La Carl Dow v. Tim Virga, Warden
2013 U.S. App. LEXIS 18468
| 9th Cir. | 2013Background
- Defendant La Carl Martez Dow was convicted of second-degree robbery based primarily on a store clerk's eyewitness ID and a generic gray sweatsuit found in Dow's home.
- At a live lineup Dow was the only participant with a small scar under his right eye; Dow's counsel requested bandages be placed under each participant's right eye to mask distinguishing marks.
- During the prosecutor's direct examination, Detective Oglesby falsely testified that Dow (rather than defense counsel) requested that all lineup participants wear bandages under their right eyes; the prosecutor knew the testimony was false and did not correct it.
- The prosecutor argued in closing that Dow asked for the bandage to hide his scar — an argument of consciousness of guilt based on the false testimony; the defense objected but was overruled.
- The California Court of Appeal found prosecutorial misconduct (violative of Napue) but applied California's stricter harmless-error standard and affirmed the conviction as harmless.
- On federal habeas review under AEDPA, the Ninth Circuit concluded the state court applied the wrong harmlessness standard (or unreasonably applied Napue) and held the Napue violation was material; it reversed and ordered the writ unless retried within a reasonable time.
Issues
| Issue | Dow's Argument | State's Argument | Held |
|---|---|---|---|
| Whether prosecutor's elicitation and failure to correct false testimony violated due process (Napue) | Prosecutor knowingly elicited/failed to correct false testimony that Dow requested bandages; this violated Napue | State conceded misconduct but argued error was harmless under state standard | Court: Napue violation established (false testimony + knowledge); merits require relief if material |
| Proper harmlessness standard to apply on federal habeas (Napue materiality v. state Watson standard) | Napue requires a low "materiality" test: any reasonable likelihood the false testimony affected the jury | State court applied California "reasonably probable" (Watson) standard and affirmed as harmless | Court: State application was contrary to clearly established federal law; Napue materiality governs |
| Whether the Napue error was material (could it have affected the jury's judgment) | Error was material because case was weak, ID inconsistent, evidence hinged on witness ID, prosecutor used false testimony to supply independent basis for guilt | State argued identification was strong and other factors made error harmless | Court: Under de novo review, Napue materiality met — reasonable likelihood the false testimony affected verdict |
| AEDPA deference: whether state court decision was reasonable | Dow: State court applied wrong standard or unreasonably applied Napue so deference not dispositive | State: Decision should get AEDPA deference as an implicit Napue-materiality ruling | Court: State decision was contrary to/an unreasonable application of Supreme Court precedent; federal court may grant relief |
Key Cases Cited
- Napue v. Illinois, 360 U.S. 264 (prosecutor may not knowingly use false testimony; reversal required if false testimony may have affected outcome)
- Giglio v. United States, 405 U.S. 150 (extends Napue; prosecutor's use of false testimony material if it could reasonably have affected the jury)
- United States v. Agurs, 427 U.S. 97 (articulates Napue/Giglio materiality standard: any reasonable likelihood the false testimony could have affected the jury)
- Williams v. Taylor, 529 U.S. 362 (AEDPA "unreasonable application" standard explained)
- Harrington v. Richter, 562 U.S. 86 (standards for "reasonable basis" review under AEDPA; limits on federal relief)
- Manson v. Brathwaite, 432 U.S. 98 (eyewitness ID reliability factors)
- Neil v. Biggers, 409 U.S. 188 (factors for evaluating eyewitness identification reliability)