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.”
Judge Wardlaw asks, incredulously, how is it that “Tom”, the supposed instigator of the murder-for-hire scheme was himself never prosecuted? The most the lawyer can offer is that “Tom” did indeed inherit the money in question but “isn’t currently reachable.” Was “Tom” in fact a cooperating informant against Baca, who avoided his own culpability by testifying against him? Or was the entire murder-for-hire theory cooked up by the informant? Again, the lawyer for the State can offer no explanation.
Judge Fletcher, the third panelist, expresses deep skepticism about the Attorney General’s own culpability in the aftermath of the case by pointing out how vociferously the State resisted letting the Court of Appeals even see the sentencing transcript that revealed the prosecutors had lied.
But it is when the argument begins to reaches its conclusion that things get roughest for the State’s lawyer. At 30:11 Kozinski flatly tells the lawyer, “You will provide this information [about the prosecutorial misconduct] to the Attorney General in the next forty-eight hours,” and soon after tells Vienna to ask her, Kamala Harris, “if she really wants to stick by a prosecution that was obtained by lying prosecutors.” By thirty-six minutes in, he is telling Vienna that any opinion by the panel would “not be pretty” for the State, that such an opinion would “names names” of state officials, and goes so far as to announce from the bench that the case will not be considered submitted, until the State reports back on whether it has reconsidered the conviction itself.
Tellingly, Judge Kozinski seems well aware of the 9th Circuit’s new practice of video-taping its oral arguments, and the effect that might have in broadcasting his message, as indeed it has. At one point he tells Vienna, “There is not only a transcript of this hearing, there is a video, you can play the video for your boss and the Attorney General.”
A Politician Reverses Course
Clearly, Vienna did play Kamala Harris the video. It shouldn’t escape anyone’s attention in all this that Harris has recently announced her intention to run for Senate to replace retiring Senator Barbara Boxer. Judge Kozinski is no doubt aware of this.
By calling her office out, and nudging anyone who was listening to take advantage of the power of video and the internet to spread the news that he was calling her out, Kozinski was giving one example of what the judiciary’s role in fighting the “epidemic” of prosecutorial misconduct might be: to act as a megaphone for the daily cries of defense counsel faced with what, in Baca, Kozinski called “the perfidy of the prosecutors.”
Some in the blogisphere have questioned whether giving California the opportunity to avoid an ugly opinion by instructing it to reconsider Baca’s conviction before submitting the case is letting them off the hook too easily. As we commented in a post last week, courts all too often avoid actually making new law about prosecutorial misconduct, preferring to declaim against it in dicta, or in this case from the bench.
The point is fair one. This oral argument lays bare with unusual clarity the morass of lying, jailhouse informant deals, and subsequent attempts to cover-up misconduct that are all part of the epidemic Kosinski has condemned. But it is neither a holding, nor does it make any new law about standards for prosecutorial misconduct.
But in the age of the internet, it has done something few written opinions can do. It has garnered widespread attention not only to a particular case, but to a seeming impunity for lying for California prosecutors, that would otherwise have been the subject of a few paragraphs in a decision that few would have read. Indeed, it has done more than garner attention. It has embarrassed a politician, and without even ordering it, effectively granted Johnny Baca a new trial.
This has been going on for years in Riverside County’s District Attorney’s office.
http://www.yourepeat.com/watch/?v=2OjMwMF7HZ0
Also in the San Mateo District Attorney’s office.
One point which the article missed is that the Feds blamed the California judiciary for the epidemic of misconduct among lawyers. There is a series of three articles in CityWatchLA which discuss California’s encouragement of perjury.
http://bit.ly/1z3g56Y February 9, 2015 CityWatchLA, Justice at Risk: California’s Corrupt Courts, by Richard Lee Abrams [Foley]
http://bit.ly/1E6lC02 February 12, 2015 CityWatch Justice at Risk Part 2 — Injustice Plague Infiltrates California’s Courts, by Richard Lee Abrams [Moncharsh]
http://bit.ly/1aR5gj7 March 6, 2015 Justice at Risk Part 3 — Perjury Trumps Justice, Written by Richard Lee Abrams
The behavior which we see among prosecutors is not limited to the criminal courts. As Abrams shows, it derives from the California Supreme Court which actively promotes perjury and other misconduct in non-criminal cases. It infects family law, personal injury cases, CEQA land use cases, etc. Every level of the California judiciary is rampant with criminal behavior by judges. Let’s not make this partisan. The Baca Case began before Harris was California’s AG. The vast corruption crosses party lines and hopefully the public will not allow itself to be mislead into Dem v GOP bickering.
