Third Circuit grants habeas relief because defense counsel was ineffective in failing to object to judge threatening perjury charge to witness who changed his testimony

 In Rogers v. Superintendent Greene SCI, --- F.4th ----, 2023 WL 5763346 (3d Cir. Sept. 7, 2023), available here, the Third Circuit reversed the District Court's denial of habeas relief. Judge Matey, writing for the panel, found defense counsel ineffective for failing to object to the trial judge admonishing a witness who changed his story and also failing to cross-examine the witness about this change.

The case involved three men shooting and a bystander dying in the crossfire. Three eyewitnesses came forward at different times. Two men (Rogers and Hayes) were charged with the murder. Only two of the witnesses could be located by the time of trial. Hayes was tried first and acquitted. At Rogers’s trial, one of the witnesses changed his testimony, giving testimony supporting the defense by naming Hayes—not Rogers—as the first shooter. The judge excused the jury, admonished the witness for his flip-flop, and warned of the penalty for perjury, specifically saying the witness committed “[p]erjury on the record.” The judge warned [the witness] that if he was “playing some little game here,” the judge would ensure he “receive[d] a maximum consecutive sentence” for perjury. Before dismissing [the witness], the judge advised him to “[d]o some long hard thinking” before resuming his testimony, because if he “sa[id] that [Hayes shot first] again, it is [p]erjury.” Defense counsel neither objected to the judge’s actions, nor cross-examined the witness the next day when he returned to the pro-prosecution version of events.

The Third Circuit explained that Pennsylvania courts have warned against such judicial conduct for decades. And so counsel was ineffective for failing to object because she “maintained an unreasonable belief that the trial judge’s threats against [the witness] were permissible.” 

The Third Circuit also found prejudice and that the lower court’s standard to show prejudice was “contrary to . . . clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). While Strickland requires only “a reasonable probability that . . . the result of the proceeding would have been different,” the lower court wrongly used a higher outcome determinative standard: “that but for the act or omission in question, the outcome of the proceedings would have been different.”