Government
Jul. 19, 2002
After 40 Years, Dispute Over 'Brady' Persists
LOS ANGELES - Death row inmate Adam Miranda hopes a recent trial referee's finding that prosecutors failed to disclose evidence that could have helped him at his 1982 murder trial will boost his 14-year quest for a new trial.
Miranda, who has spent 20 years on death row, is alleging that prosecutors suppressed crucial evidence that could have exonerated him in violation of his constitutional right to a fair trial. In Re Miranda, S058528 (Cal., petition filed Jan. 17, 1997).
Miranda was convicted in 1982 of capital murder with the special circumstance that he committed a second murder, for which a judgment was entered in 1983.
His pending hearing before the state Supreme Court comes on the heels of an appellate ruling last week that set aside the 20-year-old murder conviction of Anthony Stacy on similar grounds: He was denied his right to a fair trial. In Re Stacy, B143115 (Cal. App. 2nd Dist. July 10, 2002).
Stacy and Miranda are two recent skeletons to fall out of the closet for the Los Angeles district attorney's office.
Besides the common issue they raise - violations of defendants' constitutional rights under the landmark 1963 U.S. Supreme Court case Brady v. Maryland - they share other similarities.
Both cases arise out of an era that erupted in scandal, in the late 1980s, involving the misuse of jailhouse informant testimony, which resulted in a grand jury investigation in 1989.
The district attorney's office has estimated that 153 convictions from 1979 to 1988 involved testimony by informants housed at the Los Angeles County Jail.
Defense attorneys estimate that half of those were in capital cases, a large number which have not exhausted their post-conviction appeals.
In Stacy, the 2nd District Court of Appeal last week ruled that prosecutors failed to disclose exculpatory information to the defendant about one such informant, an inmate with an extensive criminal record and a history of reducing his own sentences and receiving money in exchange for witness testimony.
In Miranda, defense attorneys allege that prosecutors similarly failed to disclose evidence that, they say, would have undermined the testimony of a witness who may have been an accomplice in one of the crimes with which Miranda was charged.
Court documents indicate that, in exchange for his testimony against Miranda, the witness was released from custody, cleared of all charges and given relocation expenses.
According to veteran defense attorneys, both cases are emblematic of the conduct of the district attorney's office in prosecuting criminal cases - and its approach to handling appeals that arise from the jailhouse-informant controversy.
"You couldn't argue a murder case in those days without someone saying they'd witnessed a confession," Santa Monica defender Gigi Gordon said. "And despite the fact that everyone agreed reform was needed, to this day nobody has ever admitted that misconduct occurred in any single case.
"Cases like Miranda and Stacy represent the great diligence of their defense attorneys and nothing else."
Deputy District Attorney George Palmer, the head of the office's appellate division, said that the district attorney's response to the jailhouse informant scandal was swift and unprecedented for a jurisdiction of its size.
"We assembled information about all of those cases [in which informant testimony was used]," Palmer said, "and created a library and made it available to defendants and inmates if they could provide proof of a legitimate interest.
"We didn't even require a discovery motion in those cases. The objective was to clear the air if anyone wanted to challenge their verdict."
But Gordon and other defenders claim the threat of a grand jury investigation and adverse media exposure were the only reasons the district attorney's office budged in its response to the scandal.
In the 1990s, as a number of petitions for habeas corpus were working their way through the system, the district attorney's office threatened to destroy the library of evidence it had created following the jailhouse informant scandal, according to Robert Berke, the attorney who handled Stacy's appeals.
In June, 2001, after a five-year court battle arising from a lawsuit filed by the California Attorneys for Criminal Justice, the district attorney's office finally agreed to permanent storage of felony records involving sentences of life in prison without possibility of parole or death. California Attorneys for Criminal Justice v. County of Los Angeles, BC161572 (L.A. Super. Ct., filed Nov. 26, 1996).
Since then, Berke said, prosecutors have continued to stonewall motions for discovery and petitions for writs of habeas corpus in cases where a defendant claimed a denial of the right to a fair trial.
"I've been citing U.S. Supreme Court cases on Brady and making motions for years on these cases, and I have to fight for every scrap of paper I get," he said. "But there are some shallow graves out there. This goes beyond prosecutors' pride or bullheadedness."
Aside from discovery of information that defendants might use to exculpate themselves, the district attorney also continues to fight cases at the appellate level that appear tainted, he said.
Berke pointed to an appeals court ruling in Stacy, in March, which signaled the judges had reversal on their minds.
"But there was the district attorney's office, arguing on appeal that an obviously tainted conviction should stand," he said.
