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*********************************************** 
JAMIE R. GOMEZ v. COMMISSIONER

OF CORRECTION

(SC 20089)

Robinson, C. J., and Palmer, McDonald, D’Auria,

Mullins, Ecker and Vertefeuille, Js.*

Syllabus

The petitioner, who had been convicted of the crimes of murder and conspiracy to commit murder, filed a second petition for a writ of habeas corpus,

claiming, inter alia, that his first habeas counsel provided ineffective

assistance by failing to raise the claim that the petitioner’s due process

rights were violated during his underlying criminal trial. Specifically,

the petitioner claimed that the prosecutor failed to correct the allegedly

false testimony of the state’s key witnesses, S and V, that the state had

not promised them anything in return for their cooperation and that

they had not received any benefit in exchange for their cooperation. The

habeas court rendered judgment denying the second petition, concluding

that there was no due process violation, as the petitioner had failed to

demonstrate that the trial testimony of S and V regarding their cooperation agreements with the state was false, the agreements were thoroughly explored on both direct and cross-examination, and at least one

of the defense attorneys involved in the consolidated criminal trial of

the petitioner and his codefendants was aware of the cooperation agreements. On the granting of certification, the petitioner appealed to the

Appellate Court, which affirmed the habeas court’s judgment. The Appellate Court concluded, inter alia, that the petitioner’s due process rights

under Napue v. Illinois (360 U.S. 264), and Giglio v. United States (405

U.S. 150), had not been violated because the agreements had been

disclosed to defense counsel, and, therefore, the state was not required

to correct the false testimony of S and V. Thereafter, the petitioner,

on the granting of certification, appealed to this court. Held that the

petitioner’s due process rights were violated at his criminal trial when

the prosecutor failed to correct the materially false testimony of S and

V about benefits that the state had promised or provided to them in

return for their cooperation, even though defense counsel had actual

or constructive notice of the falsity of that testimony, and, accordingly,

this court reversed the Appellate Court’s judgment and remanded with

direction to the habeas court to grant the petitioner’s second habeas

petition, to vacate his convictions, and to order a new trial: whether

disclosure of a witness’ falsity to defense counsel satisfies a prosecutor’s

duty under Napue and Giglio to correct a witness’ false testimony is a

case specific determination to be made in view of certain factors, including whether the prosecutor or the defense elicits the false testimony,

whether and how the prosecutor adopts and uses the false testimony,

the importance of the witness and his or her false testimony to the

state’s case, whether and to what effect defense counsel tries to impeach

the witness or whether counsel has a clear tactical reason for not doing

so, and whether the truth ultimately is revealed to the jury; considering

the relevant factors in light of the record, this court determined that

defense counsel’s actual or constructive notice of the cooperation agreements was insufficient to satisfy the prosecutor’s obligations under

Napue and Giglio, as the prosecutor directly solicited the false testimony

of S and V, who were the state’s key witnesses, defense counsel

attempted to elicit the details and results of any cooperation agreements

on cross-examination but was met with further denials by S and V, and

the prosecutor not only failed to correct the false testimony during

closing argument but also affirmatively vouched for the credibility of

V and invited the jury to decide the case on the basis of V’s credibility;

moreover, the respondent, the Commissioner of Correction, conceded

that the violation of the petitioner’s due process rights was material

because the state’s case against him was not overwhelming without the

testimony of S and V.

(One justice concurring separately)

Argued October 23, 2019—officially released June 29, 2020**
Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland and tried to the court, Oliver, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to the Appellate

Court, Lavine, Kahn and Bishop, Js., which affirmed

the judgment of the habeas court, and the petitioner,

on the granting of certification, appealed to this court.

Reversed; judgment directed.

Andrew P. O’Shea, assigned counsel, for the appellant (petitioner).

Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Michael L. Regan,

state’s attorney, and Stephen M. Carney and Theresa

Anne Ferryman, senior assistant state’s attorneys, for

the appellee (respondent).
Opinion

VERTEFEUILLE, J. The dispositive question presented by this certified appeal is whether a criminal

defendant’s federal due process rights1 are violated

when the state knowingly fails to correct the material,

false testimony of a prosecution witness when defense

counsel had actual or constructive notice that the testimony is false. We conclude that, under the circumstances of the present case, the fact that defense counsel was aware of the falsity of the testimony of two

cooperating witnesses was not sufficient to protect the

rights of the petitioner, Jamie Gomez, to due process

of the law. Accordingly, we reverse the judgment of the

Appellate Court, which affirmed the judgment of the

habeas court denying the petitioner’s second petition

for a writ of habeas corpus.

I

The facts and procedural history of the case are set

forth in full in the decision of the Appellate Court that

is under review; Gomez v. Commissioner of Correction,

178 Conn. App. 519, 522–24, 176 A.3d 559 (2017); and

in the decision of this court resolving the direct appeals

of the petitioner and his codefendants, Anthony Booth

and Daniel Brown (codefendants). State v. Booth, 250

Conn. 611, 614–16, 737 A.2d 404 (1999), cert. denied

sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct.

1568, 146 L. Ed. 2d 471 (2000). The following summary

provides the necessary context for the present appeal.

‘‘In connection with the murder of Darrell Wattley,

the state charged the petitioner and his codefendants

. . . each with [inter alia] one count of murder in violation of General Statutes § 53a-54a . . . and one count

of conspiracy to commit murder in violation of General

Statutes §§ 53a-48 (a) and 53a-54a.’’ Gomez v. Commissioner of Correction, supra, 178 Conn. App. 522. During

the consolidated trial in 1997, John F. Cocheo, who

passed away before the present action was filed, represented the petitioner, Jeremiah Donovan represented

Brown, and Bruce Sturman represented Booth. Id., 524.

