If You Don't Mind A Little Perjury, You Can Convict Two People For The Same Crime

from the justice-lol dept

Mon, Dec 1st 2014 3:32pm — Tim Cushing

Want to convict two people for the same burglary? It can be done. If you're a state prosecutor willing to knowingly offer up perjured testimony, the impossible becomes the routine. (h/t to Eric Goldman)

Here's the backstory [pdf link]:

Early in the morning of December 19, 2012, a person wearing a mask, two hooded sweatshirts, and gloves broke into a Dollar General store in Mishawaka and stole approximately $3,500 in cash. Video surveillance revealed that the burglar was a white female. On December 28, police investigating the burglary questioned [Nicole] Greenlee, a white female employee of the Dollar General store, who ultimately confessed to the burglary.

At one point during the investigation, Greenlee named [Antonio] Smith, her boyfriend at the time, and another woman as accomplices in the burglary, but police concluded that Greenlee had acted on her own. The State charged Greenlee with burglary, as a Class C felony. Greenlee pleaded guilty and, during her plea hearing on May 6, 2013, she testified under oath that she had broken and entered the Dollar General store with the intent to commit theft, she had opened the door to get inside, and she had disarmed the alarm system using the code. During that hearing, Greenlee did not testify that Smith or anyone else helped her commit the burglary.

So, the police had a suspect convicted for this burglary. And the corroborating video showed that Greenlee performed the criminal act on her own. But that wasn't enough. They brought charges against Smith "for committing the same December 19 burglary of the Dollar General store."

This double-charging obviously presented an issue. The state prosecutor's case hinged on Greenlee's testimony, something that (a) contradicted her previous testimony during her guilty plea and (b) the surveillance recording of the incident. None of that deterred the state from attempting to achieve the impossible. The state prosecutor warned the jury that it was going to have to come to terms with the fact that the State was willing to use perjury to achieve its goal of putting two people in jail for the same criminal act. Of course, it worded it a bit differently.

During its opening statement at Smith’s trial, the State told the jury:

[y]ou’re also going to hear [Greenlee] give two different versions of what happened. When she first talked to the police, you’re going to hear that she took the blame for being the one inside the store saying she was the one that [sic] went in, that’s her on the tape, that [Smith] was outside in the bushes.

You’re probably also going to hear her sit right up here today and sit on the stand and tell you something different. What she’s probably going to tell you is that she was outside in the bushes and that [Smith] was inside, and you’re going to hear about the factors that may contribute to that change in story and that’s something you’re going to have to deal with at the end of this process.

TL; DR: We're going to lie to you. Good luck!

Nicole Greenlee herself may have wondered how she was going to get away with testifying in direct contradiction of her previous admission. Fortunately, the prosecution promised her that she wouldn't get into any more trouble than she was already in. She was given immunity against perjury charges. So, she testified in direct contradiction of her previous statements. She claimed she confessed just to get the "whole process done and over with" and that she was waiting outside in the bushes while Smith performed the burglary. She also claimed that, while she was in jail, Smith offered to tell the cops that he did it. (The recording was played for the jury, and the State's counsel did not contest the defense's closing arguments that the "offer" was made in the context of "reassuring" the "crying" Greenlee, rather than as an admission that he had performed the burglary.)

The defense moved for a mistrial, pointing out that perjured testimony generally results in overturned convictions upon appeal. The trial court decided that Greenlee's contradictory statements were merely "inconsistent." It maintained this view even after hearing from a police detective whose statements indicated that Greenlee was alone when she burglarized the store.

Following Greenlee’s testimony, the State called South Bend Detective Timothy Wiley and offered into evidence the video surveillance recordings from the burglary. As noted above, Detective Wiley testified that the video evidence shows a white female acting as the only person inside the store during the burglary. Detective Wiley also testified that the cell phone records of Smith and Greenlee show that they were located near each other and were communicating with each other during the course of the burglary. But, on cross-examination, Detective Wiley admitted that he had no way to know the actual locations of each cell phone during the burglary.

