Constitutional Law

Detective's false testimony, relied on in prosecutor's closing, calls for retrial, 9th Circuit says

Reversing a federal district court judge who had denied habeas corpus relief, the San Francisco-based 9th U.S. Circuit Court of Appeals on Thursday held that a man convicted in a California gas station armed robbery must be retried or released.

Felix Sablad, a worker at the station, said defendant La Carl Martez Dow “resembles” the perpetrator after seeing a photographic lineup a couple of months after the crime, and also picked Dow out at a live lineup at the district attorney’s office months after that. At issue in the appeal was a bandage all the men in the live line-up wore under their right eyes, Courthouse News recounts.

Dow’s lawyer had requested the bandages, because Dow has a scar under his right eye. But at trial, a detective said Dow himself had done so. Then a prosecutor argued at closing that Dow’s request of the bandages had shown consciousness of guilt by trying to hide his scar, as the San Francisco-based appeals court explained in its opinion (PDF).

Although a district court judge in the Oakland case called the error harmless, the appellate panel disagreed:

“The case was a weak one that hinged almost entirely on Sablad’s inconsistent eyewitness testimony,” the unanimous opinion states. “The prosecutor argued … 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.”

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