The state’s key witnesses at trial were two other alleged

coconspirators, Angeline Valentin and James ‘‘Tiny’’

Smith (witnesses). Id., 523, 529–31.

Valentin testified to the following at trial. The codefendants were members of the 20-Love street gang and

resided in the same New London apartment complex

as did Valentin. On the evening of the murder, Valentin

notified the codefendants and Smith that Wattley, who

had romantic feelings for her, was coming to visit her.

She understood, on the basis of previous conversations,

that the codefendants planned to assault Wattley when

he visited their apartment complex in retaliation for a

prior incident in which Wattley had assaulted Smith. A

short time later, Valentin heard gunshots in the building,

looked out her window, and saw the codefendants and
Smith run quickly out of the building, enter a car owned

by the petitioner’s girlfriend, and drive off with the

petitioner in the driver’s seat. Approximately thirty

minutes later, she went downstairs and saw Wattley

lying on the floor with ‘‘[b]lood draining from his head.’’

Finally, she testified that, later that evening, Booth ‘‘told

[her] what [had] happened. And he told [her] that, if

[she] would have known that they [were] going to kill

[Wattley], [she] would have never helped . . . by telling [the codefendants and Smith] that he was coming

over.’’ Valentin further testified that Booth admitted

‘‘that they shot him.’’

In his trial testimony, Smith confirmed both that the

codefendants were affiliated with 20-Love and that Wattley had assaulted him at a party the week before the

murder. Although his account of events differed slightly

from that of Valentin, he confirmed that a ‘‘girl’’ had

alerted the codefendants that Wattley was coming to

visit her and that the codefendants had indicated that

they wanted Smith to fight Wattley when Wattley

arrived.

Smith further testified as follows. While the men were

waiting for Wattley to arrive, Booth, in reference to a

bag that Brown was holding, asked, ‘‘did [you] wear

gloves when [you] loaded it,’’ to which Brown

responded ‘‘yes.’’ The four men then left the apartment,

several of them having donned gloves, and with Booth

wielding a butcher knife, but Smith remained under the

impression that only a fistfight was planned. The group

then split; Smith accompanied Booth to one side of the

building, and Brown accompanied the petitioner to the

other side. Smith saw Wattley arrive and enter the building on the side where Brown and the petitioner were

waiting. Smith then heard gunshots and, after running

through the building with Brown, came across Wattley

lying on the ground, covered in blood but still moving

his legs. Smith watched Booth stab Wattley several

times, after which the two men fled, joining Brown and

the petitioner at the petitioner’s car. During the ensuing

car ride, Brown said, ‘‘I robbed that nigger, too,’’ and

threw a knife out of the window. Booth then instructed

the group to invent alibis, which they later did.2

The jury found the petitioner and his codefendants

guilty of murder and conspiracy to commit murder. Id.,

524. The trial court, Parker, J., ‘‘sentenced the petitioner

to a term of imprisonment of fifty years on the murder

count and a concurrent sentence of fifteen years on the

conspiracy to commit murder count, for a total effective

sentence of fifty years . . . .’’ Id. This court affirmed

the petitioner’s conviction. State v. Booth, supra, 250

Conn. 617.

In 2000, the petitioner, represented by Robert McKay,

filed his first petition for a writ of habeas corpus. The

habeas court, Rittenband, J., denied the petition.
In 2013, the petitioner filed a second petition for a

writ of habeas corpus. In his amended petition, which

gives rise to the present appeal, he alleged, among other

things, that his prior habeas counsel had provided ineffective assistance insofar as he failed to raise the claim

that the state had violated his right to due process

when the prosecutor failed to correct the allegedly false

testimony of Valentin and Smith at trial. The habeas

court, Oliver, J., denied the petition. With respect to

the petitioner’s due process claim, the court found that

‘‘[t]he petitioner . . . failed to demonstrate that the

underlying trial testimony of Smith and Valentin was

‘false’ . . . as opposed to, for example, [a reflection

of] their uncertainty as to the likely posttrial sentencing

scenario.’’ The court also found that ‘‘[t]he nature and

circumstances of [Smith’s] and Valentin’s ‘agreements’

were thoroughly explored and dissected on both direct

and cross-examination. There is no reasonable probability that the jury was misled in this regard . . . .’’

Finally, the court found that ‘‘at least one other defense

attorney in the consolidated trial was . . . aware of the

agreement’’ by which the prosecuting authority would

bring the cooperation of Smith and Valentin to the attention of the sentencing judge posttrial and, therefore,

concluded that the petitioner had failed to demonstrate

that Cocheo was unaware of the existence of that agreement. For these reasons, the court concluded that there

had been no due process violation and, therefore, that

prior counsel had not performed deficiently in failing

to raise the claim.

The habeas court subsequently granted the petitioner’s petition for certification to appeal, and the Appellate Court affirmed the judgment. Gomez v. Commissioner of Correction, supra, 178 Conn. App. 522. The

Appellate Court concluded that, in light of the clear

and undisputed evidence of the agreements, the habeas

court’s finding that ‘‘the state had limited agreements

to bring the cooperation of Valentin and Smith to the

attention of the trial court posttrial . . . was not

clearly erroneous.’’ Id., 535. The Appellate Court also

concluded, however, that there had been no violation

of the petitioner’s due process rights, as elucidated in

Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed.

2d 1217 (1959), and Giglio v. United States, 405 U.S.

