Metropolitan News-Enterprise


Friday, January 3, 2003


Page 1


Supreme Court Rules:

Prosecutor Did Not Tell Inmates to Lie About Prison Stabbing


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday denied a habeas corpus petition by a Death Row inmate who claims he was framed for a 1980 stabbing murder at California Medical Facility, Vacaville.

In a 5-2 decision, the justices rejected claims that false testimony by fellow inmates led to Larry H. Roberts’ conviction for the murder of Charles Gardner.

Justice Carlos Moreno, writing for the court, acknowledged problems with the credibility of some inmate witnesses. But the defense did not show that any of the three inmates who said they saw Roberts stab Gardner were lying, nor was there any proof that the lead prosecutor, state Deputy Attorney General Charles R.B. Kirk, or the investigators had offered anyone an inducement to testify falsely, Moreno said.

The Attorney General’s Office, in response to Roberts’ 1998 habeas corpus petition, had supported the issuance of an order to show cause so that there would be a full evidentiary hearing into what it called “false and vindictive” charges against Kirk.

The veteran state lawyer, who has been with the office for more than 30 years, is in the process of retiring and could not be reached yesterday for comment. He has been described in news accounts as an aggressive prosecutor who has been dubbed “Mad Dog” by friends.

Prior Conviction

A previously convicted murderer serving a life sentence for killing a security guard, Roberts was incarcerated at Vacaville when he was charged with having killed Gardner, who was stabbed repeatedly during a melee in a prison corridor. He was also charged with the murder of a correctional officer, Albert Patch, who was stabbed by Gardner as he chased his alleged assailant before collapsing, mortally wounded.

The prosecution’s theory was that Roberts, who was heavily involved in a gang called the Black Guerrilla Family, attacked Gardner either as part of a BGF leadership dispute or in retaliation for having been cursed at by Gardner in the yard the previous day.

The prosecution’s witnesses included fellow inmates Raybon Long, Robert Hayes, and Ryland Cade, all of whom said they saw Roberts stab Gardner with a prison-made knife, commonly referred to as a shank. Another inmate, Richard Yacotis, claimed to have heard Roberts admit the killing while confined to the segregation unit after the event, while inmate Leslie H. Rooks said he witnessed the incident in the yard and heard Roberts threaten to kill Gardner.

Rooks also said he saw Roberts with a knife earlier on the day Gardner was killed.

Direct Appeal

Roberts was convicted of both murders in Solano Superior Court, but his conviction for killing Patch was thrown out on his direct appeal. But the 1992 state Supreme Court decision affirmed his conviction and death sentence for killing his fellow inmate, with special circumstances of prior murder and lying in wait.

In seeking a writ of habeas corpus, Roberts contended that the five inmates were lying. He presented declaration from Long, who said he lied because it would help him gain benefits from the state, and because he believed Roberts had ordered him to be killed.

Long also claimed that he, Rooks, Hayes, and Cade were imprisoned together after the crimes and coached by prosecutors to “get the story straight.”

Yacotis and Rooks also recanted their testimony. Yacotis said that he lied because he believed Long’s claim that there were potential rewards in testifying for the prosecution, including money, a new identity, and early release.

Yacotis, who had been subpoenaed by the defense after he sent them a letter claiming Roberts was being framed, said he testified for the prosecution after Kirk told him that he wanted him to testify that he heard Roberts admit the killing, and because he feared retaliation from correctional officers seeking retribution for Patch’s murder.

Testimony Recanted

Rooks declared that did not see Roberts with a knife on the day of the killing and did not witness any incident between Roberts and Gardner the day before, he also said that Roberts had claimed Gardner threatened him, but that he had not heard Roberts threaten Gardner.

Another inmate, who was not a witness at the trial, offered a declaration accusing Kirk of having “made it clear that he would do something to help me” if the inmate testified that he saw Roberts running up the stairs after Gardner was stabbed, even though he had told Kirk he did not see anything of the sort.

By the time of the evidentiary hearing before Solano Superior Court Judge Franklin R. Taft two years ago, Long had given a declaration recanting his recantation. At the hearing, he said his recollection was hazy as a result of the passage of 20 years and a history of drug abuse, then pled the Fifth Amendment.

Cade, however, testified that he had told the truth about seeing Roberts stab Gardner, but Taft said his testimony was evasive. Yacotis stood by his declaration, in which he swore he had lied about Roberts admitting the crime, while two other inmates testified they heard some of the inmate/witnesses indicate that Roberts was being framed.

Taft found that the trial testimony of Long, Yacotis, and Cade could not be believed. But he said there was no evidence impeaching the trial testimony of Hayes, who apparently died before the habeas corpus hearing.

Taft also cleared Kirk and the investigators, saying there was “no believable evidence” of misconduct on their part.

Moreno, writing for the high court, said Taft’s rejection of the prosecutorial misconduct claim was supported by substantial evidence and entitled to deference. While the inmate witnesses did receive some rewards for their testimony, including transfer to a more desirable institution and small amounts of money to compensate for what they had lost while in protective custody and unable to work, none of these were out of the ordinary nor were they specifically promised in exchange for testimony, Moreno said.

The justice went on to say that the referee’s finding concerning Long’s credibility at trial was not entitled to special deference because Long’s credibility at the reference hearing was not tested. Given Long’s wavering over time, Moreno reasoned, it could not be concluded that the story he told at trial was the false one and the one in his first declaration was the truth.

As for Yacotis, the court accepted the finding that Yacotis had lied, but Moreno said this did not undermine the conviction since Yacotis was not an eyewitness. As for Cade, the justice said Taft erred in effectively rejecting the jury’s finding of credibility in the absence of new evidence contradicting his testimony at trial.

Justice Joyce L. Kennard, joined by Chief Justice Ronald M. George, dissented. Kennard did not question the majority’s conclusion that there was no prosecutorial misconduct, but argued that the referee’s finding that three key prosecution witnesses had lied at trial was entitled to deference and was sufficient to overturn the conviction.

The case is In re Roberts, 03 S.O.S. 13.


Copyright 2003, Metropolitan News Company