Paysun Long v. Randy Pfister, Warden

Nearly sixty years ago, this Court held that the failure by a prosecutor to correct perjured testimony deprives an accused of liberty without due process of law. Napue v. Illinois, 360 U.S. 264, 269 (1959). The Court’s ruling was consistent with a long line of precedent acknowledging “that a conviction, secured by the use of perjured testimony known to be such by the prosecuting attorney, is a denial of due process.” While v. Ragen, 324 U.S. 760, 764 (1945). When a prosecutor fails to fulfill his “duty to correct what he knows to be false and elicit the truth,” he “prevent[s] . . . a trial that could in any real sense be termed fair.” Napue, 360 U.S. at 270; see also United States v. Agurs, 427 U.S. 97, 103 (1976) (“In a series of . . . cases, the Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair.”). In this case, a key prosecution witness offered false testimony critical to the conviction of petitioner Paysun Long. She swore to the jury, repeatedly, that she had been consistent in identifying Mr. Long as the person who murdered the decedent. It is undisputed that those statements were false, and the prosecution knew they were false. Yet, there is also no dispute that the prosecutor failed to correct those false statements before the jury deliberated. A unanimous Seventh Circuit panel agreed that Mr. Long’s conviction violated Napue. Nonetheless, the en banc court affirmed Mr. Long’s conviction in a 5-3 decision, based on four purported “exceptions” to Napue’s directive that the prosecution must correct perjured testimony. According to the majority, this Court has not “expressly decided” that a Napue