Not In My Court, They Don’t (Update x3)

The video of oral argument before the 9th Circuit in Baca v. Adams is making the rounds, and it is certainly worth watching for anyone interested in lying prosecutors and what happens to them.  Sidney Powell provides the story at the New York Observer.

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.”

The entire program of “cooperation” is rife with problems. Prosecutors often put extraordinary pressure on the worst criminals, threatening not only them but their families. After completely terrifying the person who knows he will go to prison no matter what (because he really is guilty), the prosecutor then offers life-saving benefits, often secretly, in exchange for testimony against many less culpable “targets” of the government’s investigation.

Deputy District Attorney Robert Spira, who purportedly has given up the practice of law on his own to pursue a career as a pole dancer, wanted his conviction and, because he’s on the side of truth and justice, wasn’t too concerned about suborning perjury to get it.

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.

After all, if prosecutors start to worry about truth and ethics, the whole system of convictions could collapse. Imagine what a disaster that would be.  So watch the video to see how the circuit addresses it.

In the meantime, Judge Richard Kopf condemns the prosecutorial lying:

I am blessed to serve in a federal court with federal prosecutors who are by and large both smart and honest. Sure, there are some dolts, but at least they are honest idiots.

It is shocking proof that some state prosecutors are liars and some state prosecutors knowingly present liars as witnesses. To them, winning is everything.

Damn those state court prosecutorial scum.  Thank the lord that nothing like that could ever happen in federal court, right Ted Stevens?  Well, at least it could never happen in a Nebraska federal courtroom, because there may be some dolts, “but at least they are honest idiots.”


It’s no longer deniable that it happens, but that doesn’t change the deniability of it ever happening right in front of our faces but we didn’t catch it. Or we didn’t want to catch it. Or we like those guys, so we just can’t bring ourselves to believe that they could do something so wrong.  After all, people we like never do anything wrong.

Better to be an honest idiot than lying prosecutorial scum.

Update: An email from Brian Tannebaum raised a really good question (I know, but it can happen, blind squirrel and all): More than a week has passed since argument, and Judge Kozinski gave the AG a week, but there is no information available about what, if anything, happened within that week.

And so . . .

Via Will Baude, the state, by Supervising Deputy Attorney General Kevin Vienna, sought more time for “adequate deliberation” as it was “undergoing careful consideration,” as opposed to that really crappy consideration they go through before deciding whether to lie and suborn perjury. The Court granted the additional two weeks with the foreful final note that they state should “update” the court by January 29th of the “status of discussions.”  Oh boy. They are really, really gonna name names if they don’t get updated.

Update 2: In a pseudonymous comment to Judge Kopf’s post, a person who says he’s been through the entire record on PACER and offers an argument that prosecutor neither committed nor suborned perjury, but that Judge Kozinski is on “a crusade,” and apparently the other two judges are incapable of disagreeing with him, all of whom are apparently inclined to assumed prosecutorial perjury when it was just an honest mistake.

Because you know how common it is to get a circuit judge on a crusade and a couple of others who are just along with the ride.  If this was about the single instance of prosecutorial misconduct ever in the history of the world, this would be a more significant claim. But what makes this special is the video of oral argument, not the occurrence of impropriety.

That said, it appears that few of Judge Kopf’s readers have experienced such “perfidy.” Go figure. As a curious aside, I’ve had a grand total of 7 clickthroughs from Judge Kopf today. I suspect they may not care for my perspective nearly as much as his.

Update 3: Apparently, California caved and the Court quietly entered this order:

Respondent’s unopposed motion to summarily reverse the district court’s judgment is hereby GRANTED.

The judgment below is REVERSED. The district court is directed to enter an order granting a conditional writ of habeas corpus, releasing Baca from custody unless the state of California retries him within a reasonable period of time.

REVERSED and REMANDED. The mandate shall issue forthwith.

Not a word, nor a name, mentioning a prosecutor engaged in impropriety. Baca walks (or gets retried) and it never happened. Poof.

31 thoughts on “Not In My Court, They Don’t (Update x3)

  1. spencer neal

    Wow! I just watched the video. Kozinski has shown in the past that he is willing to hold the government’s feet to the fire although I have never seen such a strong reaction from him like this case before.

    1. SHG Post author

      “…when we write it up and name names. Will your name be on there? Are you one of the people who tried to keep it out?”

      “…and whether having that documented in fed third is really going to further the interests of justice in California?”

      A strong reaction. Then again, I know a few hundred thousand defendants who would much rather suffer their “perfidy” being documented in fed third than the time imposed.

    2. ShelbyC

      In US v Maloney he was able to shame the USA for San Diego into dismissing an appeal. But that doesn’t appear to be the case here, though.

  2. John Burgess

    Yow! Were I that attorney, I’d be contemplating suicide. I’d think, too, that the Riverside AG’s office needs to fire everybody in order to start over again. They would appear to have no credence in any future trials.

    BTW, the link for the video only goes to a still screen capture.