Prosecutors contend that cases arising from the jailhouse informant scandal, such as Stacy, are distinguishable from cases such as Miranda, in which an alleged accomplice or eyewitness to a crime becomes a witness for the state.
Prosecutors further express frustration that defenders doggedly adhere to constitutional principles where the interests of people whom they believe to be cold killers are at stake.
"I don't have any doubt that Stacy is one of the murderers in the case, if not the shooter," Palmer said.
"I can understand defense attorneys' need to assign sinister motives to prosecutors, considering they're forced to get up every day and defend people they know are probably lying, if not guilty as charged," one veteran prosecutor who asked to remain anonymous said.
"What gives the district attorney's office the right to play God?" replied George Hedges, Miranda's appellate attorney.
Hedges contends that prosecutors buried evidence discrediting their own witness in a file that was not discovered for 14 years - until a federal judge ordered prosecutors to open the file.
About the only things that defenders and prosecutors agree on is that dozens of criminal cases from the 1970s and 1980s are making their way through the appeals process - and that mistakes will be made along the way.
"I guarantee you that, 20 years from now, cases will emerge in which Brady violations occurred or mistakes were made," said one prosecutor. "The system can never be perfect.
"In the 1980s, we were still learning. It was an era of crime that was really taking off."
For Anthony Stacy, whose indeterminate life sentence was vacated last week, the future is uncertain. The district attorney's office has 60 days to appeal the ruling or retry him, which could present problems, according to Deputy District Attorney Peter Bozanich, the prosecutor in charge of making that call.
"A reversal of a case this old is rare," Bozanich said. "Assembling the same cast of characters [for a new trial] is difficult."
For Miranda, 42, who has been on death row for 20 years, an evidentiary hearing before the state's highest court is long overdue, his lawyers say.
Miranda's lawyers have charged that former Deputy District Attorney Fred Horn - who sits as a Superior Court judge in Orange County and who prosecuted Stacy - and Los Angeles Superior Court Judge Lance Ito - also a former deputy district attorney - along with Deputy District Attorney Curt Hazell, suppressed evidence that could have led the jury to spare Miranda's life.
The recent referee's finding in Miranda arose out of a rare order by the state Supreme Court requiring prosecutors to show cause why Miranda's death sentence should not be reversed.
On July 18, 2001, the state Supreme Court appointed San Diego Superior Court Judge Roger Krauel to hold a hearing to determine whether evidence alleged to be Brady material was ever disclosed to Miranda's lawyers.
At issue was a statement which, Miranda's lawyers say, was written by a witness who exonerated Miranda of committing one of two murders, by identifying the state's star witness as the actual killer in one of them.
On May 29, after two evidentiary hearings in the Los Angeles offices of Quinn, Emanuel, Urquhart, Oliver & Hedges, Krauel ruled that Miranda's lawyers did not receive the written statement when he was tried and sentenced to death in 1982.
Brady requires prosecutors to turn over all potentially exculpatory evidence to defendants, including information that discredits the state's own witnesses.
The issues before the state Supreme Court in the coming months are whether that statement is admissible as Brady material and whether it would have created a reasonable doubt among jurors in weighing the death penalty for Miranda.
In court papers, the state attorney general's office, which represents the district attorney's office, has alleged that the written statement in question is double hearsay and therefore inadmissible.
Even if the court sets aside his death sentence, Miranda will serve out a life sentence without parole, according to Hedges, a partner at Quinn Emanuel appointed to represent him in 1988.
However, Hedges believes an even greater question of justice is at stake.
"It's outrageous that [two sitting judges] would have buried a [written statement] in a file and never turned it over to the defense, knowing that it impeached their star witness," he said.
Miranda was convicted of murdering an Eagle Rock store clerk named Gary Black in 1980. A jury sentenced Miranda to death in 1982 after an alleged accomplice testified against him at his sentencing trial that he also killed a drug dealer named Robert Hosey.
Yet the circumstances of the Hosey killing are murky, Hedges says. He claims that prosecutors cut a deal with an associate of Miranda's named Joseph Saucedo to testify against Miranda at his sentencing hearing for the Black killing, then further used that testimony to force Miranda into a plea agreement for the Hosey killing, in 1983.
Hedges and his co-counsel Kerry Bensinger charge that Saucedo committed the Hosey killing and then, under pressure from prosecutors, turned state's witness by implicating Miranda.
They point to a crucial piece of evidence that Ito, Horn and Hazell failed to disclose to Miranda's trial lawyers, as confirmed by Krauel's May 29 finding.
The existence of that evidence was news to them, they say, a full 14 years after Miranda was sentenced.
In 1996, after numerous appeals, U.S. District Judge Mariana Pfaelzer of the Central District ordered the prosecutors to open their files for inspection.
