The USCA 9 recently decided Smith v. Baldwin, which presents a problem of how to characterize a prosecutor's conduct. To radically simplify the case, Smith participated in a burglary in which a homeowner was bludgeoned to death with a tire iron. Edmonds, the other burglar, cooperated with the prosecution and claimed that Smith was the murderer. Smith pleaded no contest to robbery and felony murder.
Many years later, in a sworn affidavit, Edmonds recanted his claim about Smith (though not admitting the logical conclusion, that he, Edmonds, was the murderer). Prosecutors then inform Edmonds that (i) if he persisted in his claim, it would revoke his guilty plea; and (ii) bring capital murder charges against him; but (iii) would waiver perjury charges if he recants his recantation. Prosecutors also tell him he needs a lawyer, and arrange for him to have one. Not surprisingly, after counsel appears, Edmonds clams up.
The majority holds that the threat to bring a capital charge was prosecutorial misconduct because it was obviously designed to shut Edmonds up and deny Smith relief on his habeas petitions. The majority concludes the point is obvious enough that it refuses to remand to the district court for a hearing on whether the prosecutors acted with bad intent (no finding had been made below).
The dissent thinks the key is the prosecutor's intent, and that a hearing is required to establish what it was. The dissent points out that if Edmonds's recantation was false, then he committed perjury in an effort to free (or give a break to) a murderer. If it was true, then he had lied to prosecutors, pinned the rap on a person not guilty of murder (though possibly guilty of felony murder), and bludgeoned an elderly man to death with a tire iron. Either way, the dissent reasons, the prosecutor was justified in sending a clear signal that the prosecution took either option to be a serious offense. The dissent also points out that Edmonds might have had a justified complaint if the prosecutor stayed silent, allowed him to breach his earlier plea deal, and then brought charges against Edmonds for murder.
Both of the dissent's points strike me as quite reasonable, as does the majority's conclusion that talk of the death penalty was so likely to have had a chilling effect that a reasonable prosecutor should have recognized that fact. But does it follow that the prosecution either (i) must sandbag Edmonds by not mentioning the death penalty and then pursuing it if he breaches his plea agreement or (ii) lose the ability to bring a charge authorized by law for fear of producing a ruling like the majority's?
It is hard to see how an evidentiary hearing will help much on that dilemma (one suspects the prosecution will not admit to having a malign motive, or at least not to having had no other motive), but it is hard to see any other way to deal with the problem.
Thoughts?
DM