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.
The state appellate court, in an unpublished opinion, called it misconduct, as did the federal district court.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.
Related Resources:
- Dow v. Virga (FindLaw’s Caselaw)
- Sandbagging, Summation, and A Bench-Slapping: Just Admit the Error! (FindLaw’s Ninth Circuit Blog)
- Debra Milke Set for Retrial in Son’s Murder After Earlier 9th Cir Relief (FindLaw’s Ninth Circuit Blog)
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