Conviction Nixed Over|K-9 Won’t See Review

WASHINGTON (CN) - With a quiet dissent Monday, the Supreme Court refused to review a murder conviction that was vacated for its reliance on scent evidence from an unreliable police dog.

Gilbert Aguilar was convicted for the first-degree murder of John Guerrero in 2001. The shooting occurred when Guerrero drove into a neighborhood of La Puente, Calif., and drew the attention of alleged gang members. Guerrero pulled into a KFC parking lot where a young Hispanic male in baseball cap got out of a white Volkswagen Beetle and shot him seven times. Witnesses said the shooter then returned to the Beetle and it drove away.

About a month after the shooting, a probation officer saw a sketch based on eyewitness descriptions and thought he recognized Aguilar. Later, three eyewitnesses picked Aguilar out of a photograph lineup, but some of them would change their story at trial.

Critical to the prosecution's case was evidence that Reilly, a Los Angeles police dog, had identified Aguilar's scent on a white Volkswagen Beetle officers impounded as stolen a few weeks after the murder.

While Aguilar's fingerprints did not match those found in car, Reilly's alert allegedly confirmed the presence of Aguilar's scent in the front passenger seat.

For his part, Aguilar argued that the real murderer was Richard Osuna, aka "Gangster," whose brother had been shot a few days before the Guerrero murder. Aguilar noted that two witnesses claimed to have seen Osuna going after Guerrero in a white Beetle.

Nonetheless, the prosecutor "expressly told the police not to pursue an investigation of Osuna," the 9th Circuit noted in vacating Aguilar's conviction last year.

At the time of the shooting, Aguilar was 20 years old and about 6 feet tall, while Osuna was 16 and no taller than 5'7.

Aguilar was serving 50 years to life when his attorney discovered that Reilly had a history of misidentification.

In addition to evidence that the dog made at least two prior mistakes, Aguilar showed that prosecutors knew Reilly was unreliable at least six months before Aguilar's trial.

The California Court of Appeals nevertheless affirmed the conviction and the California Supreme Court denied review. Aguilar then filed a petition for habeas corpus, which a federal judge in Los Angeles denied in 2006.

The 9th Circuit's July reversal ordered that Aguilar be released or retried.

"Reilly's scent evidence was the only evidence at trial linking Aguilar to the getaway car, as well as the only evidence corroborating strikingly weak eyewitness identifications," Judge William Fletcher for the Pasadena-based panel.

The panel found that California had downplayed the importance of Reilly's alert, and had "misstated the nature of the eyewitness testimony, making it appear stronger than it was."

"The jury was told to use the dog scent identification 'for the purpose of showing ... that the defendant is a perpetrator of the crime of murder,'" Fletcher wrote. "The state cannot now argue with a straight face that the evidence upon which it relied so heavily at trial was, in fact, not probative."

Though the Supreme Court denied California a writ of certiorari on Monday, two dissenting justices were quick to point out their belief that the case implicates new court precedent.

In the decision Tolan v. Cotton, also published Monday, the Supreme Court summarily vacated an appellate decision for improperly crediting evidence in the favor of the moving party.

Joined by Justice Antonin Scalia in a brief concurring opinion, Justice Samuel Alito warned that the Tolan decision "sets a precedent that, if followed in other cases, will very sub­stantially alter the court's practice."

Citing this note, Scalia joined Alito again in dissenting to the Aguilar denial.

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