Green v. State
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Cite as 2011 Ark. 92
SUPREME COURT OF ARKANSAS
No.
CR10-511
Opinion Delivered March
3, 2011
APPEAL FROM THE RANDOLPH
COUNTY CIRCUIT COURT,
NO. CR2003-122,
HON. HAROLD S. ERWIN, JUDGE,
BILLY DALE GREEN
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
AFFIRMED.
JIM GUNTER, Associate Justice
Appellant appeals the circuit court’s denial of his motion to dismiss the charges against
him on double-jeopardy grounds based on prosecutorial misconduct. On appeal, appellant
argues that, due to the State’s Brady violation in his first trial, and the fact that he has already
been granted a new trial on other grounds, the only appropriate remedy for this violation is
a dismissal of the charges against him. Because this is a subsequent appeal following an appeal
that was decided by this court, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(7).
We affirm the denial of the motion to dismiss.
In August 2003, appellant was charged with four counts of capital murder for the
deaths of Lisa and Carl Elliott and their two children, Felicia and Gregory. Appellant was also
charged with kidnapping with regard to Felicia Elliott. In a judgment and commitment order
filed May 24, 2004, appellant was found guilty of the above charges and sentenced to death
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on each count of capital murder and to life imprisonment on the count of kidnapping. This
court reversed appellant’s convictions and remanded for a new trial, however, based on the
circuit court’s error in allowing the State to present reputation and other bad acts evidence.
Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). After remand, appellant was again
charged with four counts of capital murder and one count of kidnapping.
On April 16, 2010, appellant filed a motion to dismiss the charges against him based
on prosecutorial misconduct during his previous trial. Specifically, appellant asserted that,
during the trial, the State had failed to provide to the defense a statement made by Chad
Green, one of the State’s primary witnesses and appellant’s son. At appellant’s trial, Chad
testified that his father, appellant, was the person who committed the crimes and that he had
only been an observer. But in the statement discovered by the defense, given prior to
appellant’s trial, Chad confessed that he alone committed the murders and never implicated
his father. Appellant argued that this was a clear Brady violation and that, as a remedy, the
charges against him should be dismissed.
A hearing on this motion was held on April 21, 2010. At the hearing, defense counsel
explained that, at appellant’s previous trial, Chad testified pursuant to a plea agreement under
which he received twenty-years’ imprisonment. Then, after the appeal and remand by this
court, it was discovered that Chad had also given a statement to his attorney’s investigator in
February 2004 in which he said that he committed the murders. Appellant was not given a
copy of this statement prior to or during the first trial, even though his attorneys sought full
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discovery from the State. Appellant asserted that having the opportunity to cross-examine
Chad regarding the statement would have substantially changed the outcome of appellant’s
trial.
In response, the deputy prosecuting attorney conceded that the statement should have
been provided to the defense and that a Brady violation had occurred. But, he argued, the
remedy for such a violation is a new trial, which appellant had already been granted, and there
was no basis for dismissal on double-jeopardy grounds based on prosecutorial misconduct.
Appellant disagreed and argued that there was case law that supported dismissal for
prosecutorial misconduct.
After deliberating the issue, the court pronounced from the bench that it was denying
the motion to dismiss. After the court’s ruling, the prosecuting attorney added that, at the
time he received the proffered statement in question, he believed it was “hypothetical
testimony in exchange for a possible plea,” and that, after determining it did not comport
with the previous version of events that Chad had offered, dismissed it as not admissible and
“forgot about it.” An order denying appellant’s motion to dismiss was entered on May 3,
2010, and appellant filed a notice of appeal from this order on May 4, 2010.