150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), because the

agreements had been disclosed to defense counsel. Id.,

540. The Appellate Court read this court’s decision in

State v. Ouellette, 295 Conn. 173, 186–87, 989 A.2d 1048

(2010), to mean that Napue and Giglio are concerned

only with the state’s failure to correct false testimony

regarding an undisclosed cooperation agreement. See

Gomez v. Commissioner of Correction, supra, 539–40;

see also Hines v. Commissioner of Correction, 164

Conn. App. 712, 726–28, 138 A.3d 430 (2016). This certified appeal followed.3
II

On appeal, the petitioner contends that both Smith

and Valentin provided material, false or misleading testimony and that the fact that defense counsel had actual

or constructive notice thereof did not satisfy the duty

of the prosecutor, under Napue and Giglio, to correct

the witnesses’ false testimony. We agree.

A

The following legal principles frame our review of

the petitioner’s claim. ‘‘Whether a prosecutor knowingly

presented false or misleading testimony [in violation

of a defendant’s due process rights] presents a mixed

question of law and fact, with the habeas court’s factual

findings subject to review for clear error and the legal

conclusions that the court drew from those facts subject

to de novo review.’’ Greene v. Commissioner of Correction, 330 Conn. 1, 14, 190 A.3d 851 (2018), cert. denied

sub nom. Greene v. Semple, U.S. , 139 S. Ct.

1219, 203 L. Ed. 2d 238 (2019).

‘‘[D]ue process is . . . offended if the state, although

not soliciting false evidence, allows it to go uncorrected

when it appears. . . . If a government witness falsely

denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception.

. . . Regardless of the lack of intent to lie on the part

of the witness, Giglio and Napue require the prosecutor

to apprise the court when he or she knows that the

witness is giving testimony that is substantially misleading.’’ (Citations omitted; internal quotation marks

omitted.) Id., 15.

B

To establish a Napue/Giglio violation, then, the petitioner must demonstrate that the state’s witnesses provided material, false or substantially misleading testimony that the prosecutor failed to correct. To reiterate,

the petitioner in the present case contends that both

witnesses falsely testified at trial that (1) the state had

not promised them anything in return for their cooperation, and (2) they did not receive any benefit at their

respective bond hearings in exchange for cooperating.4

With respect to the first contention, the decision of

the Appellate Court sets forth in full the testimony on

which that court concluded that both witnesses falsely

testified that the state had promised them nothing in

exchange for their cooperation, when, in fact, the prosecutor, Paul E. Murray, had promised both witnesses

that he would bring their cooperation to the attention

of the sentencing court. See Gomez v. Commissioner

of Correction, supra, 178 Conn. App. 529–38 and n.10;

id., 538–39 n.13. We need not revisit either that evidence

or the Appellate Court’s conclusion, however, because

the respondent, the Commissioner of Correction, to his
credit, concedes before this court that both witnesses

provided materially false testimony in this regard.

With respect to the second contention, we conclude

that the habeas court’s finding that Valentin received

no benefits in exchange for her cooperation was clearly

erroneous.5 At trial, the following exchange took place

during Donovan’s cross-examination of Valentin:

‘‘[Donovan]: After you testified against . . . Booth,

you were released from jail, weren’t you?

‘‘[Valentin]: Yes, I was.

‘‘[Donovan]: Do you think there might be, there just

might be, some connection between [your] testifying

against . . . Booth and your not being in jail anymore?

‘‘[Valentin]: No.

‘‘[Donovan]: You don’t see any connection at all?

‘‘[Valentin]: (Witness nods in the negative.)’’

The transcript of Valentin’s bond hearing, however,

flatly belies her testimony that there was no connection

between her cooperation and the fact that she made

bail. The hearing began with Murray’s informing the

court of the scope and importance of Valentin’s cooperation: ‘‘We have multiple, sworn statements from her,

Your Honor, and she did testify at length and, we

believe, truthfully at the probable cause hearing for

. . . Booth, and was instrumental in a finding of probable cause for . . . Booth.’’ In his argument to the court

at the bond hearing, Valentin’s attorney, Bernard W.

Steadman, then repeatedly emphasized the significance

and extent of his client’s cooperation.6 Finally, in making his bond recommendation to the court, Murray

stated: ‘‘I did indicate to . . . Steadman, Your Honor,

that I would bring to the court’s attention her cooperation, and I think I’ve done that. . . . I also think she

should be aware that, if she [is permitted to move to

New Jersey and does not remain available], and if the

state has to go and seek her out . . . she will have

forfeited whatever benefits she has gained from her

cooperation to this point. . . . [S]o . . . she would be

in serious trouble should she not cooperate and be

available. Having said that, Your Honor, I’m not sure

whether a promise to appear is the appropriate thing,

but I think certainly a substantial reduction in her bond

is appropriate. . . . I think . . . if I were in your position, I would be considering a written promise to

appear. . . . I would not be averse to a written promise

to appear.’’