Even the detective lied, albeit briefly. And yet, the court (and the jury) still found this to be damning enough to sentence Smith for the burglary he obviously didn't commit.

The appeals court found that Greenlee had committed perjury, in particular, violating this definition from the state statutes:

Has knowingly made two (2) or more material statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false;

The State continued to maintain that Greenlee's contradictory statements were merely "inconsistent." Somehow, the prosecution found that Greenlee's claims of being the sole actor and not being the sole actor did not rise to the state's definition of perjury. The appeals court takes that assertion apart.

This is not a case where a witness changes her story during the course of an investigation or during her trial testimony and is merely impeached with her prior inconsistent statements and those inconsistencies are to be resolved by a fact-finder… Greenlee’s statements were not merely inconsistent but mutually exclusive.

The State also argued that it did not "knowingly" proffer perjured testimony. The appeals court points out several facts that contradict this assertion, not the least of which is its offering of immunity to Greenlee against prosecution for perjury.

The State also claimed that no violation of Smith's due process rights occurred as a result of its perjury. In particular, it argued that Smith was probably guilty of something, and even if the perjured testimony removed the possibility that he was the principal actor, there was enough evidence that pointed to him being an accomplice. This assertion is dismissed as well.

Of course, if the jury convicted Smith as the principal, the perjury contributed directly to the jury’s verdict. If, however, the jury convicted Smith as an accomplice, the perjured testimony may have been irrelevant. But whether there was sufficient evidence to convict Smith as an accomplice does not resolve the question of whether Greenlee’s perjury constituted harmless error.

The knowing use of perjured testimony violates due process, impeaches the verdict, and undermines the integrity of the judicial system. Greenlee’s testimony poisoned the well and denied Smith a fair trial.

This is the State being greedy. It had one person charged and convicted, but it wanted even more. It wanted an additional conviction for the same crime badly enough that it allowed the person who had admitted to the crime (and been convicted) to take the stand and claim the opposite. Worse, the trial court allowed this mockery of justice to result in a conviction that ultimately had to be overturned by a higher court -- temporarily creating the impossible situation where both Greenlee and Smith simultaneously robbed the same store while inhabiting the same (white, female) body. As we've noted before, the criminal justice system has a way of making the miraculous seem mundane. This is just one more example of its transformative powers.

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Filed Under: burglary, perjury, state prosecutor

42 Comments

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Reader Comments

The First Word

“

What we need is for it to be a crime to offer someone immunity for lying.

—WDS

”

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That One Guy (profile), 1 Dec 2014 @ 3:42pm

If only it was a crime to lie, or tell someone to lie, in court...
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WDS (profile), 1 Dec 2014 @ 3:51pm

Re:
What we need is for it to be a crime to offer someone immunity for lying.
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Anonymous Coward, 1 Dec 2014 @ 3:56pm

Re: Re:
But then the state will make it a crime to make it a crime to offer someone immunity for lying!
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psiu, 1 Dec 2014 @ 3:56pm

Immunity
Okay, she got immunity...

but what about the prosecutors? Seems like they should be disbarred? And whatever judge thought this was acceptable? Pretty much the same. Great power and great responsibility and all that.
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Anonymous Coward, 1 Dec 2014 @ 3:59pm

Courts and Corruption

Really not that different from each other.

Now... regarding the MASSIVELY ignorant and STUPID jurors... the system is working as intended. This is a DIRECT result of the stupidity of today's school system.
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Anonymous Coward, 1 Dec 2014 @ 4:03pm

So...how can anybody be so sure that the *second* testimony was perjury, and not the first?
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Anonymous Coward, 1 Dec 2014 @ 4:12pm

Read the last footnote (number 8). The appellate court referred the prosecutors to the bar for knowingly encouraging a witness to perjure herself.
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sorrykb (profile), 1 Dec 2014 @ 4:13pm

Re: Re:
What we need is for it to be a crime to offer someone immunity for lying

Subornation of perjury, perhaps?
...
Would it be up to the prosecutor to determine whether to charge himself with a crime?
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Pseudonym, 1 Dec 2014 @ 4:13pm