    1. SHG Post author

      Corrected the link and added the video at the bottom, just to make things easier. As for the beating he took, well, in the scheme of crimes, how badly does a tongue lashing hurt? See my reply to Spencer.

      1. MikeMike

        Unfortunately, Riverside Co. is a bought and paid for kind of a place. I had a client a number of years ago that which was holding its own with a major developer over which if them was going to be able to develop the one (1) regional shopping center that was going to be permitted in a given municipality. My client more or less controlled the city counsel, the other guy had the county board. That is before he bankrolled the election of a new DA whose first order of business was going after the competitor to find something, which of course he did . . .

        To think the DA’s office will reform short of anything but a series of convictions following indictments from AG Kamala Harris – so far the only elected office holder to through her name in the ring to succeed Barbara Boxer – is fantastic. But where Harris is unlikely to pick up more than a smattering of votes in Riverside Co., could go for it easily enough, but for the fact that if her office takes Kozinski’s proffered deal, all that happens is that Baca gets a new trial and we can all go back to sleep again: which may explain why the CA legal papers hadn’t picked up on the story as of 1/28.

        Two other side notes of interest from the video: (1) Judge Wardlaw acknowledges that everyone knows how it was that the Cal Ct. of App. understood this was a perjury festival but did nothing (’cause they’re elected) and (2) – and most perplexing – Baca was convicted in taking part in a murder for hire scheme orchestrated by the son of one of the victims, but Sonny Boy was permitted to collect his half million in life insurance and was never prosecuted. [Presumably because everyone knew that the snitch had wrongly implicated a fair haired boy.] Or as the man said, “Forget it, Jake; it’s Chinatown.”

  3. Not Jim Ardis

    “More than a week has passed since argument, and Judge Kozinski gave the AG a week, but there is no information available about what, if anything, happened within that week.”

    To paraphrase a famous line, ‘the 9th Circuit has made its ruling. Now let it enforce it.’

  4. David Woycechowsky

    That is my Con Law professor at far right. Watching him blush at 14:25, and then launch in a verbal challenge from 14:30 to 15:50 brought back great law school memories.

  5. John Barleycorn

    It’s a shame that no one has ever come out with an action figure lineup of judges and lawyers called The Napue Uprising.

    I should probably get to work on that before the supremes sanction “genuine confusion” as an acceptable form of prosecutorial “lying” and the sixtieth anniversary.

    P.S. Fubar, what rhymes with Napue?

  6. Anne Krone

    In my line of work, when a resident displays “genuine confusion” over a task or event with which he should be intimately familiar, we recommend the resident be evaluated for Alzheimer’s.

  7. ExCop-LawStudent

    I’m sorry, but the California Appellate court is very clear on what it thought of the prosecutor’s testimony.

    “Unfortunately, the testimony from the second trial bears only a superficial resemblance to reality.” People v. Baca, 2004 Cal. App. Unpub. LEXIS 11056, 18, 2004 WL 2750083 (Cal. App. 4th Dist. Dec. 2, 2004).

    “By conflating these two entirely separate events, Spira managed to conceal the only facts that were favorable to the defense at the second trial: that the trial court unilaterally reduced the informant’s plea bargain as a reward for testifying against defendant, after assurances from the prosecution that it would not seek review to enforce the terms of the plea bargain. Furthermore, the claim that the informant never requested leniency for testifying against defendant is sheer fantasy for the simple reason that he actually got just that, which never would have happened if he had not actively pursued it.” Id., at 19. (Note: the two separate events were 4 years apart, and the court commented on that also).

    “The People also note that the testimony can be parsed in such a way as to make it true, or at least not clearly false . . . This sort of hypertechnical parsing does not dispel the highly misleading nature of the testimony, which sent a single, unwavering, blatantly false message to the jury. . . .” Id., at 21-22.

    “And, regardless, there is no way to parse DDA Spira’s mischaracterization of the February 1998 hearing, which was decidedly not a mere sentence modification prompted by the CDC to correct a credit calculation error.” Id., at 22-23.

    Did the appellate court use the word “perjury?” No. Is it clear that they think Spira perjured himself? I think it is crystal clear. Will it matter? No, the statute of limitations for felony misconduct by a public official in California is 4 years. The original trial was in 1998 and the second one was in 2002. I don’t think that they’ll be able to get past the fact that limitations appear to have run on criminal prosecution.

    Not that it will make much difference, but I’m going to cross-post this to Judge Kopf’s blog.

    1. SHG Post author

      I took a look at the comments to Judge Kopf’s post, including the one he added back into his post. Notice anything familiar? Defenders of prosecutors have employed the same wealth of logical fallacies, deflection, vilification of Judge Kozinski (the other judges agreement with Judge K remaining inexplicable), vilifying defense lawyers (they’re even more evil), various variations of appeals to emotion, authority, tradition, fear. Yet, none deal with the point of what happened, or the point that there were no consequences.

      Courts are conclusive when they condemn a defendant as a criminal. Courts are meaningless when they condemn a prosecutor for misconduct, despite it being incredibly rare and contrary to every impulse of the system which is to protect the prosecutor from his misconduct.

