When state prosecutors lie under oath and present the testimony of a witness that the prosecutor knows to be untrue

screen-shot-2015-01-20-at-10-36-31-pmI am blessed to serve in a federal court with federal prosecutors who are by and large both smart and honest. Sure, there are some dolts, but at least they are honest idiots.

From a retired former federal prosecutor with tons of experience as an FBI agent, as an AUSA, and as a supervisor, an e-mail landed in my account two days ago. My correspondent urged me to read the following article and view the video of arguments in the Ninth Circuit presided over by Judge Kozinski. See Sidney Powell, Breaking: Ninth Circuit Panel Suggests Perjury Prosecution For Lying Prosecutors, New York Observer (January 20, 2015).

It is  may be shocking proof that some state prosecutors are liars and some state prosecutors knowingly present liars as witnesses. To them, winning is everything. See the update below. I have NOT read the entire record.

Judge Kozinski and the Ninth Circuit are bound and determined to punish such behavior. Please read the article and view the video cited above. Starting off it will sicken you, but in the end it will make you proud even though you should worry about the tip of the iceberg.

Thanks Jeff.

UPDATE:

A commentator who states that he or she has read the record has provided this important information:

I just read the documents that were filed with the federal court in connection with this habeas case. They are quite extensive. They are all available on PACER. You may want to read them for yourself. After doing so, you may want to edit the title of your post.

Apparently, what you classify as a “prosecutor lying under oath,” involved a prosecutor who was called as a witness to explain to the jury why a witness/informant’s sentence was reduced by three years. That prosecutor testified that the sentence reduction was the result of a sentencing mis/re-calculation, and not a quid-pro-quo in exchange for the witness/informant’s testimony against the defendant. That prosecutor also testified to the same effect in connection with the federal habeas proceedings, essentially sticking to his recollection as testified to at the defendant’s trial. There is a transcript of the witness/informant’s sentencing proceeding that, on its face, appears to condradict the witness/prosecutor’s recollection of events (that took place many years before he testified at the defendant’s trial. But that prosecutor testified (in connection with the federal habeas proceedings) that there off-the-record discussions regarding whether or not the witness/informant’s sentence should be reduced which apparently bolster the witness/prosecutor’s recollection of events.

Bottom line: In this case (which apparently was tried twice over a period of seven years), it doesn’t seem fair to tar the prosecutor as a perjurer (as you do by your post) untill you have read the entire, voluminous record that exists and is available for public inspection. The same goes for the Ninth Circuit panel. Judge Kozinski has stated that there is an “epidemic” of Brady violations being committed by prosecutors throughout America. It seems like he is on a crusade in this area, albeit a good crusade if his statement is accurate. But, based upon my quick reading of the record in this case, it seems as though he (and his collagues on the panel) jumped the gun (probably based upon their law clerk’s memos) without carefully and fully reading the entire record in this complex case.

With respect to the trial prosecutor, apparently he had no knowledge that any witness at the trial provided testimony that was in any way false or misleading. He testified to this effect at the federal habeas evidentiary hearing. And the magistrate judge presiding over that hearing expressly found that the trial prosecutor did not know that any witnesses testimony was false/misleading. You may want to read the record. It may cause you to remove the “that the prosecutor knows to be untrue” language from your post.

The internet is a powerful tool that has served many great purposes. But, if used improperly, without cross-checking the accuracy of what is being posted (which, I concede, can be a time-consuming task that detracts from the allure of instantaneous reporting of events that blogs like yours permit) it is nothing more than a gossip-mill which, in some cases, can unfairly destroy the reputation of innocent persons.

RGK

 

45 responses

  1. Have practiced in state courts extensively. My experience is that most prosecutors, most law enforcement officers, most defense attorneys, and most private investigators are ethical and honest. In most cases, what folks claim is suborning perjury is merely a disagreement over which witnesses are telling the truth and most “misconduct” is not an intentional attempt to violate or manipulate the rules. There are, however, some on both sides for whom the end justifies the means and rules exist only for the other guys/gals. It would be nice if the bar did more to discipline the intentional cheaters. (I also think that the bench and bar would take it more seriously when a court finds that an attorney has engaged in misconduct or was incompetent. If a court or attorney honestly believes that, the ethical rules require a report to the disciplinary counsel.)

  2. Pingback: Not In My Court, They Don’t | Simple Justice

  3. Judge I suspect SHG may win this one, almost all judges become much too friendly with prosecutors and career prosecutors become team players with law enforcement, temptation to over reach becomes large and the special purity of the federal system may be a bedtime story for tired federal judges.

  4. repentinglawyer,

    You are right. I do think the federal system has a special and greater purity. It is neither a bedtime story or an artifact of being tired or old (although I admit to being both). Twenty eight years on the bench convinces me that it is quite simply the truth.

    All the best.

    RGK

  5. Judge I am older and tired than you are which makes me wish you had said usually the truth. The disposition to cut the deck is no bad thing. As you know bed time story is stolen from Judge Frank about Roscoe Pound, which puts you in good company.

  6. RGK,

    I just read the documents that were filed with the federal court in connection with this habeas case. They are quite extensive. They are all available on PACER. You may want to read them for yourself. After doing so, you may want to edit the title of your post.

