9th Circuit Panel Finds Rampant Prosecutorial Misconduct

During a hearing in a case that might well have gotten very little attention, a panel of judges on the 9th Circuit Court of Appeals angrily confronted a state attorney about what they see as rampant misconduct by prosecutors in California and the fact that state judges are doing almost nothing to prevent it.

Deputy Atty. Gen. Kevin R. Vienna was there to urge three judges on the U.S. 9th Circuit Court of Appeals to uphold murder convictions against Johnny Baca for two 1995 killings in Riverside County. Other courts had already determined that prosecutors had presented false evidence in Baca’s trial but upheld the verdicts anyway.

Vienna had barely started his argument when the pummeling began.

Judge Alex Kozinski asked Vienna if his boss, Atty. Gen. Kamala D. Harris, wanted to defend a conviction “obtained by lying prosecutors.” If Harris did not back off the case, Kozinski warned, the court would “name names” in a ruling that would not be “very pretty.”

Judge Kim Wardlaw wanted to know why Riverside County prosecutors presented a murder-for-hire case against the killer but did not charge the man they said had arranged the killings.

“It looks terrible,” said Judge William Fletcher.

The January hearing in Pasadena, posted online under new 9th Circuit policies, provided a rare and critical examination of a murder case in which prosecutors presented false evidence but were never investigated or disciplined…

Prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way,” Kozinski said.

Santa Clara University law professor Gerald Uelmen said the judges’ questions and tone showed they had lost patience with California courts. State judges are supposed to refer errant lawyers, including prosecutors, to the state bar for discipline, but they rarely do, Uelmen said.

“It is a cumulative type thing,” Uelmen said. “The 9th Circuit keeps seeing this misconduct over and over again. This is one way they can really call attention to it.”

A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over 11 years. Only six of the prosecutors were disciplined, and the courts upheld 80% of the convictions in spite of the improprieties, the study found.

Remember, prosecutors also have absolute immunity from civil suits thanks to the Supreme Court. If judges won’t do anything about it, there’s no reason for them not to continue to do it. It seems that few prosecutors give a damn whether justice is done as long as their conviction rate stays high so they can tout it in campaign ads. Prosecutors, like judges, should not be elected to office, they should be appointed.

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  • kantalope

    Looks more like they should be pilloried than appointed. You watches the watchers indeed.

  • Pianoman, Church of the Golden Retriever

    I look at attorneys as a giant country club. they mostly all know each other, and seemingly don’t give a fuck about most of their clients unless they’re getting checks. it’s almost like asking the police to monitor the police.

    you have your exceptions, of course. but these prosecutors are no better than the lawyers who advertise on billboards to sue your neighbour into poverty because you stubbed your toe in their driveway.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    It’s not Tough on Crime if we start letting innocent people off on technicalities!

  • screechymonkey

    I listened to the entire argument. The 9th Circuit had an interesting problem on their hands, because as outraged as they were by the prosecutorial misconduct, they seemed genuinely uncertain whether or not they could grant relief under Supreme Court precedent.

    So after slapping the prosecutor around for a while, Kozinski told him to go talk to the attorney general and see if she doesn’t want to work out a deal with the defense., and that the Ninth Circuit would wait a week before deeming the case submitted and preparing its opinion. And, he hinted, no matter which way the court ruled on the legal issue, the AG’s office and the Riverside DA would not enjoy reading the opinion because it would name names and have some harsh things to say about “justice” in California.

    Sure enough, the panel’s threat worked. The AG’s office stipulated to reversal and a new trial.

  • hunter

    screechymonkey: In a way, that’s unfortunate: it might have had a salutary effect on prosecutorial conduct if the names were named — and publicized.

  • grumpyoldfart

    Corrupt law officials! Who would have thought that could ever happen in America?

  • screechymonkey


    You may be right, though as Ed’s link to the L.A. Times story shows, the story has gotten some publicity nonetheless.

    And it’s not like Kozinski et al promised to shove this all down the memory hole if there was a deal. I wouldn’t be surprised to see it brought up again in the future if the 9th Circuit keeps having to deal with cases like this. There’s also ample opportunity for some enterprising reporter to follow up with some questions about whether the prosecutor who committed perjury and the one who suborned it are going to be prosecuted or at least brought up on disciplinary charges.

  • http://artk.typepad.com ArtK

    While not a precedent per se, I’m sure that any defense attorney who smells even a whiff of prosecutorial misconduct will be emphasizing that in their appeals. The 9th circuit will have a hard time not addressing that.

  • Artor

    While I’m glad that the 9th Circuit judges issued their threat, I’m disappointed that they did not follow through with it. Those names should be named. Prosecutorial misconduct is a festering pustule on the body of Justice.

  • David C Brayton

    I agree with Artor. Actually, I’m really pissed at the panel. They remanded the case for another goddamn retrial.

    The defendant has already been tried twice. The prosecutor lied in both cases. The prosector is not in any way punished. And the prosecutors get to try again.

    If I’m a prosecutor, my take away would be that it pays to present false testimony. The chances of getting caught are almost nil. And even if I do get caught, the chance of actually being punished is small. And at worst, a court might name names. The chance of a serious punishment is about as likely as the Detroit Lions winning Super Bowl 50.

    In my opinion, lying in order to destroy someone’s life with a felony conviction ranks as one of the most vile things an attorney can do. On the scale on grinchiness, this ranks way worse than stealing Whoville’s Christmas. It is an utterly depraved act that should be punished with great forcefulness and punitive intent. This prosector should spend the same amount of time in prison as he was trying to get for the defendant plus five years.

  • Trebuchet

    I’m sure Nancy Grace (who lost her job for prosecutorial misconduct) will be incensed that a guilty defendent might get off. Because they’re ALL guilty, according to her.

    I also hope Ken White sees fit to write about this.