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. Anonymously Your:

    (BTW – why leave the “s” off from Your(s))?

    I’m terribly vexed by cronyism and corruption massive. Especially when it is so readily apparent; and even harder to provide proof of, beyond all reasonable doubt.

    For all we know, the officer was placed on a 2 year suspension; because he had the unmitigated gall to arrest the woman.

    Kudos to him…

  2. If I read the story correctly Darren…. They had not even filed the paperwork… You did note that its a Walmart heir…. That probably has everything to do with it…..

  3. AY

    There is something more to this case than meets the eye but I don’t know what it could be given the information.

    First, I don’t see even if the officer is on suspension why he is not subject to a subpoena for a trial. Even if he was terminated from the department he would be just as callable to the trial as anyone else would.

    Second. What was the nature I would ask of the suspension for misconduct. Was it misconduct for being a jerk to a supervisor or for lying under oath or beating a prisoner? If it was for lying under oath or something like that I could see the prosecutor not wanting to pursue this case. Maybe it was convenient if this was the case just to let the statute of limitations run out.

    Third: Were other cases dismissed for normal defendants because of the same excuse by the prosecutor?

    Why did it take two years for a misdemeanor DUI offense to come to being charged. It might be consistent with what I have seen where prosecutors sit on cases hoping they will just go away. I don’t know if this is the case. But, it doesn’t sound right.

  4. Laserhass,

    How did she make this happen….

    Parker County officials won’t pursue 2011 DWI case against Walton
    Posted Tuesday, Sep. 10, 201328 Comments PrintReprintsMore Sharing ServicesShare
    Have more to add? News tip? Tell us

    A 2011 drunken-driving case against Wal-Mart heiress Alice Walton will not be pursued because the state highway trooper who arrested her has been suspended from his job and therefore cannot testify against her, officials said Tuesday.

    Walton, 63, who lives on a ranch near Millsap in Parker County, is one of the richest women in the world with an estimated net worth of $26.3 billion, according to Forbes magazine.

    Walton was pulled over on Oct. 7, 2011, on Interstate 20 at Farm Road 51. Texas Department of Public Safety officials said she failed a field sobriety test and was arrested.

    On Tuesday, Parker County Attorney John Forrest said the two-year statute of limitations on the case, a class B misdemeanor, was set to expire on Oct. 7. Prosecutors learned that the arresting trooper, Jeffery Davis, will still be on suspension when the deadline is reached.

    “We’re not proceeding because a witness in this case, a DPS trooper, is unavailable to testify,” Forrest said.

    Forrest said he had no details about the trooper’s suspension.

    Davis is suspended “pending the outcome of an internal investigation involving allegations of misconduct,” said Tom Vinger, a DPS spokesman in Austin.

    Vinger said he had no further information except that the suspension began in February.

    In March, on Forbes’ list of the world’s richest people, Walton was16, the highest Texas resident on the list.

    But Forrest said the heiress did not receive any special treatment.

    “Our job is to seek justice,” he said. “We’re not here for witch hunt. If we have a witnesses to proceed, then we’re going to proceed.

    “So, she’s going to be treated just like any individual would be treated.”

    Walton’s lawyer, Dee Kelly Sr. of Fort Worth, said he was authorized to release only a brief statement: “Ms. Walton is pleased that the matter has been completely and correctly resolved without charges being filed.”

  5. Wow – they censored my remarks on being aware – WOW…

    I became aware, of many things, with introspect prompted by tart words of another – which struck a nerve.

    A change I’m delighted to have undergone – that makes me more ready, willing and able to seek greater human development of U.S. all and myself as well.

    Life is a process.

  6. I wonder if they will ever find the lost continent of Atlantis….Then we have th answers to all…

    Would I do things different…. Yes… Absolutely…. I know better today…. I have only the ability to change myself… You maybe ble to coerce others… But change comes fom being away…. If you’re not aware you need to change…how can chage ever occur….

  7. Thank you for a most excellent, detailed response.

    When I was a young lad, a thought popped in my mind, as a result of a Heckle & Jeckyl cartoon. The bird flipped his finger to light a cigar and remarked that “we can do anything in a cartoon”. During that era (early 1960’s) – my nightmares were often – as the local fire hall would blast away their horns and sirens would scream plenty of times. One scary dream was of a dinosaur (T Rex) chasing us down city streets.

    I would have to snatch myself out of my dream to get away.

    Then, one day, I decided to apply the Heckle trick in my dream. When T Rex started chasing after us, we ran around the corner, lifted up a concrete square on the street – and crawled under (watching the befuddled dino run away). Never had that nightmare again.

    One day, I came to the conclusion that, either we pass away into oblivion – being re-dispersed atoms; or we go to another plane of existence. Being that the earth’s history only held some 5000 years; there has to be other planets out there – some with civilizations gone, some just starting and some established for a long time.

    In 1000 B.C. a man in an aircraft would have been possibly called a dragon.

    If that party decided not to stay here, it had to be because that visitor could not, would not, cared not – to remain.