    Apparently, what you classify as a “prosecutor lying under oath,” involved a prosecutor who was called as a witness to explain to the jury why a witness/informant’s sentence was reduced by three years. That prosecutor testified that the sentence reduction was the result of a sentencing mis/re-calculation, and not a quid-pro-quo in exchange for the witness/informant’s testimony against the defendant. That prosecutor also testified to the same effect in connection with the federal habeas proceedings, essentially sticking to his recollection as testified to at the defendant’s trial. There is a transcript of the witness/informant’s sentencing proceeding that, on its face, appears to condradict the witness/prosecutor’s recollection of events (that took place many years before he testified at the defendant’s trial. But that prosecutor testified (in connection with the federal habeas proceedings) that there off-the-record discussions regarding whether or not the witness/informant’s sentence should be reduced which apparently bolster the witness/prosecutor’s recollection of events.

    Bottom line: In this case (which apparently was tried twice over a period of seven years), it doesn’t seem fair to tar the prosecutor as a perjurer (as you do by your post) untill you have read the entire, voluminous record that exists and is available for public inspection. The same goes for the Ninth Circuit panel. Judge Kozinski has stated that there is an “epidemic” of Brady violations being committed by prosecutors throughout America. It seems like he is on a crusade in this area, albeit a good crusade if his statement is accurate. But, based upon my quick reading of the record in this case, it seems as though he (and his collagues on the panel) jumped the gun (probably based upon their law clerk’s memos) without carefully and fully reading the entire record in this complex case.

    With respect to the trial prosecutor, apparently he had no knowledge that any witness at the trial provided testimony that was in any way false or misleading. He testified to this effect at the federal habeas evidentiary hearing. And the magistrate judge presiding over that hearing expressly found that the trial prosecutor did not know that any witnesses testimony was false/misleading. You may want to read the record. It may cause you to remove the “that the prosecutor knows to be untrue” language from your post.

    The internet is a powerful tool that has served many great purposes. But, if used improperly, without cross-checking the accuracy of what is being posted (which, I concede, can be a time-consuming task that detracts from the allure of instantaneous reporting of events that blogs like yours permit) it is nothing more than a gossip-mill which, in some cases, can unfairly destroy the reputation of innocent persons.

    All the best,

    FPG

  7. IF you think it doesn’t happen–and DELIBERATELY–in the federal system, read LICENSED to LIE: Exposing Corruption in the Department of Justice. Unfortunately, it does. No one is immune from the targeting that is going on now, and one of the worst has just been named to head the fraud section of the Department. see.LicensedtoLie.com

  8. Ms. Powell,

    Could you please let the readers know how you learned of the Ninth Circuit oral argument that you posted in the New York Observer, and that has been re-posted on this blog?

    Did Judge Kozinski, or anyone associated with him, tip you off about that oral argument?

    I ask this because Judge Kozinski wrote the Foreword to your book.

    How did you learn of this particular oral argument among the hundreds of oral arguments that are held in the circuit courts every day?

    It just strikes me as too coincidental that Judge Kozinski and you have a professional relationship (vis-a-vis your for-profit book) and, lo and behold, you are the person (among 350 million people in America) who just happens to get her hands on the video of the Kozinski-Wardlaw-Fletcher oral argument.

    If you were in fact tipped off by Judge Kozinski (or someone associated with him) about this video, do you think that poses any judicial ethical issues?

    My questions are not designed to downplay the subject matter of your book. That is an important matter that needs to be addressed. And your exposing it to the public is to be admired.

    But if your sources/informants are high-ranking judicial officers who are ethically bound not to engage in such conduct, especially on pending cases, that raises a separate, serious, issue that also needs to be addressed.

    So, Ms. Powell, since you have no hesitancy in naming names, could you please name the name of the person(s) who brought this particular video to your attention?

    Respectfully,

    Anon

  9. FPG,

    Thanks for your comment. If I have misstated the record, then I truly apologize for my error. Indeed, I did not indepently review the record. I relied upon the article and my review of the oral argument video.

    All the best.

    RGK

  10. Anon What rule prevents a sitting federal judge from telling anyone, lawyer, scholar, or next door neighbor that they would be interested in an oral argument that is publicly available. This was not a hearing in the Star Chamber.

  11. If no ethical rule is breached by such conduct, then nothing should prevent Ms. Powell from letting us know if Judge Kozinski was responsible for bringing the video (involving a pending case before him) to her attention.

    She has no difficulty in disparaging many prosecutors by name in her book. Why can’t she state one way or the other if her friend Judge Kozinski tipped her off about the video.

    Based upon his past history, we know that Judge Kozinski is computer/internet savy; he is connected to Ms. Powell through her book; and he is on mission to disgrace any prosecutors who he believes committed misconduct.

    But rather than rely on circumstantial evidence, why doesn’t Ms. Powell let everyone know if Judge Kozinski played any role whatsoever in bringing this isolated video to her attention so that she can publish his accusations.

    While she is at it, she should also let it be known if she read any portion of the extensive record before publishing what many may deem as defamatory information.

