A Long Road To An Obvious Ruling (Naming and Shaming Update)

If the question was posed to a first year criminal law class in law school, one would expect every hand in the class to shoot up, with more than a few making those weird noises that suggest the need for a diet rich in probiotics.  Anyone with their head down has no business expecting to make it to 2L.

From the summary of the 9th Circuit in Dow v. Virga, opinion by Judge Stephen Reinhardt:

During trial, a detective testified that Dow, rather than his attorney, requested that each of the participants in a lineup wear a bandage under his right eye at the location at which petitioner had a small scar under his; the attorney made this request out of concern that the witness might falsely identify petitioner because he was the only participant with a facial scar. The prosecutor argued that petitioner had demonstrated consciousness of guilt by trying to hide his scar to prevent his identification.

In other words, the detective, a fellow named Oglesby without any first name that one can discern from the opinion, elected to take the witness stand and offer testimony that was not only facially false, but turned a perfectly proper request by the defendant’s lawyer into a nefarious attempt to conceal his identity by the defendant.  Bad detective. Liar, liar, and all.

But detectives don’t call themselves to the stand, and the prosecutor who called out his name, and whose identity is completely omitted from the opinion, not only asked the questions that elicited this testimony, but didn’t so much as snort when the cop lied through his teeth.

Class, what is the prosecutor’s duty when he knows that his witness has just lied to the court?

But the intrepid prosecutor, still nameless, didn’t stop there.  He seized upon the false testimony, knowing it to be false, and argued that it proved consciousness of guilt.  He contended that the reason for the defendant trying to conceal his scar was to prevent being identified as the robber.  It would have been a really good argument, except for that whole lying part.

But bear in mind, the decision of the 9th Circuit comes pursuant to a writ of habeas corpus under 28 U.S.C. §2254. Before it got there, this conduct passed through the hands of a trial judge, an intermediate appellate court, which affirmed in an unpublished opinion, the California Supreme Court (though unmentioned in the 9th Circuit’s opinion, likely because it refused to grant leave to review) and Judge Phyllis Hamilton in the Northern District of California.  That’s a lot of judges who had an opportunity to scream out loud, “are you people out of your friggin’ minds?”

It’s not that the California Court of Appeals failed to grasp that something wrong happened here.  They recognized that the witness lied and the prosecutor went to town on it.  It’s that they just didn’t care.

The standard that the state court applied is the state law standard for reviewing the harmlessness of non-constitutional errors. The state court reasoned that the misconduct was harmless because defense counsel was able to object and present a contrary view from which the jury could have understood that “the reason for the bandages was to facilitate a fair lineup,” “Sablad’s identification testimony was strong” and corroborated by the gray sweatsuit, and “[t]he presence of a scar on the defendant’s face was only a minor aspect of the identification process, and was in fact not seen by the witness either in the lineups or at the trial.” As the state court concluded, “a more favorable verdict to defendant was not reasonably probable without the misconduct.”

A prosecutor’s best friend, harmless error, was invoked, making all wrongs, lies and misconduct evaporate. It’s like magic, as if it never happened.  Judge Reinhardt wasn’t having any of it. He apparently remembered his first year of law school when Napue v. Illinois was discussed. He went on to note:

Although the government’s knowing use of false testimony does not automatically require reversal, courts apply a less demanding materiality standard to Napue errors: whether “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976) (emphasis added). This materiality standard is, in effect, a form of harmless error review, but a far lesser showing of harm is required under Napue’s materiality standard than under ordinary harmless error review. . . Napue requires us to determine only whether the error could have affected the judgment of the jury, whereas ordinary harmless error review requires us to determine whether the error would have done so.

While holding that the test in cases where the prosecution obtains a conviction via the knowing use of false testimony is not subject to harmless error analysis, but rather materiality, bear in mind the first quoted sentence above: “the government’s knowing use of false testimony does not automatically require reversal.”  One might well question why, given that this is about as fundamental a wrong that can be committed at trial, a deliberate effort to undermine the integrity of the trial, the constitutional mandate of substantive due process and the defendant’s constitutional right to a fair trial.

Does anyone in the class know why this is so?

Yes, that’s right, because then the defendant would get another trial (not a walk, mind you, but just another trial which he may well lose anyway), and force the prosecution to try its case without the benefit of deliberately false testimony. That would be a lot of extra work, and nobody wants to put the prosecutor through all that trouble when we know the defendant is guilty.

And who was the prosecutor who did the dirty with Detective Oglesby’s false testimony?  I dunno. He’s never named, and should he do it again the next time, no one will ever know that he was the bad guy here.

Update:  So who was Det. Oglesby’s bestest prosecutrix friend in the world?  Well, that would be Deputy D.A. Jennifer Ow.  According to Avvo, no professional misconduct reported.  Apparently, no one asked the 9th Circuit. Then again, how could anyone since DDA Ow was never named. Until now.

H/T Spencer Neal


3 comments on “A Long Road To An Obvious Ruling (Naming and Shaming Update)

  1. Pingback: Adversarial means you can’t force me to help you | a public defender

  2. John C.

    Very good article. Just two minor quibbles:

    First, the prosecutor was apparently a woman. The opinion mentions “she” and “her.”

    Second, Judge Reinhardt didn’t learn about Napue in law school because it didn’t exist yet.

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