Can Prosecutors Knowingly Exploit Inaccurate Testimony?

Courts have long recognized that a prosecutor violates the Due Process Clause by knowingly presenting perjured testimony.  It may be a different matter, however, when a prosecutor merely takes advantage of inaccurate testimony that a defendant has offered.  Or so suggested the Seventh Circuit earlier this month in Bland v. Hardy (No. 10-1566).

Bland was convicted in an Illinois state court for the killing of his stepmother in connection with a plot to steal guns from her home.  The killing occurred in September 2000.  At his trial, Bland testified that he had been arrested on a felon-in-possession charge in January 2000, at which time police had confiscated a gun from him.  However, Bland was mistaken about the date: the arrest and confiscation actually occurred in January 2001, i.e., after the killing.  The prosecutor knew that Bland had mixed up the dates, but nonetheless used the mistaken testimony during closing arguments in order to develop a motive theory: Bland wanted to steal guns from his stepmother’s home because his gun had recently been taken, and he could not legally purchase a new one.

After unsuccessful efforts to obtain post-conviction relief in state court, Bland applied for federal habeas corpus relief.  However, the Seventh Circuit decided that his due process claim was defeated by 28 U.S.C. § 2254(d), which habeas limits relief to state-court decisions that are contrary to, or involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.  Since the Supreme Court has never expressly extended the bar on using perjured testimony to exploiting errors in a defendant’s testimony, the Seventh Circuit held that habeas relief was impermissible.

Although the particular deference rules of habeas meant that the Bland court did not have to — and did not — affirmatively hold that the exploitation of inaccurate testimony comports with due process, the court seemed surprisingly untroubled by what strikes me as quite ethically dubious conduct.  Surely, a knowing effort to mislead the jury merits some sort of censure.  Yet, the court instead shifted the blame to defense counsel: “Bland’s counsel could have corrected the error when it was made, or immediately after he left the stand, or even in closing argument.”

It may be the case that defense counsel does indeed deserve some blame — and it may also be the case that nothing here merits habeas relief — but it is troubling to see a court effectively sending a message that it’s okay for prosecutors to try to mislead the jury as long as there is a lawyer on the other side who is able to call them on it.