  12. Anonymous You seem to be unhappy with Ms Powell’s book, but you sound like the conspiracy cranks who tend to roam the halls of law schools seeking to share their suffering with faculty who work with their doors open.

  13. Dave,

    From my reading of the record, the AG didn’t try to hide anything from any court. (By the way Dave, did you read any relevant portion of the record before accusing the AG of wrongdoing?)

    What happened was as follows:

    After the defendant was convicted at a second trial (his first conviction was reversed for IAC) of murdering a same-sex couple in their home (as part of a plot, with an unindicted co-conspirator, to get the proceeds from one of the victim’s insurance policies), he appealed to a California state appellate court.

    One of his grounds for appeal was that one of the prosecution’s witnesses (who happened to be a prosecutor from the same office as the trial prosecutor, and who had previously prosecuted another prosecution witness who testified that the defendant confessed to the plot to murder the same-sex couple) misled the jury by testifying that the witness who testified about the defendant’s confession did not have his sentence reduced in exchange for his testimony against the defendant at his second trial. However, there was a sentencing transcript that could be read in isolation to indicate that the witness’s sentence was as an equitable reward (by the judge who sentenced him) for his having testified against the defendant at the defendant’s first trial.

    What the AG apparently did was argue that direct appeal was not the appropriate manner in which to resolve this issue. Instead, the AG argued that the issue required additional evidence/testimony outside of the appellate record and, therefore, should be resolved after an evidentiary hearing as part of a state habeas proceeding.

    In so doing, the AG argued that it would be inappropriate for the California state court to simply take judicial notice of the sentencing transcript, compare it to the prosecutor’s testimony at the defendant’s second trial (regarding the sentencing reduction) and, from those two documents alone, determine if the testifying prosecutor misled the jury, either intentionally or negligently.

    In sum, the AG was not trying to hide anything. They were simply arguing that the issue (of whether the testifying prosecutor was forthright with the jury) should be determined in a state habeas proceeding where evidence that was outside the record could be adduced.

  14. repentinglawyer,

    Whether I am unhappy with Ms. Powell’s book is beside the point. Even if I was one of the attorneys who Ms. Powell has named in her book, that doesn’t answer the question of whether a federal judge presiding over a case took it upon himself to contact Ms. Powell and provide her with unproven accusations with the intention of having her publish those accusations.

    No Tin Foil Hat conspiracy theorist here. Ms. Powell’s connection to Judge Kozinski is well documented as is his (rightful) indignation of prosecutors who the evidence shows did not play by the rules. But his indignation doesn’t justify his disclosing information about a pending case to a particular person with a particular agenda for the purpose of proving his allegation that prosecutorial misconduct is an “epidemic” in America, if indeed that is what transpired.

    Ms. Powell can clear this all up. She hasn’t been silent in the past. Why her silence now?

  15. Judge, I’m sorry, but the California Appellate court is very clear on what it thought of the prosecutor’s testimony. I also didn’t read the record the same way as FPG, although that might be my issue, not his.

    “Unfortunately, the testimony from the second trial bears only a superficial resemblance to reality.” People v. Baca, 2004 Cal. App. Unpub. LEXIS 11056, 18, 2004 WL 2750083 (Cal. App. 4th Dist. Dec. 2, 2004).

    “By conflating these two entirely separate events, Spira managed to conceal the only facts that were favorable to the defense at the second trial: that the trial court unilaterally reduced the informant’s plea bargain as a reward for testifying against defendant, after assurances from the prosecution that it would not seek review to enforce the terms of the plea bargain. Furthermore, the claim that the informant never requested leniency for testifying against defendant is sheer fantasy for the simple reason that he actually got just that, which never would have happened if he had not actively pursued it.” Id., at 19. (Note: the two separate events were 4 years apart, and the court commented on that also).

    “The People also note that the testimony can be parsed in such a way as to make it true, or at least not clearly false . . . This sort of hypertechnical parsing does not dispel the highly misleading nature of the testimony, which sent a single, unwavering, blatantly false message to the jury. . . .” Id., at 21-22.

    “And, regardless, there is no way to parse DDA Spira’s mischaracterization of the February 1998 hearing, which was decidedly not a mere sentence modification prompted by the CDC to correct a credit calculation error.” Id., at 22-23.

    Did the appellate court use the word “perjury?” No. Is it clear that they think Spira perjured himself? I think it is crystal clear. Will it matter? No, the statute of limitations for felony misconduct by a public official in California is 4 years. The original trial was in 1998 and the second one was in 2002. I don’t think that they’ll be able to get past the fact that limitations appear to have run on criminal prosecution.

    (Note, this was also posted as a comment at Simple Justice)

  16. RGK,

    I read the record more closely.

    It appears as though, to the extent he was doing so, Judge Kozinski’s accusation that the trial prosecutor knowingly presented false testimony — an accusation that you have published on your blog — is untrue.

    Take a look at the Report & Recommendation of the magistrate judge who presided over the evidentiary hearing conducted in connection with the defendant’s federal habeas petition. (It is available on PACER under Case No. 5:08-cv-00683-MMM-PJW along with other relevant documents. including the California Attorney General’s objection to certain language in the R&R — some of which were upheld by the District Court Judge who adopted the R&R.)

