La Carl Dow v. Tim Virga, Warden

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:

The prosecutor’s misconduct violates the basic tenet of Napue v. Illinois, which prohibits “soliciting false evidence,” and requires the prosecutor to not “allow[ ] it to go uncorrected when it appears.” 360 U.S. 264, 269 , 79 S.Ct. 1173 , 3…