I’ve heard that there is an article coming out in JWalshconfidential which will disclose how a California judge abused his office to divert $250,000.00 to one of his buddies. I do not want to steal the thunder from Jwalshconfidential, but here is an earlier article about judicial corruption from JWalsh.
http://bit.ly/151HiiM January 14, 2015, JWalshConfidential, Crony Capitalism and Judicial Corruption – Los Angeles Style, by Scott Zwartz
Also Kern County.
Current San Mateo D.A. Steve Wagstaffe prosecuted a murder case in 2001. He disqualified the only two African-Americans from the jury. In 2009 in a published decision the 9th Circuit wrote a very uncomplimentary opinion about Wagstaffe and reversed the conviction based on Wagstaffe’s racial discrimination in jury selection. James Fox, former 28 year San Mateo prosecutor was Wagstaffe’s boss. He did not refer Wagstaffe to Bar for discipline Instead, he promoted Wagstaffe to his assistant D.A. and groomed him to take over as D.A. when Fox retired. After his retirement, somehow Fox became a “confidential assistant” to State Bar Trial Counsel Jayne Kim, now accused in a lawsuit brought by former Senator Dunn in an unjust termination lawsuit (he was terminated as Executive Director of State Bar) of destroying official Bar documents to make herself look good. Then Fox got himself on Board of State Bar Trustees and brought over another San Mateo prosecutor, Alfred Giannini, whose criminal convictions were also reversed three times for his prosecutorial misconduct, including on one occasion for racial discrimination in jury selection. Giannini is being paid with our bar dues. He is arrogant and blames the judges who said he engaged in prosecutorial misconduct for getting it wrong and takes no responsibility for his misconduct. Wagstaffe and Giannini have suffered no consequences for their misconduct and in fact, Fox, their boss, rewarded both of them. No wonder our legal system is in tatters with the likes of Fox, Wagstaffe, and Giannini. They all continue to prosper at the largess of us taxpayers and attorney bar dues.
Harris has is in bed with Jones (DOI) in a massive collusion enterprise financially backed by UNUM insurance. UNUM informs Jones who to go after. If professional licensing is involved Jones tells Harris who to exterminate. Jones has set up and funds “Fraud Units” in every DA office in the State and tells the DA who to exterminate at his benefactor’s [UNUM’s] request.
Harris’s flunkies [DDA’s] violate Federal and StateConstitutional Law, ADA laws, State Laws, HIPAA and INTENTIONALLY MIS-inform subordinates on the true law and encourage them to obtain tainted evidence, flawed evidence, false evidence, and knowingly utilize testimony of convicted felons to fabricate charges, slander, and falsely arrest innocent Californians.
So there you have it, California’s self-purported “Top Cop” and the current California Insurance Commissioner intentionally violating and corrupting State law and intentionally and knowingly encouraging their subordinates [DDA’s, Investigators, Peace Officers] to falsify testimony, present false testimony, intimidate and threaten sitting Judges to comply. They do this on behalf of any of their “Masters” such as UNUM who guarantee their personal financial benefit. NO ONE in California is safe from these EVILS. If you have money they will bankrupt you. If you don’t have money they will have you incarcerated and destroy you…..as an example of the depth of moral repugnance these elected Officials will reach: recently these 2 and their Master fabricated false charges and accusations and incarcerated 2 disabled Californians, terminally suffering from AIDS asserting falsely these two people were not disabled after UNUM had paid their claims for 15+ years….this is depths of attack on the vulnerable they will steep to in order to please their Master(s) and their own wallets.