    Specifically, at page 26, lines 19-26, the magistrate judge found: “[T]here is no evidence in the record to suggest that [the trial prosecutor] knew that [the witness who testified that the defendant confessed to the murders] was lying … [The trial prosecutor] did not know about [any lies by that witness] when [he] testified.”

    Also at page 27, lines 4-5, the magistrate judge found: “There is no evidence that the [trial prosecutor] actually knew that [the prosecutor/witness who testified regarding the sentence reduction] was testifying falsely.”

    The District Court judge adopted these findings that the trial prosecutor had no knowledge that any witness testified falsely at the defendant’s trial. (Apparently, the issue before the Ninth Circuit, as alluded to by Judge Fletcher, is whether or not, in the context of an AEDPA-constrained federal habeas proceeding, any knowledge by the prosecutor/witness that he was testifying falsely could be “imputed” to the trial prosecutor who, as noted by the magistrate judge, had no such actual knowledge.)

    This uncontested “no knowledge” finding is in stark contrast to what Judge Kozinski seemed to be asserting on the oral argument video. Perhaps, Judge Kozinski (or one of his clerks) didn’t read the record carefully enough before making such a serious accusation? In any event, it would appear that Judge Kozinski has absolute immunity from a defamation lawsuit, since his untrue accusation was made as part of judicial proceedings. But what about other persons who republish the false accusation? Are they potentially liable for defamation?

    I think this case highlights the danger of publishing information — especially serious accusations of wrongdoing — without determining, through the exercise of due diligence, if they are true.

    RGK, I know you are a man of the utmost honor and integrity. I think you may owe the trial prosecutor a heartfelt apology? But, just like everything that is published on your blog, that’s your call.

    Be well,

    FPG

  17. FPG, did you watch the video? The prosecutor admits that his office fought to keep the appeals court from getting the trial transcripts and that it looks bad. Why would they do that if they had nothing to hide.?You seem to be trying very hard to muddy the waters and keep people from focusing on relevant facts. Start the video at 30.00. Can you answer the questions posed from the bench? Don’t obfuscate and try to cover for lying prosecutors, just answer the questions. Why would the attorney generals office try to prevent the court of appeals from seeing the transcripts?

  18. @TMM

    Compare what Judge Kopf says here with SHG’s take. Missing from both, it seems to me, and the discussion of prosecutorial misconduct generally, is the idea of “bonded ethicality”: The biases and heuristics (including about our own ethicality) that lead us to engage in questionable behavior that contradicts our preferred ethics. Simply put, competing obligations affect not only how describe we describe a problem, but even if we notice a conflict of interests in the first place.

    There are couple of metaphors that I think offer a useful perspective about how good people unintentionally go wrong.

    The first, is the concept of “bending the map” (one stage of “woods shock” in Lost Person behavior). We confirm our bearings lots of ways: Maps, the sun, birds, if we’re moving up or downhill, our knowledge of the area. The reality is our mental map isn’t perfect. And our confidence in our ability to recognize this is … overly optimistic. As John Huth describes it in “The Lost Art of Finding Our Way”:
    A lost person first believes he is located at a certain point on the map, but things around him do not seem quite right. He pays attention to details that confirm what he already believes to be true, ignoring all evidence to the contrary. A lost person may be looking for a creek that flows south on the map. In his mind he’s sure that he has arrived at the creek. It flows east, yet he conveniently ignores this fact and follows it anyway. [Ed: Or thinks “The map is wrong,” “The signs must have fallen,” “The river must have moved,” “The sun is setting wrongly.”] It can take some time, but there comes a moment when an eerie realization hits him that something is wrong and he doesn’t know why.

    The second is doctors who have settled prematurely on a patient’s diagnosis. As Jerome Groopman relates in his book “How Doctors Think”:

    One of my patients was a middle-aged woman with seemingly endless complaints whose voice sounded to me like a nail scratching a blackboard. One day she had a new complaint, discomfort in her upper chest. I tried to pin down what caused the discomfort–eating, exercise, coughing–to no avail. Then I ordered routine tests, including a chest x-ray and a cardiogram. Both were normal. In desperation, I prescribed antacids. But her complaint persisted, and I became deaf to it. In essence, I couldn’t think in a different way. Several weeks later, I was stat paged to the emergency room. My patient had a dissecting aortic aneurysm, a life-threatening tear of the large artery that carries blood from the heart to the rest of the body. She died. Although an aortic dissection is often fatal even when discovered, I have never forgiven myself for failing to diagnosis it. There was a chance she could have been saved.

    It’s not hard to imagine how in either case (and, in fact, I can think of examples), that an outdoorsman or a doctor might act objectively unethically in such a situation based on a sort of bounded awareness of what really is going on.

  19. Agreed. There is no doubt that the California state appellate court believed that the prosecutor/witness provided false testimony regarding why the witness (who testified that the defendant confessed to the murders) had his sentence reduced from 14 years to 11 years after the defendant’s first trial.

    But, as the AG argued, that issue should not have been resolved by the state appellate court as part of a direct appeal without providing the prosecutor/witness an opportunity to be heard. It should have been resolved as part of a state habeas proceeding where testimony could be taken.

