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Rebuking a remarkable act of prosecutorial legerdemain, the Indiana Court of Appeals has reversed the burglary conviction of a St. Joseph County man, holding that “the State knowingly proffered perjured testimony” from his ex-girlfriend, who had earlier pled guilty as the sole actor in the crime.

Two years ago, $3,500 was stolen from a Dollar General in South Bend.  Video surveillance established that the perpetrator was a white female.  Police arrested Nicole Greenlee, an employee of the chain.  Five months later, under oath, she pled guilty, saying she had broken into the store on her own, and used a security code to disarm the alarm.  In her plea, she made no mention of her then boyfriend, Antonio Smith.

Nonetheless, prosecutors subsequently tried Smith for the same crime. At his trial, they put Greenlee on the stand to testify—amazingly—that, in fact, she had not broken into the store, but that Smith had, while she hid in the bushes.

When the defense objected, Deputy Prosecuting Attorney Micah Cox told the court Greenlee had merely altered her earlier story, and that the jury was free to weigh the change in her testimony as they saw fit.  More amazing still, despite video surveillance and police testimony establishing that the person who broke into the store was a white woman, the jury convicted Smith, an African-American man, of the break-in.

Indiana’s prohibition on perjury specifies two forms of false testimony.

A person who (1) makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true; or (2) has knowingly made two (2) or more material statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false commits perjury.

Applying the second prong to the case at hand, the Appeals Court wrote:

The State attempts to rationalize Greenlee’s perjury with the storyline that she merely recanted her prior testimony…Greenlee’s prior guilty plea testimony about material facts entirely within her knowledge is not a mere self-contradiction that can be corrected. A judgment of conviction was entered based on that testimony. While Greenlee is a competent witness, Greenlee gave perjured testimony as a matter of law at Smith’s trial.

By putting Greenlee on the stand knowing she would directly contradict her prior sworn testimony, “The State knowingly proffered perjured testimony…Moreover, after Greenlee had testified at Smith’s trial, the State knew that her guilty plea testimony and her trial testimony were inconsistent to the degree that one of them was necessarily false,” and therefore “had a duty to correct the perjury,” which they did not.

Indeed, rather than correcting the “perjury”, they granted Greenlee “use immunity” against a perjury prosecution for her testimony.

Not a Harmless Error

Refreshingly, the court found that the prosecution’s actions did not amount to “harmless error.” They wrote, instead that, “The knowing use of perjured testimony violates due process, impeaches the verdict, and undermines the integrity of the judicial system. Greenlee’s testimony poisoned the well and denied Smith a fair trial.”

As WSBT.com reports, Deputy Prosecuting Attorney Micah Cox may now be “in hot water” for his conduct, and may “have to answer to the Indiana Supreme Court’s Disciplinary Commission because of what happened in the case.”

St. Joseph County Prosecutor Mike Dvorak’s office is fighting the decision. In a statement, Dvorak said he’ll ask the Indiana Supreme Court to review the burglary case… The Supreme Court Disciplinary Commission will also get a copy of the case and could launch its own investigation into what DPA Cox did.  Dvorak said Cox already contacted the commission, because of his obligations under the Rules of Professional Conduct.

It is remarkable enough that an African-American man can be convicted by a jury for breaking into a store that video shows was burglarized by a white female.  And more disturbing still that prosecutors would (a) bring such charges against him despite the evidence, and (b) proffer perjured testimony to secure his conviction.

The case, however, is not over.  The Indiana Supreme Court could yet uphold Antonio Smith’s conviction and find Cox blameless.  We’ll be watching for the final results.

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