In 1972, the U.S. Supreme Court in Giglio v. United States informed prosecutors that they had a constitutional duty to disclose to criminal defendants any information that would impeach the credibility of government witnesses, including any financial benefits provided, promised or even offered to a witness. Giglio was an expansion of the Brady Rule pronounced by the Supreme Court nearly a decade earlier that prosecutors had a duty to disclose to criminal defendants any favorable evidence that is material to either their guilt or punishment.


Record Year for Prosecutorial Misconduct


These two decisions have resulted in the reversal of thousands of criminal convictions based on unfathomable examples of egregious misconduct. Prosecutors have deliberately and methodically sent people to prison, even to death row, knowing they were innocent or that the evidence used to convict them was false. The need for a conviction overwhelmed both their constitutional and ethical duty to disclose exculpatory evidence. Some studies have found that as many as 20 percent of the reversals in death penalty cases involved some form of prosecutorial misconduct. The National Registry of Exonerations reported last year that 2015 was a record year for exonerations with official misconduct being found in three out of every four cases involving homicides.


Death Penalty Case Reversed, Federal Life Sentence Stands


A February 24, 2017 decision by the Sixth Circuit Court of Appeals underscores the continuing problem of prosecutorial misconduct. The decision involved the case of Andrew Lee Thomas, Jr. who had been convicted of capital murder and sentenced to death in a Tennessee state court. The federal appeals court outlined the factual chronology leading to Thomas’s convictions in both state and federal court for the 1997 shooting of an armored truck driver.


On April 21, 1997, James Day made a pickup of a cash bag from a Walgreens store in Memphis. He was shot by a robber who made off with the money in a waiting getaway vehicle driven by another party. Day died two years later from complications associated with the shooting incident.


Thomas was later identified and apprehended as the shooter. A close friend, Anthony Bond, was also arrested for being the getaway driver. Tennessee authorities indicted Thomas for felony murder. But before he could be tried on the state charge, federal prosecutors joined the prosecutorial bandwagon by convicting Thomas for interfering with interstate commerce, carrying a firearm in relation to a crime of violence, and being a felon in possession of a firearm. The federal court sentenced him to life in prison. He was then convicted and sentenced to death in state court.


Primary Witness Lied About Being Paid by Government


Thomas’s former girlfriend, Angela Jackson, was what the Sixth Circuit called a “pivotal witness” against Thomas at both his federal and state trials. The court noted that she “provided the only reliable testimony placing Thomas at the scene of the shooting,” She was, in effect, the nexus with other circumstantial evidence that tied Thomas to the armored truck robbery/shooting.


After the federal trial was over but before the state trial began, the appeals court said the FBI paid Jackson $750 on “behalf of the Safe Streets Task Force” –a joint federal-state group that investigates and prosecutes “gang-related crime.”


Prior to Thomas’s state trial, federal prosecutors provided state prosecutors with “relevant evidence and documentation” from their trial file. That file included a receipt for the $750 FBI payment to Jackson. State prosecutors concede that the receipt was in the federal file but said they should not be charged with “actual” knowledge of it simply because it was in the file.


Thomas did not learn about the payment until years later during a hearing on a post-conviction habeas corpus application he had filed in state court.


Prosecutor Failed to Correct Record


In reversing Thomas’s state conviction, the Sixth Circuit said the state “prosecutor’s failure to disclose the [payment] evidence was particularly egregious in light of the State’s repeated emphasis of Jackson’s high-minded reasons for testifying—that is, that she was testifying because it was the ‘right thing to do.’ This is all made even worse by the fact that the prosecutor failed to correct the record even after Jackson squarely denied receiving any ‘reward’ money in exchange for her testimony against Thomas.”


Appeals Court Reverses State Case


The Sixth Circuit stopped short of finding prosecutorial misconduct under Giglio because it found there was sufficient reason under the Brady Rule to reverse Thomas’s state conviction for failure to disclose the FBI payment. The appeals court, however, made it clear that had the court actually developed the Giglio claim, there was sufficient evidence of prosecutorial misconduct based on the prosecutor’s knowledge of the FBI payment receipt in the federal file and the prosecutor allowing Jackson’s perjured testimony about not receiving any benefit for her testimony to go uncorrected.


Court Upholds Federal Life Sentence


In a companion ruling, the Sixth Circuit upheld Thomas’s federal convictions and life sentence because Jackson had received the FBI payment after the federal trial was over. The court specifically found that there was insufficient evidence to support Thomas’s claim that Jackson knew prior to her federal testimony that she would receive a promised payment. Federal law enforcement officials testified that no such promise had been made.


Citing a prior precedent decision, the Sixth Circuit made this pertinent observation:


“Ordinary decent people are predisposed to dislike, distrust, and frequently despise criminals who ‘sell out’ and become prosecution witnesses. Jurors suspect their motives from the moment they hear about them in a case, and they frequently disregard their testimony altogether as highly untrustworthy and unreliable.”


Snitch Testimony Untrustworthy and Unreliable


While there is no evidence that Jackson worked as a paid informant for the FBI or had participated in the armored truck robbery, the appeals court stressed that Jackson fell into that “sell out” witness category.


“Jackson falls squarely within this reasoning,” the appeals court said, “even if she was not serving as a confidential informant. Jackson clearly committed criminal acts in the aftermath of [armored truck] shooting—housing a fugitive, lying on a federal firearms purchase form, and disposing of stolen assets, to name just a few. Thus, if the jury had been presented with evidence of an unusual payment to an individual who can be fairly characterized as an accessory after the fact, it might well have chosen to disregard her testimony against Thomas as untrustworthy and unreliable …”


And we suspect that is precisely why state prosecutors did not disclose the FBI payment to the defense. They knew the jury would view their “pivotal witness” in a completely different light had jurors known about the payment and Jackson’s accessory after the fact activities.


And therein rests the heart of the egregious prosecutorial misconduct in the Thomas case—suppression of the FBI payment and uncorrected perjured testimony.