Ninth Circuit reverses a state court conviction because prosecutor elicited false testimony, failed to correct it, and made an improper argument about the testimony in the rebuttal closing. Excerpt:
La Carl Martez Dow’s state court trial for second degree robbery involved textbook prosecutorial misconduct, recognized as such by the California Court of Appeal (“state court”). In the course of the trial, the prosecutor knowingly elicited and then failed to correct false testimony. That testimony, by Detective Oglesby, was that Dow (rather than his attorney) made the request that each of the participants in a lineup wear a bandage under his right eye at the location at which Dow had a small scar under his. Then, based on this evidence, the prosecutor told the jury during closing argument that Dow had demonstrated consciousness of guilt by trying to hide his scar in order to prevent the sole eyewitness from identifying him. Dow contended that the prosecutor’s eliciting of false testimony and failure to correct it violated his federal constitutional rights. The state appellate court held that misconduct had occurred. It stated:
We find that misconduct occurred. Although Detective Oglesby testified that defendant made the request to have “the band-aid placed beneath all the participants’ right eyes,” the prosecutor was aware that representation of the evidence was erroneous. More importantly, by asserting that defendant was attempting to “hide” his scar, the prosecutor was mischaracterizing the evidence.