Post-Conviction Relief for Immigrants

(H)  If the prosecutor argues one version of the facts as to one defendant, and another contradictory version as to another defendant, that may violate due process and invalidate a conviction or sentence.[388]

[388] Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000) (“Even if our adversary system is ‘in many ways, a gamble,’ Payne v. United States, 78 F.3d 343, 345 (8th Cir. 1996), that system is poorly served when a prosecutor, the state’s own instrument of justice, stacks the deck in his favor. The State’s duty to its citizens does not allow it to pursue as many convictions as possible without regard to fairness and the search for truth.” Due process is found violated in this case where, in two separate trials, the prosecutor utilized mutually inconsistent statements by a witness as to the timing of the murder in order to secure convictions of both defendants. “[T]he State’s zeal to obtain multiple murder convictions on diametrically opposed testimony renders [petitioner’s] convictions infirm.” In finding that the error was not harmless, the appeals court rejects the argument by the state that petitioner could have been convicted of felony-murder on the evidence presented at the other defendant’s trial. “The State proved its case against [petitioner] under the Bowman-as-murderer theory, and speculation regarding what the jury might have done under different circumstances is not a basis upon which to dispense with the State’s due process duty of fair prosecution.”); Nguyen v. Lindsey, 232 F.3d 1236 (9th Cir. November 30, 2000) (“[A] prosecutor’s pursuit of fundamentally inconsistent theories in separate trials against separate defendants charged with the same murder can violate due process if the prosecutor knowingly uses false evidence or acts in bad faith.” Here, the prosecutor’s theory was the same at both trials that in a case of voluntary mutual combat it did not matter who fired the first shot, and although the evidence about who did fire the first shot was different, it was consistent with the evidence actually offered at each trial).