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Towery v. Schriro, No. 08-99022 (9-22-10) (Fisher with Schroeder and N. Smith). A witness heard the petitioner say something to the effect that "he had trouble with the old man and had to hit him." Petitioner faced two trials: a preceding robbery and a subsequent robbery gone bad with murder. Petitioner raised alibi for the murder. The prosecutor used this statement in two different trials. In the preceding robbery trial (different from the capital murder and felony murder robbery), the prosecutor used the witness's recollection in testimony to convict on that robbery. Then, several months later, at the second trial, upon reflection (!), the prosecutor said he really thought that the statement refered to the murder, felony murder and the subsequent robbery, and so had the witness testify about what he heard. The petitioner was convicted and sentenced to death. Oh yes, the same trial judge heard both trials and both statements. The Arizona Supreme Court assumed misconduct, at the very least, for not telling the court. The supreme court, however, found it harmless. The defense lawyer had crossed on the statement and attacked it for refering to another robbery. The 9th goes along because the misconduct and its variations (contradictory testimony, false testimony, Brady, fraud to court, due process) still did not deprive petitioner of a fair trial, and the state court's decisions were not unreasonable.

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