Consistent with the state’s suggestion, the court ultimately reduced Valentin’s bond from $100,000 to a written promise to appear and allowed her to move from

Connecticut to New Jersey, despite the pending charge

of accessory to assault in the first degree. In explaining

that decision, the court stated: ‘‘[C]onsidering all of the

factors . . . [and] the information relayed by counsel,
particularly taking into consideration the youth and

cooperative aspects of this matter, I’m going to . . .

reduce the bond . . . .’’ In light of the multiple references to Valentin’s cooperation in the course of what

was a relatively brief hearing, including Murray’s statement implying that Valentin had gained benefits from

her cooperation, we do not think any reasonable conclusion may be drawn other than that her trial testimony

that there was no possible connection between her

cooperation and her release from jail was false.7

C

As we have discussed, the respondent does not dispute that the witnesses provided material, false testimony that the state failed to correct, at least insofar as

both Valentin and Smith testified that the state had

promised them no benefit in exchange for their cooperation in the petitioner’s case. Nevertheless, the respondent contends that the petitioner’s Napue/Giglio rights

were not violated because, in State v. Ouellette, supra,

295 Conn. 173, this court indicated that due process

does not require the prosecutor to correct a witness’

false or misleading testimony regarding a cooperation

agreement when the agreement at issue has been disclosed to defense counsel. Because the state’s agreements with Smith and Valentin had been disclosed to

Donovan, and because Cocheo had access to the transcripts of both witnesses’ bond hearings, the respondent claims the petitioner, through his counsel, had at

least constructive notice as to the misleading nature of

the witnesses’ testimony.8 The petitioner, relying on

case law from certain federal courts of appeals,

responds, and we agree, that disclosure to defense

counsel does not necessarily satisfy the prosecutor’s

obligations under Napue/Giglio.

1

Before we consider the split of opinion among the

federal courts of appeals on this question, we first

address the respondent’s argument that this court

already resolved the question in Ouellette. In that case,

the defendant, Daniel J. Ouellette, was convicted of

robbery and related crimes, largely on the basis of the

testimony of his alleged coconspirator, Pamela Levesque. Id., 176–80. Levesque testified at trial that she

had entered into a plea agreement pursuant to which

the state had agreed to recommend a sentence of twenty

years imprisonment, execution suspended after ten

years, in exchange for her cooperation. Id., 178–79. At

Levesque’s sentencing hearing following Ouellette’s

conviction, however, the state’s attorney appeared to

invite the court to impose a more lenient sentence,

which the court did. Id., 180.

In his direct appeal, Ouellette claimed that the state’s

departure from the terms of the agreement to which

Levesque had testified suggested that the state had with-
held evidence of a different, more favorable plea agreement with the witness, in violation of his due process

rights. Id., 181. In assessing this argument, this court

evaluated Ouellette’s claim through the lens of Brady

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d

215 (1963), in which the United States Supreme Court

held that ‘‘the suppression by the prosecution of evidence favorable to an accused upon request violates

due process [when] the evidence is material either to

guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.’’ Id., 87. We stated that

‘‘[t]he Supreme Court established a framework for the

application of Brady to witness plea agreements in

Napue . . . and Giglio . . . .’’ (Citations omitted.)

State v. Ouellette, supra, 295 Conn. 185–86. ‘‘The prerequisite of any claim under the Brady, Napue and Giglio

line of cases,’’ we further suggested, ‘‘is the existence

of an undisclosed agreement or understanding between

the cooperating witness and the state.’’ (Emphasis

added.) Id., 186. In other words, we assumed in Ouellette

that both Napue and Giglio fell within the Brady line

of cases and that those cases were principally concerned, as was Brady, with the suppression of evidence

favorable to a criminal defendant. Because there was no

evidence that Levesque had entered into an undisclosed

plea agreement with the state, we upheld Ouellette’s

conviction. Id., 187–92.

On further reflection, it is clear that we painted with

an overly broad brush in Ouellette. Napue was decided

four years prior to Brady, and Brady relied on Napue

rather than the other way around. See Brady v. Maryland, supra, 373 U.S. 87. Moreover, nowhere in Napue

did the United States Supreme Court address the question of whether or not the cooperation agreement at

issue had been disclosed to defense counsel. Rather, the

court’s concern was with the long established principle

that ‘‘a conviction obtained through use of false evidence, known to be such by representatives of the

[s]tate, must fall under the [f]ourteenth [a]mendment

. . . .’’ Napue v. Illinois, supra, 360 U.S. 269. The court

articulated the rationale for its holding as follows: ‘‘The

principle that a [s]tate may not knowingly use false

evidence, including false testimony, to obtain a tainted

conviction, [is] implicit in any concept of ordered liberty

. . . .’’ Id.

Giglio, by contrast, was decided subsequent to Brady

and relied on both that case and on Napue. See Giglio

v. United States, supra, 405 U.S. 151. As in Napue, the

United States Supreme Court in Giglio appeared to

be concerned primarily with the damage done to due

process when the state obtains a criminal conviction

on the basis of testimony known to be false. See id.,

153 (‘‘deliberate deception of a court and jurors by the

presentation of known false evidence is incompatible

with rudimentary demands of justice’’ (internal quotation marks omitted)). Although it is true that the high
court in Giglio also expressed some concern that the

cooperation agreement at issue had not been disclosed,

the court appeared to be concerned primarily that the

agreement had not been disclosed ‘‘to the jury’’;

(emphasis added) id.; rather than to defense counsel.

See Gaskin v. Commissioner of Correction, 183 Conn.

App. 496, 543–44 and n.30, 193 A.3d 625 (2018)

(explaining that, although Brady was concerned primarily with disclosure of exculpatory material to defendant, essence of Napue/Giglio violation is lack of disclosure of truth to jury).