    Whether or not the prosecutor/witness should be disciplined by the state bar is still an open issue, I believe?

    But this blog has re-published an accusation that is simply untrue. As noted above, according to the federal magistrate judge who presided over the evidentiary hearing in connection with the defendant’s habeas petition, the trial prosecutor had no knowledge of any false or misleading testimony by any witness.

    Legally, then, one issue that the Ninth Circuit must decide is whether any witness’s knowledge that his testimony was false can be “imputed” to the unwitting trial prosecutor. The AG has argued that there is no “clearly established” Supreme Court holding that permits any such knowledge to be imputed to the unwitting trial prosecutor. Judge Fletcher, however, intimated on the oral argument video, that Giglio is a “clearly established” Supreme Court holding that permits “imputing” this knowledge to the unwitting trial prosecutor.

    However, there appears to be another reason that the Ninth Circuit is precluded from granting habeas relief to the defendant: The defendant and his attorney were in possession of the transcript of the sentencing proceeding before, during and after the defendant’s second trial. Thus, defense counsel could have used the transcript to impeach any witness whose testimony he believed was false. The defendant’s attorney made a reasonable tactical decision not to do so.

    As stated on page 12, lines 1-12, of the federal magistrate judge’s R&R: “[Defendant’s attorney] testified in the evidentiary hearing … that … he, in fact, had a copy of [the transcript of the sentencing proceeding] two years before the trial started … [The defendant’s attorney] explained that, after discovering that he had it during trial, he reviewed it and concluded that it was consistent with the [prosecutor/witness’s] representations that [the] sentence [of the witness who testified that the defendant confessed] had not been reduced in exchange for his testimony against [the defendant. The defendant’s attorney] claimed that he made a tactical decision not to impeach [the witness] with the transcript because it could have bolstered [the witness’s] testimony that the court unilaterally reduced his sentence.”

    According to a very recent Ninth Circuit opinion, the fact that the defense possessed the transcript during the trial, as a matter of law, precludes relief based upon a Giglio “imputed” knowledge theory: “[D]efense counsel cannot lay a trap for prosecutors by failing to use evidence of which defense counsel is reasonably aware for, in such a case, the jury’s verdict of guilty may be said to arise from defense counsel’s stratagem, not the prosecution’s failure to disclose. In such a case, the prosecution’s failure to disclose Brady or Giglio evidence would not deprive the defendant of a fair trial.” (Amado v. Gonzalez, 758 F.3d 1119, 1135 (9th Cir. 2014).)

    In addition, according to the trial transcript of the defendant’s second trial, as stated by the AG in their objections to the magistrate judge’s R&R (filed with the federal court on August 5, 2011): “[T]he prosecution never withheld, suppressed or failed to disclose the existence of the transcripts. Rather, as [the AG] pointed out in numerous previous filings, the sole trial prosecutor … at the outset of the trial, on the record in open court, acting in complete good faith, advised [the defendant, the defendant’s attorney, and the court that [the witness who was going to testify to the defendant’s confession] had [his sentence] reduced following his testimony at [the defendant’s] first trial; that transcripts of those proceedings existed; the [the prosecutor/witness] would be testifying regarding the sentence reductions; that [the defendant’s] attorney could examine all of the files (including [those of the prosecutor/witness and the trial prosecutor]); and that [the trial prosecutor had not seen or read the transcripts.”

    Thus, ironically, the only person with the ammunition in hand to impeach or correct any allegedly false or misleading testimony from the prosecutor/witness or the witness who testified about the defendant’s confession was the defendant’s attorney. And he made a tactical decision not to do so because in his judgment the information reflected in the sentencing transcript (1) was “consistent with” the prosecutor/witness’s testimony and (2) would only serve to “bolster” the testimony of the witness who testified about the defendant’s confession.

    Under the Ninth Circuit’s opinion in Amado, the uncontested fact that the defendant’s attorney had the sentencing transcript before and during the defendant’s trial is, as a matter of law, fatal to his Giglio “imputed” knowledge argument.

  20. I am confused are FPG and Anonymous the same person or a tag team with a shared complaint. In either case the day an argument is scheduled or the existence of a publicly available tape of the argument or the subject of the argument hardly constitute secrets judges are required to keep confidential. To equate you with the tin foil hat folks gives you too much credit. At least they are interesting.

  21. I’m with you judge, having experienced the comparative rigors of screening that proceed employment as an AUSA and Special Agent, including the peccadillos that have nixed many a fine applicant (cheating in college) or subsequently bounced someone from the Bureau (abuse of creds).
    Okay, fine: blah blah Whitey Bulger. And I’ve seen doctors prosecuted for performing surgery drunk, and myriad defense attorneys who’ve told witness to lie and clients they should to run.*

    *Literally, as in “I want you to lie about…” and “I think you should run. Skip town tonight.” Seriously, are those signs by the jail phones somehow not clear?!

  22. Knock off the “Kozinski or one of his clerks” bit. I assure you the judge himself reads the record, especially in this sort of case.

    I sincerely hope you’re not affiliated with anyone or the office involved in this case.

