The Supreme Court/The Supreme Court.iso/pc/ascii/1995/orders/010295.zr

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SUPREME COURT OF THE UNITED STATES
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No. 94-7010 (A-403)
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JESSE DEWAYNE JACOBS v. WAYNE SCOTT, DI-
RECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
on application for stay and petition for writ of
certiorari to the fifth circuit court of appeals
[January 2, 1995]

  The application for stay of execution of sentence of
death presented to Justice Scalia and by him referred
to the Court is denied.  The petition for writ of certio-
rari is denied.

  Justice Stevens, with whom Justice Ginsburg joins,
dissenting.
  In my opinion, it is fundamentally unfair for the State
of Texas to go forward with the execution of Jesse
Dewayne Jacobs.  The principal evidence supporting his
conviction was a confession that was expressly and
unequivocally disavowed, at a subsequent trial, by the
same prosecutor who presented the case against Jacobs.
That same prosecutor's office now insists that the State
may constitutionally go forward and execute Jacobs.
The injustice, in my view, is self-evident.
  Jacobs was convicted of murdering a woman named
Etta Urdiales.  After his arrest, he gave a videotaped
confession stating that he abducted the victim and
fatally shot her in a wooded area.  He led investigators
to her body.  At his trial, the State introduced this
confession and relied heavily on it.
  Jacobs, however, testified at trial that the confession
was false.  He claimed to have given the false confession
because he believed it would lead to a death sentence,
which he perceived to be preferable to the alternative of
spending the rest of his life in jail.  In his trial testimo-
ny, Jacobs admitted kidnaping Urdiales, and taking her
to an abandoned house where his sister, Bobbie Hogan,
was waiting.  But he denied shooting the victim.
According to Jacobs' testimony, he left Urdiales in the
house with his sister and then went outside and sat on
the porch.  He did not know Hogan was armed, or that
she planned to kill Urdiales.  Rather, he believed Hogan,
who was romantically involved with Urdiales' estranged
husband, wanted to scare the victim into giving up
custody of her children.  Jacobs testified that while he
was waiting outside, Hogan shot Urdiales.  When Jacobs
entered the house, Hogan said that she did not mean to
kill Urdiales.  Jacobs then told Hogan to go home, said
he would take care of things, and buried the victim's
body.
  The prosecution disputed Jacobs' trial testimony,
arguing that -`[t]he simple fact of the matter is that
Jesse Jacobs and Jesse Jacobs alone killed Etta Ann
Urdiales.'-  31 F. 3d 1319, 1322, n. 6 (CA5 1994).  The
jury convicted Jacobs of capital murder and sentenced
him to death.
  Several months later, Hogan was tried in connection
with the Urdiales killing.  At this trial, the State
abandoned its theory that Jacobs had shot Urdiales.  It
called Jacobs as a witness, vouched for his veracity, and,
according to the Court of Appeals for the Fifth Circuit,
-told the jury that the evidence revealed [through
further] investigation cast doubt on Jacobs's conviction.-
Ibid.  As described by the Court of Appeals:
-the prosecutor said that the state had been wrong
in taking the position in Jacobs's trial that Jacobs
had done the actual killing.  The prosecutor stated
that, after further investigation, he had determined
that Hogan, not Jacobs, had killed the victim.  The
prosecution maintained that Jacobs did not know
that Hogan had a gun.  The state called Jacobs as
a witness to testify that Hogan shot the victim.-
Id., at 1322-1323 (footnotes omitted).
The prosecutor told the jury that he had -`changed my
mind about what actually happened. . . . And I'm
convinced that Jesse Jacobs is telling the truth when he
says that Bobbie Hogan is the one that pulled the
trigger.'-  Id., at 1322, n. 6.  He also -claimed that
Jacobs was telling the truth when he testified that he
did not in any way anticipate that the victim would be
shot.-  Id., at 1323, n. 7.  Several police officers testified
at the sister's trial that portions of Jacobs' confession