      And even so, it’s only this one prosecutor, as if this never happened before. The effort at denial is both sad and amusing. Kinda reminds me of the recent NYPD cop shills defending their heroism as an imperfect excuse for the occasional accidental murder.

  8. AH

    While it was entertaining to see counsel get his butt handed to him, am I right that the Court of Appeal found that the prosecutor was a liar (even if not using the word perjury), then shrugged and said yeah, the witnesses (agents of the government who should be held to a higher standard) are totally liars, but it didn’t prejudice this defendant at all, so we have no problem upholding his conviction?! That’s about as depressing as it gets.

    1. spencer neal

      That’s not how I understood the judges’ comments. However, the judges seemed to want to be sure to avoid that result by strong arming the state into settling with the defendant.

      1. SHG Post author

        We’ve seen an instance or two where judges do some very tough talking about prosecutorial misconduct, but ultimately do nothing more. Whether this is going down the same path isn’t known yet, but the fact that the panel thought settlement as the best means of overcoming what happened here doesn’t bode well. Then they gave them two extra weeks to think really, really hard. Maybe next they’ll give them two extra years to think really, really, really hard.

        We’ll find out eventually.

        1. San

          From what i read, the misconduct by itself wasn’t reversible error. Partly since the key information was disclosed at the second trial but more by the defendant’s lawyer waiving the issues. They allow the IAC claim to be considered. Unfortunately, IAC claims seem to use a fog a mirror threshold for attorney competency made worse by having to prove a negative.

          1. SHG Post author

            Two separate issue exist here: One relates to the underlying case. The other to prosecutorial misconduct, which exists both in the context of the case and independently. Regardless of the outcome/settlement of the action, there remains a free-floating issue of prosecutorial misconduct that requires redress, and if the judges believe what they are saying, then they should act upon it regardless of the outcome of the case.

        2. Kathleen Casey

          That’s what I was thinking. I would rather have their opinion. In the F3d as was mentioned.

        3. Stryker

          Settlement would avoid any appeal of the 9th’s decision. I know Supreme Court review is usually very rare, but don’t they have a history of reversing the 9th on habeas cases? In watching argument, I thought Kozinsky might have wanted to avoid any possibility of a reversal.

          1. MikeMike

            Unless I misheard the oral argument, while there’s unrelated testimony that could go to Baca’s motive, only the informant’s testimony ties him to the crime.

            So whether or not Judge Fletcher is right about the Cal. Court of Appeal having implicitly applied an incorrect standard of review for the Napue error, on account of which it’s decision can be collaterally attacked separate and apart from the matter of prejudice, does anyone honestly believe that on these facts (which would have to be summarized in any discussion of prejudice) the Supreme Court would be willing to issue a “per curium grant and reverse”? Especially if the opinion was written by Alex Kozinski, one of only two Reagan appointees who still hold active status on the 9th Cir.?

            Or is John Barleycorn correct that it’s only a matter of time “before the supremes sanction ‘genuine confusion’ as an acceptable form of prosecutorial ‘lying’ . . .”? (God help us.)

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  11. MikeMike

    The Epilogue: Having made on offer to the State of California in Baca v. Adams (No. 13-56132) that it was in no position to refuse, Judges Kozinski, Wardlaw and Fletcher filed a published order on Friday, January 30th, granting the state’s unopposed motion to reverse judgment of the district court and grant a conditional writ, ordering the state to either release Baca or retry him in a reasonable time. [Ed. Note: Link deleted per rules.]

    But significant questions are left in the aftermath. Here are two:

    (1) Why did the panel chose to publish an order that was (A) “plain vanilla” on its face, without so much as a citation of any kind, (B) in a case in which there were no prior published opinions – in any court – before it came up for oral argument on January 8, 2015 and (C) based at least on the (non) reaction of the mainstream media to the video of the oral argument, there was nothing to suggest that the underlying litigation was a matter of great public interest? [More links deleted.]

    (2) How was it that two successive iterations of the ABA’s “The Top Stories of the Week”, along with the entirety of the mainstream media – down to The Press Enterprise in Riverside CA, where the murders were committed and whose Deputy DA’s engaged in outrageous conduct – failed to pick up this story, even as the blogging-sphere couldn’t get enough of it? [Yet another link deleted.]

    1. SHG Post author

      Why in the world would you think the ABA Journal matters? It’s an irrelevancy, always at the trailing end of tepid rehash of legal news.

      As for the rest of the media, it takes lawyers to care about such things. Welcome to our world.

      1. MikeMike

        Points well taken on ABA Journal and the mainstream media. But the thought occurs — on other question about the publication of an order “simply” granting an unopposed motion to grant the conditional writ – that the court is tipping its hat to the OBSERVER, you and the other bloggers who ran with this, for your collective role in making the outcome of this particular case a matter of “substantial public importance.” Ninth Circuit Rule 36-2 (d). (Kudos.)

        1. SHG Post author

          While outsiders (and those who shun controversy), they buried the misconduct with this order, the rest of us know. It’s not enough by a long shot, but we do the best we can.

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