Thursday, January 22, 2015

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.  


  1. Do you know what happened? That was the 8th, so by now we ought to know if the AG is going to fold or call, right?

  2. On the 15th, the state asked for another two weeks to work it out. The request was granted.

  3. A lot more attorneys ought to be disciplined than are, and we don't disbar nearly enough of ourselves pour encourager les autres. Better self-policing would probably leave almost all of us with a rapped knuckle for some minor thing or another.

  4. I sort of feel sorry for the Deputy AG. Standing there and taking that from the court just had to suck.

    But I don't feel TOO sorry, mind you. Just enough to reduce my laughter from maniacal to merely howling and gasping for breath.

  5. Well, Jeff, we discussed this some time ago.

    Here's the thing. The Mooney line of cases - Mooney v. Holohan, Pyle v. Kansas and Napue v. Illinois - deal with deliberate prosecutor lying and cheating to get a conviction, and they held that this violates a defendant's right to due process of law. There was discussion in Napue about 'materiality' but this was because Napue dealt only with impeachment evidence, exactly the same kind of evidence at issue in Baca here.

    And the way to look at this is that the 'materiality' issue doesn't arise in the "deliberate" Mooney context; if it isn't material, why are you deliberately lying about it? Judicial estoppel, doncha know.

    Some subsequent Supreme Court case whose name I can't recall at the moment got mixed up about Napue being only about impeachment evidence, though. Not important right now.

    Materiality got to be a big issue after Brady, though, because Brady extended to conduct that wasn't necessarily deliberate. Then this gets a little more confused after US v. Agurs, and before you know it prosecutors are deliberately lying and cheating to get convictions and then if they are caught arguing that none of it was material.

    So the Brady that was intended to "extend" Mooney winds up limiting Mooney instead, at least in the minds of a lot of prosecutors and attorneys general. But that has never been the law, and god willing never will be. But they have almost gotten away with it, and might yet.

    See, the problem Brady was really addressing was that you're almost never going to be able to prove that the prosecutors "deliberately" lied and cheated. In that very different time (1963) notions of fair play and giving criminal defendants a fighting chance still held some sway. Maybe they will again some day, but the atmosphere has been really different since the late 1970's.

    In any case, however this one turns out it bothers me that there's all this talk about the 'materiality' standard for a Napue violation, particularly in a case where the prosecutors went to all the trouble of personally committing perjury on the matter at issue. How can you do that and then claim it wasn't material? How is it that courts don't get that?

    Also of interest is unloading on the Attorney General. I hope that gets to be a pattern. They all behave like it's their job to defend every conviction. That's not true, and they have no business defending that one. The state has no legitimate interest of any kind in a conviction obtained with perjury. Just the opposite, really.

  6. Two more things bother me, worth mentioning.

    The AG argument is coordinated at their many confabs and at the highest levels. It goes like this, once a conviction deliberately obtained with perjury gets found out: "gee, we agree, this is really "troubling", but we just don't see any basis to throw out the conviction because it wasn't material." They argue this every time they are found out.

    It's crocodile tears entirely. That's what Kozinski is getting at: we'd take that argument more seriously if you actually did something about it. Go do something about it and maybe we'll listen.

    But the court's approach here is also a problem. They are punting back to the AG so that they don't have to rule in favor of the disfavored litigant and against the government. Did you get that comment from the lady judge about how state judges really can't overturn convictions because, you know, they are elected? Sheesh.

    The thinking seems to be that "we" have to fix this, and "we" means the judiciary if absolutely necessary, but mainly it means the state's attorneys. But Baca's lawyer already fixed it, all they have to do is rule as the law demands.

    It's as if the defense lawyer doesn't really exist, or at the very least is not part of "we".

    That's a big problem, too.