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Another criminal conviction has been thrown out because the Orleans Parish District Attorney’s Office elicited perjured testimony and suppressed evidence at trial.  Judge Helen Berrigan of the U.S. District Court for the Eastern District of Louisiana found that the facts in the case of Milton Isaac “make clear that the State concealed perjured testimony from the petitioner and withheld exculpatory evidence,” and ordered that the state retry Isaac within 180 days or dismiss the charges against him. (For a primer on the state’s obligation to disclose favorable testimony to defendants, read here.)

Isaac was convicted of possession of heroin with intent to distribute in 1986 and was sentenced to life in prison. He filed a motion for new trial in 2000 based on newly discovered evidence, after two key witnesses at his trial recanted their testimony because the district attorney had pressured them into lying on the stand.

In his motion for new trial, Isaac presented affidavits from the witnesses which stated that:

(1) Isaac’s former girlfriend, who testified for the state at trial, was coerced into doing so in exchange for immunity from prosecution. She also received money to cover expenses and housing from the prosecutor, but did not make this known to the jury. Her testimony was critical to establishing Isaac’s intent to distribute heroin.

(2) Another state witness said that his testimony at trial was false, saying that he was threatened by the assistant district attorney on Isaac’s case, who would prosecute him on drug charges if he did not testify falsely.

The Orleans District Attorney’s office responded to Isaac’s claim by arguing that the defendant knew the testimony was false when he heard it at trial, so evidence of the false testimony wasn’t actually “new.” Judge Berrigan dispensed with this argument, stating that it overlooked the state’s own role in the introduction of false evidence:

The  State’s argument ignores the distinction between a witness’s own false testimony (which would be subject to cross-examination at trial) and the alleged misconduct on the part of the State that suborned such false testimony (conduct which was unchallengeable at trial)…
Until the witnesses came forward (through affidavits or recantation testimony) with information about the State’s misconduct, Isaac could not have known the factual basis of his claims.

 A trial court had previously granted Isaac a new trial after finding that the witnesses’ testimony contained in the affidavits was credible in 2008. However, the Louisiana Fourth Circuit Court of Appeal overturned the court’s findings.

Judge Berrigan suggested that the Fourth Circuit ought to have deferred to the trial court as the fact-finder, particularly given the fact-oriented nature of Isaac’s claims. Furthermore, since the testimony of the witnesses went directly to Isaac’s guilt, it was unquestionably material. She summarized:

Petitioner has shown that favorable, material evidence was knowingly withheld by the prosecution. That evidence included that the prosecution suborned perjury from two witnesses.
The affidavits from Harris and Barabino both state that the State induced them to submit perjured testimony. Moreover, each witness stated that at trial, and Judge Buras found their testimony to be credible. 28 The Court agrees with the petitioner that by knowingly [*19] introducing perjured testimony at trial and withholding exculpatory material evidence from the defense and jury, petitioner’s Constitutional rights were violated.


Berrigan overturned Isaac’s conviction on August 27, 2013 and ordered the state to retry him or dismiss the charges. Read the full opinion here.

Isaac’s case is the latest in an extraordinarily long line of cases out of the Orleans Parish District Attorney’s office in which the state has presented false evidence and withheld favorable evidence in order to secure convictions. Read about more of these cases on our New Orleans page here.


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