U.S. judges see ‘epidemic’ of prosecutorial misconduct in state
The hearing seemed largely routine until a state prosecutor approached the lectern.
Deputy Atty. Gen. Kevin R. Vienna was there to urge three judges on the U.S. 9th Circuit Court of Appeals to uphold murder convictions against Johnny Baca for two 1995 killings in Riverside County. Other courts had already determined that prosecutors had presented false evidence in Baca’s trial but upheld the verdicts anyway. Vienna had barely started his argument when the pummeling began. Judge Alex Kozinski asked Vienna if his boss, Atty. Gen. Kamala D. Harris, wanted to defend a conviction “obtained by lying prosecutors.” If Harris did not back off the case, Kozinski warned, the court would “name names” in a ruling that would not be “very pretty.”
Judge Kim Wardlaw wanted to know why Riverside County prosecutors presented a murder-for-hire case against the killer but did not charge the man they said had arranged the killings. “It looks terrible,” said Judge William Fletcher. The January hearing in Pasadena, posted online under new 9th Circuit policies, provided a rare and critical examination of a murder case in which prosecutors presented false evidence but were never investigated or disciplined. The low-profile case probably would have gone unnoticed if not for the video, which attorneys emailed to other attorneys and debated on blogs.
In a series of searing questions, the three judges expressed frustration and anger that California state judges were not cracking down on prosecutorial misconduct. By law, federal judges are supposed to defer to the decisions of state court judges. Prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way,” Kozinski said. Santa Clara University law professor Gerald Uelmen said the judges’ questions and tone showed they had lost patience with California courts. State judges are supposed to refer errant lawyers, including prosecutors, to the state bar for discipline, but they rarely do, Uelmen said.
“It is a cumulative type thing,” Uelmen said. “The 9th Circuit keeps seeing this misconduct over and over again. This is one way they can really call attention to it.” A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over 11 years. Only six of the prosecutors were disciplined, and the courts upheld 80% of the convictions in spite of the improprieties, the study found. The case that sparked the court’s recent outrage involved the killing of John Adair and his live-in partner, John Mix, two decades ago. Baca, a friend of Adair’s adopted son, was working as a houseboy for the couple. A jailhouse informant testified that Baca had confided the son planned the killing. The two were going to split Adair’s inheritance, the informant said. Other witnesses testified that Adair was planning to disinherit his son, who was never charged in the case.
Baca was tried twice and found guilty both times. A state appeals court overturned the first verdict. The second withstood an appeal, even though the state court found the informant and a Riverside County prosecutor had given false testimony. The informant falsely testified he had asked for and received no favors. The prosecutor falsely corroborated that on the stand, according to court records. Baca was sentenced to 70 years to life. Patrick J. Hennessey Jr., who has represented Baca on appeal for nearly two decades, said he had never seen such an “egregious” case of prosecutorial misconduct.
“That is what bothered me,” Hennessey said. “There was never a fair discussion of how serious the issue was.” A U.S. magistrate who next examined the case said Baca might not have been convicted of first-degree murder but for the false testimony. He said the federal court nevertheless was supposed to defer to the state courts. “Sadly, this informant’s lies were bolstered by a Deputy District Attorney, who also lied,” wrote Magistrate Judge Patrick J. Walsh. “What is obvious … is that the Riverside County District Attorney’s Office turned a blind eye to fundamental principles of justice to obtain a conviction.” Armed with the magistrate’s report, the three judges on the 9th Circuit panel appeared incredulous about the facts of the case.
Wardlaw, a Clinton appointee, complained that California’s courts were “condoning” prosecutorial misconduct by upholding verdicts, a rare public criticism of her fellow judges. She suggested that state judges, who must be approved by voters, fear inciting the public’s wrath. Federal judges are appointed for life. “I understand why they do that,” Wardlaw said. “They are elected judges. They are not going to be reversing these things.” Fletcher, another Clinton appointee, observed that the state’s attorney general had fought “tooth and nail” more than a decade ago to prevent a court from seeing a transcript that revealed the false evidence. “It would look terrible in an opinion when we write it up and name names,” Kozinski, a Reagan appointee, told the government lawyer. “Would your name be on?”
Vienna said he was not involved in the case at the time, but named others in the office. Kozinski demanded to know why the informant and the testifying prosecutor were not charged with perjury. He suggested the state bar should pull the law license of the prosecutor who presented the evidence. Retired Deputy Dist. Atty. Paul Vinegrad, who prosecuted Baca in both trials, said in an interview that he did not suspect deceit. He said he has since learned that his colleague who falsely testified — former Deputy Dist. Atty. Robert Spira — had memory problems and may have been confused. Spira, who no longer practices law, could not be reached for comment. Vinegrad also said he believed in the murder-for-hire case he presented, but that there was not enough evidence to charge the son. The informant’s testimony against the son would not have been admissible under legal rules at the time, Vinegrad said. Kozinski, who in the past has spoken out about an “epidemic” of prosecutorial misconduct, asked Vienna whether Harris was aware of the case. Vienna indicated she probably was not. Kozinski told him to get her attention within 48 hours. Harris would need to take action if her office wanted to avoid an embarrassing ruling, Kozinski said.
“Make sure she understands the gravity of the situation,” Kozinski said, adding that the case “speaks very poorly for the attorney general’s office.” Harris, a candidate for U.S. Senate, changed course. Her office decided last week not to oppose Baca’s challenge. Mike Hestrin, Riverside County’s newly elected district attorney, did not concede that the prosecutors’ “misconduct” was intentional, but said his office would investigate the prosecutors’ actions and retry Baca. It will be Baca’s third trial.
January 31, 2015