This court reviews a circuit court’s denial of a motion to dismiss on double-jeopardy
grounds de novo. Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006). We have further said
that “when the analysis presents itself as a mixed question of law and fact, the factual
determinations made by the trial court are given due deference and are not reversed unless
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clearly erroneous.” Id. at 320, 235 S.W.3d at 483. However, the ultimate decision by the
circuit court that the defendant’s protection against double jeopardy was not violated is
reviewed de novo, with no deference given to the circuit court’s determination. Id. A
double-jeopardy claim may be raised by interlocutory appeal because if a defendant is illegally
tried a second time, the right would have been forfeited. See Zawodniak v. State, 339 Ark. 66,
3 S.W.3d 292 (1999).
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material to guilt or punishment, irrespective of the good faith
or bad faith of the prosecution.” In the present case, the parties did not dispute that the
prosecution’s failure to disclose Chad’s statement was a Brady violation. Thus, the dispute in
this case turns on what is the proper remedy for this violation. Appellant acknowledges that,
ordinarily, the remedy would be a new trial and cites to this court’s recent opinion in Buckley
v. State, 2010 Ark. 154, in which we granted a petition to reinvest jurisdiction in the circuit
court to proceed with a writ of error coram nobis based on a possible Brady violation.
However, because appellant has already been granted a new trial on other grounds, he argues
that there is no other remedy for the prosecutorial misconduct in this case other than
dismissal.
To support his argument, appellant cites to several cases from other jurisdictions, in
particular Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992), which presented facts very similar
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to the case at bar and found that prosecutorial misconduct implicated the double jeopardy
clause of the Pennsylvania Constitution. In Smith, the appellant was convicted of three counts
of first-degree murder and sentenced to death, but the Pennsylvania Supreme Court reversed
his conviction due to the admission of impermissible hearsay testimony and remanded for a
new trial. Prior to his retrial, the appellant filed a motion to dismiss the charges based on
double jeopardy due to recently-discovered evidence of prosecutorial misconduct during his
first trial. The Pennsylvania Supreme Court agreed that the State’s actions constituted
violations of the rule in Brady. The court acknowledged that it had previously held that
double jeopardy attached only to those mistrials that have been intentionally caused by
prosecutorial misconduct, and that this was the standard decided by the United States
Supreme Court under the federal constitution in Oregon v. Kennedy, 456 U.S. 667 (1982). In
Kennedy, the Supreme Court held that
the circumstances under which such a defendant may invoke the bar of double
jeopardy in a second effort to try him are limited to those cases in which the conduct
giving rise to the successful motion for a mistrial was intended to provoke the
defendant into moving for a mistrial.
Id. at 679. However, the Pennsylvania Supreme Court decided that, whatever the result may
be under the Kennedy standard, their own state constitution barred retrial. Appellant also cites
several other states that have similarly held that their state constitutions encompass more
protection for the double jeopardy clause in the context of prosecutorial misconduct than the
federal Kennedy standard. See State v. Rogan, 984 P.2d 1231 (Ha. 1999); State v. Breit, 930 P.2d
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792 (N.M. 1996); Pool v. Superior Ct., 677 P.2d 261 (Ariz. 1984); State v. Kennedy, 666 P.2d
1316 (Or. 1983).
In response, the State contends that the remedy for the Brady violation in this case is
a new trial. The State cites Timmons v. State, 290 Ark. 121, 717 S.W.2d 208 (1986), in which
this court held that double jeopardy did not bar retrial after a mistrial based on prosecutorial
misconduct. In Timmons, we declined to follow United States v. Martin, 561 F.2d 135, 140 (8th
Cir. 1977), which held that an indictment should have been dismissed after finding that the
prosecutorial misconduct in that case was best described as “prejudicial error undertaken to
harass or prejudice the defendant” and constituted “prosecutorial overreaching.” The State
also cites Thompson v. State, 273 Ark. 29, 616 S.W.2d 18 (1981), which affirmed the trial
court’s determination that double jeopardy did not attach when a defendant requested a
mistrial and there was no intentional misconduct on the part of the prosecutor.