The teaching of these cases, then, is that the state’s

knowing presentation of false testimony regarding the

benefits that have been afforded to a cooperating witness may implicate two related but distinct rights protected by the due process clause of the fourteenth

amendment. First, under Brady and its progeny, the

state may not suppress material, exculpatory evidence,

including evidence that tends to undermine the credibility of the state’s witnesses. Second, under Napue and

its progeny, the state may not knowingly rely on the

presentation of false or substantially misleading evidence to the jury, including evidence regarding the benefits that have been afforded to cooperating witnesses,

to obtain a criminal conviction. To the extent that Ouellette concerned itself solely with the rights secured

under Brady, our analysis in that decision was incomplete.9 See, e.g., Marquez v. Commissioner of Correction, 330 Conn. 575, 592–93, 198 A.3d 562 (2019) (failure

to correct false testimony of cooperating witness is ‘‘an

additional due process violation’’ to failure to disclose

under Brady); see also, e.g., Long v. Pfister, 874 F.3d

544, 549 (7th Cir. 2017) (Napue and Brady are ‘‘cousin[s]’’ representing distinct manifestations of principle

that prosecutors must expose material weaknesses in

their cases), cert. denied, U.S. , 138 S. Ct. 1593,

200 L. Ed. 2d 777 (2018); T. Murphy, ‘‘Futility of Exhaustion: Why Brady Claims Should Trump Federal Exhaustion Requirements,’’ 47 U. Mich. J.L. Reform 697, 706

(2014) (unlike Brady, ‘‘[t]he harm associated with a

Napue violation is not limited to a specific defendant,

but instead undermines the credibility of the criminal

justice system as a whole’’); cf. Greene v.Commissioner

of Correction, supra, 330 Conn. 34 n.1, 39 (D’Auria,

J., concurring) (Ouellette does not necessarily govern

situations in which witness clearly has testified falsely

or committed perjury).

2

We turn, then, to the dispositive question presented

by this appeal, namely, whether due process is offended

if the state knowingly presents the false testimony of

a cooperating witness regarding the details of a cooperation agreement but also discloses the truth regarding

that agreement to defense counsel. It is evident that

disclosure to defense counsel resolves any pure Brady-
type concerns. Because suppression of material evidence is the sine qua non of a Brady violation, disclosure of that evidence necessarily secures a defendant’s

Brady rights. It then falls to the defendant, in consultation with counsel, to decide what use, if any, to make

of the disclosed evidence.

It is less obvious, however, that disclosure to counsel—whether direct or constructive—is sufficient to

secure a defendant’s rights under Napue and Giglio.

The fact that a defendant knows that the state is

attempting to secure his conviction on the basis of false

evidence does not necessarily discharge the prosecutor

from his duty to correct the false testimony or immunize

the state from a claim that the defendant’s right to due

process was violated.

The respondent contends that the overwhelming

weight of federal precedent holds that the prosecutor

can, in fact, discharge his or her responsibility to correct

false testimony under Napue and Giglio simply by providing defense counsel with the correct information

prior to the end of trial. Our own review of the federal

cases suggests that the jurisprudence is more fragmented than the respondent allows.

The federal courts of appeals that have addressed this

issue appear to break down into five different camps.

At one extreme are those courts that hold that disclosure of the facts of a cooperation agreement to defense

counsel always is sufficient to protect a defendant’s

rights under Napue. If defense counsel opts to impeach

the state’s witness as to the falsehood, the jury is made

aware of the truth; if defense counsel declines to cross

examine the witness regarding the falsehood, that

choice is deemed to be strategic and, therefore, a waiver

of any Napue claim. See, e.g., United States v. FloresRivera, 787 F.3d 1, 31–32 (1st Cir. 2015); United States

v. Meinster, 619 F.2d 1041, 1045–46 and n.8 (4th Cir.

1980). Other federal courts, while generally taking the

view that disclosure is sufficient to satisfy Napue, make

an exception for cases in which the prosecutor becomes

complicit in the falsehood, such as by adopting or otherwise affirmatively capitalizing on a witness’ false testimony. See, e.g., United States v. Stein, 846 F.3d 1135,

1147–48 (11th Cir.), cert. denied, U.S. , 138 S.

Ct. 556, 199 L. Ed. 2d 436 (2017); United States v. Barham, 595 F.2d 231, 243–44 n.17 (5th Cir. 1979). Still

others make exception for cases in which defense counsel is prevented from effectively impeaching the witness

or when other unusual factors apply. See, e.g., United

States v. Iverson, 648 F.2d 737, 738–39 and n.8 (D.C.

Cir. 1981) (Harold, J.) (statement on order denying petition for rehearing); United States v. Harris, 498 F.2d

1164, 1166, 1169–71 (3d Cir.), cert. denied sub nom.

Young v. United States, 419 U.S. 1069, 95 S. Ct. 655, 42

L. Ed. 2d 665 (1974).

At the other end of the spectrum are those courts of
appeals holding that the prosecutor remains under a

continuing duty to correct the false testimony of the

state’s witnesses and that the failure to do so violates

Napue, regardless of whether defense counsel has been

made aware of the falsehood. See, e.g., United States

v. LaPage, 231 F.3d 488, 491–92 (9th Cir. 2000) (finding

Napue violation even when prosecutor attempted to

correct false testimony during rebuttal argument);

United States v. Foster, 874 F.2d 491, 495 (8th Cir. 1988)

(finding Napue violation, even though defense counsel

was aware of letters containing government’s promises

to witnesses) . Not surprisingly, it is on such authorities

that the petitioner invites us to rely.

