When They're Hit Over the Head with a Sledgehammer

So Johnny Baca gets a new trial.  

And the Riverside County District Attorney gets yet another chance, a third, to try and prove that Baca killed a couple of people.  

This time, perhaps, the prosecutors won't knowingly suborn perjury.  Which they did last time.

This time, perhaps, a prosecutor won't himself commit perjury.  Which happened last time.

This time, perhaps they'll do it right.  Which hasn't happened before.  And, of course, might not happen this time, either.  Becvause they really want to convict Johnny Baca.  And you gotta think that if the evidence was really good, they might have just relied on it.

So maybe the evidence sucks.  And maybe this time, maybe, it'll turn out that Johnny Baca is acquitted.  Except really, why would we imagine they'd do any better, do it right, this third time?

* * * * *

If you haven't been following along, this is an update to a post from 10 days ago.  Then the subject was how Judges Alex Kozinski, Kim Wardlow, and William Fletcher tore into Deputy California Attorney General Kevin Vienna for trying to defend Baca's conviction after the prosecutors suborned perjury and committed perjury to obtain it.

Don't make us write an opinion calling out the crooks by name, they said.  Take a week and work this out, they said.  Get back to us, they said.  If you need more time, just let us know.

And by the way, those guys should be up on criminal charges.  And have their law licenses yanked.

At the end of the week, Vienna let them know.  He needed more time.  Two more weeks, please. And the court said, sure.  

And so, on January 29, exactly two weeks later,

  Baca v. California

To which the panel said "sure."  And granted a conditional writ ordering Baca's release if he doesn't get a new trial.  Which, according to Maura Dolan in the LA Times, they'll do.

Of course, they don't concede they did anything wrong.  Oh sure, Deputy DA Paul Vinegard put a snitch on the stand who lied.  He said, as snitches often do, that he was just a public spirited criminal who sought no favors and received none for coming to court and testifying against Baca.  Which was a lie.  And sure, Vinegard then put his fellow Deputy DA, Robert Spira, on the stand who lied.  Spira said that the snitch told the truth.

But hey, these things happen.  Vinegard told Dolan that he believed the lies, so he did nothing wrong. And Spira, Vinegard said, certainly didn't lie.  He just testified to things that he knew weren't true. No flies on us.  Which is basically what the new DA in Riverside County said.

Mike Hestrin, Riverside County's newly elected district attorney, did not concede that the prosecutors' "misconduct" was intentional.

Accidental lies by everyone, you know.  Like when they meant to say that the snitch's testimony was bought and paid for, and that he'd just perjured himself and would be promptly prosecuted and ladies and gentlemen of the jury don't believe that.  But by an honest mistake they said

The snitch's word is gospel.

Just an oopsie.

Though Hestrin did say that his office would investigate the prosecutors' actions.  Though he didn't say that the investigation would actually lead to anything other than a medal for fine work.

Oh, and he promised to retry Baca.

Sigh.

Anyhow, they get to try again.  Not Vinegard.  He's retired.  Not Spira.  He's retired.  (The damn case has been going on for 20 years now.)

The California Way: Perjury with Impunity

I've talked before about how the courts mostly just blow it off when the prosecutor commits misconduct.  Maybe he says improper things during closing argument.  Maybe he asks questions he knows he can't ask hoping to get away with it.  Maybe she hides exculpatory evidence or denies that the snitch got a deal when of course he did.

The courts may acknowledge the error.  They admonish the prosecutor to go forth and sin no more. But by god, the sumbitch they were after was guilty, so fuck it.  No remedy.

Which was how it came to pass (and I've told this story before) that I was sitting in the Ohio Supreme Court one day, waiting for my case to be called for oral argument, when I heard Cathy Cook explaining to the court that they'd admonished the prosecutor in her case repeatedly, told him that sometime there'd be a consequence if he kept up the misconduct.  Which he did.  And Cathy said,

You've got to make them lose to make them learn.

Which the court didn't do. 

It was a great line.  (I wrote it down as soon as I heard it.)  I keep quoting it because it's . . . . Well, the thing is, it isn't really right.  Making them lose isn't enough.

One time there was an illegal search of a car.  Cops turned up a whole lot of drugs.  The trial court let it in, the client entered a plea.  I took up the appeal and convinced the court of appeals that the drugs should have been suppressed.  Good job.  The client walked.  The Fourth Amendment got a brief reprieve.