The State also argues that this court adopted the Kennedy standard in Espinosa v. State,
317 Ark. 198, 876 S.W.2d 569 (1994). In Espinosa, the appellant cited the Kennedy standard
and argued that the State had intentionally withheld pretrial discovery information and
revealed it for the first time at trial, which provoked her into moving for a mistrial. The trial
judge, however, found that the State had not intentionally withheld the disputed evidence,
and this court held that Espinosa had failed to show this finding was in error.
Also, in Jackson v. State, 322 Ark. 710, 911 S.W.2d 578 (1995), this court held that a
second trial was not barred by double jeopardy after a mistrial was granted due to an improper
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statement by the prosecutor. After the mistrial was declared, the State amended its
information, and Jackson objected, arguing that the State had made its prejudicial remark
during opening statement because it needed the court to declare a mistrial so as to avoid
another continuance, which would have allowed Jackson to be released under the speedy-trial
rule. Citing the Kennedy standard, this court held that the record supported the trial court’s
finding that the prosecutor had acted in good faith and did not intend to provoke a mistrial.
We noted that Jackson urged us to adopt a broader standard than that required under the
Kennedy test, but we declined to do so.
The State asserts that because this court has adopted the Kennedy standard, and there
was no showing of any bad faith or intent to provoke a mistrial on the part of the prosecutors
in this case, double jeopardy does not apply. The State equates this case to a petition for writ
of error coram nobis under the assertion that there was material evidence withheld by the
prosecutor, and the State argues that if such a writ was granted, the relief would be a new
trial.
In reply, appellant argues that the facts of Oregon v. Kennedy, as well as most of the
Arkansas cases cited by the State, are distinguishable from the case at bar; only Espinosa deals
with the prosecutor’s failure to disclose pretrial discovery information. Appellant also disagrees
with the State’s contention that he failed to show intentional bad faith on the part of the
prosecutors. Appellant argues that the real reason the State did not turn over the proffered
statement of Chad Green was because it knew it gave a different version of events, a version
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in which Chad admitted to committing the murders, and was thus exculpatory evidence. It
was also impeachment evidence that called into question the veracity of Chad’s testimony at
appellant’s trial. Appellant contends that the State clearly acted in bad faith by presenting Chad
as a key witness, all the while knowing that he had given a statement contrary to his testimony
at trial. According to appellant, this was a purposeful and deliberate act that should warrant
a bar to a second trial; otherwise, there is no incentive for the State to stop this type of
misconduct in the future.
Both the Fifth Amendment to the United States Constitution and article 2, § 8 of the
Arkansas Constitution require that no person be twice put in jeopardy of life or liberty for the
same offense. Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007). The Double Jeopardy
Clause protects criminal defendants from (1) a second prosecution for the same offense after
acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense. Wilcox v. State, 342 Ark. 388, 39 S.W.3d 434 (2000) (citing
North Carolina v. Pearce, 395 U.S. 711 (1969)). The underlying idea behind the Double
Jeopardy Clause is that
the State with all its resources and power should not be allowed to make repeated
attempts to convict an individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a continuing state
of anxiety and insecurity, as well as enhancing the possibility that even though
innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187–88 (1957). The central issue presented to this court
in the case at bar is whether, in instances of prosecutorial misconduct, we should afford greater
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protection under the double jeopardy clause of our state constitution than that given under
the federal constitution. As stated previously, the federal standard, clarified in Oregon v.
Kennedy, is that a defendant may invoke the bar of double jeopardy only in those cases in
which the conduct giving rise to a successful motion for a mistrial was intended to provoke
the defendant into moving for a mistrial. We have previously declined to broaden this
standard. See Jackson, supra. However, it does not appear that this court has previously dealt
with this particular set of facts: the grant of a new trial followed by a motion seeking dismissal
of the charges based on prosecutorial misconduct during the previous trial.
