Metropolitan News-Enterprise


Tuesday, May 6, 2014


Page 3


Justices Decline to Hear State’s Bid to Revive Murder Conviction


By a MetNews Staff Writer


The U.S. Supreme Court yesterday declined, without comment, the state’s request for review of a Ninth U.S. Circuit Court of Appeals ruling that threw out the murder conviction of a reputed gang member.

A three-judge panel ruled last July that prosecutors illegally withheld exculpatory evidence.

Because the sole issue in the case of Gilbert R. Aguilar was identity, Judge William A. Fletcher wrote, the defense should have been told that a police dog that identified Aguilar’s scent on the seat of an impounded vehicle linked to the murder of John Guerrero had a history of misidentification.

Aguilar was convicted of first degree murder in 2001. The shooting occurred when Guerrero drove into a La Puente neighborhood claimed as gang territory.

Witnesses said Guerrero pulled into a KFC parking lot, where a young Hispanic male wearing a baseball cap got out of a white Volkswagen Beetle and shot him seven times. They said the shooter then returned to the Beetle and it drove away.

About a month after the shooting, a probation officer saw a sketch based on eyewitness descriptions and thought he recognized Aguilar. Later, three eyewitnesses picked him out of a photograph lineup, but none gave positive identifications at trial.

Critical to the prosecution’s case was evidence that Reilly, a Los Angeles Police Department dog, had identified Aguilar’s scent on a white Volkswagen Beetle officers impounded as stolen a few weeks after the murder.

While Aguilar’s fingerprints did not match those found in the car, Reilly’s alert confirmed the presence of Aguilar’s scent in the front passenger seat, the prosecution argued.

The defense contended that the real murderer was Richard Osuna, aka “Gangster,” whose brother had been shot a few days before the Guerrero murder. Two witnesses claimed to have seen Osuna going after Guerrero in a white Beetle.

Prosecutors argued that physical evidence, eyewitness testimony, and the dog scent evidence pointed to Aguilar, not Osuna, as the killer. The jury concurred and Aguilar was sentenced to 50 years to life in prison.

This district’s Court of Appeal affirmed, and U.S. District Judge David Carter denied Aguilar’s habeas corpus petition in 2006.

Fletcher, however, said the petition should have been granted because the Court of Appeal ruling excusing the prosecution’s lack of disclosure regarding the dog scent evidence was an unreasonable application of Brady v. Maryland, 373 U.S. 83 (1963).

The prosecutor, Fletcher noted, “expressly told the police not to pursue an investigation of Osuna,” who was 16 years of age and no taller than 5’7”, while Aguilar was 20 and about six feet tall.

In addition to evidence that the dog made at least two prior mistakes, the judge wrote, prosecutors knew Reilly was unreliable at least six months before Aguilar’s trial because they had so stipulated in another case.

“Reilly’s scent evidence was the only evidence at trial linking Aguilar to the getaway car, as well as the only evidence corroborating strikingly weak eyewitness identifications,” Fletcher said, criticizing the Court of Appeal for having “misstated the nature of the eyewitness testimony, making it appear stronger than it was.”

The judge explained:

“The jury was told to use the dog scent identification ‘for the purpose of showing ... that the defendant is a perpetrator of the crime of murder.’ The State cannot now argue with a straight face that the evidence upon which it relied so heavily at trial was, in fact, not probative.”

Judge Harry Pregerson joined in the opinion, as did visiting District Judge Mark W. Bennett of the Northern District of Iowa.


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