Feb 022015

Recently, the defense attorney community has been buzzing about an almost stunning oral argument which occurred in the 9th Circuit Court of Appeals earlier this month. The oral argument was in a case called Baca v. Adams, which started as a murder prosecution in Riverside County, California. The oral argument is extraordinary, and I’m sure will be much discussed and written about. However, there is a brief moment— which for now looks like it’s just a sidelight to the main focus on the hearing—that caught my ear, and I think it bears further mention.

For background: Mr. Baca was accused of murder. The case against him was based in part on the testimony of a “jailhouse informant”—better known as a jailhouse snitch—about a murder-for-hire plot. (The use of such informants has come under increasing scrutiny lately, but that’s a post for another day.) Here, the issue was that the jailhouse informant, a Mr. Melendez, had been prosecuted by a Deputy District Attorney Robert Spira. DDA Spira cut a deal with Melendez in exchange for Melendez testifying against Baca. Melendez got a lighter sentence only if he took the stand and said that Baca had made incriminating statements to him while they were locked up together in the jail. So far, so normal; all of this would be standard operating procedure.

But then, during the trial of Mr. Baca, DDA Spira was called to the stand as a witness by his fellow prosecutor, Deputy District Attorney Paul Vinegrad. DDA Spira told the jurors in Mr. Baca’s case, under oath, that Mr. Melendez had not received any benefit in exchange for agreeing to testify against Mr. Baca. This is important because it obviously bolstered the credibility of Melendez, the jailhouse snitch, and gave the jurors the idea that Melendez had no motive to make up a lie about Baca. That simply wasn’t true.

The California appellate court strongly indicated, in an extraordinary turn of events, that DDA Spira had flat-out lied under oath. It also clearly believed that DDA Vinegrad, who had called DDA Spira as a witness, knew that DDA Spira was lying under oath, which is perhaps just as bad. That’s two instances of serious prosecutorial misconduct in one case. Nevertheless, while the California courts ultimately overturned Baca’s conviction, they explicitly said that they did not need to overturn the conviction on account of the lying prosecutors. They overturned on other grounds, but said that the extreme prosecutorial misconduct—amounting to flat-out perjury—wasn’t a reason to overturn the conviction, because it didn’t ‘prejudice’ Mr. Baca.

This led to an interesting aside during the oral arguments at the 9th Circuit. In a moment just before the really explosive part of the hearing, at about the 28:15 mark, Judge Wardlaw offers an almost off-hand comment which cut straight to the heart of an extremely important feature of the justice system here in California (and many other states). I’ve transcribed it here myself, and italicized the part that caught my attention:

ATTORNEY GENERAL:     “With regard to condone… it seems quite clear, at least in this case, that the courts did not condone–“

JUDGE WARDLAW:          “Right, but if you uphold– No. That’s not clear, because, they out and out say that this guy, the prosecutor, lied on the stand, and his lies bolstered the credibility of a jailhouse snitch, but… it didn’t prejudice the trial. So that’s condoning it, because that’s saying we’re, you know, we’re gonna… and I understand why they do that, I mean, they’re elected judges, they’re not going to be reversing these things, so But it condones it, by not reversing the conviction on that basis and making the state do it right, without the lies.”

ATTORNEY GENERAL:     [Long pause.] The , uh… [long pause] the question of whether Mr. Baca is entitled to relief or not is separate from the question of whether the prosecutor engaged in misconduct–

JUDGE WARDLAW:          –Of course it is, analytically. But in terms of the practical consequences of the decision to go that route…

(You can watch the whole argument here.) In an almost off-hand comment, Judge Wardlaw said what a great many people believe to be true. It’s not the sentiment that I find surprising, but the fact that it was said aloud in such an important forum. Especially in criminal cases, the fact that state court judges have to stand for re-election affects how they decide cases. There is political pressure to avoid overturning criminal convictions, and to avoid exerting too much pressure on prosecutors or law enforcement. Prosecutors and law enforcement have effective lobbying groups, make good fundraisers, and their endorsements matter; even the most well-educated voters generally have very little information about candidates for judicial office, so an endorsement from law enforcement carries even more weight. Convicted criminals have no such power.

And here in California, there is precedent for ousting judges who are “soft on crime,” a precedent that casts a huge shadow even today. Back in 1986, California Supreme Court Chief Justice Rose Bird and two of her colleagues were voted off the highest court in the state, based in large part on a campaign by “tough on crime” advocates. (Here’s a link to the late Justice Bird’s New York Times obituary, which discusses the election.) The ouster of Justices Rose Bird, Cruz Reynoso, and Joseph Grodin was a complicated political issue, to be sure. Nevertheless, few doubt that it cast a long shadow over the independence of the California judicial system. Even if the general public has forgotten, attorneys and judges throughout the state know the story and even continue to use it as a sort of short-hand for the problem of having a politically vulnerable judiciary.

By contrast, federal judges are appointed for life (although they are subject to potential impeachment). This gives them political independence. Federal judges have the freedom to make decisions without worrying about a sudden, unexpected campaign to oust them by the various politically powerful groups their decisions impact, including, of course, politically powerful law enforcement groups.

Judge Wardlaw, in her almost off-hand comment about why the California court would choose not to reverse this conviction based on egregious prosecutorial misconduct, said aloud what many in the criminal justice community believe to be true. California appellate judges are reluctant to overturn serious criminal convictions, even in extreme cases of prosecutorial misconduct, because they are worried about the political ramifications. This leaves prosecutorial agencies like the Riverside County District Attorney, and the Office of the State Attorney General, with little disincentive against lying, cheating, and covering-up their way to getting a serious criminal conviction. In fact, as Judge Wardlaw said, it can even create the appearance that the California courts condone such behavior.

 Posted by at 4:05 pm

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