I agree with Judge Reinhardt there was pretty telling prosecutorial misconduct here. You can't tell a jury that the fact that the defendant "tried to hide a scar on his face" during a police lineup proves that he knows he's guilty when you know full well that the person woo made everyone at the linup wear a Band-Aid over their "scar" was the defendant's attorney, purportedly following the standard practice for these sorts of things.
That's just wrong. Moreover, particularly given the absence of much evidence linking the defendant to the crime, as well as the fact that his first jury trial deadlocked, that error's not harmless.
So the California Court of Appeal's contrary decision gets reversed on fededral habeas. That decision is an unreasonable application of, and contrary to, federal law.
The California Court of Appeal issued its decision in 2004. Shortly before I started this blog. And the decision was also unpublished.
Which means that I didn't comment on it. But had the situation been otherwise, my comments would likely have been along the same lines as Judge Reinhardt's. (Comments joined, I might add, by Judge Milan Smith and Judge Carr, who was sitting by designation from the Northern District of Ohio.)
I might also add that, as it happens, I was sitting in the audience for the oral argument of this case, as I was waiting my turn to argue a different case before the same panel. It was pretty clear which way this one was coming out from the oral argument. Not surprising to anyone that Dow gets a new trial.
I'll add just one point that I didn't appreciate at the time. Dow's conviction was affirmed in 2004. It's now 2013. Nine years later. The docket number in the district court below begins with 06-.
I can't figure out why it took so long to get this thing resolved. During all of which Dow gets to rot in prison. Seems unjust. Especially for a guy who may be innocent, and who (at an absolute minimum) certainly deserves a new trial.