- Detective’s false testimony, relied on in prosecutor’s closing, calls for retrial, 9th Circuit says
Detective’s false testimony, relied on in prosecutor’s closing, calls for retrial, 9th Circuit says
Posted Sep 6, 2013 9:55 AM CST
By Martha Neil
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."