Re:
I was thinking that myself. It seems to me that Greenlee now deserves a new trial given the evidence which the state now apparently accepts.
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Mason Wheeler (profile), 1 Dec 2014 @ 4:21pm

Re:
Because they caught a woman on film, and Antonio Smith--her boyfriend at the time--was a guy.
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Anonymous Coward, 1 Dec 2014 @ 4:25pm

Hopefully the state's prosecutors bring charges against themselves for deliberately lying in court.
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Pseudonym, 1 Dec 2014 @ 4:36pm

Re: Immunity
Read the last footnote on the last page of the opinion.
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lucidrenegade (profile), 1 Dec 2014 @ 4:46pm

Re:
Slap on the wrist, if that.
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Anonymous Coward, 1 Dec 2014 @ 5:00pm

Re: Re:
Because they caught a woman on film, and Antonio Smith--her boyfriend at the time--was a guy.

Because they caught not just a woman, but a white woman, and Antonio Smith—was Michael Jackson.
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tqk (profile), 1 Dec 2014 @ 5:45pm

Re:
This is a DIRECT result of the stupidity of today's school system.

No, this is corruption of the jury selection process. Anyone with half a brain isn't going to end up on the jury. Why the prosecution and defense are allowed in that process at all, I can't imagine. It's like letting politicians decide who votes. Which explains a lot of why elections are so fouled up.
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ryuugami, 1 Dec 2014 @ 5:55pm

What's in a name...
At one point during the investigation, Greenlee named [Antonio] Smith, her boyfriend at the time, and another woman as accomplices in the burglary, but police concluded that Greenlee had acted on her own.

Well, obviously. How could ANTONIO SMITH, FORENSIC LINGUIST be an accomplice in any illegal act? Inconceivable.
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toyotabedzrock (profile), 1 Dec 2014 @ 6:04pm

So basically he was more than likely a lookout. But the prosecutor overcharged and used perjury to convict him as a robber instead of an accessory.
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Anonymous Coward, 1 Dec 2014 @ 6:16pm

Re:
... he was more than likely a lookout.
You're basing this “more than likely” on his race? Or you're basing this “more than likely” on his gender?
the prosecutor ... used perjury
The prosecutor used grossly unreliable testimony.

Why did you think he was implicated at all? Because the perjured testimony implicated him? Because the grossly unreliable testimony implicated him? Why do you think he was involved at all?
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Zem, 1 Dec 2014 @ 6:24pm

The entire concept of a plea deal is flawed. They should actually be illegal. No deal, ever. They allow our politicians to write lazy laws and it perverts the system so it becomes more important than the justice it is meant to serve. Plea deals make criminals of the prosecution and fools of the court.
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That One Guy (profile), 1 Dec 2014 @ 7:21pm

Destroy justice in just two easy steps
Two of the most damaging concepts to justice are plea deals and mandatory minimum sentencing.

Plea deals encourage people to 'admit' to crimes they might not be guilty of, in order to avoid having even more charges brought against them, and mandatory sentencing serves as the giant club the prosecution threatens the accused with to get them to agree to the 'deal' offered them.

Plea deal to a 'lesser' crime, one with prosecution discretion, that could end up being fairly mild, or insist on your innocence and go to court, and face charges with years or decades-long sentences attached to them, with no way for the judge or defense to lower the final sentence if found guilty, mitigating circumstances be damned.

When the concept of 'justice' has been perverted to incorporate blatant threats to get people to give up their right to a fair trial, yeah, the system is completely broken, and 'justice' has been eliminated from the equation.
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Anonymous Coward, 1 Dec 2014 @ 8:01pm

when the head of the DoJ gets away with perjury that should have been a sign to every American that the laws don't apply equally to all.

Or some americans view themselves as more equal than others and have corrupted and twisted the laws to only serve themselves
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Anonymous Coward, 1 Dec 2014 @ 8:05pm

Re: Destroy justice in just two easy steps
Plea deals encourage people to 'admit' to crimes they might not be guilty of...
Which is why prosecutors should never, ever consider whether or not the person is actually guilty, but just charge ahead whenever someone ‘might’ be guilty, amirite?

