The Ninth Circuit Court of Appeals has been shocked this month to discover that prosecutors lie, cheat and steal to win cases and advance their pathetic careers. This sudden, blinding realization is reminiscent of the fictional, French police Captain Louis Renault who was “shocked, shocked” to discover gambling in Rick’s Café Américain in the movie Casablanca.
There have been a few indications that judges know that prosecutors play games even if the press does not. Two years ago Chief Judge Alex Kozinski worried about “an epidemic of Brady violations abroad in the land.” Kozinski was referring to a Supreme Court decision in a case titled Brady v. Maryland which requires prosecutors to disclose, or discover to the defense, everything they know about a case including evidence that would tend to prove an accused man is innocent.
Prosecutors never play fair, of course, and Kozinski seems increasingly unable to ignore that ugly fact
The first case that came to Kozinski’s attention this month was an appeal of an “ecoterrorism” case against Eric McDavid. McDavid was convicted and sentenced to 20 years in prison in 2007 and was released after serving nine years on January 8. He was the victim of an FBI “sting” that used a 19-year-old, paid snitch named “Anna.”
Anna assembled the group of “terrorists,” organized their meetings, taught them how to make bombs, drove them to the store to buy bomb-making materials, harassed them when they weren’t sufficiently militant, slept with McDavid, told him she loved him and encouraged him to love her. “I think you and I could be great, but we have LOTS of little kinks to work out,” she wrote him in one love letter.” In another she wrote “I hope in Indiana we can spend more quality time together, and really chat about life and other things.”
Defense attorney Mark Reichel described Anna as an agent provocateur but he couldn’t prove it because the government hid evidence and then lied about it. At McDavid’s trial an Assistant United States Attorney named Ellen Endrizzi told the judge McDavid “has throughout his papers said there was a romantic relationship [but] he has provided no facts of that.” McDavid couldn’t provide the love letters because Endrizzi had them locked up in a subterranean vault in her private office in hell. In her closing statement she told the jury “There are supposedly love letters. We’ve got evidence of one. Supposedly Mr. McDavid is falling all over himself for Anna. But you have testimony that Anna rebuffed him.”
McDavid’s lawyers filed a Freedom Of Information Act request for the missing evidence. Some of it eventually surfaced three years after McDavid went to prison. Most of it still remains secret. For example the name of the prosecutor in charge of the investigation remains a state secret. The government has said it innocently “misplaced” the evidence. A long, legal wrangling followed the FOIA disclosures and McDavid was eventually released after he agreed to plead guilty to a lesser charge with a sentence that amounted to half the time he had already served.
Johnny Steven Baca
But, what really got Kozinski’s attention this month was the appeal of a convicted “murderer” named Johnny Steven Baca.
Baca was accused of murdering same-sex companions John Adair and John Mix in 1995. Adair was a doctor and according to police he identified Baca as the shooter before he died. But the case against Baca was always weak. Paul Vinegrad, the Riverside, California Deputy District who prosecuted Baca enlisted the aid of a jailhouse snitch named Daniel Melendez who, in return for a promise of leniency from another prosecutor named Robert Spira, testified that Baca had confessed his crime when the two were locked up in the same cell.
Melendez said Baca had confessed he didn’t like the victims’ homosexuality and that he had been part of a scheme with Adair’s son to get rich. “The plan was for defendant to kill the doctor and his companion while they were together so that it would look like a love-triangle murder, then they could take the insurance proceeds.”
The problem was that Melendez was lying, Spira knew he was lying and then Spira lied under oath about that. Worse, the California Attorney General seems to have known about it and withheld evidence that would have proven the perjury from a California appeals court.
The case wound up in the federal appeals court because Baca is still locked up.
At a hearing on the matter earlier this month Judge Kozinski wondered why Melindez and Spira hadn’t been prosecuted for perjury. It was a good question and the court posed it to California Attorney Kamala D. Harris – a vacuous and unscrupulous woman whom President Obama has proclaimed to be the most beautiful attorney general of them all (above) and who recently announced she is running for the United States Senate.
Earlier this month a Deputy Attorney General named Kevin Vienna answered the court on behalf of Harris with a three page, prolix letter that boiled down to, “There have been extensive discussions of this matter at the highest level of our office.” Vienna promised the court that Harris might have something more to say later this month.
Maybe mañana. Maybe at a campaign appearance.