On the other hand, there are other states that have adopted the Kennedy standard and
declined to extend its protections in situations such as the case at bar. For example, in State
v. Moore, 969 So. 2d 169 (Ala. Crim. App. 2006), the Alabama Court of Criminal Appeals
found that a dismissal of charges against the defendant as a sanction for a Brady violation was
not warranted. In Moore, the defendant was convicted of four counts of capital murder and
sentenced to death, but was granted a new trial based on Brady violations by the prosecution.
The defendant then moved to dismiss the indictment, alleging that he could not receive a fair
retrial because of the Brady violations, and the circuit court granted the motion after finding
that the prosecutor’s intentional misconduct barred retrial under the double jeopardy clause.
The prosecution in Moore had failed to disclose exculpatory evidence to the defense and had
even lied to the court about the existence of the evidence. Assuming arguendo that a mistrial
and a new trial were functionally equivalent, the Court of Criminal Appeals held that the
Kennedy test would apply, and that
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there is no indication that the prosecutor’s actions here were intended to provoke a
mistrial. Indeed, it is apparent that the opposite is true. “The prosecutor’s withholding
of exculpatory evidence from the defendant may only be characterized as an
overzealous effort to gain a conviction from the first jury and not as an attempt to
subvert [the defendant’s] ‘valued right’ by bringing the case before a second jury.”
United States v. Coleman, 862 F.2d 455, 458 (3d Cir. 1988). “[W]e do not believe the
[Double Jeopardy Clause] may be invoked to supplement the remedies contemplated
by Brady.” 862 F.2d at 458.
Moore, 969 So. 2d at 180–81.
Also, in State v. Barton, 240 S.W.3d 693 (Mo. 2007), the defendant was granted a new
trial post-conviction and argued that double jeopardy should preclude retrial of his case
because of prosecutorial misconduct in his previous trial. The new trial was granted based on
the prosecutor’s failure to disclose information relating to a witness’s criminal history and
failure to correct perjured testimony by the witness. After remand, the defendant filed a
motion to dismiss on double-jeopardy grounds, which was denied. On appeal, the Missouri
Supreme Court explained: “Appellant now asks this Court to extend Oregon v. Kennedy to
preclude a retrial even in the absence of a mistrial, arguing that it should make no difference
that prosecutorial misconduct that would have resulted in a mistrial was not discovered until
after trial.” Id. at 701. However, the Court held that, even if such an extension was granted,
the defendant must still show that the misconduct of the prosecutor was undertaken “not
simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the
time was likely to occur in the absence of his misconduct.” Id. at 702 (quoting United States
v. Wallach, 979 F.2d 912, 916 (2nd Cir. 1992)). The Court found that the defendant had
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failed to show that the prosecutor intended to prevent an acquittal and, thus, the retrial of the
case was not barred by double jeopardy.
Likewise, in State v. Morton, 153 P.3d 532 (Kan. 2007), the Kansas Supreme Court
held that prosecutorial conduct was not a bar to retrial and explained that “Kennedy requires
something more than misconduct, even intentional and reversible misconduct, in order to bar
retrial. It requires that the prosecutor intended to provoke a mistrial, to goad a defendant into
sacrificing his or her choice to live with the outcome from the first jury.” Id. at 538–39.
Morton also cites another Kansas Supreme Court case, State v. Williams, which explained:
The constitutional interest protected by Oregon v. Kennedy, 456 U.S. 667, 102
S. Ct. 2083, 72 L.Ed.2d 416 (1982), is the right of a defendant to freely choose
whether he or she should request a mistrial. Where the prosecutor seeks to force the
defendant into a choice, the choice is not freely made and the prosecution has
subverted the defendant’s rights protected by the Double Jeopardy Clause. The
exception applies and double jeopardy precludes the State from trying the defendant
again on the same charges. State v. McClanahan, 259 Kan. 86, Syl. ¶ 3, 910 P.2d 193
(1996).
