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Name: Dow v. Virga
Case #: 11-17678
Court: US Court of Appeals
District 9 Cir
Opinion Date: 09/05/2013

Prosecutorial misconduct in eliciting false testimony was not harmless under the stricter “materiality” standard set forth in Napue v. Illinois. At Dow’s state court trial for second degree robbery, the prosecutor committed misconduct by knowingly eliciting and failing to correct false testimony. The testimony, by Detective Oglesby, was that Dow, and not his attorney, had requested that each participant in a lineup wear a bandage under his right eye, at the location where Dow had a small scar. During closing argument, the prosecutor argued that Dow had demonstrated consciousness of guilt by trying to hide his scar to prevent the eyewitness from identifying him. The state appellate court found the prosecutor’s misconduct was harmless error. The Ninth Circuit granted a petition for writ of habeas corpus. Applying the standards of AEDPA, it found the state court had applied an incorrect harmless error standard contrary to the holding in Napue v. Illinois (1959) 360 U.S. 264, 269 [prosecutor prohibited from soliciting false evidence and must correct it when it appears]. The Napue standard requires reversal if the false testimony was material (i.e., whether “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury”). Here the state court found it not reasonably probable that a result more favorable to the defendant would have occurred absent the misconduct. The state court’s application of a stricter harmless error standard was contrary to clearly established United States Supreme Court precedent. Dow met the materiality standard set forth in Napue. The evidence against Dow was weak, based almost entirely on inconsistent eyewitness testimony. His first trial, at which the false testimony was not introduced, ended in a hung jury. The false testimony and the prosecutor’s arguments based on that testimony had a material effect on the jury’s decision and violated Dow’s right to due process, requiring reversal.