Appeals Court Refers Case Of Prosecutor Using Perjured Testimony To Disciplinary Commission

The Indiana Court of Appeals reversed the conviction of a Mishawaka man on burglary charges because the prosecutor used the perjured testimony of his girlfriend, who had already pleaded guilty to committing the same burglary, and referred the matter to the Supreme Court's Attorney Disciplinary Commission for further investigation. The South Bend Tribune has identified the deputy prosecutor who worked for St. Joseph Co. Prosecutor Michael Dvorak in prosecuting the case as Micah Cox. Dvorak told the Tribune he disagreed with the opinion and planned to appeal it to the Supreme Court.

According to the facts summarized in the Court's opinion, Nicole Greenlee, the white girlfriend of Antonio Smith, had pleaded guilty to breaking into a Dollar General store alone and stealing $3,500 in her case. She later testified against Smith, who is black, that she served as a lookout outside the store while Smith broke into the store and stole the money. The store's surveillance cameras only captured a white female at the scene of the crime according to the testimony of police, although a police detective testified that cell phone records placed Smith and Greenlee at the scene of the crime as well.

The Indiana Supreme Court has previously held that the knowing use of perjured testimony is "fundamentally unfair and a conviction obtained by the use of such testimony will not be upheld." The prosecution maintains that Greenlee's testimony at Smith's trial was not perjured testimony; rather, it argues she merely provided contradictory or inconsistent testimony. Because Greenlee's testimony during her case and Smith's were both made under oath, the Court of Appeals concluded one of them was necessarily false. The Court of Appeals added this footnote to the case referring it to the Disciplinary Commission for further investigation:

The Indiana Supreme Court Disciplinary Commission (“Disciplinary Commission”) has exclusive jurisdiction to discipline an attorney, where appropriate, for acting in violation of the Rules of  Professional Conduct. We are troubled that the State knowingly proffered perjured testimony but are even more concerned that the State granted the witness immunity from prosecution, which encouraged such testimony. Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary Commission. We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments. See Joel Schumm, “Isn’t it Time to Get Serious About Prosecutor Misconduct?,” The Indiana Law Blog (July 7, 2014), http://indianalawblog.com/archives/ 2014/07/ind_courts_isnt.html.