Judges Kosinsky and Fletcher merely are seeing the minor most tip of the iceberg. The penetration of corruption in place, perpetrated, encouraged and initiated by Harris and Jones throughout the State and at every level and arm of the State judiciary, all at the cost of the taxpayer and citizen, goes so far beyond criminal conduct, it requires the investigation of EVERY individual in every department that has ties to the implementation, enforcement and prosecution of laws within the State. THIS is a FEDERAL STATE OF EMERGENCY. No one in law enforcement or prosecution should be exempt from scrutiny.
These people who attack, malign, destroy and kill innocent citizens for their own gain and 15 minutes of fame have forgotten the rules of ‘the Game’….they should be wary of the power of that boomerang …when it turns “off with their heads.’ Karma will be a supreme bitch !
I am living proof of this exact corruption. Thank you for the insightful info – this is exactly my situation. My former employer had UNUM as the benefits carrier. I was falsely arrested, worked my way thru the court system for the last 3 years and ended with having my professional license revoked. I havent worked in 3 years, and my way of earning a living has been taken away from me. And there is no evidence of wrongdoing in my situation.
This involves Kamala Harris, A Deputy A.G to carry out her orders, the DA and Deputy DA, Judge and the State Agency whom handles my professional license.
Can you please get in touch with me a I would like to get more information on this topic. Thank you!!
Steve,
Contact me.
Thanks
Ted
In San Luis obispo county, Kelly Mandarino is a terribly corrupt DA who condones domestic violence and is guilty of misconduct and endless counts of perjury she should be removed from office and jailed after being held accountable for her heinous behavior and undisputed lack of ethics. She is guilty of child endangerment and responsible for the false imprisonment of individuals she has personal agendas for. Such corruption is acknowledged and accepted at the cost of children’s lives.. Disgusting
Yes, indeed she again was reversed by the 2nd DCA on a sex crime case where she lied and misled a jury, the man was ordered freed, she now again by law is being reported to the state bar for more misconduct.
She has a long history of lying and committing misconduct in the court the most recent case this past week in San Luis Obispo is just one more of her corrupt activities now she is caught again. Disbarment is what needs to happen.
She is very corrupt she just got caught lying in the child molestation case of Ron Cowan, because of her lying and cover up he is now free. She Kelly Manderino is just one more of the dirty lying deputy DA’s, she was even caught once in the JAG Corp in the Army lying in cases within the scope of the UCMJ.
She is NOT fit to be a deputy district attorney ever again.
Talk about corruption we live in St. Louis Mo. which might be enough explanation needed discussing AUSA, government and attorney corruption!! They write their own law books and the constitution!! My son has been held in jail without bond for 17 months now!! His former defense attorney was representing 4 others in this same case illegally on which one testified against him in a bail hearing that’s right his former attorney crossed examined his client along with the prosector which he knew this attorney was representing both of them!! We found out later is way he’s a former attorney!!
Federal judge quoted in the Post newspaper that AUSA Davis may have run afoul of ethical rules,, conflicts of interest…ineffective assistance…and so much more corruption in this case
Like I commented before this is minor compared to the government corruption were experiencing!! We need this case heard with this panel of judges!!!
And even more recently, Robert Spira, the prosecutor who got on the stand and lied – and who was called out by Judge Kozinski, was never prosecuted by the State Bar. Indeed, a public records act request to the Bar asking for the number of prosecutors who were prosecuted between 2009 and 2016 showed that only SIX prosecutors were prosecuted in 7 years. This is a sickness at the State Bar. It is a Star Chamber. Why, oh why, would people want prosecutors to get away with perjury, I don’t know. But I also learned that the Cal State Bar has NO PROTOCOL to handle a complaint a gainst one of its own prosecutors.
