Defense Exhibit A

Sometimes I assume people think I and my fellow defenders exaggerate the flaws we see in the criminal justice system or overstate how unfathomable and indefensible some prosecutorial decisions are.

For those people, I'd like to offer Aguilar v. Woodford as Defense Exhibit A. I'd really like people (especially the non-criminal lawyers) to read it. It's fact-intensive more than law-heavy, so don't be scared if you're not a lawyer.

For those of you who don't feel like reading it, here's a quick run-down: Victim is shot while driving his car. The passengers in his car are unharmed. Those passengers offer descriptions of the shooter, all of which put the shooter at shorter than Aguilar. Odd as studies show that witnesses tend to overstate the height of the person with the gun, not understate it. But there's another guy (named Osuna), facially similar to Aguilar, who is several inches shorter (you know, closer to the descriptions). And odd little fact: Osuna had a brother who was shot days before this shooting. Suspect in that shooting? Prize to you if you guessed the victim. Remember that the passengers were unharmed, suggesting this wasn't a gang-turf shooting, but a specific targeted shooting.

Then there were rumblings that Osuna was running around the neighborhood admitting he just shot a guy. And Aguilar's girlfriend/baby mama said he ran out of a gathering the day of the shooting when he saw the victim's red car drive by. Naturally, the prosecution didn't put much stock in that. But she did do lots of leg work to track down Osuna and find witnesses who would testify to his incriminating statements.

Certainly seems like there was at least enough reason to at least investigate Osuna, right? Yet for some reason, the prosecutor directed the police not to expend resources on Osuna because it would be a wild goose chase.

Since the case caption includes Aguilar's name, you should already have figured out that Aguilar was convicted of the murder. But with all this Osuna stuff, there's at least reasonable doubt, right? (Oh, silly naive kids who believe that juries actually respect the presumption of innocence and the state's burden of proof beyond a reasonable doubt.) What other evidence was there against Aguilar that led to his conviction?

Dog scent.

Yep, you read that right. A dog and his nose put Aguilar in prison with a life sentence. (I will not name the dog because darn it, it's not the poor pooch's fault that people have misused him in this way.)

Here's what the guy behind the dog scent nonsense does. He "rubs" a pad on the seat of the car known to have been the shooter's get-away car. He "rubs" another pad on the suspect's clothes. Then he has the dog smell the known pad rubbed on the clothes and takes the dog to a line-up of 4 pads, one of which is the pad with the car smell. And using his super keen sense of smell, the smart, smart doggy hit on exactly the pad the handler would have hoped, the one that came from the car. (Small detail: the smell test wasn't done until over a month after the murder, so it's highly questionable the smell would have lasted that long.)

The prosecution relied heavily on the scent "evidence" both with witnesses and in closing argument. And only after it's all over and Mr. Aguilar is sentenced to prison does the defense learn that the prosecution knew all along that this evidence was bunk. Or at least highly, highly questionable. The appellate decision talks about the dog having a high error rate, but I don't think that's fair. It's not the dog who screwed up. The dog probably picked up on cues and did exactly what his person wanted. But this same dog in a previous scent line-up had led to a guy who definitely didn't commit the crime as he was in jail when it happened, for example. Moreover, the DA's office had stipulated to this particular dog's high failure rate in a previous trial. After that previous stipulation, the chief public defender wrote a letter to the DA stating that the failure rate of the dog was exculpatory information that the DA should turn over in any case involving that dog. Apparently the lesson the DA took from that stipulation and subsequent letter from the chief public defender was that the office just shouldn't tell defense attorneys about the problems with that dog's evidence.

It's pretty well-established law that the state must turn over to the defense exculpatory evidence in its possession. It's also pretty well-established that if any one person in the state possesses the exculpatory information, that knowledge is imputed to the specific prosecutors on the specific case. This way, cops can't just squirrel info away in a hidden drawer without ever telling the prosecutor, thus keeping the exculpatory info from the defense. The fact that the dog scent line-up was so flawed and that the prosecution knew this particular dog didn't have a great track record was clearly exculpatory information that should have been disclosed, especially given how heavily the state relied on this evidence at trial.

And this is the kind of case I see way too often. At least as much, if not more, evidence implicating someone else. And yet a dogged determination for some reason I can never fathom to ignore the other suspect and focus solely on this guy. Reliance on junk science (see tonight's earlier post). Refusal to be open with defense counsel about the problems with that "scientific" evidence. Then on top of all that, it wasn't the first court who heard about the dog scent problem who granted Mr. Aguilar relief. It wasn't even the second. It was at best the third court who reviewed this case who finally acknowledged what a deeply-flawed conviction this was. That's how it goes way too often.

Yes, there are a lot of decent prosecutors and sensible courts. There are even defense attorneys who make arguments that should lose. But this stuff happens, too. We really aren't making it all up.