The Open File

By Alec
February 1, 2015

In the wake of an extraordinary oral argument in front of a 9th Circuit panel during which Judge Alex Kozinski suggested a prosecutor be tried for perjury and threatened to name state officials in an opinion that would “not be pretty,” the office of California Attorney General Kamala Harris has filed a motion dropping the state’s opposition to a habeas petition in a 1995 double-murder case.

Sidney Powell at the Observer picked up on the video of the argument in Baca v. Adams, a case “infected with false testimony–including by a prosecutor himself–over benefits given to a ‘cooperator’ or a jailhouse ‘snitch,’” and with good reason. In remarkably withering questioning of Supervising Deputy Attorney General Kevin Vienna, Judges Kozinski, Wardlaw, and Fletcher turned a routine appeal from a denial of a habeas petition into an excoriation of the behavior not only of two Riverside County prosecutors, but the State Attorney General’s failure to discipline or try them for apparently suborning perjury and lying in open court.

Responding to the Epidemic

This all comes against the backdrop of Judge Kozinski’s now widely commented on dissent back in late 2013, where he declared there was “an epidemic” of prosecutorial misconduct “abroad in the land,” and that, “Only judges can put a stop to it.” In the oral argument in Baca, he has now taken this effort one step further, suggesting a possible cure for the disease he has identified: prosecute the prosecutors who break the law, as we would any other citizen.

The government’s theory of the case in Baca was that the adopted son of a gay man in Riverside County (named in court papers only as “Tom”) conspired with his friend Johnny Baca to kill his adoptive father and his partner in a murder-for-hire scheme; “Tom” and Baca allegedly planned to share the proceeds of the former’s inheritance.

In a familiar pattern, one of the lead witnesses for the prosecution was a jailhouse informant who told the jury he had received no deal for leniency from the prosecutor in return for his testimony against Baca. In a more unusual circumstance, the prosecutor at Baca’s first trial, then Deputy District Attorney Robert Spira, took the stand at Baca’s second trial to verify and confirm that the witness had indeed received no deal.

In their decision on Baca’s appeal from his conviction in the second trial, a California appellate court wrote, “[Prosecutor Robert Spira’s] claim that the informant never requested leniency for testifying against defendant is sheer fantasy for the simple reason that he actually got just that…Unfortunately, the testimony from the second trial bears only a superficial resemblance to reality.” Though the opinion never used the word, the undeniable implication was that Spira had lied on the stand, and that his perjury had been suborned by the prosecutor at the second trial, Deputy District Attorney Paul Vinegrad.

Alas, in another familiar pattern, the same court concluded that despite the prosecutorial malfeasance no prejudice had resulted, and it affirmed Baca’s conviction. Thus, Baca filed his habeas petition in federal court, setting up the eventual oral argument.

An Opinion Would “Not be Pretty”

Among the issues that the panel, with Kozinski in the lead, hammered the State’s lawyer, Kevin Vienna, with are:

  • DDA Spira putting on the false testimony that the informant didn’t receive a deal during Baca’s first Riverside County trial.
  • Spira himself lying on the stand when confronted on this question in Baca’s second Riverside County trial.
  • DDA Vinegrad soliciting Spira’s false testimony
  • The California Attorney General’s Office vehement attempts to keep the transcript of the informant’s subsequent sentencing, which made the existence of the actual deal clear, secret and out of the hands of the State Court of Appeals
  • The California Attorney General’s Office complete failure to investigate, discipline, or bring charges against either Spira or Vinegrad for their conduct.

The fireworks begin at around eighteen minutes into the argument. At nineteen minutes, when the State’s lawyer tries to fend off the question of whether Spira knowingly lied on the stand, Judge Kozinski leans forward and asks, “Has he been prosecuted for perjury?” Not a question one hears everyday from a Federal Judge about a prosecutor.

In the series of colloquies that follow, Kozinski repeatedly demands to know if the California Attorney General has made any effort to investigate, reprimand, or bring criminal charges against Spira or Vinegrad. The frequently dumbfounded lawyer can only keep stammering, “Not to my knowledge.”

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