If you want Prosecurial and Judicial Misconduct. Take a look at USA vs. Edward Alan Monk. This guy was indicted out of Nevada for 2 x 2 statute violations which both have specific Venue clauses. Title 47 USC 505 Venue – States the trial will be held where arrested first brought. The other has case law from 1953 stating it is a point in time crime. Not a continuous crime or conspiracy or anything. The prosecution at trial in USDC-NVL Courtroom stipulated in motion that all essential elements of crime occurred in Washington State. Now to make matter worse the indictment charged Nevada in and around where the crimes occurred. The year was 1991 but at trial everyone testified it was 1990. The judge changed without evidence with a pen. Further the warrant was signed by a deputy clerk. But Rule 9 states an indictment warrant must be signed by the clerk. The Rule 40 Removal Warrant Order was issued by a Magistrate Judge signed & sealed. The District does not have a local rule to allow this to happen. Rule 40 states that the judge must sign a warrant for removal order. So the trial Venue is set by statute upon arrest. The arrest warrant is illegally signed. The indictment on the face has a clear venue violation which by the way the defendant objected to Nevada as being the Venue. Also to kick it all off. There was never an indictment read into the record or any mention of it in the illegal Rule 40 Order of Removal by a Magistrate Judge text of the order. The transmittal of the records to USDC-NVL Court which is part of the court transcripts does not contain a copy of the indictment either. So no way was probable cause was ever established as per the removal statute requirements. See case: 93-mj-04001-BAS because I am answering a motion to show cause in a Criminal proceeding because I found out about this recently after 24 years of being lied to…I filed a motion to vacate the order of removal and dismiss the case in Washington State Court. WAED US Court. The judge actually issued an Order to Show Cause to a Criminal Defendant who’s motion shows a clear violation of Section 636 by violating several statutes. The judge refutes without any evidence that the defendant did not object to Nevada (could be venue could be jurisdictional) as being the wrong State for the trial. He also promoted the Magistrate Judge to a Judge posthumously in his order. Stated my attorney was at my initial appearance with me. The Docket states defendant appeared without counsel during initial appearance. Attorney does not appear until 9 days later in case. Also has a motion attacking the indictment because an attack is now open which shows the Grand Jury was illegally constituted and had no jurisdiction to indict a suspect in Washington for alleged violations which are point in time and this was established beyond a reasonable doubt at the illegal trial in Las Vegas. So anybody? I am drafting response now. Pretty wild to have so many Article III violations and the judge is changing the facts of the record in his Order. Really??? Isn’t this perjury by a District Judge when they issue an Order “Sua Ponte” and misrepresent the facts? This District is under an order to give me the Grand Jury transcripts but will not do it. They also will not give me a transcript of the Removal Hearing and the initial hearing. NARA sent the IT guy the tapes. He first told me they were to old so he did not have to. Then he said he was going to destroy them. Now he just claims they are blank. Really??? Anybody know about a case where a Magistrate Judge without any R & R report being done just writes up the order and removes the defendant without a copy of indictment? I cannot find a case anywhere. Must be a first. email direct: eddiemunkster@gmail.com Have to respond by Monday. Go for dismissal of order or just respond?
I also have the case law in the motion to vacate the order that states an order is void when the court clearly exceeds its jurisdictional authority. This is rediculous that I have to prove cause. The cause is the illegal order by the Magistrate. The WAED Court had no jurisdiction because I was arrested illegally. The USDC-NVL Court had no jurisdiction because illegally constituted for alleged crimes in another State. I have this all documented. The Venue is set by statute called out warrant as well to Washington. Anyway crazy stuff….
As a personal interest of Miss Kelly Mandarino myself ,I am not surprised that she let a child molester walk,after destroying hundreds of citizens lives and crippling there future for employment,record,and spiritual state . And shes for the protection of our people. Disbarment would be excusing her misconduct and criminal actions, I hope to see her in SLO County Reds,No Honor Farm, phone, mail,or comisary. House her in the old jail Dorm 1 , on the floor. That would be some real justice for that narcissistic,Dump-Truck DA!
She is a digusting human being who tried to ruin my life over pot. Went out of her way to destroy me. No priors. If she went to Jil I would throw a party