I mean, if the prosecutor has “arguable probable cause” or “colorable probable cause” that's all that's really needed, legally. That's enough to bring charges, and get a defendant to plead out.
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Anonymous Coward, 1 Dec 2014 @ 8:09pm

Re:
"Read the last footnote (number 8). The appellate court referred the prosecutors to the bar for knowingly encouraging a witness to perjure herself."

Kind of like a bad cop being investigated by his peers? Oh, yeah, that'll do it.
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Anonymous Coward, 1 Dec 2014 @ 8:11pm

It's worth noting that the Court of Appeals refused to name the prosecutor that suborned perjury. They are always referred to as the State or the prosecutor, as if it was a faceless office that put together this travesty.
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TKnarr (profile), 1 Dec 2014 @ 10:08pm

Perjury
What I don't get is why the appeals court didn't drop the hammer on the source of this by referring the prosecutor involved to the bar association for suborning perjury. Even if the bar association doesn't do anything, just having the referral on your record and having to inform every judge you go before of it would be enough of a career-ending move to make prosecutors think twice about this kind of stunt.
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David, 1 Dec 2014 @ 10:35pm

Re:
when the head of the DoJ gets away with perjury

What do you mean, "gets away"? As far as I remember, he was handed over for investigation to the head of the DoJ himself. It doesn't get more serious than that. He's lucky he got away with a stern admonishment from himself and probably had to promise himself solemnly not to get caught too often in future in return for that.
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Anonymous Coward, 2 Dec 2014 @ 1:47am

Prosecutors actively sabotage their own power over the system when it comes to getting a grand jury to even bother to indict a cop... but they'll jump through hoops to put two non-cops in jail for committing the same crime, logic and the physical laws of reality be damned.

When faced with such overwhelming bullshit, maybe "burn it all down" is the only choice left.
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Bergman (profile), 2 Dec 2014 @ 3:32am

Re: Re: Re:
Unfortunately, that's exactly how it usually works in practice. The prosecutor investigates his own actions and discovers miraculously that despite any controversy, he was right all along.

There is SUPPOSED to be oversight, but in practice prosecutorial immunity means unless the guy waives his own immunity because he feels guilty, he goes unpunished.
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Anonymous Coward, 2 Dec 2014 @ 3:57am

Re:
It is. It's called perjury. So where are the Federal prosecutions for fraud on the state AGs for alloowing such bullshit?
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Aussie Geoff (profile), 2 Dec 2014 @ 4:57am

Re: Re:
I must live in a backward country (my username should give it away), we have a law for just that purpose: Suborning Perjury - offering an inducement for a person to commit Perjury. It does not just apply to prosecutors, it is applicable to anyone who offers an inducement.

We also have another law that may be applicable: Attempting to Pervert the Course of Justice. Of course if you are successful you can/will be charged with Perverting the Course of Justice

They do work! We convicted a retired State Supreme Court Justice on multiple counts of Perjury, Suborning Perjury and Attempting to Pervert the Course of Justice. He got nailed speeding and then fought it in court, basically lying to the court and getting other witnesses to lie on his behalf, all over a $70 (I think) fine! From memory he got 12 months prison time. Oh how the mighty have fallen.
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Groaker (profile), 2 Dec 2014 @ 6:23am

Nothing new
Prosecutors have been known to try more than one person (sometimes at the same time, in the same courthouse,) for the same crime that only one person could have committed.

Prosecutors like to say that they are only interested in a search for the truth, but they are more interested in conviction rates.
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Benjamin Wade, 2 Dec 2014 @ 7:59am

Re: Re:
Maybe the commenter thought he might have been a lookout, not because of his race, or because of his gender, but because there is a reference to there being two cell phones in use: one within, one without, as per Wiley's testimony that the cell phone records of Smith and Greenlee show that they were located near each other and were communicating with each other during the course of the burglary.

