Ninth Circuit Reverses Federal Judge Who Ruled That False Statement Of Prosecutor In Closing Argument Was Harmless

118705gavel2The 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

52 thoughts on “Ninth Circuit Reverses Federal Judge Who Ruled That False Statement Of Prosecutor In Closing Argument Was Harmless”

  1. When a man’s (or woman’s) life, liberty or even life’s work & property are on the line – there is no such thing as a harmless error. Anything that leads to erroneous incarceration – no matter how short the time is a tragedy of injustice, not a harmless error. We do not look at kidnapping victims and say, “You only had a week, or a month, or a year taken away from your life where you were brutalized, terrorized and subjected to powers beyond your control – no harm done”. But if it is done by the State to a man later found to be innocent (or found at trial to be innocent), his lost life, ruined reputation, probable lost job (& career) are simply dismissed with a casual wave of the hand. No harm – no foul. But a life has been virtually crest to her nonetheless, and the police will casually “introduce” people into the criminal justice system simply because they are having a bad day – or they Don’t feel they have been given the proper respect.
    Then, prosecutors who do not recognize their proper role in the system will arraign these people and unscrupulously prosecute them, just as was done here, using every trick they can. Often assisted by judges who have clearly forgotten that all are INNOCENT until PROVEN guilty.
    Error compounding error.
    Sure, a lot of bad guys go to jail, sometimes for the wrong crimes, but who really wants to be picky when it comes to “them”. Unfortunately more than a few innocent people are being caught up as well, and with the rise of the warrior cop culture things are getting even more scary in our neighborhoods.
    There are no innocent mistakes when life and liberty – or even just your property, are on the line in these matters.

  2. As a lawyer, this saddens me. Faith that the fight will be by the rules is my guide. In civil matters, as in street ball when I played, I can enforce the rules by my play, not as easy in a criminal matter. For those that flip this to the behavior of defense counsel – just quit – the Constitution changed the world and the rules applying here are what makes it great.

  3. 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.” – JT


  4. Laserhaas,

    This one….


    I didn’t understand that this slam was directed to Elaine’s posting…. Although she can well take care of herself…. There’s no reason to be mean or rude to her…. I took up for you when I thought you were being wronged…. That knife can gut you as well…lets play nice and treat each other with respect and be somewhat civil…. If you don’t agree… Say so and why…. Not some snotty assed remark that is mean in spirit and tone…. These folks are a wealth of information…..even if you disagree… Be civil…. I’d like to see laserhaas as a guest blogger…. He is very informative and brings a critical view to this site…. OS and Darren as well…. They have life experience that they share…. One thing I know with as much traveling as I’ve done…. No one newspaper feeds you the whole story…. Here we get aspects that we would never see…

    Just like when someone tied Red McCombs to Eric Prince…. I was stunned….

  5. maggieringland;

    Being a Democrat is nothing to be disenfranchised about.

    Yours truly was a RWNJ blindly believing all fed into my dead brain cells until MB of orange place challenged me to think for myself.

    I’m a true Progressive and get upset at others who claim to be; but that’s no reason to be upset that I’m a Democrat.

    Love humans for what they can be – sometimes frustrated at what they do

    doesn’t mean it is time to give up being human.

    Keep the faith…. and keep doing the right thing

    All is well in the end.

    If all is not well

    then it is not the end!

  6. Anonymously Yours;

    Forgive me, I’m so busy fighting trolls on the orange realm – that I missed your comment yesterday.

    Which thread was it upon?

  7. This whole thing is absolutely outrageous. I am becoming more and more disgusted with myself for being a staunch Democrat for so many years. This kind of unethical misconduct on behalf of prosecuting attorneys is becoming more and more the norm as with the Zimmerman case as you so aptly pointed out. It saddens me greatly.

  8. Thank you laserhaas….

    As I stated yesterday… You’d be probably a great guest blogger….

  9. Concur Anonymously Yours;

    If judges did right – instead of having multiple set of standards for rich/powerful – versus poor/insignificant

    we would be in a much better world

  10. raff,
    Unfortunately for defendants, this Federal judge has a lifetime appointment.

    I am beginning to join the chorus of those who think Federal judgeships should be time limited. It was no accident that George Bush put relatively young justices on the SCOTUS. I think about twelve years sounds right, maybe sixteen at most.

    I would not be opposed to keeping them on salary and benefits the rest of their lives, perhaps on inactive reserve status, to be called back if the Courts become short handed. That way, they would not be allowed to play favorites in expectation of a high paying job as a consultant later. We have seen how that works out for members of Congress.

    In fact, it would not break the bank at Treasury if Congresscritters were kept on full salary with mandatory retirement from the world of work once they leave office. Just keep them off K Street and out of corporate boardrooms.

  11. Just learned this past week – that the Professional Codes of Conduct – and the Supreme Court of the State

    are where one goes to file a complaint against an attorney at law engaging in bad faith behavior.

    WOW –

    for 12 years – no one ever informed me of this!

  12. OS,
    This judge made a huge mistake and if she has done this before, she should be looking for a new job off the bench. When did it become the prosecutor’s job to win the case, no matter what the evidence shows?

  13. OT but On Topic at the same time: Alan Grayson says Congress isn’t allowed to see the “evidence” for war. That is a Constitutional crisis. Every person from the administration needs to be under oath as they openly present every shred of evidence. They also need to explain what their war plan is. Congress declares war. Yet Congress isn’t allowed to have evidence.

    “…But by refusing to disclose the underlying data even to members of Congress, the administration is making it impossible for anyone to judge, independently, whether that statement is correct. Perhaps the edict of an earlier administration applies: “Trust, but verify.”

    The danger of the administration’s approach was illustrated by a widely read report last week in The Daily Caller, which claimed that the Obama administration had selectively used intelligence to justify military strikes in Syria, with one report “doctored so that it leads a reader to just the opposite conclusion reached by the original report.”

    The allegedly doctored report attributes the attack to the Syrian general staff. But according to The Daily Caller, “it was clear that ‘the Syrian general staff were out of their minds with panic that an unauthorized strike had been launched by the 155th Brigade in express defiance of their instructions.’ ”

    I don’t know who is right, the administration or The Daily Caller. But for me to make the correct decision on whether to allow an attack, I need to know. And so does the American public.”

  14. Meanwhile, Criminal Lawyers lie to and deceive courts and juries all day long, aided by Judges hiding the facts by not allowing evidence in for silly reasons. A totally corrupt M.O. that trashes victims in my “LEGALLY IGNORANT” eyes. Pathetic and disgusting people to me….

  15. Prof Turley,
    I find inconceivable that the name of the offending prosecutor isn’t on the record. How is this possible?

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