A three-judge panel of the U.S. Ninth Circuit Court of Appeal threatened to toss a murder conviction and name names involved in prosecutorial misconduct unless the state Attorney General’s office reconsidered its pressing of the case.

That seemed like a good idea to Attorney General Kamala Harris. “After oral argument, this matter was discussed with the Attorney General and the new Riverside County District Attorney,” the state explained in a pleading (pdf) to the court late last week. “In the interest of justice, the People have concluded that the conviction should be set aside.”

The extraordinary January 8 hearing of Baca v. Adams, at which Judge Alex Kozinski ripped into state Deputy Attorney General Kevin R. Vienna, was videotaped and posted to YouTube. The court was being asked to uphold the 1995 murder conviction of Johnny Baca, accused of being hired by a friend to kill his father and live-in partner for insurance money.

Baca was convicted almost entirely on evidence given by a veteran jailhouse snitch who denied on the stand he had been cut a deal for his testimony. He lied about that and the state appellate court said the prosecutor did too. State attorneys argued that the misinformation wasn’t a big deal.

Judge Kozinski disagreed and let Vienna speak for about a minute before interjecting a note of skepticism:

“It’s a little disconcerting when the state puts on evidence, the evidence turns out to be fabricated, nothing happens to the lawyer and nothing happens to the witness. I have to doubt the sincerity of the state when it says this was a big mistake.”

After Vienna told the court that the state did not condone lying in the courtroom but that the prosecutor was not disciplined for his indiscretion, Kozinski said: 

“You would think that after they find out about it . . . they would be up in arms, they would have done something about it to show that this is an aberration. But the total silence on this suggests that this is the way it is done. They got caught this time, but they’re going to keep doing it.”

Vienna argued the legality of convicting someone of murder even though key testimony was tainted. But the judges weren’t buying any of it. They wanted to talk about why state prosecutors, judges, the State Bar and the Attorney General’s office do nothing to curb rampant prosecutorial misconduct like this, which should get cases tossed.

They also wanted to know why the Attorney General’s office had argued to keep sentencing transcripts and other court documents from the state Court of Appeal that made evident the misconduct in Baca. The issue of misconduct is one near and dear to  Judge Kozinski’s heart.

In a 2013 dissent of another case, he wrote, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” Brady is shorthand for a U.S. Supreme Court decision that made it clear that prosecutorial misbehavior is grounds for a case’s dismissal.  

In a 2010 report, the Northern California Innocence Project found 707 cases between 1997 and 2009 in which a state court found prosecutorial misconduct, but only six instances where a prosecutor was punished. Around 80% of the cases were upheld despite the misbehavior.

Judge Kozinski recommended that Vienna tell his bosses that his court was prepared to write an opinion that would identify all the parties who knew of the Baca misconduct. Then he asked Vienna if he would be one of the names named. Vienna said he wasn’t involved.

“Is this the kind of thing you really want to press here,” Kozinski asked the lawyer. The judge gave him a week to talk to Harris, a newly-announced candidate for U.S. Senator Barbara Boxer’s seat in 2016, and “see whether they really want to stick by a conviction that was obtained by lying prosecutors.”

Upon review, Harris did not.

–Ken Broder

To Learn More:

Ninth Circuit Orders Release of Man Due to Prosecutorial Misconduct (by David Lat, Above the Law)

Ninth Circuit Panel Suggests Perjury Prosecution for Lying Prosecutors (by Sidney Powell, New York Observer)

U.S. Judges See “Epidemic” of Prosecutorial Misconduct in State (by Maura Dolan, Los Angeles Times)

Prosecutorial Misconduct (California Innocence Project)