were untrue.  Id., at 1323, n. 6.
  Despite these post-trial developments, the State of
Texas now insists that it may constitutionally carry out
Jacobs' death sentence.  I find this course of events
deeply troubling.  If the prosecutor's statements at the
Hogan trial were correct, then Jacobs is innocent of
capital murder.  Cf. Herrera v. Collins, 506 U. S. ___,
___ (1993) (slip op., at 26) (discussing whether habeas
relief is available to a death-row inmate who has
advanced -a truly persuasive demonstration of `actual in-
nocence'-).  Moreover, for a sovereign State represented
by the same lawyer to take flatly inconsistent positions
in two different cases-and to insist on the imposition of
the death penalty after repudiating the factual basis for
that sentence-surely raises a serious question of
prosecutorial misconduct.  In my opinion, it would be
fundamentally unfair to execute a person on the basis of
a factual determination that the State has formally
disavowed.
  Almost 60 years ago, we recognized that a prosecutor's
knowing presentation of false testimony is -inconsistent
with the rudimentary demands of justice.-  Mooney v.
Holohan, 294 U. S. 103, 112 (1935).  We have refined
this principle over the years, finding a due process
violation when a prosecutor fails to correct testimony he
knows to be false, Alcorta v. Texas, 355 U. S. 28 (1957),
even when the falsehood in the testimony goes only to
the witness' credibility, Napue v. Illinois, 360 U. S. 264
(1959).  See also Giglio v. United States, 405 U. S. 150
(1972) (new trial required when Government witness
testified falsely on matters relating to credibility and the
prosecutor who served as trial counsel should have been
aware of the falsehood).
  In Durley v. Mayo, 351 U. S. 277 (1956), we granted
certiorari to consider whether due process was offended
by a conviction which was later alleged to rest upon
perjured testimony, despite the fact that the prosecutor
did not know of the testimony's falsity at trial.  Al-
though the Court ultimately held that jurisdiction was
lacking, and disposed of the case on that basis, four
Justices would have reached the merits.  Writing for the
dissenters, Justice Douglas would have found a -clear-
due process violation:
-It is well settled that to obtain a conviction by the
use of testimony known by the prosecution to be
perjured offends due process.  Mooney v. Holohan,
294 U. S. 103; Pyle v. Kansas, 317 U. S. 213.  While
the petition did not allege that the prosecution knew
that petitioner's codefendants were lying when they
implicated petitioner, the State now knows that the
testimony of the only witnesses against petitioner
was false.  No competent evidence remains to
support the conviction.  Deprivation of a hearing
under these circumstances amounts in my opinion to
a denial of due process of law.-  351 U. S., at
290-291.
See also Sanders v. Sullivan, 863 F. 2d 218 (CA2 1988);
cf. Hysler v. Florida, 315 U. S. 411, 413 (1942) (-mere
recantation of testimony- does not justify voiding a
conviction on due process grounds).  Here, the facts are
far stronger than in Durley, as the State itself has
formally vouched for the credibility of Jacobs' recantation
of his confession and police officers have testified, under
oath, that parts of Jacobs' confession were false.
  I have long believed that serious questions are raised
-when the sovereign itself takes inconsistent positions in
two separate criminal proceedings against two of its
citizens.-  United States v. Powers, 467 F. 2d 1089, 1097
(CA7 1972) (Stevens, J., dissenting), cert. denied, 410
U. S. 983 (1973); see also United States v. Ott, 489
F. 2d 872 (CA7 1973).  The -heightened need for
reliability- in capital cases, see Caldwell v. Mississippi,
472 U. S. 320, 323 (1985) (internal quotation marks
omitted), only underscores the gravity of those questions
in the circumstances of this case.  At a minimum,
Jacobs' execution should be stayed so that we may
carefully consider his claims by way of our ordinary
procedure respecting petitions for certiorari.
  I respectfully dissent from the order denying the
application for a stay of execution.

  Justice Breyer would grant the application for stay
of execution.