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.