Addressing once again the restrictive standard for granting habeas review only when the decision of a state court is not simply wrong but also unreasonable or contrary to Supreme Court authority, the Ninth Circuit granted a writ of habeas corpus in a case of “textbook prosecutorial misconduct” that the state court found to be harmless error.  The Ninth Circuit held that the finding of harmless error was unreasonable and contrary to well established Supreme Court authority.

In Dow v. Virga, the defendant’s attorney had requested that each participant in a lineup wear a bandage under his right eye to cover up the area where the defendant had a scar. At trial, however, the prosecutor knowingly elicited false evidence that this request had come from the defendant, himself, and argued in summation that this demonstrated a consciousness of guilt.  On appeal, the state court found this to be clear prosecutorial misconduct in violation of  Napue v. Illinois, but found the error harmless.  The habeas court held that the finding of harmless error violated Napue’s clearly established rule that the knowing use of false testimony is not subject to harmless error analysis.

Read the Dow v. Virga, No. 11-17678 (9th Cir. Jan. 14, 2013) decision.

This is yet another instance in which a federal habeas court has resisted the extremely deferential standard of review that explicitly requires such a court to uphold a conviction admittedly infected with constitutional error.  This may be a trend worth tracking, and we intend to watch it by setting up a repository of similar cases.