Two other courts, the United States Courts of Appeals

for the Second and Seventh Circuits, have carved out

a middle path between these extremes. See, e.g., Long

v. Pfister, supra, 874 F.3d 544; Jenkins v. Artuz, 294

F.3d 284 (2d Cir. 2002). These courts consider various

factors in assessing whether the state has satisfied its

obligations under Napue merely by disclosing to

defense counsel that a witness for the prosecution has

given material, false testimony. Those factors include

whether it is the prosecution or the defense that elicits

the false testimony, whether and how the prosecutor

adopts and uses the false testimony, the importance of

the witness and his or her false testimony to the state’s

case, whether—and to what effect—defense counsel

tries to impeach the perfidious witness or whether

counsel has a clear tactical reason for not doing so,

and, most important, whether the truth ultimately is

revealed to the jury. See Gaskin v. Commissioner of

Correction, supra, 183 Conn. App. 546–54; see also Long

v. Pfister, supra, 548; Jenkins v. Artuz, supra, 294–95.

Beyond the fact that we give great weight to the

decisions of the Second Circuit in interpreting the federal constitution; e.g., State v. Faria, 254 Conn. 613,

625 n.12, 758 A.2d 348 (2000); we are persuaded, for

several reasons, that the more nuanced approach followed by the Second and Seventh Circuits is the correct

one. The rule advocated by the respondent, namely,

that disclosure to defense counsel either conclusively

or presumptively satisfies Napue, is simply incompatible on its face with the principles that the United States

Supreme Court articulated in that case. As we have

discussed, in Napue, the high court was principally

concerned not with the harms that flow from the suppression of exculpatory evidence but, rather, with the

more fundamental insult to due process when the state

knowingly attempts to secure the conviction of a criminal defendant on the basis of falsehoods and fabrications. The court stated the rule in no uncertain terms:

‘‘[I]t is established that a conviction obtained through

use of false evidence, known to be such by representatives of the [s]tate, must fall under the [f]ourteenth

[a]mendment . . . .’’ (Emphasis added.) Napue v. Illinois, supra, 360 U.S. 269; see also United States v.
Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d

342 (1976) (‘‘the [United States Supreme] Court has

consistently held that a conviction obtained by the

knowing use of perjured testimony is fundamentally

unfair, and must be set aside if there is any reasonable

likelihood that the false testimony could have affected

the judgment of the jury’’ (footnote omitted)); Long v.

Pfister, supra, 874 F.3d 554–55 (Hamilton, J., dissenting)

(‘‘If mere disclosure of the perjury to the defense were

enough, as it is under Brady . . . the logic of the rule

would allow the prosecution to disclose the perjury and

just stand aside while the defense tries to rebut it. That

is simply not a reasonable reading of Napue . . . .’’).

To hold otherwise would be to condone, if not

encourage, unethical and unprofessional conduct on

the part of the prosecutor. See, e.g., Jenkins v. Artuz,

supra, 294 F.3d 296 n.2. ‘‘It is well established that [a]

prosecutor is not an ordinary advocate. His [or her]

duty is to see that justice is done and to refrain from

improper methods calculated to produce prejudice and

wrongful decisions by the jury. . . . [B]y reason of his

[or her] office, [a prosecutor] usually exercises great

influence upon jurors. His [or her] conduct and language in the trial of cases in which human life or liberty

are at stake should be forceful, but fair, because [a

prosecutor] represents the public interest, which

demands no victim and asks no conviction through the

aid of passion, prejudice, or resentment.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Pouncey, 241 Conn. 802, 810–11, 699 A.2d 901 (1997);

see also United States v. LaPage, supra, 231 F.3d 492

(‘‘A prosecutor has a special duty commensurate with a

prosecutor’s unique power, to [en]sure that defendants

receive fair trials. It is as much his [or her] duty to

refrain from improper methods calculated to produce

a wrongful conviction as it is to use every legitimate

method to bring about one.’’ (Internal quotation marks

omitted.)); Rules of Professional Conduct 3.8, commentary (‘‘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.’’). These duties are in addition to the duties of

every attorney, as an officer of the court (1) not to offer

material evidence that the attorney knows to be false,

and (2) if a witness called by the attorney offers false

testimony, to disclose that fact to the tribunal if necessary to avoid misleading the trier of fact. Rules of Professional Conduct 3.3 (3); Rules of Professional Conduct 3.3, commentary.

We also are in agreement with those courts that have

concluded that merely disclosing to defense counsel

that a state’s witness has misrepresented the terms of

a cooperation agreement is not always sufficient to

discharge a prosecutor’s duties under Napue. That is
true because sharing the truth with defense counsel, in

itself, does nothing to disabuse the jury of any misconceptions created by the false testimony. See Marquez v.

Commissioner of Correction, supra, 330 Conn. 604–605.

Of course, defense counsel shares an obligation to

ensure that a criminal trial is not tainted by evidence

that falsely incriminates the defendant, and the failure

to attempt to purge that taint may be the basis for an

ineffective assistance of counsel claim. The trial court

also can, and should, take any necessary remedial measures, such as requiring the parties to clarify the nature

of any cooperation agreement on the record and

instructing the jury accordingly. See id., 607–608.

Ultimately, however, it is the prosecutor who is best

positioned to repair the damage that is done to ‘‘the

efficient and fair administration of justice’’; id., 605;

when a state’s witness provides false testimony. In the

face of silence—or worse, complicity—on the part of

the prosecution and continued dissembling by the

state’s witness, there is no reason to believe that defense

counsel will have any greater success in persuading the

jury that the witness has been promised benefits in

exchange for his or her testimony than, for instance,

that he or she is the true perpetrator. As the United

States Court of Appeals for the Ninth Circuit explained

in LaPage, ‘‘[a]ll perjury pollutes a trial, making it hard

for jurors to see the truth. No lawyer, whether prosecutor or defense counsel, civil or criminal, may knowingly

present lies to a jury and then sit idly by while opposing

counsel struggles to contain this pollution of the trial.