Jumping to conclusions much? you might ALMOST think you were prejudiced.
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Anonymous Coward, 2 Dec 2014 @ 8:19am

Re: Re: Re:
there is a reference to there being two cell phones in use: one within, one without

Good. You read the case. However, you must also have read the next sentence, highlighted here:
Detective Wiley also testified that the cell phone records of Smith and Greenlee show that they were located near each other and were communicating with each other during the course of the burglary. But, on cross-examination, Detective Wiley admitted that he had no way to know the actual locations of each cell phone during the burglary.

So, after reading that, why did you state, “two cell phones in use: one within, one without”? Detective Wiley admitted he couldn't say that. Why did you make it up?

Further, there's no evidence that either Greenlee or Smith were carrying those particular cellphones.
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Anonymous Coward, 2 Dec 2014 @ 3:05pm

Re:
Irrelevant. Her testimony is not admissible in his case. And she's already been convicted for the crime, without that testimony the state has no possible case to charge another person with this resolved crime.

Whether or not that confession is coerced is pointless, especially because she still resides in jail convicted. Her continue residence in jail means the state believes she's guilty. It can't hold she's guilty AND charge him.
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Jack, 2 Dec 2014 @ 3:25pm

Re: Re: Re: Re:
Further, even in the footnote preceding the referral to the disciplinary committee (I think #7), even the judge said that there was a "paucity of evidence" suggesting that Smith was even an accomplice. For those that are English challenged, paucity means "dearth", "scarcity", or "lack of." The judge says not only was the conviction obtained through perjury, but there was little, if any, evidence that he was connected to the crime in any way, shape, or form.

So what if he was communicating with the burglar? They were boyfriend and girlfriend so obviously they communicated regularly. The prosecutor didn't reveal the contents of the messages and you can be sure that if the messages said "the coast is clear" or "hurry up, I hear sirens" - then they would have mentioned it... The only evidence wouldn't be that the phones happened to be within a few miles of each other...
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Anonymous Coward, 2 Dec 2014 @ 4:37pm

Re: Re: Re: Re: Re:
...the judge said that there was a "paucity of evidence"...

Judge Najam's characterization of the evidence in footnote 7, of course, is not itself primary evidence.

In footnote 1, though, Judge Najam indicates that the appellate panel reviewed the video surveillance tape that Detective Wiley testified about. While the panel concludes that Detective Wiley's expert opinion about what he saw is supported by the tape, nowhere in the opinion is it mentioned that anyone at all saw the subject on the video talking on a cellphone.
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slander (profile), 2 Dec 2014 @ 5:03pm

Re: Re: Re:
Well, I see the buttons marked Insightful, Funny and Report. Where is the Tumblrina button?
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Khaim (profile), 2 Dec 2014 @ 9:07pm

Pointless Perjury
What's really dumb is that (in most jurisdictions) the sentence for being an accomplice is the same as the sentence for actually committing the crime. The prosecution didn't need to convict Smith of the burglary in the first place.
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Anonymous Coward, 3 Dec 2014 @ 7:57am

Re:
It's worth noting that the Court of Appeals refused to name the prosecutor...

According to the South Bend Tribune, in a November 26, 2014 story, “Prosecutor used perjured testimony, appeals court says”, by Madeline Buckley, “Court of Appeals records indicate the prosecutor in question is Micah P. Cox.”

Micah P. Cox.

(H/T The Indiana Law Blog.)
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uzi evron, 3 Dec 2014 @ 3:04pm

how to punish
does any one know what happened to the prosecutor? how does one sue someone like this so he pay the price for his stupidity.

do the judges pay a price for their idiotic verdict?
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Zonker, 3 Dec 2014 @ 4:24pm

Taking the State's argument one step further...
The State also argued that it did not "knowingly" proffer the murder of the second suspect, they simply offered immunity against prosecution for murder to the first suspect.

/sarcasm
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Spaceman Spiff (profile), 5 Dec 2014 @ 11:56am

What do you want to bet
That Smith is black?
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