The most difficult cases for juries in criminal cases are the credibility issues arising between testimony of the defendant and the law enforcement officer who made the arrest, search, or related a confession.  Lacking corroborative evidence, the jury must decide which witness to believe, but jurors consider more than just the testimony.  They consider witness demeanor, attitude, recollection, inconsistent statements, and innumerable other intangible issues.  Cases sometimes are a year old because the defendant fled the scene, or some other factor affecting the testimony for an officer who may have had a hundred other arrests since the case now on trial.  Obviously the crime and arrest report help the memory but certainly not all the detail.

Alcantara-Castillo is an example of witness credibility. The defendant was charged with illegal entry into the United States after having been arrested by agents of the Border Patrol. Twelve jurors found the defendant guilty beyond a reasonable doubt in the district court trial. Only the agent (and his colleagues) and the defendant testified. The defendant appealed on the ground of prosecutor misconduct.  Without rewriting the testimony of the defendant who was cross examined by the  prosecutor, the witness failed to directly answer whether the border agent had “invented” the facts in his testimony.  Secondarily, the prosecutor in his closing argument agreed the case was a credibility contest and said his witness had undertaken the officer’s sworn duty to uphold the law, implying the officer would tell the truth. The trial court sustained the defense objection and ordered the jury to disregard this statement.

The courts all agree the prosecutor cannot vouch for the officer’s credibility but what constitutes “vouching” is not easy to determine.  This subject is particularly difficult  for appellate court judges who have never tried a case.  As in this one.  Two out of the three court judge panel opined that the jury “might have” reached a different result if the prosecution questions had not been asked and the vouching statement made.  Apparently  the jury was convinced by the evidence, considered the defendant’s record of five prior illegal entries, and who testified he thought he was under the influence of drugs and stopped by the agent in Mexican territory. By who? An American Border Patrol agent.

The 9th Circuit reversed the conviction in a 2-1 opinion without hearing a word of testimony; without seeing either of the witnesses; ignoring a 5 time loser and drug addict on the two grounds alleged, one of which the judge ordered the jury not to consider in a curative instruction.

A three judge 9th Circuit panel acknowledged that  the jury listened to the two different stories.  The jury heard the testimony of the defendant and the agent; watched their respective demeanor; considered all the evidence, not just the two prosecution alleged  mistakes, and found the defendant guilty.  Obviously the jury believed the officer and the tiny legal mistakes, one corrected by the judge, made no difference.

.Now the government will have to retry the defendant on a case so easy (five convictions for re entry; an admitted drug user; the comical location of his arrest) that the jury probably just laughed at the excuse.  The jury “might have reached a different result” said the majority.

Courts of Appeal are supposed to decide legal questions, mostly procedural, or Constitutional in some cases, but not fact questions and speculation on what a jury “might” do. By selecting and isolating minor issues in a multi day trial, the court can find some reason for reversal.  Another case is ready for rehearing.

Every Constitutional textbook should include this case as an example of outrageous appellate decisions.  Another habeas corpus decision reversing a state Court of Appeal case and was written by the same judge who has never tried a criminal case nor sat as a trial judge. If this case is not reheard en banc, the State of California should file cert. to reverse this decision.

The prosecution main witness worked as a cashier at a convenience store when a man with a gun approached, pointed a gun at him, and demanded money. Although the clerk had never seen the man before, he described him to police and said the culprit  was wearing a grey sweat shirt, had a missing tooth, and a small scar somewhere on his face.   

Defendant was arrested in connection with another robbery. At a lineup, defense counsel asked that each person wear a band aid under his right eye to conceal the scar on his face.  The cashier identified the defendant. Police obtained a search warrant and found a grey sweatshirt in the defendant’s house.

In the first trial, which hung, the cashier changed his testimony slightly, and also made some inconsistent statements.  The defendant had no missing tooth but a gap between his front teeth. According to the detective, the scar was not visible from more than a few feet away.  

At the retrial, the detective testified that Dow had asked for the band aid rather than counsel. During closing argument the prosecutor wrongfully told the jury the defendant had asked for the band aid at the lineup to conceal his identity. A defense “expert” witness testified how misidentification errors occur but the 9th Circuit panel says nothing about whether the defendant testified.  The jury found the defendant guilty.

The State Court of Appeal agreed the mis statement by the prosecutor about seeking a band aid was misconduct but qualified it as harmless error and affirmed the verdict. The district court judge denied the petition the petition for habeas corpus.

The 9th Circuit panel recites all the evidence, argues with it, and says the defendant did not have a missing tooth-just a gap.  When someone is looking at the barrel of a gun pointed directly at him that distinction is irrelevant.  The defendant does have a scar on his face, very small and not visible unless he stands close to another person.

The 9th Circuit re trys the case; criticizes the prosecutor; rewrites the same evidence the jury heard.with all the mistakes in the victim’s testimony; and considered the “expert ” who explained to the jury about mis identification.  Nothing about the defendant’s testimony.    

The panel embraced the venerable case of Napue v. Illinois, 360 U.S. 264 (1972) requiring reversal of a case if the prosecutor knew false evidence had been admitted and it could have affected the verdict.  In Napue the prosecutor withheld evidence a witness had been promised leniency in exchange for his testimony. The California state court agreed the prosecutor knew of the falsity of her argument but that knowledge does not necessarily require reversal of a verdict unless it is “material, i,e.,” whether the evidence could have affected the judgment of the jury. According to the 9th Circuit panel, the state court used the word “would” instead of “could, ”  a lesser standard of harmless error.

Well, said the panel, this wrong use of the two words is contrary to AEDPA requirements so we need not comply with the federal standard and can use a de novo test requiring no deference.

And, said the panel,  the witness made inconsistent statements of identification. But the jury heard all this evidence, including the mistakes in identity testimony, and heard the expert testify to the dangers of mistaken identity. (a witness with a gun pointed at his  head cannot easily distinguish the difference between a gap and a missing tooth). The jury heard no testimony from the defendant. They found the defendant guilty on the same evidence the 9th Circuit panel found him not guilty, or at least entitled to a third trial).

This decision is another abuse of discretion the Supreme Court recently held involving the 9th Circuit.  Parsing the difference between “could” and “would” is another example  of academic naiveté and reality. And an abuse of discretion.