Prosecutorial misconduct that precludes further prosecution requires intent by
the prosecutor to provoke the defendant into moving for a mistrial. Intentional
prosecutorial conduct motivated by a desire to obtain a conviction and not by a desire
to provoke the defendant into moving for a mistrial may be grounds for a mistrial but
it does not preclude retrial of the case. State v. Muck, 262 Kan. 459, 467, 939 P.2d 896
(1997).
988 P.2d 722, 727–28 (Kan. 1999); see also U.S. v. Lewis, 368 F.3d 1102 (9th Cir. 2004)
(holding that government’s alleged Brady violations at first trial did not constitute double
jeopardy bar to retrial); State v. Butler, 810 A.2d 791 (Conn. 2002) (affirming denial of motion
to dismiss charges under the Kennedy standard).
We agree with the reasoning presented above and decline to extend the holding of
Kennedy beyond those instances in which the prosecution has intentionally provoked a
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mistrial. Our law is well settled that the remedy for a Brady violation is a new trial. See Cloird
v. State, 349 Ark. 33, 76 S.W.3d 813 (2002); Larimore v. State, 327 Ark. 271, 938 S.W.2d 818
(1997). Appellant has received a new trial and thus has received the relief to which he is
entitled. Therefore, the circuit court did not err in denying appellant’s motion to dismiss. We
also note that, while appellant asks this court to follow other states that have expanded their
double-jeopardy protections in this context, appellant has failed to articulate an argument
based on this state’s double-jeopardy jurisprudence and does not even cite to the Arkansas
Constitution in his argument.
Finally, we note that there was disagreement between the parties over whether the
prosecution acted intentionally or the non-disclosure was inadvertent, or in the words of the
State, a “slip-up.” We refer this matter to the Committee on Professional Conduct to
determine whether any disciplinary action is warranted.
Affirmed.
B ROWN and B AKER, JJ., concur in part and dissent in part.
D ANIELSON, J., dissents.
R OBERT L. B ROWN, Justice, concurring in part and dissenting in part. I agree with
every part of the majority opinion except for the referral of the prosecutor’s conduct to the
Professional Conduct Committee to “determine whether any disciplinary action is warranted”
without an explanation as to why this is being done.
The prosecutor’s lapse in this case in not turning the second statement of Chad Green
over to counsel for Billy Dale Green was very serious. For that reason, Billy Dale Green has
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been awarded a new trial as the remedy for this Brady violation. Brady violations occur
whether the prosecutor’s conduct in failing to disclose evidence is inadvertent or intentional.
Newman v. State, 2009 Ark. 539, 13.
The prosecutor admitted that his failure to disclose was a Brady violation but then said
“as an officer of the Court” that the failure was “a slip up” and “inadvertent” and was not
intentional. The trial judge then found that he did not believe the prosecutor “hid the
evidence.”
Later, a second prosecutor told the judge that when he read the second Chad Green
statement, “it did not comport with his previous versions of the case” and was not helpful to
the prosecution of Billy Dale Green. The prosecutor said once the proffer was made by Chad
Green’s attorney, he “simply forgot about it” and “it went out of my mind.” The trial judge
then repeated that Billy Dale Green’s motion to dismiss was denied.
Rule 3.8 of the Arkansas Rules of Professional Conduct provides as a special
responsibility that prosecutors should make a timely disclosure to the defense of all evidence
that tends to negate guilt. That encapsulates the Brady obligation. What is unclear about
today’s opinion, however, is whether the majority is referring this matter to the Professional
Conduct Committee for discipline due to an intentional hiding of evidence or because of an
inadvertent failure to disclose, which equates more to negligence. The trial judge in the
instant case, of course, found the prosecutor’s conduct was not an intentional hiding. And
there is no suggestion in today’s decision that the judge’s finding was clearly erroneous. See,
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e.g., Henderson v. State, 349 Ark. 701, 708, 80 S.W.3d 374, 378 (2002) (“A trial court’s factual
determination on a motion for a new trial will not be reversed unless clearly erroneous.”).