  23. Because the AG rightfully believed that the issue (like allegations of IAC that California courts rarely, if ever, decide as part of a direct appeal) should be resolved not simply by comparing the transcript to the prosecutor/witness’s testimony. But was properly decided as part of a state habeas proceeding where information that was not reflected in the transcript could be brought to light.

    The AG also cited a wealth of authority that supported their argument that it was unfair to the People to take judicial notice of the transcript. That to do so, and then decide whether or not the prosecutor/witness’s testimony was false or misleading without ever hearing from that person, was not legally justified under California law.

    I am not covering for the AG or anyone else, despite what you may think. I am simply pointing out that the AG didn’t have some sort of nefarious intent when they submitted their briefs to the California state appellate court. Their arguments (for why the California appellate court should not review the transcript as part of a direct appeal) were based in good faith upon the law.

    That’s my opinion based upon my reading of the record. But I respect your right to differ. I only ask that your opinion is be based upon the entire record in this double-murder case. Not simply upon the 30 minute video. A video, in my opinion, that shows high-ranking members of the judiciary needlessly beating up on, berating, bullying and threatening an appellate prosecutor.

    Instead of engaging in that kind of conduct — conduct which one member of the panel has a reputation for engaging in, i.e., he gets a kick out of pushing around litigants, just ask attorneys who have appeared before him — the panel should have spent more time questioning the appellate prosecutor on why he believed Giglio’s “imputed” knowledge holding doesn’t apply to the particular facts in this AEDPA case. The panel should also have questioned the defendant’s attorney about the principle set forth in the recent Ninth Circuit case, Amado v. Gonzalez, 758 F.3d 1119, 1135 (9th Cir. 2014), that any Giglio “imputed” knowledge claim can’t be used to grant habeas relief where, as in this case, the defense was aware of and had possession of the sentencing transcript before and during the trial, but elected not to use it or any information contained therein to impeach, or correct, the testimony of any prosecution witness.

    That would have been the civilized way to conduct the oral argument. But one member of the panel is apparently on a mission to root out what he believes is an “epidemic” of prosecutorial misconduct. So he used a major portion of the oral argument grandstanding on the issue, rather than asking pointed, legally relevant, questions regarding the pivotal issues raised by the parties briefs, including the misconduct allegations.

    Not the best reflection of the federal judiciary in my humble opinion. But I understand that it makes for good entertainment for those in our society that believe that most prosecutors are simply out to win at all cost. It also provides fodder for people who are trying to sell books — books endorsed by Judge K — that support Judge K’s belief that prosecutorial misconduct is an “epidemic” in America.

  24. I don’t think that you are following the real issue here, or at least the issue that concerns most of us.

    The issue is that Spira testified falsely. “[H]ad it known Deputy District Attorney Spira testified falsely. . . .” U.S. Dist. J. Morrow’s order (doc 37, p.3, ln. 12).

    “Spira falsely claimed. . .” Mag. J. Walsh recomendations (doc 32, p.16, ln. 10).

    “The Court adopts the state appellate court’s findings that Melendez sought and received a sentence reduction for his testimony against Petitioner and that Spira testified falsely as to the reason for the sentence reduction.” Id, at p. 17, ln. 11-17.

    It’s all through the record that the courts believed that Spira lied. Including the federal magistrate judge. “Moreover, it would have also exposed the fact that Deputy District Attorney Spira had lied. . . .” Id., at p. 19, ln. 9-10; “he concocted a story. . .” Id., ln. 14. J. Walsh even wondered if the state had provided Brady notifications on any other cases that Spira had testified on after 2004. Id., p. 34, ln. 26 (fn7).

    Why would the magistrate judge wonder about Brady notices if he did not think that Spira lied? And your statement about the trial prosecutor not knowing about the false testimony is not correct, any knowledge of one member of the office is imputed to the other members of the office.

    I don’t really care about the sentencing transcripts, or the grounds for granting/denying habeas, or any of the other corollary issues. They are not material to potential perjury of Spira.

    What is important is that a prosecutor lied, and no action was taken against him. What would have happened had this been a defense attorney? Why do prosecutors believe that they deserve a pass?

    Why wasn’t he prosecuted at the time? And disbarred? Any other lawyer would have been.

  25. Pingback: An explanation, but maybe a weak one « Hercules and the umpire.

  26. Here is a 2nd Circuit opinion about the “confusion or mistake” argument in 2009. This was about an infamous double homicide for which Robie Drake was convicted in 1982, wrongfully, by a prosecutor’s dirty trial tactics.

    The point of Napue is knowledge. Actual knowledge. Knowing introduction of perjury. The prosecutor’s state of mind. The witness’ state of mind, whether perjury or “confusion or mistake” is not the issue. Drake v. Portuondo, 553 F. 3d 230, 242 n.7 (2d Cir. 2009) [Drake II] (Google Scholar):

    “[7] Respondent argues that there is no proof that Walter willfully intended to provide false testimony, and that his false testimony may have been the result of confusion or mistake. Napue held that there was constitutional error where a prosecutor knew of ‘false evidence.’ Napue, 360 U.S. at 269, 79 S.Ct. 1173. The question of whether the witness’s ‘untruthfulness… constituted perjury’ makes no ‘material difference’ where the issue is a conviction ‘on tainted testimony.’ Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956) (cited in Napue, 360 U.S. at 269, 79 S.Ct. 1173)).”

