the truth and has the oppor‐
tunity to offer contradictory evidence. What matters is the risk
that the jury will use the false evidence to convict. The Napue
Court put the obligation squarely on the prosecution to see
that the false evidence is corrected, without the majority’s pro‐
The majority next asks: “Does the Constitution forbid a
conviction obtained when the prosecutor does not correct but
also does not rely on the falsehood?” Ante at 7. Again, the Na‐
pue opinion answers this question: “The same result obtains
when the State, although not soliciting false evidence, allows
it to go uncorrected when it appears.” 360 U.S. at 269. The key
phrase is “allows it to go uncorrected.” That flatly contradicts
the majority’s suggestion that Napue left the prosecution room
to avoid its obligation to correct false evidence by merely re‐
fraining from asking the jury specifically to rely upon the per‐
Finally, the majority asks: “Does the Constitution forbid a
conviction obtained when all material evidence is presented
to the jury before it deliberates?” Ante at 7. That proposed dis‐
tinction might have a superficial plausibility, but it is also
plainly contrary to Napue. It also ignores the reality of a jury
trial in our adversarial system. Under the majority’s theory,
Napue might allow prosecutors to respond to known perjury
by merely allowing the defense to contradict the perjury. It
does not. Napue made clear that the prosecution has a duty to
correct the perjury.
A jury that hears evidence merely contradicting the per‐
jury cannot be said to know the truth. Nor can mere contradic‐
tion reasonably be deemed to be a “correction.” The prosecu‐
tion here never admitted to the jury that Irby lied to them. The
jurors heard Irby repeatedly claim under oath that she had
told a consistent story, and they heard investigator Walter tes‐
tify that she had not been consistent. The judge instructed the
jurors that it was up to them to evaluate the credibility of the
witnesses and that the lawyers’ arguments were just argu‐
ment, not evidence.
In the post‐conviction proceedings, and with the benefit of
hindsight, the lawyers and judges know that Irby lied to the
jury. That fact is “as clear and certain as a piece of crystal or a
small diamond.” See Nix v. Whiteside, 475 U.S. 157, 190 (1986)
(Stevens, J., concurring). But the jurors just heard conflicting
testimony from Irby and Walter. The prosecution even told
them in closing argument that a witness’s prior inconsistent
statements should not affect her credibility! To the jury,
whether Irby had lied to them was not a certain fact but only
a possibility. It was one of those “mixtures of sand and clay”
more familiar to trial lawyers and judges. See id. As Justice
McDade explained in her dissent in the Illinois Appellate
Court, due process and Napue are violated if the prosecutor
can leave “jurors to somehow discern what he had the legal
obligation to tell them—that Irby had lied under oath.” Long,
2011 WL 10457885, at *8 (McDade, J., dissenting) (emphasis in
original). The Supreme Court made the same point more re‐
cently. The Court explained that due process of law usually
relies on the presentation of contradictory evidence, but noted
the exception for perjury by prosecution witnesses, where
due process calls for much stronger medicine. Perry v. New
Hampshire, 565 U.S. 228, 237 (2012).
In short, the majority’s suggestions that Napue leaves the
state courts room to avoid following it on the facts of this case
are without support. Napue expressly rejected several of the
suggestions, and its logic clearly rejects the last.
IV. Remaining Issues
The panel explained why Long’s due process claim under
Napue was not procedurally defaulted. 809 F.3d at 308–09.
And the Napue due process violation cannot reasonably be
dismissed as harmless or non‐prejudicial under any available
standard, whether under Napue itself, 360 U.S. 272 (false testi‐
mony “may have had an effect on the outcome of the trial”),
Brecht v. Abrahamson, 507 U.S. 619, 622 (1993) (whether error
“had substantial and injurious effect or influence”), or Chap‐
man v. California, 386 U.S. 18, 24 (1967) (“harmless beyond a
The Illinois Appellate Court acknowledged in three differ‐
ent appeals, and this court’s panel explained, that the case
against Long was weak. See Long, 2011 WL 10457885, at *3
(“not overwhelming”); Supp. App. 63 (affirming second ver‐
dict: evidence in second trial was “closely balanced”); Supp.
App. 49 (reversing original verdict: evidence in first trial was
“closely balanced”); Long, 809 F.3d at 311 (noting that case
against Long was “weak”). No physical evidence tied Long to
the murder. All four of the State’s eyewitnesses posed prob‐
lems. Two testified that they did not see Long shoot Sherman.
Edwards had her own credibility problems. And Irby lied to
the jury. The State’s failure to correct Irby’s perjury likely in‐
fluenced the jury. It was not reasonable of the state court to
find that merely offering contradictory evidence (from inves‐
tigator Walter) was sufficient to cure the Napue due process
violation. See Long, 809 F.3d at 311.
In evaluating and rejecting the possibility of harmless er‐
ror, we consider the trial record as a whole. Napue, 360 U.S. at
272; see also Giglio, 405 U.S. at 154 (reversing where perjured
testimony was key to prosecution’s case); Long, 809 F.3d at 311.
We should not close our eyes to other instances of prosecuto‐
rial overreach, including two outrages from the rebuttal clos‐
ing argument, when the defense could not respond.
First, the prosecution pulled a blatantly racist stunt, com‐
paring those present when the police arrived to the slave char‐
acters in Gone with the Wind, quoting from the scene where
Scarlett O’Hara tells the slave Prissy to help her deliver Mela‐
nie Wilkes’s baby. Prissy famously tells “Miss Scarlett” that
she “don’t know nothin’ ’bout birthin’ babies,” and is
promptly slapped. See Supp. App. 168; see also Supp. App.
70–71 (McDade, J., dissenting from affirmance on direct ap‐
peal) (prosecutor’s use of Gone with the Wind passage was
“blatant appeal to racism” that worked). And a few moments
later, the prosecutor went so far as to describe a letter Irby had
written that was not even in evidence. The judge had to inter‐
rupt and told the jury to disregard that blatant attempt by the
experienced lead prosecutor to put unadmitted hearsay in
front of the jury, Supp. App. 171, but she got the jury’s atten‐
tion. During deliberations, the jury asked to see that letter.
In short, Long was not convicted in a fair trial. We should
order that he receive a new trial.
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