Does the Due Process Clause of the Fourteenth Amendment permit a prosecutor's knowing use of false testimony unless the defendant proves by a preponderance of the evidence that there was a reasonable likelihood that one aspect of the false testimony actually affected the judgment of the jury?

QUESTION PRESENTED An investigation commissioned by the District Attorney in Harris County, Texas, concluded that Elijah Joubert’s prosecutor—Daniel Rizzo—wrongfully convicted an innocent man—Joubert’s co-defendant, Alfred Brown of capital murder. The special prosecutor found Rizzo: (1) abused the grand jury process; (2) coerced false testimony; (3) intimidated Brown’s alibi witness; (4) intentionally suppressed telephone records corroborating Brown’s alibi; (5) knowingly allowed co-defendant Dashan Glaspie to falsely accuse Brown and falsely blame Joubert for the shooting of Alfredia Jones; and (6) knowingly allowed Glaspie to falsely testify that his plea agreement required him to be 100 % truthful with the juries. Based on Rizzo’s presentation of Glaspie’s false testimony, one jury convicted Brown and sentenced him to death, and another convicted Joubert, and sentenced him to death. Rizzo urged jurors to sentence Joubert to death because, among other things, he was the “cold-blooded killer” of Jones, and not the remorseful getaway driver he claimed to be. The District Attorney declared Brown innocent and he has been released. In Joubert’s state post-conviction proceedings, the District Attorney conceded that Glaspie lied about Brown and his need to testify truthfully to keep his 30-year sentence. The State did not dispute that Rizzo knew Glaspie was lying. The trial court found Rizzo’s knowing use of false testimony about Brown and Joubert was material and denied Joubert a fair trial under this Court’s decision in Napue v. Illinois, 360 U.S. 264 (1959). As to the sentence, the court found that discrediting Glaspie’s account could have led the jury to give Joubert a life sentence. The Texas Court of Criminal Appeals disagreed. It held Joubert was not entitled to relief under Napue because Joubert did not “show by a preponderance of the evidence” that there was a “reasonable likelihood” Glaspie’s false testimony about Brown alone affected the jury’s decision. That gives rise to the following question: Does the Due Process Clause of the Fourteenth Amendment permit a prosecutor’s knowing use of false testimony unless the defendant proves by a preponderance of the evidence that there was a reasonable likelihood that one aspect of the false testimony actually affected the judgment of the jury? 1