Police Dog’s Bad Record Upends Murder Conviction

The state prosecution’s handling of this Los Angeles murder case just smells bad.  The 9th U.S. Circuit Court of Appeals overturned the murder conviction of Gilbert Aguilar Monday, because state prosecutors failed to disclose the police dog that identified Aguilar’s scent had a history of mistaken scent identifications.

The only question in Aguilar’s case was the identity of the shooter who killed John Guerrero in 2001 while his car was stopped at a stoplight.

Aguilar’s defense was that another young Hispanic man, Richard Osuna, shot Guerrero.

Prosecutors produced evidence that “Reilly” the police dog alerted to a scent allegedly showing Aguilar’s scent was present on the front passenger seat of a car carrying the shooter.

What the prosecution did not do was mention that Reilly had a history of making mistaken scent IDs, even though it had stipulated to Reilly’s mistakes in a different trial several months earlier.

In addition, the dog’s scent ID was the only evidence linking Aguilar to the car.  While evidence against Aguilar was weak, “substantial” evidence suggested Osuna as the potential killer, according to Judge William Fletcher.

Osuna’s brother was shot several days before Guerrero was shot.  Two witnesses testified that Osuna jumped into a white Volkswager Beetle to pursue Guerrero’s car. Another witness testified Osuna toler her he had shot a “fool.”  But he was never investigated as a suspect.  In fact, the prosecutor in this case “expressly told the police not to pursue an investigation of Osuna,” Fletcher wrote, because it would be a “wild goose chase.”

By contrast, there was no clear motive for Aguilar to shoot Guerrero, no physical evidence tied him to the crime and the faces of Aguilar and Osuna are very similar but Aguilar is older and significantly taller.

Fingerprints later recovered in the Volkswagon matched Osuna but not Aguilar, according to the opinion.

Eye witnesses identified Aguilar as the shooter, but several of those earlier gave police physical descriptions that matched Osuna, rather than Aguilar.  At trial, the witnesses changed their descriptions to match Aguilar.

He was convicted in 2006.

A California Court of Appeal upheld Aguilar’s conviction, rejecting the dog-scent evidence issue.  Aguilar then took his appeals to federal court.

Fletcher found the prosecution failure to tell Aguilar’s defense lawyers about Reilly’s scenting problems was what’s known as a Brady violation, a standard that requires the government to turn over, or disclose, evidence potentially helpful to the defense.

Whether or not the trial prosecutor knew about Reilly’s history, the dog’s handler did and had an obligation to disclose it, according to Fletcher.

Aguilar must be released or given a new trial.

He was joined by Judges Harry Pregerson and Mark Bennett, visiting from the Northern District of Iowa.

Case:  Aguilar v. Woodford, No. 09-55575