A friend called to congratulate me.  But "Hey," she asked, "did they give him back the drugs?" She was joking.  But she had a point.

What was the consequence?  Some guy who was driving a shitload of drugs on I-75 from wherever to wherever, a mule who was just trying to pick up a few bucks, didn't have to spend the next couple of decades in state custody.  But the drugs were off the street (which the authorities seem to believe is important) and the cop got to go out again and roust someone else.

Made 'em lose?  Yeah.  Made 'em learn?  Not so much.

Which brings me to California, La La Land, home of dreams.  And the home base of the nation's largest federal appellate court, the 9th Circuit.  The story, though, starts in the state court where Johnny Baca was on trial for murder.  Sidney Powell, writing in the New York Observer, tells the story.

This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue [v. Illinois], which holds that prosecutors cannot put on perjured testimony, much less lie themselves.
. . .
In this case, the prosecution infected the case with false testimony–including by a prosecutor himself–over benefits given to a “cooperator” or a jailhouse “snitch.”
. . .
In Mr. Baca’s case, Deputy District Attorney Robert Spira first prosecuted Mr. Melendez. Melendez went to prison and became a “snitch.” Then prosecutors turned to prosecute Mr. Baca.
Prosecutor Spira took the stand at the trial of the next defendant, Mr. Baca, to discuss Mr. Melendez’s plea deal. Prosecutor Spira testified that Mr. Melendez did not get any consideration in exchange for testifying against Baca. The California Court of Appeal found this to be untrue. Deputy District Attorney Paul Vinegrad was the prosecuting attorney in Mr. Baca’s case who put on Mr. Melendez and his fellow prosecutor Mr. Spira as witnesses against Mr. Baca.
A magistrate and the California Court of Appeal found that California deputy district attorney Spira lied under oath, testifying against a criminal defendant and in support of a lying “jailhouse snitch” who was placed on the witness stand in apparent subornation of perjury. Making matters worse, the California Attorney General fought “tooth and nail” to keep the transcript of the relevant hearing from the California Court of Appeal.

The case made its way to federal district court where the judge agreed that the prosecutor had suborned perjury and that another prosecutor actually took the stand and perjured himself.  That's clearly improper, but it got Baca no relief.  

Because, you know, what difference would it have made?  By god, the sumbitch they were after was guilty, so fuck it.

Gotta make 'em lose to make 'em learn.

Or maybe, just maybe make it personal.  

Baca lost in the district court and took his case to the court of appeals.  Two weeks ago, they had oral argument.  Baca's lawyer, Patrick Hennessey, Jr., made his pitch.  Then Supervising Deputy Attorney General Kevin Vienna got up.

Three judges sit on the panel.  Kim Wardlaw, William Fletcher, and Alex Kozinski (presiding). None of them are happy.  For 20 minutes or so they tear into Vienna. 

• Was the prosecutor who perjured himself prosecuted?
• Was the prosecutor disciplined?
• Was the prosecutor investigated?
• What about the prosecutor who suborned perjury?
• Is this business as usual for California prosecutors?  Does the lying bother them?  Does it bother the attorney general?  No investigation there, either, huh?
• Do any of you give a rat's ass about this?
• And your office fought tooth and nail to keep evidence that you lied away from the California court of appeals.  Why?
• And what the fuck is wrong with you, and your office, and the state's prosecutors?

Well, he says, after this case is over I'm going to suggest that someone should maybe look into it.

Kozinski cuts to the chase.  Why have you waited?  Go, 48 hours.

Oh, and we'll hold off on submitting this case for 1 week (he's since gotten leave to take 2 more weeks) while your office and Baca's lawyer work out something that'll make Baca's lawyer happy. Or we're gonna name names.

And really, you should get going on yanking their licenses.  And prosecuting them for perjury.

Because making 'em lose is part of it.  But making 'em know that they, personally, are being held responsible, they they, personally, will suffer consequences.  

Had Baca's lawyers done what the prosecutor did, they'd have been charged with felonies in a hearbeat.  And their licenses would have been yanked just as fast.  But, of course, the prosecutors represent goodness and light.

But this one time.  

Watch the video.  The intro is what it is.  The fireworks start when Vienna gets up, at minute 16. They don't let up until the very end.