The jury understands defense counsel’s duty of advocacy and frequently listens to defense counsel with

skepticism.’’ (Footnote omitted.) United States v.

LaPage, supra, 231 F.3d 492; see also Gaskin v. Commissioner of Correction, supra, 183 Conn. App. 551

(‘‘any knowledge by the court or defense counsel

through disclosure of a plea agreement can be thwarted

by the prosecutor’s examination of a witness or closing

arguments’’); Jenkins v. Artuz, supra, 294 F.3d 293–96

(‘‘tepid concession’’ by witness during cross-examination was insufficient to cure impact of false testimony

on jury, especially when prosecutor sought to shore up

witness’ credibility); United States v. Sanfilippo, 564

F.2d 176, 178 (5th Cir. 1977) (‘‘[t]he defendant gains

nothing . . . by knowing that the [g]overnment’s witness has a personal interest in testifying unless he is

able to impart that knowledge to the jury’’); A. Poulin,

‘‘Convictions Based on Lies: Defining Due Process Protection,’’ 116 Penn St. L. Rev. 331, 388 (2011) (‘‘Defense

awareness of the falsity should not necessarily defeat

a due process claim. If the defense was unable to air

the issue for the jury despite awareness of the falsity,

the defendant’s right to due process has been

violated.’’).

Accordingly, although the burden is one shared by
defense counsel and the trial court, the onus ultimately

is on the prosecutor to not knowingly seek a conviction

on the basis of false testimony and, should a state’s

witness testify falsely, to take such remedial measures

before the jury retires as are necessary to ensure that

it is not deceived. See Sivak v. Hardison, 658 F.3d

898, 909 (9th Cir. 2011) (defendant cannot ‘‘waive the

freestanding ethical and constitutional obligation of the

prosecutor as a representative of the government to

protect the integrity of the court and the criminal justice

system’’ (internal quotation marks omitted)). The

record may be corrected by, inter alia, recalling the

cooperating witness and asking leading questions to

draw out the true nature of the plea agreement.10 Marquez v. Commissioner of Correction, supra, 330

Conn. 607.

At the same time, we are not persuaded that we

should adopt the approach followed by the Eighth and

Ninth Circuits, namely, that disclosure to defense counsel, standing alone, is never sufficient to satisfy a prosecutor’s Napue obligations. Because we have said that

the preeminent consideration ultimately is whether the

jury has been misled regarding the motivations of a

cooperating witness to falsely implicate a defendant;

see State v. Paradise, 213 Conn. 388, 400, 567 A.2d 1221

(1990), overruled in part on other grounds by State v.

Skakel, 276 Conn. 633, 888 A.2d 985, cert. denied, 549

U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006); we

agree with the Second and Seventh Circuits that the

analysis must be case specific in view of the factors

that we have discussed. We do agree with the Eighth

and Ninth Circuits, however, that it will be the unusual

case in which the prosecutor fails to correct material,

misleading testimony regarding the existence of a cooperation agreement and a reviewing court can, nevertheless, determine with confidence that the jury was not

misled thereby.

3

Our own review of the record; see Napue v. Illinois,

supra, 360 U.S. 271–72; persuades us that the present

matter does not fall within those exceptional cases in

which disclosure to defense counsel, standing alone, is

sufficient to satisfy a prosecutor’s obligations and to

vindicate a defendant’s rights under Napue. In the present case, during his direct examination, Murray directly

solicited false testimony from both witnesses regarding

their cooperation agreements with the state.11 On crossexamination, the defense team questioned both witnesses at some length on this point in an attempt to

extract admissions that the state had promised or provided them some consideration in exchange for their

testimony. Both witnesses doubled down on their direct

testimony, responding that they had neither been

offered nor had they received benefits in exchange for

their testimony. Finally, in his closing argument, not
only did Murray not correct the witnesses’ misstatements, but he affirmatively vouched for Valentin’s credibility and invited the jury to decide the case on the basis

thereof. Acknowledging that Valentin had admitted to

lying to the police shortly after the crime, he declared

‘‘[t]hat’s the only lie that’s been shown with respect to

. . . Valentin.’’

Moreover, regardless of whether the defense team

should have obtained transcripts of the witnesses’ bond

hearings by the time of trial and been fully aware of

the benefits that they had obtained in exchange for

their cooperation, it is undisputed that they did not do

so, and, therefore, that they were unable to effectively

elicit that information and impeach the witnesses’ credibility before the jury. As we have explained, the ultimate

question under Napue is not whether defense counsel or

the trial court did all it could to protect the defendant’s

rights to a fair trial but, rather, whether the prosecutor

knowingly permitted the jury to be misled and the defendant to be convicted on the basis of false testimony.

In light of the facts that the prosecutor directly solicited the false testimony of the state’s two key witnesses,

that defense counsel tried in good faith to elicit the

details and results of any cooperation agreements but

was met with further denials, and that the prosecutor

closed by vouching for the credibility of one of those

witnesses in his rebuttal argument, we are not persuaded that defense counsel’s actual or constructive

knowledge of the truth was sufficient to satisfy Napue.

See Jenkins v. Artuz, supra, 294 F.3d 296 (discussing

challenges that defense counsel faces ‘‘[w]hen a prosecutor throws his or her weight behind a falsely testifying

witness’’). We need not tarry long on the second, materiality, prong of Napue, in light of the respondent’s commendable concession; see Adams v. Commissioner of

Correction, 309 Conn. 359, 368 n.13, 71 A.3d 512 (2013);

that a violation of the petitioner’s due process rights

would be material because the state’s case against the

petitioner was not overwhelming without the testimony

of Smith and Valentin.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

reverse the judgment of the habeas court and to remand

the case to that court with direction to grant the habeas

petition, to vacate the petitioner’s underlying convictions, and to order a new trial.

