I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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What Judge Mills’s opinion says about Judge Kitchens and Forrest Allgood’s “candor” with the court

I really can’t overstate for laymen the stunning impact of a judge– who is, I think, thought of as cautious and conservative, but at the same time insistent on the integrity of the judicial system– ruling that another judge and prosecutor have, respectively, lied under oath and set about producing that lie to produce a death sentence.  But that is what Judge Mills has ruled in Quintez Hodge’s case, evaluating the conduct of district attorney Forrest Allgood, and his former assistant district attorney and now circuit judge, James Thomas Kitchens.  Judge Mills’s opinion states:

The Due Process clause of the Fourteenth Amendment prohibits the government from knowingly using, or failing to correct, false testimony. Giglio v. United States, 405 U.S. 150, 153 (1972). …

Judge Mils’s opinion goes on:

This issue was addressed at the evidentiary hearing held by this Court. At the evidentiary hearing, DA Allgood said that he asked then ADA Kitchens to handle the plea and get a sentence of no less than fifteen years against Petitioner. (Evid. Hr’g Tr. Vol. I at 33-34). He testified that he spoke to ADA Kitchens about the prior burglary plea before the sentencing phase of the capital murder trial began because he thought ADA Kitchens might need to be a witness. (See id. at 35). At the hearing held in this Court, Judge Kitchens and DA Allgood both stated that the “substance” of the statements testified to at the capital murder trial were true, but that there was a mistake as to who performed the allocution and what was on the record. (See, e.g., id. at 36, 40- 41). Specifically, Judge Kitchens testified before this Court that he was present at the 1998 burglary charge plea hearing and that, while it is not on the record, the State was seeking a term of imprisonment of fifteen years on the charge. (See id. at 49, 59-60). He also testified that Ms. Tatum stated that she did not want Petitioner to go to prison, and that her wishes were relayed to the judge. (See id. at 49-60).

The testimony of Mr. Kitchens at Petitioner’s trial and in this Court is factually at odds with what is contained in the record, and DA Allgood should have known that the testimony given by ADA Kitchens was false. See Giglio, 405 U.S. at 154 (prosecutor’s office is single entity; knowledge of one ADA is attributable to others in the same office). The Court notes that the first statement made by the court that sentenced Petitioner on the prior burglary plea is that “[t]he State has made no recommendation as to a sentence. . .” (Evid. Hr’g Ex. 4, 16). Also, there is no indication anywhere in the record that Petitioner’s attorney, Mr. Bambach, ever spoke to Ms. Tatum in person or that she expressed to him a desire that Petitioner not go to prison. (See Pet. Memo Ex. 4, 10-12). Moreover, ADA Kitchens, having been given notice that he would likely give testimony about this prior plea at the sentencing phase of a capital murder trial, apparently took no measures to ensure that he had an accurate recollection of what transpired. (See Evid. Hr’g Tr. Vol. I, 32; 52; 65). Even if Ms. Tatum stated that she did not want Petitioner to go to the penitentiary, that statement was never made in open court. Therefore, even if it occurred, it occurred off of the record and outside of Petitioner and his mother’s presence.

The Court determines that the State court reached a decision based upon an unreasonable determination of facts and involving an unreasonable application of clearly established federal law. Petitioner presented the State court with evidence to demonstrate that the testimony given at his capital murder trial was false, and that the prosecution should have known it was false. He has also shown that there exists a reasonable likelihood that the jury’s verdict might have been affected as a result of the false testimony. See, e.g., Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998). In this instance, the State, seemingly unconcerned with the accuracy of the testimony to be given in a trial where the result could be death, provided the jury with false information. That information was elicited to show that Petitioner is a remorseless liar who was shown kindness
that he refused to acknowledge and which he repaid by murdering the son of the woman who extended it. In light of these facts, this Court concludes that there exists a reasonable probability that this testimony affected the jury’s judgment. See Giglio, 405 U.S. at 153-55. Confidence in the verdict has been undermined by the State’s actions, there has been no demonstration that the error did not contribute to Petitioner’s death sentence, and Petitioner is entitled to relief on this claim.

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