Comment 1 to Rule 3.8 provides, in part:
A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligations to see that the
defendant is accorded procedural justice and that guilt is decided upon the basis of
sufficient evidence. Precisely how far the prosecutor is required to go in this direction
is a matter of debate and varies in different jurisdictions. Many jurisdictions have
adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function,
which in turn are the product of prolonged and careful deliberation by lawyers
experienced in both criminal prosecution and defense.
The ABA Standard of Criminal Justice Relating to the Prosecution Function 3-3.11 provides:
A prosecutor should not intentionally fail to make timely disclosure to the defense, at
the earliest feasible opportunity, of the existence of all evidence or information which
tends to negate the guilt of the accused or mitigate the offense charged or which
would tend to reduce the punishment of the accused.
(Emphasis added.)
In analyzing Colorado Rule of Professional Conduct 3.8, which contains the same
language as our Rule 3.8 and has the same commentary, the Colorado Supreme Court
concluded that intentional conduct of the prosecutor was required:
Because we do not wish to interfere with the discretion of trial courts to handle
discovery disputes in the way dictated by the facts of the case, and because we do not
wish the possibility of a grievance proceeding to permeate every discovery dispute in
criminal cases, we choose to read the rule itself as including the mens rea of intent.
In re Attorney C, 47 P.3d 1167, 1174 (Colo. 2002).
The majority’s opinion opens the door to referrals to the Committee for disciplinary
action even for unintentional mistakes made by prosecutors during investigations. If the
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majority is referring the two prosecutors in this case to the Committee for negligence, will
this court, henceforth, be referring all prosecutors involved in Brady violations to the
Committee for discipline, even when the conduct equates only to negligence?
I dissent on this single point because it is an important one. Referring conduct to the
Committee is a serious matter. The point needs to be clarified.
B AKER, J., joins this opinion.
P AUL E. D ANIELSON, Justice, dissenting. Because I would reverse the denial of Green’s
motion to dismiss, I respectfully dissent. I am more persuaded by those decisions relied upon
by Green wherein the state constitutions provided expanded relief for a Brady violation.1 More
specifically, I agree wholeheartedly with the Pennsylvania Supreme Court, which observed:
We now hold that the double jeopardy clause of the Pennsylvania Constitution
prohibits retrial of a defendant not only when prosecutorial misconduct is intended to
provoke the defendant into moving for a mistrial, but also when the conduct of the
prosecutor is intentionally undertaken to prejudice the defendant to the point of the
denial of a fair trial. Because the prosecutor’s conduct in this case was intended to
prejudice the defendant and thereby deny him a fair trial, appellant must be discharged
on the grounds that his double jeopardy rights, as guaranteed by the Pennsylvania
Constitution, would be violated by conducting a second trial.
Commonwealth v. Smith, 532 Pa. 177, 186, 615 A.2d 321, 325 (1992). I would adopt the
reasoning of the Pennsylvania Supreme Court and hold that the Arkansas constitution
1
While the majority is correct that Green failed to cite to the Arkansas Constitution in his
argument, it is clear to me from his pleadings and arguments to the circuit court, as well as
to this court, that he could only be seeking relief under our state constitution. He solely relied
on decisions from other states granting heightened relief under their respective state
constitutions, but more importantly, it is clear that this court could only grant Green “more
protection under state law, but that we could not do so under the federal constitution.”
Sullivan v. State, 348 Ark. 647, 649, 74 S.W.3d 215, 217 (2002).
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provides expanded relief for an egregious Brady violation, the likes of which is currently
before us.
Here, even if one were to actually believe that the prosecutors did not intentionally
hide Chad’s statement from Green’s counsel, it is clear that the prosecutors intentionally
allowed Chad to testify to a version of events that they knew contradicted a prior statement
made by him. At the absolute least, their acts prevented Green from a possible acquittal. For
this, the sole remedy, I believe, would be a dismissal of the charges. Accordingly, I would
reverse the circuit court’s denial of Green’s motion to dismiss.
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