New trial for man convicted in pot club murder 

A San Francisco Superior Court judge Friday ordered a new trial for a 22-year-old man convicted last year of first-degree murder for his role in a 2008 robbery outside a Mission District pot club that led to a fatal shooting.

A jury convicted Ijeoma Ogbuagu, of San Francisco, last July under California's felony-murder rule because he was alleged to have participated with another suspect in the armed robbery of 23-year-old Royshawn Holden and Holden's best friend outside the Mr. Nice Guy marijuana dispensary on Sept. 14, 2008.

During the robbery, the second robber shot and killed Holden. The friend escaped and later testified that he had "not a doubt at all" that Ogbuagu was the accomplice.

The friend - who is not being named out of concern for his safety - identified Ogbuagu to police from a yearbook photo of Ogbuagu at age 14 that he had been shown by Holden's sister. Ogbuagu was arrested two weeks after the murder.

The friend made a similar representation at a 2009 grand jury hearing to indict the alleged shooter, having identified him from a photo on MySpace, but the grand jury rejected his testimony as insufficient evidence and the man went free.

Ogbuagu was facing 26 years to life in prison and had been awaiting sentencing for months.

But trial Judge Lillian Sing on Friday granted a motion by Ogbuagu's attorney Franz Fuetsch for a new trial.

Sing said new evidence, which prosecutors did not disclose to the jury, that the friend had spoken by phone with Holden's sisters in the year before Ogbuagu's trial called into question the reliability of his testimony.

Noting that the friend's testimony of his identification of Ogbuagu from the yearbook at the grand jury hearing differed somewhat from his testimony at trial, Sing said the phone conversations with the sisters could have allowed "the opportunity to coordinate their accounts of the defendant's identification."

Sing said that prosecutor Michael Swart had made "inconsistent representations" to the jury about the contact between the friend and Holden's family, and about the friend's identification of Ogbuagu, and thus had overstated the strength of the evidence against him.

Sing called the identification of the single eyewitness "critical."

"The court finds the cumulative effect of certain errors has denied the defendant a fair trial," Sing said.

Swart objected to the decision and promised to appeal.

Fuetsch's request to release Ogbuagu from custody pending a decision on a new trial was denied. The case is due back in court Monday.

"There's no doubt we're going to go forward (with a new trial)," Swart angrily informed Sing. "It's the most ridiculous thing I've heard today, besides the court's opinion."

According to Fuetsch, prosecutors had placed a protective order on the surviving victim's phone records and defense attorneys could not obtain them before trial. Later, the records revealed dozens of conversations between the victim and Holden's sisters, he said.

Apart from the identification of the one eyewitness, there was no physical evidence against Ogbuagu.

"He wasn't there," Fuetsch asserted Friday. "He wasn't there."

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