There are criminal cases in which the legal system fails. That is precisely what happened to Paysun Long, who, after 14 years, has been ordered released from prison after a federal court of appeals reversed his murder conviction.
Mr. Long has been tried twice for a murder that the U.S. Court of Appeals says was based on weak evidence. Long’s first conviction was overturned after the court of appeals found the prosecutor had made “several improper statements” during closing arguments. His second conviction was recently overturned after the federal appeals court found the same prosecutor allowed and failed to correct perjured statement. It was also noted that the prosecutor referred to a document that was not admitted into evidence and used racially charged comments during closing arguments.
The Sad Legal Saga of Paysun Long
Long’s legal saga began on June 11, 2001 when someone came up behind Larriec Sherman, who was riding a bicycle through the Taft Homes housing development in Peoria, Illinois, and shot him multiple times. Sherman died in the hospital a short time later.
There were 40 to 60 witnesses to the Sherman shooting. Only four of them were willing to speak with the police about the crime. Their statements were the only evidence that connected Paysun Long to the crime. There was no physical evidence; just those four witnesses.
First Murder Trial in 2001
Long was indicted for first degree murder. He was put to trial in December 2001. The state prosecutor presented the four witnesses at trial. Two of them had identified Long as the shooter during the investigation but recanted their identification at trial. One of the witnesses, Brooklyn Irby, said she identified Long as the shooter but told both the lead investigator and the prosecutor in the case that she had lied.
Improper Closing Argument Leads to First Reversal
During his closing argument, the prosecutor told the jury that the witnesses changed “their stories” out of fear. He also made several improper comments during closing that were a clear violation of ethical protocol.
Long was convicted but that conviction was reversed by a state appellate court on appeal because of the prosecutor’s misconduct.
Not Deterred Prosecutor Ramps Up
Undeterred, the same prosecutor elected to retry Long in 2004. Again, he called the same four witnesses. One witness, Keyonna Edwards, said she was walking down the street when she noticed Sherman coming up behind her on his bicycle. She said she then heard gunshots, turned around, and saw Long shoot Sherman in the back from a distance of about six feet.
Edwards’s testimony, however, conflicted with other witness testimony. She testified that she cradled Sherman’s head in her hands and noticed a gun in his pocket. She added that someone walked up and removed the weapon from Sherman’s pocket. Then, Edward’s testified, she left the scene.
Brooklyn Irby, however, testified that she was walking through Taft Homes when she saw Long shoot Sherman. She said she did not see anyone cradling Sherman’s head, but did see a gun on the ground nearby. She also testified that she then left the area.
The two witnesses who recanted their testimony during the first trial continued their recantation at the second trial.
Prosecutor Didn’t Learn His Lesson, Engages in Bizarre Misconduct
You would think that the prosecutor, having been reversed for misconduct during the first trial, would make sure to avoid even the appearance of misconduct. Not so.
The prosecutor then took misconduct to another, even bizarre, level. This time he allowed Irby to present testimony he personally knew was false. Under cross-examination by Long’s defense attorney, Irby told the jury that she never told the prosecutor or the lead investigator that her prior identification of Long was a lie. In fact, she had testified previously that she had told the prosecutor and his investigator her prior identification was false and had been compelled by police threats to have her children removed from her custody. The prosecutor did nothing to correct Irby’s denial of her prior sworn testimony. In fact, he went further and argued her credibility in his closing argument and even used her changing of the story to bolster her credibility saying, “Maybe [Irby] thought if she told the State’s Attorney’s Office she wasn’t telling the truth she wouldn’t have to testify…”
Prosecutor Allows Perjured Statements to Go Uncorrected
Even after Long’s attorney called the lead investigator to the stand, who confirmed that Irby had recanted her testimony at the first trial, the prosecutor allowed Irby’s false testimony at the second trial to stand uncorrected.
