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Rejecting allegations of prosecutorial misconduct and ignoring a court-appointed referee’s finding that three material witnesses lied at trial, the California Supreme Court voted 5-2 Thursday to keep a convicted murderer on death row. In his first capital case ruling, Justice Carlos Moreno flatly dismissed the referee’s findings, despite the fact that the court is supposed to give them “great weight,” and denied Larry Roberts’ petition for writ of habeas corpus. “We are in as good a position as the referee to assess the effect of [various] factors, and we reach a different conclusion,” Moreno wrote. In a rare alliance on a death penalty case, Chief Justice Ronald George joined Justice Joyce Kennard in dissent. “The referee’s findings are supported by substantial evidence and therefore entitled to great weight,” Kennard wrote. “Without the false testimony, there is a reasonable probability the jury would not have convicted [Roberts] of [Charles] Gardner’s killing.” Roberts was convicted of the 1980 stabbing murder of fellow inmate Gardner at the California Medical Facility at Vacaville. Prosecutors argued that Roberts jumped Gardner with the help of another inmate as part of a gang dispute. Gardner lived long enough to run down a hall and kill corrections officer Albert Patch. Roberts was convicted of Patch’s death, too, but in 1992, the California Supreme Court — including current Justices George, Kennard and Marvin Baxter — threw out the Patch conviction, while upholding death for Gardner’s killing. In 1999, however, the high court, on a defense motion, ordered Solano County Superior Court Judge Franklin Taft to serve as a referee to investigate allegations of false testimony by fellow inmates and determine whether prosecutors had elicited perjured testimony through financial bribes and other benefits. While Taft ruled that there was “no believable evidence” that false testimony had been induced by prosecutors, including San Francisco Deputy Attorney General Charles Kirk — known as “Mad Dog” around the courts — he found that inmates Raybon Long, Rick Yacotis and Ryland Cade had lied in fingering Roberts for Gardner’s murder. He said they testified for the prosecution while requesting benefits, such as cash or better placements. “These requests were not promised or given, but neither were they denied,” Taft wrote. On Thursday, the Supreme Court agreed with Taft that Roberts failed to prove that the prosecutor knowingly presented false evidence, but they rejected his findings that the three inmates lied. For example, they took Taft to task for basing his decision about Cade’s lying on his demeanor at a hearing, rather than on new evidence. “It is not the function of a referee or an appellate court to re-weigh credibility determinations made by the jury,” Moreno wrote. “The jury was in the best position to determine the truthfulness of Cade’s trial testimony.” He also ruled that the defense counsel’s failure to cross-examine a witness about testimony that a critical gate was locked or unlocked at the time of the murder wasn’t error. “There is no reasonable probability that the outcome would have differed, with regard either to guilt or to penalty,” Moreno wrote. In her dissent, Kennard was incredulous that the majority would appoint a referee and then outright dismiss findings based on hearing testimony that took up almost 3,000 pages once transcribed. “We are not bound by a referee’s findings on factual questions, but we accord them great weight if they are supported by substantial evidence,” she wrote. “We defer to the referee’s factual findings, ‘especially those requiring resolution of testimonial conflicts and assessment of witnesses’ credibility because the referee had ‘the opportunity to observe the witnesses’ demeanor and manner of testifying.’” Oakland solo practitioner Robert Bloom, who represents Roberts, said Thursday that he was “very disappointed that the majority is willing to execute an innocent man based on testimony that’s already been found to be false.” He called Roberts’ conviction “a straight-out frame-up” and said he will now concentrate his attention on fighting Roberts’ death sentence in the Sacramento federal court, which had sent the case to the California Supreme Court to resolve all state issues. Bloom also expressed disappointment in Moreno. “He’s said to be a decent guy who is sensitive to justice, and to me the insensitivity to what’s right here is discouraging.” San Francisco-based Deputy Attorney General Susan Lee, who represented the state’s interests in the case, said she was pleased. “The centerpiece allegations were that the prosecutor and the prosecutor’s team conspired to convict an innocent man,” she said, “and the Supreme Court has completely rejected that theory. It’s just a shame those lurid allegations were kept alive for so very long.” However, Lee said, there’s a chance the allegations could be raised again in federal court. The case is In re Roberts, 03 C.D.O.S. 47.

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