Phillips v. Ornoski

A prosecutor violates his or her duty to correct false testimony under Napue when he or she makes a deal with the attorney of a key witness, asks the attorney not to disclose the deal to the witness, then use the witness’s testimony and lack of direct knowledge of the deal as evidence that the prosecution made no promise in exchange for their testimony.

A jury sentenced Richard Phillips to death after finding him guilty of robbery, attempted murder, first-degree murder, and found the special circumstance of murder during the commission of a robbery. Phillips appealed the denial of his habeus corpus petition claiming, inter alia, that prosecutors violated his due process rights when they failed to reveal a key witness received significant benefits in exchange for her testimony and that the prosecutor falsely represented to the jury that no agreement existed. Under Napue the “government is obligated to correct any evidence introduced at trial that it knows to be false.” Before trial, the prosecutor made a deal with the attorney of the key witness whereby the witness would avoid prosecution in exchange for testifying against Phillips, and indicated that the lawyer should not communicate the deal to her client. At trial, the witness testified that the prosecution did not promise anything in exchange for testifying, nor did she expect anything in return. The witness later stated she relied on her attorney’s advice to testify. The prosecutor also argued in closing and rebuttal that no promises had been made with the witness. The Court found the witness’s testimony to be false, and that the government had an obligation to correct that false testimony, and not use it to buttress its argument. The Court determined the error did not prejudice the first three convictions, but did prejudice the finding in the special circumstance that Phillips committed the murder in furtherance of a robbery, and not vice versa. AFFIRMED in part, REVERSED in part, REMANDED.