Another panel of the United States Court of Appeals for the Ninth Circuit hits a home run for the Constitution!  After failures of every prior state and federal judge to act in the face of clear evidence, the Ninth Circuit has reversed a denial of a writ of habeas corpus and required release - or a new trial - for a criminal defendant because of a prosecutor’s Brady violation.

Authored by Circuit Judge William Fletcher for the panel including Circuit Judge Harry Pregerson and District Judge Mark Bennett (all pictured), the panel held (emphasis added) :

Gilbert Aguilar was convicted of first-degree murder after a jury trial in Los Angeles County Superior Court.  A young Hispanic man got out of a white Volkswagen Beetle and shot John Guerrero while Guerrero’s car was stopped at a stoplight. The only question at trial was the identity of the shooter. Aguilar’s defense was that another young Hispanic man, Richard Osuna, had shot Guerrero.

The prosecution introduced evidence that a police dog named Reilly had alerted to a “scent pad,” showing that Aguilar’s scent was present on the

front passenger seat of the white Volkswagen.

 The prosecution did not disclose to the defense that Reilly had a history of making  mistaken scent identifications, 

 even though it had stipulated to Reilly’s mistaken identifications in a different trial several months earlier.

    Following the stipulation, that court had excluded evidence of Reilly’s scent identification from the earlier trial.

     Reilly’s scent identification was the only evidence that tied Aguilar to the white Volkswagen.

Putting the scent identification to one side, the evidence against Aguilar was weak. No clear motive for Aguilar to shoot Guerrero was ever suggested at trial. No physical evidence tied Aguilar to the crime. The faces of Aguilar and Osuna are very similar, but Aguilar is older and, at the time of the shooting, was significantly taller. A number of eyewitnesses identified Aguilar as the shooter at trial. Several of those witnesses had earlier given a quite different physical description to police – one that matched Osuna in age and height rather than Aguilar.

The evidence suggesting that Osuna was the killer was substantial. Osuna’s brother was shot several days before Guerrero was shot. Two witnesses testified that Osuna jumped into a white Volkswagen Beetle to pursue Guerrero’s car as it drove past.  One of them testified that Osuna did so in the belief that the “fools” in the car had shot his brother. That same witness testified that Osuna told her a short time later that he had shot a “fool.” Even so, Osuna was never investigated as a suspect in this case. Indeed, the prosecutor in this case expressly told the police not to pursue an investigation of Osuna.cantly taller. A number of eyewitnesses identified Aguilar as the shooter at trial. Several of those witnesses had earlier given a quite different physical description to police – one that matched Osuna in age and height rather than Aguilar.

Read on in the full decision and it only gets worse. … Read More »