By: Derek Hawkins//November 4, 2015//
Criminal
7th Circuit Court of Appeals
Officials: BAUER and HAMILTON, Circuit Judges, and ELLIS, District Judge. *
Writ of Habeas Corpus – Ineffective Assistance of Counsel
No. 13-3327 Paysun Long v. Kim Butler
State failed to correct eyewitness recantation of testimony that ultimately led to conviction of Appellant.
“But the import of this evidence goes beyond credibility. The case against Long was weak. The Illinois Appellate Court itself noted the evidence against Long was “not overwhelming.” SA.83. Without any physical evidence linking Long to the crime, the State had to rely on the testimony of two eyewitnesses, Irby and Edwards. Edwards’ testimony about the scene—that she saw Long shoot Sherman, that she then cradled his head until officers arrived at the scene—was brought into question by the other witnesses’ stories and was also different from her testimony at the first trial. The State’s other two witnesses refused to name Long as the shooter at the second trial. So that left Irby as the only witness whose testimony was not directly contradicted or questioned. The Court considers the trial record as a whole when evaluating the effect of the perjured testimony on the jury’s verdict. See Napue, 360 U.S. at 266, 272 (eyewitness’s testimony “extremely important” to State’s case); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) (perjured testimony was key to prosecution’s case). Irby’s testimony and credibility were vital to the State’s case. Furthermore, Irby’s recantation—had the State honestly presented it to the jury—would have corroborated the other two eyewitnesses who also changed their initial testimony naming Long as the shooter. The cumulative weight of Irby’s perjured testimony creates a reasonable likelihood that, with so little other evidence, the State’s failure to fairly present her shifting story influenced the jury’s verdict.”
Reversed and Remanded
Writ Granted