The 9th Circuit panel who wrote this opinion have renamed the court. They are now the 9th Circuit trial court. And the opinion is written by the usual suspects who have never tried a criminal case. Not only did the panel re try the case on habeas corpus and ignore AEDPA, they brilliantly know more about the case than the California Court of Appeal, the California Supreme Court (and the U.S.District Court judge who denied the petition for habeas corpus) who heard the case on direct appeal and affirmed the verdict of “guilty.”
This case involved a gang homicide so the prosecution called questionable witnesses (the kind you get in gang cases) who changed their testimony in some instances. And of course the panel thought the jury was unaware of this after listening to the testimony of all the witnesses, observing their demeanor and considering the argument of defense counsel-the same argument he made to the 9th Circuit panel. The panel heard nothing from any witness, saw no witnesses, and knows nothing about the case except from reading a cold record. The jury decided the case having considered all the evidence presented at trial and unanimously found the defendant guilty. Not in the 9th Circuit. They liked the defense better-as in the Smith case reversed three times by the Supreme Court.
Defense counsel tried to establish a third person had committed the crime, and produced enough evidence to convince the jury his client was not guilty. The jury made the decision in favor of the prosecution but the 9th Circuit panel explained why jurors made a mistake.
Part of the evidence linking Aguilar with the murder consisted of testimony from an expert witness explaining results of a dog scent test. Subsequent to the homicide, police had removed clothes from an impounded white car matching a description by eye witnesses who testified the male driver had exited the vehicle, shot the victim and fled. According to the expert witness, the test of the clothes found in the car was positive in identifying Aguilar as an occupant of the vehicle, but the prosecutor failed to disclose evidence that the dog had been previously mistaken in an unrelated case. That information had been brought to the attention of the District Attorney but the test results had not been revealed to defense counsel in the Aguilar case.
Police found no fingerprints in the white car and the prosecutor could produce no forensic evidence resulting from a search of Aguilar’s dwelling. Although the prosecutor submitted the vast majority of the testimony of other witnesses, who admittedly conflicted, he argued to the jury the importance of the expert witness who testified to the results of the dog scent.
Obviously the failure of the prosecutor to provide defense counsel with evidence of a prior mistaken dog scent in a criminal case violated the Brady rule. Whether failure to disclose exculpatory evidence is sufficent to void an otherwise error free trial is arguable, but that is not the test. On habeas corpus the Supreme Court has repeatedly lashed the 9th Circuit for ignoring AEDPA, and that is precisely the issue in Aguilar. This case is a gross misinterpretation of AEDPA. and its statutory demand of deference to state court decisions.
The jury listened to all the witnesses and were fully cognizent of the inconsistencies in testimony. The jurors concluded the defendant was guilty and there is sufficient evidence to support that decision. The California Court of Appeal and California Supreme Court read the same record as the 9th Circuit judges, and the state court opinions are not “unreasonable” under AEDPA. Disagreement by an appellate court opinion on habeas corpus under AEDPA is irrelevant.
The Aguilar case should be reheard or, if denied, reviewed on cert. to the Supreme Court.