Prosecutor from the Twilight Zone
Again, in his closing argument, the prosecutor’s conduct became bizarre, to put it mildly. He introduced the 1939 classic film “Gone with the Wind” as an analogy to the witnesses’ behavior in the Sherman shooting. He referenced the scene in the movie where the slave Presley tells Miss Scarlett that she “don’t know nothing about birthing no babies”:
“Officer Wetzel told you when he got there[,] there were 40 to 60 people around Mr. Sherman. And sorry, Miss Scarlett, but we don’t know nothing about birthing no babies, we just don’t [know] nothing. 40 to 60 people standing around that night … So, on the night of June 11, 2001, although there are 40 to 60 people around the dead young man, nobody knew nothing, nobody came forward, nobody knows nothing.”
The prosecutor continued with his misbehavior and made several improper jury arguments attempting to shift the burden of proof to the defendant.
However, the prosecutor was not finish with his “no holds barred” routine. He mentioned a letter written by Irby that incriminated Long which had not been introduced into evidence. At this point the trial judge had enough and sua sponte objected to the letter as hearsay evidence.
But the Damage had Been Done
During deliberations, the jury sent a note to the judge asking why the letter had not been entered into evidence. The judge responded by instructing the jury to consider only the evidence and exhibits that were admitted into evidence.
The jury once again convicted Long. The judge sentenced him to 51 years in prison.
His case wound its way through the Illinois state post-conviction process and then to a federal district court habeas proceeding before it ended up at the Seventh Circuit Court of Appeals.
14 Years After His Arrest the Appeals Court Reverses and Orders Long Released
On October 27, 2015, some fourteen years after his arrest, the Seventh Circuit reversed Long’s conviction and ordered the State of Illinois to release him. The appeals court was not kind to the prosecutor who knowingly used Irby’s perjured testimony to convict Long at his second trial.
“A government lawyer’s use of perjured evidence is a threat to the concept of ordered liberty,” the appeals court said. “This threat is just as pernicious if the testimony goes only to the credibility of a witness, because ‘[t]he jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.’ …
“That defense counsel later did what he could to minimize the damage of Irby’s perjured testimony does nothing to reduce the State’s duty to correct the perjured testimony. Just because the jury heard Walter explain during the defense case that Irby’s story had changed does not turn ‘what was otherwise a tainted trial into a fair one’ … Additionally, the fact that the jury heard from another witness who challenged Irby’s recollection merely set up the kind of credibility comparison that is the bread and butter of a trial—it does not address the problem that the jury should never have heard that testimony in the first place. Even if this evidence was only used by the jury to assess Irby’s credibility, the State’s failure to correct that evidence was a clear due process violation …”
This is another of those prosecutorial misconduct cases that is perplexing. The Illinois prosecutor knew, or certainly should have known, that the U.S. Supreme Court, the Illinois appellate courts and ethical rules that govern the conduct of lawyers have condemned a prosecutor’s knowing use of perjured testimony for generations. It is an unforgiveable prosecutorial sin.
So why did Long’s prosecutor resort to such blatant misconduct?
Case was Weak so Prosecutor Cheated and Used Racist Rhetoric
Obviously the prosecutor was doing all he could to obtain a conviction in a case where the evidence against the defendant, as the Court of Appeals noted, was “weak.” But beyond that, given the Gone With the Wind references, we suspect the prosecutor’s misconduct lies in racism.
The Sherman shooting occurred in the Taft Homes housing project whose residents are predominantly African-American. Originally built for Korean veterans returning home from the war, the project became a predominately African American, “low income” project with a violent history of race riots.
Long’s prosecutor, we suspect, was offended that 40 to 60 people of this housing project witnessed the Sherman killing but said nothing. He evoked a historical racial scene about a Southern slave telling “Ms. Scarlett” that she didn’t “know nothing about birthing no babies.” The prosecutor had to know the controversial “don’t know nothing about birthing no babies” line has long been used demean African Americans.
The Paysun Long case should never have gone to a first trial, much less a second one. It did so, we believe, because of race – and that is the tragedy underlying the prosecutorial misconduct in this case. We can only only hope that this prosecutor is no longer employed at the District Attorney’s Office and that his ability to practice law is under serious scrutiny by the local state bar.