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Death penalty reversals by the California Supreme Court on the grounds of actual innocence are about as common as snow in June. But every so often the justices get a case that gives them pause. One such case comes up next week during oral arguments in Fresno, more than 10 years after the court — including three current justices — upheld the defendant’s death sentence. What makes the case stand out isn’t that Death Row inmate Larry Roberts claims three material prosecution witnesses — all fellow inmates — lied when they fingered him for a prison murder, but that a referee appointed by the Supreme Court itself agrees. It’s also noteworthy that defense lawyers intend to argue, despite a contradictory finding by the referee, that the trial court prosecutor, San Francisco Deputy Attorney General Charles Kirk, knowingly elicited false testimony through bribes and threats to convict Roberts. When the accusations first surfaced three years ago, the Los Angeles Times published a lengthy story in which it reported that in some other instances Kirk withheld evidence favorable to the defense and misled judges. In one case, the newspaper reported, Kirk was fined and briefly jailed. Kirk could not be reached by The Recorder, but he told the Times in 1999 that anyone hearing the allegations against him in the Roberts case “would think I burn small children.” Whether the justices will entertain the allegations about Kirk, known as “Mad Dog” for his doggedly aggressive style, remains to be seen, but they had enough concerns to order an evidentiary hearing two years ago, and they’ll give great weight to the referee’s findings about the inmates’ recantations. “In situations where the finding really depends upon a determination of credibility and the witnesses’ demeanor,” observed a lawyer familiar with the court’s death penalty practices, “the court really sort of defers somewhat to the referee because the referee has seen the witnesses and [they] have not.” Lying alone isn’t enough to sink a sentence. Evidentiary hearings are ordered in about one of 20 capital cases, according to the capital appeals expert, and referees quite often find that someone has lied — either at trial or at the evidentiary hearing. “Simply because someone lies doesn’t mean it may add up to anything,” he said. But Oakland solo practitioner Robert Bloom, who represents Roberts, can’t contain his optimism. He has a referee’s backing, Supreme Court justices willing to listen and a client who insists he’s innocent. “Everyone says, ‘How can you lose?’ And I say, ‘I don’t know,’” Bloom said. “It seems like [the referee's] saying the main witnesses who said Larry did it lied. It seems [the justices] have to set [the sentence] aside.” The case, In re Roberts on Habeas Corpus, S071835, highlights the inherent problems associated with inmate testimony, which on its face can be unreliable. And it shines a bright light on the extreme steps prosecutors often have to take in investigating prison murders. Although the court-appointed referee cleared Kirk of any wrongdoing, he seemed concerned that the inmate witnesses knew their cooperation might prove personally beneficial. “The inmates were aware that rewards would be forthcoming,” he wrote, “if they supplied favorable testimony.” Roberts, nicknamed “Zoom,” faces execution for allegedly stabbing to death fellow inmate Charles Gardner while confined at the California Medical Facility in Vacaville on Aug. 17, 1980. Prosecutors contend that Roberts, already serving life in prison for the 1970 murder of a high school security guard, jumped Gardner with the help of a third inmate, Archie “Racehorse” Menefield, as part of a gang dispute. Gardner lived long enough to race down a hall and stab to death corrections officer Albert Patch. Roberts was held accountable for Patch’s murder also, getting a life term for that death, but in 1992 a unanimous Supreme Court — in a ruling authored by then-Justice Stanley Mosk — overturned the Patch conviction while upholding the death penalty for Gardner’s murder. In 1999, however, the court, acting on a defense motion, unanimously issued an order to show cause about whether the prosecution’s material witnesses had lied in exchange for money and other benefits, and whether prosecutor Kirk had suborned perjured testimony. Eight months later, the court ordered an evidentiary hearing and appointed Solano County Superior Court Judge Franklin Taft as the referee. Last year, Taft filed a 12-page report finding that inmates Raybon Long, Rick Yacotis and Ryland Cade lied at trial when they implicated Roberts as Gardner’s killer. Taft found Cade especially unbelievable, noting that his rap sheet contained the notation that he was insane and that prison doctors felt his testimony “was adjustable depending on what was to his advantage.” Although Taft said there was “no believable evidence” that Kirk or any other investigators tried to induce false testimony, Taft explained that the inmates did in fact benefit. “These rewards consisted of serving their prison sentences at Chino East, which was a low security prison and considered by the inmates to be ‘better time,’” Taft wrote. “In addition, small sums of money were deposited into their canteen accounts.” The referee said the inmates even asked for additional favors, such as having teeth fixed, getting a sister relocated or being housed in a hotel room with a girlfriend during Roberts’ trial. “These requests were not promised or given, but neither were they denied,” Taft wrote, “and were met with responses by the investigators such as ‘I’ll see what can be done’ or ‘That might be arranged.’” Defense lawyer Bloom said despite Taft’s finding, he plans to argue to the court that Kirk not only elicited false testimony, but also suppressed exculpatory evidence that would have helped Roberts and concealed the facts that witness Cade was mentally ill and had a prior murder conviction — information Bloom said Kirk had a statutory duty to reveal. “It is important,” Bloom wrote in papers filed with the Supreme Court, “that this court (and, hopefully, the parole board at some point) and all others who have an interest in the issues and in the administration of justice, recognize how utterly dishonest and corrupt was Charles Kirk in the prosecution of this case.” He also pointed out that one of Cade’s letters to Kirk “was signed, tellingly, ‘Your Slave.’” In his interview with the Los Angeles Times, Kirk denied bribing or threatening inmates for damaging testimony in the Roberts case and called any suggestion that the man is innocent “such a crock.” Susan Duncan Lee, the San Francisco supervising deputy AG handling the case for the state, didn’t return a telephone call for this story. But in court papers, she defended Kirk and Department of Justice investigators. “The DOJ investigators and the prosecutor all testified that they did not accept the witnesses’ statements at face value,” she wrote, “but looked for corroboration as much as possible. They did not use threats, promises or other improper methods to influence witnesses’ statements. They made efforts to ensure that the witnesses were truthful.” The only problem with that statement is the referee’s findings that the material witnesses lied under oath. According to Taft’s report, inmate Long, who had bargained successfully for money, better prison housing and a promise that Kirk would appear at his parole hearing with favorable recommendations, signed a declaration in 1995 saying that contrary to his trial testimony, he never saw Roberts stab Gardner. The report said Yacotis claims he testified that he overheard Roberts and co-killer Menefield discussing the murder weapon after the fact, but only after investigators threatened to remove him from segregated housing and into the general prison population if he didn’t cooperate. Yacotis seemed especially sincere at the evidentiary hearing, Taft said, because he had served his time and been released from prison. “He had nothing to gain by recanting the trial testimony,” he wrote. As for Cade, Taft wrote, he claimed to have witnessed the killing, but in psychiatric records — written in 1980 but produced for the first time during the referee’s evidentiary hearing — doctors said he’s “untruthful” and cooperates only when it is to his advantage.” Taft also found that a fourth witness, Frederick Payne, was paid money — “whether it is characterized as ‘perks,’ ‘bribe’ or ‘assistance’” — to testify. “However, it would not be for false testimony or to testify to any particular fact that Payne did not witness,” Taft wrote. “This finding is based on the fact that this was what was admittedly being done with all of the inmate witnesses who testified for the prosecution.” In her response to Taft’s findings, Supervising Deputy AG Lee noted that recantations are routinely viewed with suspicion. “Long’s recantation of his trial testimony is especially unreliable,” she wrote, “because he later recanted his recantation. Expressly recognizing the precarious position that he had attained by signing conflicting sworn statements, and with the advice of counsel appointed by the referee, Long invoked his Fifth Amendment right not to testify in the evidentiary hearing, thereby making himself unavailable as a witness.” Lee also argued that the inmates’ testimony should not be set aside merely because they retracted it years later. “At the trial, the jury could hear and see [an inmate] testify about events that were then only a couple of years distant,” she wrote. “In the evidentiary hearings, the events were a couple of decades distant, and the focus of the inquiry was not so much on the events themselves, but on the course of the investigation of the crime.” Defense lawyer Bloom realizes he faces a tough task in getting the Supreme Court to reverse a death sentence that three of its members — Chief Justice Ronald George and Justices Joyce Kennard and Marvin Baxter — have already upheld. But the fact that the referee discounted the testimony of key prosecution witnesses — along with a record showing that five other inmates testified that Roberts wasn’t the killer — lifts his spirits. “What’s interesting is that Judge Taft realized that Roberts could well be innocent,” he said, “and wanted to do the right thing and make findings that are honest and helpful. I’m very encouraged.” San Francisco lawyer Dennis Riordan, who represented Roberts on direct appeal and persuaded the court to drop the life sentence for the guard’s death, agrees that Bloom has every right to be optimistic. “In this case, there has not only been an order, there have been findings by the [referee] that, in certain respects, favor the defendant,” the Riordan & Rosenthal partner said. “So this well could be a case where [the justices] grant the writ of habeas corpus and reverse conviction.”

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