A Ninth Circuit Panel held that the prosecution in the case against Charles Clements violated “Napue by permitting a jailhouse informant to testify that he had received no parole consideration for his actions and that his motives for coming forward were altruistic, when the prosecutors knew or should have known that this was false.”
A Napue violation (Napue v. Illinois, 1959) occurs “when a prosecutor either knowingly presents false evidence or fails to correct the record to reflect the true facts when unsolicited false evidence is introduced at trial.”
The three-judge panel, in a 2-1 opinion written by Judge Matthew Kennelly, held that Clements met his burden of establishing “any reasonable likelihood that the false testimony could have affected the judgment of the jury,” where “the informant’s testimony was highly probative of Clements’ consciousness of guilt and identity on the aggravated kidnapping counts,” and it was also relevant regarding “the criminal implications of his alleged aggravated kidnapping, and it went directly to the essential element of whether he created a substantial increase in risk to the victims.”
Clements was sentenced to two consecutive life sentences plus eighteen years after a jury convicted him of two counts of second degree robbery, and related enhancements.
On January 27, 2009, Clements entered the home of Bank of the West employee Alison Lopez under the guise of delivering a package. Lopez was seven and a half months pregnant at the time and had taken the day off work. Once inside, Clements pulled out a gun, pointed it at Lopez.
The state initially charged Clements with two counts of aggravated kidnapping, three counts of second-degree robbery, and enhancements related to the firearm and the value of the money. It later added a solicitation to the murder count based on the allegations of Donald Boeker, a jailhouse informant.
The defense attempted to sever the solicitation to murder charge, arguing unsuccessfully that Boeker’s inflammatory testimony related to the solicitation to murder charge would have a spillover effect on the robbery and kidnapping charges.
At trial, Boeker testified that he met Clements in 2010 while they were housed in the same cell block of the Orange County jail.
According to Boeker’s testimony, Clements said he wanted money wrappers planted in the victim’s backyard so that “it would appear she was in on the robbery and not a victim of kidnapping.”
Clements promised to “take care of’ Boeker once he got out of custody. He testified that Clements later asked him what kind of crimes he committed, and he made up a story that he killed “a couple of people” during a robbery.
The jury convicted Clements of the aggravated kidnapping and robbery charges and found true the firearm and property value allegations but could not reach a unanimous verdict for the solicitation of murder charge. The court declared a mistrial as to the solicitation of murder charge and dismissed the count.
The court accepted that “(1) Clements’s Sixth Amendment right to counsel was infringed upon when the jailhouse informant was used to elicit information from Clements outside the presence of his lawyer; (2) the prosecution presented testimony from that informant that it knew or should have known was false; (3) the prosecution withheld favorable evidence from the defense; and (4) there was prosecutorial misconduct in the manner Clements alleged.”
The question before the court then was the materiality of those four claims.
The superior court ultimately held that Clements’s “four claims of error are not shown to have materially prejudiced petitioner’s defense in a constitutional sense.”
In dissent, Judge Dumatay, argues that the majority waters down the materiality standard for Napue, he writes, “Clements’s Napue claim does not warrant habeas relief. Even assuming the first two Napue factors are met, which isn’t a given, the claim easily fails on the third element materiality.”
Assuming Boeker gave false testimony, “it could not be material given that the evidence against Clements was “overwhelming,” “devastating,” and “largely unchallenged.””
Here he argues that, in the closing, Clements’s counsel admitted nearly every element: “Taking them hostage—and it’s true, they were held against their will. I don’t dispute that in any way…. Ms. Lopez at her home was already being held. That’s the first element. Person was moved against will or held by force. That’s what’s required. Ms. Chin was already being held in the vehicle before there was any movement. Ms. Chin’s fear? No question, her fear was real, her fear was legitimate and it was caused by the actions of Mr. Clements.”
But the majority fired back, arguing that “the record reflects that Boeker’s testimony actually did affect the judgment of the jury. During the trial, a juror raised their hand to ask about prior statements Boeker had made in an interview with a detective. . And during deliberations, the jury requested readbacks of Boeker’s testimony twice.”
They add, “Although the jury deadlocked on the solicitation charge, at least six jurors found Boeker credible and believed his testimony—the only source of evidence supporting that charge—beyond a reasonable doubt. This strongly indicates that his testimony played a role in at least those jurors’ assessment of the aggravated kidnapping charges.”
They directly respond to the charge that they “watered down” the materiality standard. According to the dissent, we may grant habeas based on a Napue violation “only when the false testimony was ‘the centerpiece of the State’s case’ and when the prosecutor ‘exploit[ed]’ the false testimony by ‘imploring the jury’ to believe the witness and admitted that such testimony ‘comprised nearly the entirety of the State’s evidence.”‘
They continue, “Contrary to our dissenting colleague’s contention, our decision neither suggests nor requires the conclusion that the jury could have “rested its verdict on Boeker’s disputed testimony,” or that the jury “only determined that Clements was ‘dangerous’ based on” that testimony.
They conclude, “We have been clear, and we conclude, only that there is a “reasonable likelihood that the false testimony could have affected the judgment of the jury.””
They note that it is “undisputed that Boeker testified falsely about receiving no leniency for his cooperation and about his motives for cooperating. The prosecution knew that testimony was false but did nothing to correct it. Boeker’s testimony bore directly on Clements’s guilt on the kidnapping charge, not simply on the solicitation charge.”
Thus they order the district court to overturn the decision.
“We reverse the district court’s denial of Clements’ s claim under Napue and remand the case to the district court with instructions to grant Clements’s petition for a writ of habeas corpus with respect to the charges of aggravated kidnapping,” they write.
