Dow v. Virga

The standard to be used by state courts in reviewing prosecutorial misconduct is one of materiality, per Napue v. Illinois, not harmlessness.

Felix Sablad was a cashier in a convenience store when it was robbed. Sablad first described the suspect as wearing a grey jumpsuit and having a scar on his face but later had slightly varying descriptions. La Carl Martez Dow was brought in as a suspect. During line-up, Dow’s attorney had police to place a band-aid under the right eye of every individual in the line-up, the area Dow had a scar. Dow’s first trial ended in deadlock requiring a mistrial. During Dow’s second trial while the prosecutor was questioning Detective Oglesby the detective said it was Dow who requested the band-aids at lineup. The prosecutor knew this was false yet did not correct Oglesby’s statement. Additionally, during closing arguments the prosecutor insinuated that Dow covered his scar because he had something to hide. Defense objected but was overruled and Dow was convicted. The California State Appellate Court affirmed the judgment saying that while there was prosecutorial misconduct it was harmless. Dow appealed seeking habeas corpus. The Ninth Circuit reversed and remanded with three holdings. First, the state court misapplied the clearly established framework established in Napue v. Illinois because they used a stricter state standard of harmlessness when they should have used the materiality standard in Napue. The difference is if the false testimony could have influenced the jury, as opposed to would have. Second, Dow’s Napue claim meets the materiality standard because the first trial was a close one, Sablad gave inconsistent descriptions, and the jury could have drawn improper inferences from the prosecutor’s closing argument. Finally, the panel held that the state court did not implicitly apply the materiality standard because to find the present violation as immaterial would be an unreasonable application of Supreme Court precedent. REVERSED and REMANDED.