The Ninth Circuit ruled last week that La Carl Mertez Dow deserves a new trial in reversing a ruling by U.S. District Court Judge Phyllis Hamilton (left) in Oakland, California that it was harmless for a prosecutor to give false information to a jury that Dow was trying to hide a scar in a lineup. The fact that this case had to go to the federal court of appeals to be overturned is a chilling reminder of how our criminal justice system has been warped by the harmless error standard. Courts routinely find constitutional violations in federal cases only to dismiss them as harmless by saying that the defendant would likely have been convicted anyway. The case is Dow v. Virga, 2013 U.S. App. LEXIS 18468.
Dow was being tried for second-degree robbery in a case that turns on eye witness testimony by Felix Sablad, an employee at the store. Sablad picked out Dow in a photo display and later in a lineup as the man who robbed the Olympian Gas Station in Daly City, California. However, there was little additional evidence and the first case ended in a hung jury.
The prosecutor seemed unwilling to take a risk of a hung jury on the second trial. At trial, Detective Oglesby testified falsely that Dow (rather than his attorney) made the request that each of the participants in a lineup wear a bandage under his right eye where he had a scar. It would have immediately identified Dow since Sablad said the man had a scar. However, the obvious request was made by Dow’s attorney. The state appellate court established that the prosecutor knew the testimony was false:
We find that misconduct occurred. Although Detective Oglesby testified that defendant made the request to have “the band-aid placed beneath all the participants’ right eyes,” the prosecutor was aware that representation of the evidence was erroneous. More importantly, by asserting that defendant was attempting to “hide” his scar, the prosecutor was mischaracterizing the evidence.
That meant that the prosecutor not only elicited false testimony but knowingly used false testimony. Yet, there is no evidence that the prosecutor was sanctioned or disciplined for the misconduct. There were objections made to the false testimony elicited by the prosecutor at the time of her closing argument. Both the prosecutor and the trial judge seem entirely disinterested in the gross unfairness of the argument:
Second, the prosecutor exploited her knowing presentation of false evidence by arguing that Dow had requested the placement of the band-aids in order to hide his scar, thus indicating consciousness of guilt. Defense counsel objected to this line of argument, but was overruled. The exchange during the prosecutor’s closing remarks in rebuttal was as follows:
[PROSECUTOR]: . . . . But who knows the defendant’s face better than anyone else in this courtroom? The defendant. If there is no noticeable scar on his face, why did he demand that —
[DEFENSE COUNSEL]: Excuse me, I’m sorry. Objection. There’s no evidence as to whose initiative it was that band-aids were placed on the faces.
THE COURT: Overruled. There was such evidence.
[THE PROSECUTOR]: If he does not have a scar on his face, why did, as Detective Oglesby testified, why did he ask that a band-aid be placed [*12] under his right eye about the exact same location where you can see, in the pictures that Detective Cisneros took, what looks to be a scar. What was he trying to hide if there’s nothing.
. . .
[THE PROSECUTOR]: . . . The defendant’s actions speak for themselves. He knows what’s on his face, and he knows what he was trying to hide when he had that band-aid placed under his right eye.
[DEFENSE COUNSEL]: Objection. I need to phrase an objection. This is outside the scope of evidence. The implication that is being made —
THE COURT: It simply is not outside the scope of the evidence. Of that I am sure. But once again, the jury, if there’s any question in the jury’s mind about what the testimony was on that point, you can have it re-read.
[DEFENSE COUNSEL]: I also object to the implication that this somehow represents a consciousness of guilt when, in fact, the very instructions that are given with respect to how to conduct these things say you should try to obstruct a scar.
THE COURT: The objection is overruled. Go ahead. This is just argument based on the evidence.
[THE PROSECUTOR]: Thank you, Your Honor. . . . The pictures at the live lineup, sure, they show the mouths of these people closed.
And you don’t know for sure what happened before or what happened after. But I suggest this to you. A person who is careful enough to have concealed a distinguishing mark on his face, do you think that that person would be showing a victim, a potential witness in this case, a prominent gap between his two front teeth.
The Ninth Circuit noted that this argument was made in rebuttal when the defense could not respond and further noted that the case was already a weak one (magnifying the effect of the violation). It is otherworldly that Hamilton and the state judges did not see this argument as hugely prejudicial to the defendant. It is equally alarming to see the lack of any real consequences for the prosecutor or, for that matter, the trial judge in allowing such an abuse to be occur.
Hamilton’s decision largely reproduces the habeas denial of the state court of appeals and concludes conclusorily that she viewed it as “unlikely that the false evidence and the prosecutor’s improper closing argument carried any weight with the jury. The court concludes that there was no reasonable likelihood that the false evidence affected the jury’s judgment.” So, having a prosecutor state that the defendant knew that the felon had a scar and tried to hide it from the victim would not “carry any weight with the jury”? The result is that Hamilton agreed to allow prosecutor to elicit damaging false testimony and then use it to convict a man. That was something that a three judge appellate panel was unwilling to do.
The Ninth Circuit ruled:
Here, it is reasonably likely that the false [*24] testimony and the prosecutor’s arguments based on that testimony had a material effect on the outcome of the jury’s deliberations. The case was a weak one that hinged almost entirely on Sablad’s inconsistent eyewitness testimony. The prosecutor argued on the basis of the evidence admitted in violation of Napue that Dow had acted in a manner consistent with a consciousness of guilt. This argument bolstered the prosecution’s case that Dow was guilty by interjecting a new reason for the jury to convict him. The jury may well have concluded that the questionable identification was validated by Dow’s supposed self-incriminating act.
What is astonishing is that Hamilton was a Clinton appointee who previously worked as a public defender (a relatively rare former PD on the federal bench which is populated by a disproportionate number of former prosecutors). She is a law graduate of Santa Clara University School of Law, J.D., 1976.
There is no reference to the name of the prosecutor who first elicited false testimony and then fought to use it in closing argument. I could find no bar referral record of such a case even though defense counsel would likely be pulled before a bar for soliciting such testimony. Presumably she was with the San Mateo District Attorney’s office but there is no direct reference in the lower court decisions. This gives the prosecutor and the office anonymity in a major violation that led to the need for a reversal and new trial.
Here is the opinion: 11-17678