Robbery Case Sunk by Prosecutorial Misconduct

     (CN) – Prosecutorial misconduct may have led a California jury to wrongly find a man guilty of robbing a gas station, the 9th Circuit ruled Thursday.
     The federal appeals court in San Francisco ordered the state to retry La Carl Martez Dow for second-degree robbery or release him within 120 days. If the state chooses to retry, it will be Dow’s third trial on the same charge. His first trial for the robbery at gunpoint of Olympian Gas Station in Daly City, Calif., ended in a deadlocked jury.
     California’s case against Dow is based largely on the unsteady eye-witness testimony of Felix Sablad, who was working at the store on the night it was robbed.
     A detective testified during the second trial that Sablad had picked Dow out of a photograph line-up two months after the robbery as someone who “resembles” the robber. Some months later, Sablad again picked Dow out of a live line-up at the district attorney’s office.
     Sablad had remembered that the robber had a scar, but his memory of the mark’s exact position changed over time. During the live line-up, Dow’s lawyer had requested that each man wear a bandage under his right eye. Dow has a scar under his right eye, and the attorney did not want this to suggest anything to Sablad, according to the ruling.
     When the detective testified about the line-up at trial, he said the bandage idea had come from Dow, not his attorney. The defense objected without success, and later the prosecution seized on what it knew to be a false statement and argued that Dow had “demonstrated consciousness of guilt by trying to hide his scar in order to prevent the sole eyewitness from identifying him,” according to the ruling.
     Dow sought habeas corpus relief, but U.S. District Court Phyllis Hamilton in Oakland, Calif., agreed with the state appeals court that the misconduct had been harmless.
     The 9th Circuit disagreed in a unanimous reversal on Thursday, finding that “the evidence against Dow was weak and the prosecutor’s arguments undoubtedly had an effect on the jury’s decision.”
     “Here, it is reasonably likely that the false testimony and the prosecutor’s arguments based on that testimony had a material effect on the outcome of the jury’s deliberations,” Judge Stephen Reinhardt wrote for the three-judge panel. “The case was a weak one that hinged almost entirely on Sablad’s inconsistent eyewitness testimony. 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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