    The Second Circuit granted the writ and remanded for a new trial.

    He’s out as of early November 2014 after a retrial and second conviction which was reversed on appeal. People v. Drake, 94 AD3d 1506 (4th Dept. 2012); lv. den., 20 NY3d 1010 (2013). The Appellate Division, 4th Dept. in Rochester drew stick figures for the trial court — regarding the topics it should have insisted the prosecution avoid in the direct case — by quoting liberally from the Circuit decision. And the NY Court of Appeals, the premier common law court of the nation, denied a prosecution motion for leave. The prosecution finally, after months, offered a plea to a lesser included & time served and Drake took it.

    The 2009 opinion is remarkable for its analysis of circumstantial evidence of knowing introduction of false testimony, conclusively proven (by good lawyering), about the timing and extent of trial preparation by the putative expert in addition to his credentials. The Court based its findings on the district attorney’s trial tactics. He sprung the witness on the defense and successfully opposed a continuance for the defense to investigate, prepare for cross, and hopefully find a competing expert:

    “Even before the depositions on remand, there was inferential support for the conclusion that Broderick knowingly elicited Walter’s false statements. The prosecutor’s decision to spring Walter’s testimony at the last minute and resist a continuance provided circumstantial evidence of the prosecutor’s knowing complicity in Walter’s false testimony.” Id. 243, citing Drake v. Portuondo, 321 F.3d 338, 346 (2d Cir. 2003) [Drake I], in which Drake persuaded the Court, pro se, that a new trial may be warranted.

    The 2003 decision vacated the district court denial of the writ and ordered discovery on the circumstances surrounding Walter’s perjured testimony and if necessary a hearing on whether the prosecution knew he was testifying falsely. The district court granted a motion for summary judgment, deciding that Drake, now assisted by appointed counsel, had not proven from deposition testimony and evidentiary submissions that the prosecutor knew or should have known of the perjury. The 2009 decision reversed the district court.

    A learning experience.

  27. I think we are using different terminology to describe the same thing, but semantics matter. People make “honest” mistakes out of their biases and errors of memory. That is different from intentionally testifying falsely (perjury) or intentionally violating the rules (ethical misconduct). When we describe honest mistakes as intentional misconduct, we water down the outrage that we should feel when faced with true intentional misconduct by making intentional misconduct into something that “everybody does.”

  28. Well stated.

    Based upon my reading of the record, it appears to me that the prosecutor/witness referred to in the oral argument video made an honest mistake when he testified to the reason why the sentence (of the witness who testified to the defendant’s confession) was reduced. It does appear to me to be intentional misconduct warranting the outrage expressed by Judge Kozinski during oral argument.

  29. State bar investigations are confidential. For all we know, the state bar may have conducted a complete investigation and concluded that Spira’s misstep was an honest mistake. Not perjury. Not intentional misconduct. Viewing this entire matter in context, that appears to be a reasonable conclusion. If Spira was cleared by the state bar, that would remain confidential. So you shoudn’t jump to the conclusion that the state bar did (or did not) look into Spira’s conduct.

  30. The California court of appeal is not so kind. If I read between the judge speak, he was lying and caught. The California appeals court uses lines like “Unfortunately, the testimony from the second trial bears only a superficial resemblance to reality” (bottom pg 13),
    “Spira managed
    to conceal the only facts that were favorable to the defense at the second trial”( top of page 14.)
    The California government is also viewed as deceitful via hypertechnical parsing. “This sort of hypertechnical parsing does not dispel the highly misleading nature of
    the testimony, which sent a single, unwavering, blatantly false message to the jury”. )=(bottom page 16)
    Bottom line, the Court of Appeal opinion- E032929 – would disagree with your analysis. The Judge’s California judicial colleagues didn’t like what they smelled in this case.
    A higher level view is that what are the changes of a federal court of appeals judge truly going “rogue” vs the chance that other courts either punted or didn’t address prosecutorial misconduct? The second is much more common – how often do I read the name of a prosecutor when a case is reversed due to misconduct? Almost never? How often are they truly punished in some fashion – almost never.

  31. Actually, the better word is probably “deliberate”. Napue, like its predecessors Mooney v. Holohan and Pyle v. Kansas, did indeed deal with deliberate conduct: deliberately fabricating evidence, suborning perjury, hiding exculpatory evidence.

    But then Brady comes along and deals with the last category (“exculpatory evidence”) and says it’s extending Mooney to inadvertent or at any rate less than deliberate conduct. And probably one reason was: how often are you going to get proof that it was deliberate, like they had in Napue and Pyle?

    But then “Brady violations” get subject to a materiality requirement that admittedly had been discussed in Napue but was not its specific holding, and in any event Mooney violations aren’t subject to a materiality test, because when it’s deliberate conduct the offending prosecutor has already admitted materiality. Because deliberate.