    Thus, at 8 years of age, I assumed that, if there was a G-d (or G-d’s) and life has the possibility of being eternal; how would one handle the boredom!

    As we look upon T.V. to be entertained;
    G-d(s) look down upon us in the same manner.

    And here’s the big question. If you really knew that such was the way of the Universe; and that we were here simply to please, displease, tease or otherwise the great lords over us all;

    would you do anything different?

  8. I’ve stayed mostly anonymouly yours…. I’ve been known to used other psuedo names…. Sockpuppet some might say….but, I generally use this 99.9 percent of the time these days….

    Sometimes it’s easier to keep my mouth shut….here you have a number of very good and articulate posters…. And as the professor will tell you excellent guest bloggers…. These folks have incredible wisdom…. Folks have different perspectives which makes it interesting….

    During the high political times this is a very good source of information…. You can usually tell something political is going to happen as this blog gets very hyper….

    I read something the other day….which seems appropriate here… “When you are dead, you don’t know hat you are dead. It’s difficult only for the others. It’s the same when ou are stupid”…..

    Hence, I laugh…

    I’m usually straight forward….

    I’ve had my battles…..but, basically… Like any court case you don’t take it too personal…. As you know you’ll meet up again someday….

  9. Well, tell me oh articulate one. (Smart enough to stay Anonymous).
    (IF I had utilized a pseudo name – and feigned being 3rd party – telling eToys saga would have worked much more efficiently).


    Being that you looked upon the orange realm – and see the obvious veiled agendas to bury the telling of the truth;

    does one simply ignore the ignorance (risking others wondering why)

    Or do you handle it some other way?

    As you can see – my straight forward approach doesn’t bode well for gathering good participation.

  10. Big props to defense counsel for not giving up on this issue after being (erroneously) shot down by several state courts and the federal trial court.

  11. Hopefully they will open the door and let you in…. I’ve read a number of your posts from the net…. And the kos….I think that’s the right one….

  12. Think how wonderful it would be if Taibbi, Chris Hedges and I;
    could get a forum wide – and the public could chime in.

    That would be one heck of show.

    “They” would probably never allow to be aired.

  13. OS I deeply respect and he has appreciated my fight against the corruption protecting Romney’s bad faith efforts.

    Have no idea who Gene is.

    Again – thanks for the suggestion – I’ve amassed much knowledge of the Law and the system. Would be a shame not to put it to broader use.

    We’ll see

  14. Maybe somebody cold correct the tag line of this story to reflect the base of the sorry….

    ninth-circuit-reverses-federal-judge-who-ruled-that-false-statement-of-prosecutor-in-closing-argument-was-“NOT”…,.harmless “ERROR”……

  15. You’re welcome laserhaas…. You know OS I presume…. Maybe he and gene could make it happen….

  16. Anonymously Yours:

    WOW – I’m at a loss for words
    (Los Angeles County just cheered from 9th & Grand – all the to City of industry – as Laser hushed up)

    Would love to be the Taibbi of this realm. Having both the knowledge of how to make qualified remarks, in soft tone; whilst also not having the pressures upon nixing a story that even the radical rag Rolling Stone must suffer of.

    Though, if justice would come in our eToys case (another MSM in the works) – chances are a plethora of offers to do something would arise.

    Thanks Anonymously Yours (whoever ye be)!

  17. Justice is not defined as “winning” – It is an administrative tool to assure the good order of society. The problem we have (currently) – is it has become systemic and incestuous – to have adjudication upon the merits take a back seat to the issues of Money, Power & Might Makes Right.

    It is a sad state of affairs.

    They may present me a check in a few weeks, in the eToys case;
    it is my intent to tear up the millions – in front of the press.

    Because justice is not being served!

    There are many good counsels, prosecutors and justices out there – who are feeling the same anxieties that we are burdened with.

    Unless the citizenry begins to realize that apathy & laxity fosters manifest injustice – the issues are inevitably going to worsen.

  18. And now, the other side, the REALLY dangerous and Looney action side from prosecutor turned traitor-judge Sham Connelly:

    A teen who won leniency in a 2011 armed robbery case is now, it appears, in line for a break on a new set of robbery charges.

    Abdurrahman M. Mamdouh, then 19, was given a probationary sentence in a grocery store robbery case in August 2012 only to be arrested by Erie police less than two months later on charges he had taken part in three more armed robberies.

    But now evidence seized to support those charges has been thrown out of court due a ruling that found Mamdouh’s vehicle was subject to an illegal warrantless search.

    It is not clear whether the Erie County District Attorney’s Office will dismiss the charges against Mamdouh, which include robbery, criminal conspiracy and theft, in the wake of Judge Shad Connelly’s ruling or appeal the ruling.

    District Attorney Jack Daneri declined to comment on Friday.

    Mamdouh’s lawyer, Jeffrey Veitch, said Connelly carefully weighed the evidence before issuing the ruling.

    “The facts, fortunately for Mr. Mamdouh, went his way,” Veitch said.

    See Monday’s Erie Times-News and for more coverage.

    Just the latest from the disgusting Pro-Criminal Courthouse Gang In Erie…..

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