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Coulda, Woulda: Minor Distinction Means Major Reversal

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By William Peacock, Esq. on September 25, 2013 4:40 PM

Will the third trial be a charm for the State of California?

Earlier this month, the Ninth Circuit reversed the conviction of La Carl Martez Dow for second-degree robbery, granting habeas corpus due to prosecutorial misconduct and an erroneous standard applied by the other courts.

Dow allegedly robbed a convenience store clerk, who later had a particularly unreliable memory about the suspect. He mentioned a facial scar, however, and picked Dow out of a photo and in-person lineup. At that line-up, the defendant's attorney requested that Dow be allowed to cover up his scar, and that the other participants also wear a bandage in the same area, because only Dow had a facial scar.

During the retrial (the first trial ended with a hung jury), the prosecutor elicited false testimony from a detective, namely that Dow himself made the request. Despite knowing that the testimony was false, the prosecutor did not correct the mistake. She then mentioned the request during her closing rebuttal, arguing that the request showed "consciousness of guilt." The objection by the defense counsel was erroneously overruled.

The state appellate court, in an unpublished opinion, called it misconduct, as did the federal district court. Both, however, held it to be harmless error, an extremely high standard that requires the defendant to show that the misconduct would impact the jury's decision.

The correct standard is the Napue standard, as expressed in Giglio v. United States, which asks whether the "false testimony could ... in any reasonable likelihood have affected the judgment of the jury ..."

Could. Would. It's a minor distinction, but saying that something would affect the jury's holding, versus could in any reasonable likelihood, is a much higher burden. As the wrong "clearly established" standard was applied, the Ninth Circuit held that ADEPA deference was not required here, and that the conviction should be reversed and remanded for a retrial.

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