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The U.S. 9th Circuit Court of Appeals says that a California prosecutor committed “textbook prosecutorial misconduct” when she elicited testimony from a state witness that she knew to be false, and then used it against the defendant in argument to the jury.

La Carl Martez Dow was convicted of the second degree robbery of a gas station in Daly City, California in 2002. His first trial ended in a mistrial after the jury failed to agree on whether or not Dow was guilty. At his second trial, a detective testified that Dow had requested that participants in a line-up wear a Band-Aid under their right eye so that the witness would not be able to identify Dow by a small scar under his own eye. The prosecutor (unnamed in the 9th Circuit’s opinion) used the detective’s testimony to argue to the jury that Dow’s effort to hide his scar was evidence of his guilt – why would he be worried about the witness seeing his scar if it wasn’t Dow at the gas station?

However, there was a small but highly significant point in the detective’s testimony that was incorrect: Dow’s attorney, not Dow himself, had requested that line-up participants wear a Band-Aid. According to the 9th Circuit, the attorney made this request out of concern that the witness might falsely identify Dow because he was the only participant with a facial scar.

Therefore, the request was not an attempt on Dow’s part to prevent his identification; it was a request that any defense attorney worth his salt would make in order to protect his or her client from mis-identification.

The prosecutor’s procurement of testimony she knew to be false and her failure to correct it constitutes prosecutorial misconduct under Napue v. Illinois. Indeed, rather than tell the Court that the detective’s testimony was false, she used it to argue the defendant’s guilty conscience to the jury.

While this ethical violation does not give rise to an automatic reversal, the 9th Circuit determined that a new trial is required for Dow because the prosecutor’s actions would have influenced the judgment of the jury. This is the “materiality” standard for Napue violations. Judge Reinhardt wrote for the 9th Circuit:

Applying de novo review, we conclude that Dow prevails on his Napue claim because he meets the materiality standard. This standard, which requires us to determine whether “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury,” Agurs, 427 U.S. at 103 (emphasis added), is easily met here.  The evidence against Dow was weak and the prosecutor’s arguments undoubtedly had an effect on the jury’s decision.  Thus, Dow was deprived of his constitutional right to due process of law.

Read the full opinion here.



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