    Otherwise you get the situation we unfortunately have now, where prosecutors deliberately cheat and then when they get caught argue that their cheating didn’t make any difference. It’s sort of outrageous that such an argument is even made by supposedly responsible public officials such as AG’s, and at least in my view the most significant thing about the Baca argument was Kozinski’s movement in the direction of expecting better from AG’s in situations like this.

    But outrageous or not, it’s not the law. Deliberate cheating simpliciter by a prosecutor violates a defendant’s right to due process of law. SCOTUS not only held this, they held it was obvious at the time of Mooney, in 1935.

    It says something about us that in the 80 years since we have become so confused about it. Or at least prosecutors and federal judges have.

  32. Pingback: Team Prosecutor | Simple Justice

  33. I understand your points. “Knowing and deliberate” prosecutorial misconduct would say it all, establishing rote knowledge of false evidence including perjury in the context of a plan with the goal of getting a conviction. New York courts and the Second Circuit seldom use the adjective “deliberate” when they could, and should, probably because the defense are not in the habit of doing so.

    For example, a subset of the witness’ perjury about his credentials in Drake was his published scholarship. He had published no articles at all. He had written “one unpublished paper.” The prosecutor successfully disguised these facts during his direct. The 2d Circuit parsed the record, comparing one pretrial notation of his with one question to the witness, which the Court quoted, characterized as “trimmed” and “crafted,” and compared it with the fulsome line of examination of another witness, a forensic dentist. It followed up with by tying this detail to his other trial tactics, all the pieces of a puzzle of knowing and deliberate misconduct. The opinion would have benefitted with the “deliberate” characterization:

    “The record strongly suggests that Broderick knew that Walter’s testimony about his scholarship was intentionally misleading. Broderick took notes of his interview of Walter the morning Walter was to testify at trial. The notes contain the word ‘papers’ crossed out. At his deposition, when asked to explain this notation, Broderick agreed that it was a fair assumption that he had asked whether Walter had written or published any papers, and the cross-out meant that the answer was negative. Walter provided further detail at his remand deposition: at the time of Drake’s trial, the sum of his scholarship was one unpublished paper. Nevertheless, at trial Broderick asked Walter, ‘[h]ave you written any papers or articles in your field,’ to which Walter answered ‘[y]es.’ Trial Tr. at 784. Thus, aware that Walter was not a published scholar, Broderick trimmed the question to inquire only as to papers Walter had ‘written,’ as opposed to ‘published.’ The prosecutor plainly crafted the question to achieve literal accuracy while conveying the false impression that Walter’s work had been validated through publication. By contrast, during his direct examination of Dr. Levine, Broderick asked not only, ‘Ever write any articles, Doctor?,’ but also, ‘Have you had them published?,’ and ‘How many articles have you had published in what type of publication[s]?’ Id. at 668-69.

    “To be sure, eliciting literally accurate testimony is not a ground for a claim of subornation of perjury. Carefully phrased questions designed to elicit literally accurate testimony while
    not revealing weaknesses are grist for cross-examination. A prosecutor who asks such questions on direct takes a chance of damaging his case if defense counsel follows with a cross that brings out these weaknesses. In this case, however, defense counsel had only one night to investigate Walter’s qualifications or scholarship, and Broderick successfully opposed the request for a continuance that would have allowed the defense to
    investigate the new witness.”

    553 F3d at 243-244.

    Then it was required to launch into a materiality analysis (I call it a prejudice analysis), screening other facts of record for over two pages to establish that proof of guilt was not so overwhelming that it nullified the prejudice, the denial of a fair trial. It was likely that the false testimony “could have affected” the verdict. Reasonably likely. The Napue standard. Id. 244-247.

    It cited Napue earlier, and Mooney v. Holohan, preliminary to discussing the evidence of knowledge and describing a very methodical prosecutor. Id. 240.

    This all came out in a couple depositions, ordered by the circuit. Judge Fricano (succeeding trial judge DiFlorio who had retired) denied a hearing on the 440.10 motion, predictably for her. The 4th Dept. affirmed, ruling that the record did not establish (of course it didn’t) that the prosecution knew or should have known of the false evidence. The Court of Appeals affirmed. Then the district court, WDNY (J.Elfvin) denied a hearing. Twice.

    Both opinions are worth a read. They discussed this background, and declined to offer AEDPA deference. There were no findings to defer to, of fact or law.

  34. Pingback: Supreme Court: It's Only A Small Violation of the Constitution | RHDefense: The Law Office of Rick Horowitz

  35. Judge Kopf:

    I thought you would find this article interesting. It is regarding AUSA Jeff Auerhahn in Mass. Ultimately he was “privately reprimanded” by the DOJ.

    The way it played through the Grievance system is even more appalling than what actually happened at trial (multiple Brady and Giglio violations amongst others).

    Background:

    How it turned out much to everyone’s surprise:

  36. Since the system would not let me put in links here so here are the citations:

    1. Boeri, David, “Evidence of Misconduct: The Smoking Gun,” WBUR February 18, 2010.

    2. Boeri, David, “Federal Prosecutor Cleared of Charges to Surprise of Some” WBUR September 16, 2011.

  37. Pingback: California caves « Hercules and the umpire.

  38. Pingback: The Rationale For Concealment | Simple Justice

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