In this opinion the other justices concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.

** June 29, 2020, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1 The petitioner has abandoned any argument that the constitution of

Connecticut affords broader protection than does the United States constitution in this respect. Gomez v. Commissioner of Correction, 178 Conn. App.

519, 522 n.1, 176 A.3d 559 (2017).

2

In part II of this opinion, we set forth the facts and procedural history

regarding the trial testimony of Valentin and Smith that the state had made
them no promises, and that they had received no benefits, in return for

their cooperation.

3 We granted certification, limited to the following issues: (1) ‘‘Did the

Appellate Court properly reject the petitioner’s claim that his due process

rights were violated because the state knowingly presented false testimony

during his criminal trial?’’ And (2) ‘‘Did the Appellate Court [correctly]

determine that the petitioner’s right to the effective assistance of counsel

was not violated by virtue of his trial counsel’s failure to cross-examine

certain state’s witnesses about consideration that those witnesses had been

promised by the state in return for their testimony?’’ Gomez v.Commissioner

of Correction, 328 Conn. 916, 180 A.3d 962 (2018). In light of the record and

the parties’ arguments, the first issue may be more accurately framed as

follows: Did the Appellate Court properly reject the petitioner’s claim that

his due process rights were violated because the state knowingly failed to

correct false testimony during his criminal trial? See, e.g., State v. A. M.,

324 Conn. 190, 200, 152 A.3d 49 (2016) (court may restate certified question).

Because we answer that question in the negative, we need not reach the

second certified issue.

4 The parties do not dispute that the prosecutor, Murray—who represented

the state both at the petitioner’s and his codefendants’ consolidated criminal

trial and in connection with the criminal proceedings against Valentin and

Smith—did not correct any of the witnesses’ allegedly false testimony. They

also do not dispute that any representations by the state’s witnesses that

they had received no benefits in exchange for their cooperation with the

state were material to the jury’s assessment of their credibility. See Napue

v. Illinois, supra, 360 U.S. 269.

5 Although there is reason to believe that Smith also provided false testimony in this regard, the evidence that his testimony regarding his bond

hearing was false or substantially misleading is not sufficiently compelling

for us to conclude that the contrary finding of the habeas court was

clearly erroneous.

6 He argued as follows: ‘‘[We have] a young lady who is and has been very

cooperative with the state. . . . [T]his is a young lady who has impressed

me quite a bit as being . . . a person who would cooperate with the court

and with the state in every aspect. . . . I would ask the court to consider,

in light of her cooperation, in light of her intention to cooperate in the

future, to consider releasing her on a promise to appear.’’

7 The respondent points to the fact that Murray, having made this record

and all but recommended that the court release Valentin on a written promise

to appear in exchange for her cooperation, later, at the bond hearing,

attempted to blunt the anticipated ‘‘obvious cross-examination effect’’ of

his prior statements by emphasizing that no representations had been made

to Valentin other than that her cooperation would be brought to the attention

of the sentencing court. Neither that fact, nor the court’s ultimate acknowledgement that Valentin’s youth was the main factor on which it relied, alters

our conclusion regarding the veracity of Valentin’s trial testimony.

8 Because we conclude that even direct disclosure to defense counsel

does not necessarily cure a Napue/Giglio violation, we need not address

the dispute between the parties as to whether constructive notice to defense

counsel constitutes disclosure for purposes of those cases.

9 We recognize that, in several subsequent cases, the United States

Supreme Court has discussed Napue violations under the general moniker

of ‘‘Brady.’’ In those cases, however, that court has continued to distinguish

Napue-type violations, in which the state relies on the presentation of false

evidence to obtain a conviction, from true Brady cases. See, e.g., United

States v. Bagley, 473 U.S. 667, 678–81 and n.11, 105 S. Ct. 3375, 87 L. Ed.

2d 481 (1985); United States v. Agurs, 427 U.S. 97, 103–107, 96 S. Ct. 2392,

49 L. Ed. 2d 342 (1976); see also K. Grunewald, Case Note, ‘‘Bramblett v.

True, No. 02-3, 2003 WL 58283, at *1 (4th Cir. Jan. 8, 2003),’’ 15 Cap. Def.

J. 537, 547 (2003) (‘‘Napue and Brady claims are distinctly different and

require separate analysis’’).

10 To its credit, following our decision in Marquez, the Division of Criminal

Justice voluntarily adopted a new policy, entitled ‘‘515 Cooperating Witnesses,’’ that is intended to ensure the vindication of defendants’ rights

under Napue and Brady. Of particular relevance to the present appeal, the

policy provides: ‘‘The prosecutorial official trying the case shall ensure

that any testimony that is given by the cooperating witness concerning the

cooperation agreement is true, accurate and not misleading. False, inaccurate or misleading testimony may be corrected with the use of leading

questions, as permitted by the trial court.’’
11 The following exchange occurred between Murray and Valentin:

‘‘[Murray]: Has anybody promised you anything?

‘‘[Valentin]: No.’’

The following exchange occurred between Murray and Smith:

‘‘[Murray]: Do you have any idea what’s going to happen in the criminal

charges against you?

‘‘[Smith]: No, I don’t.

‘‘[Murray]: Did anybody promise you anything?

‘‘[Smith]: No.

* * *

‘‘[Murray]: Did anybody promise you anything in return for [your]

statement?

‘‘[Smith]: No, no.’’