Inside the files, Miranda's attorneys found a sealed manila envelope containing a handwritten statement that they claim was written by an inmate named Larry Montez - referred to in court papers as the "Montez letter."
The Montez letter states that Saucedo, not Miranda, killed Hosey in a drug robbery and that he confessed to it from a neighboring jail cell.
That letter, Hedges says, is Brady material that would have discredited Saucedo and given the jury the requisite doubt needed to sentence Miranda to life without parole instead of death for the Black killing - if only his trial attorneys had known of it.
Ito has testified that he recalls the letter but that he cannot recall disclosing it.
In his testimony, he cited his "open file policy" that would have allowed Miranda's lawyers to retrieve any information to which they were entitled, simply by asking for it.
Recently, Ito said he could not comment on a pending case.
Horn and Hazell both have testified that they cannot recall disclosing the Montez letter and that they assumed the previous prosecutor, Ito, would have done so.
Hazell, who would not comment on the specifics of the case, said he was covering for a colleague who had a family crisis at the time.
"I was parachuted in to try the case at the last minute, and discovery had ended, so I cannot speak to the existence of that letter," he said.
Horn did not return calls requesting comment for this story.
Deputy State Attorney General David Glassman, who represents the district attorney's office, questions the evidentiary value of the letter and its admissibility.
"A judge has found that a slip of paper was not received by the defense in a murder case that took place 20 years ago," Glassman said. "[Miranda's] lawyers have not proved [who] wrote the letter or whether it would even constitute admissible impeaching evidence."
Glassman further said a handwriting expert will testify that the Montez letter was not really written by Montez and that Montez has denied making any statement implicating Saucedo as the man who killed Hosey.
According to Hedges, the Montez letter is genuine, and in any event, there is additional evidence of misconduct by the prosecutors to warrant a reversal of Miranda's death sentence.
"They also paid an informant to testify against my client and then allowed him to lie on the stand when asked if he had been compensated," Hedges said. "We have a receipt showing that Saucedo was paid for his testimony, and when asked on cross-examination whether he was paid, he said no, which is a lie.
"[Hazell] just stood there and said nothing."
Hedges said he expects the state Supreme Court to hear oral arguments on Miranda's petition for a writ of habeas corpus this fall.
Veteran defense attorneys said that, regardless of whether the district attorney's office has curbed its use of jailhouse informants and adopted protocols for Brady compliance, prosecutors' lack of respect for defendants' constitutional rights remains a bone of contention.
"I'm hard pressed to recall a single time when I haven't had to fight for every piece of paper I'm entitled to by law," Mark Overland, a Santa Monica defense attorney who represented Anthony Stacy at trial, said. "If the district attorney's office is serious about principles of fairness, then it ought to acknowledge its mistakes and do something about them."
Lael Rubin, special counsel to the district attorney's office and the expert on its Brady policy, objected to such characterizations and said, "It's easy to talk in the abstract."
Rubin said that, since the jailhouse informant scandal, the district attorney's office has investigated its own files and produced "plenty of information defendants could have used at trial to impeach adverse witnesses at trial."
And, she said, prosecutors more recently have implemented methods for keeping track of documents produced during the course of trial, in the event defendants should petition the court for further review.
Yet in any case where a defendant is alleging a Brady violation, such as Miranda, she said, it is important to remember such violations could be inadvertent or unknowing, as well as intentional.
"It's one thing for a prosecutor to hide a letter that he or she knew would have made a difference to the defendant at trial or penalty phase," she said. "But what should our position be on opening our files when [we] have no knowledge this stuff exists?
"[We're] often inclined to believe the defense is on a fishing expedition."
Rubin added that there is nothing simple about a doctrine that is almost 40 years old and still being interpreted by the state's highest court.
Besides Miranda, she said, the state Supreme Court is expected to address a case in the fall that could "fashion clear-cut constitutional and statutory requirements that may be applied to the complex facts of criminal cases."
"The California Supreme Court is still wrestling with how to answer very real questions regarding the basic premise [of fairness] in Brady," Rubin said.
For the Record A story published in the Los Angeles Daily Journal on July 18, 2002, ("After 40 Years, Dispute Over Brady Persists"), in correctly paraphrased a statement by Santa Monica attorney Robert Berke.
In a reference to a lawsuit filed by the California Attorneys for Criminal Justice against the Los Angeles district attorney's office in 1996, the story should have stated that Berke said the suit resulted from threats by the district attorney to destroy records related to misdemeanor and felony offenses that were 15 years old or older.
The Daily Journal regrets the error.
Jeffrey Anderson
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com