George Gage

In 1999, George Gage, a 60-year-old electrician with no criminal record, was charged in Los Angeles Superior Court with multiple counts of raping and sexually abusing his stepdaughter, Marian, when she was a young girl. Marian made the allegations years later; other than her accusations, there was no evidence that the crimes had occurred. Twice, Gage turned down favorable plea offers. “I am not a sexual offender,” he said.

In closing argument, the prosecutor, Deputy District Attorney Christopher Estes, told the jury that the case boiled down to Marian’s credibility. “If you believe what [Marian] said is to be the truth,” he said, “then you know that each and every element of these charges has been satisfied.” At the time Estes was prosecuting Gage, he was also running for election to be a judge on the California Superior Court. On March 2, 2000, the jury convicted Gage on all counts. On March 7, 2000, Estes won the election.

At sentencing, after a protracted dispute, the presiding judge obtained Marian’s medical and psychological records, which Estes had never turned over to Gage’s lawyer. After reviewing them privately, the judge granted Gage a new trial, finding that the failure to provide Gage’s attorney with this evidence violated his right to a fair trial. Had the jurors known the full story, the judge concluded, they would likely have harbored grave doubts about Marian, whom the judge called “deranged” and “not candid with law enforcement, the district attorney’s office, or with the court or jury.” In a year of therapy after a suicide attempt, Marian made a single passing reference to sexual abuse, a silence the judge found “very inconsistent with the almost vomitus delivery of the morbid details of abuse the victim happily laid out at trial.” Also included in the trove of documents was this damning description by Marian’s mother: “A pathological liar who lives her lies.” The judge responded: “Mom ought to know. She has lived with [Marian] her entire life.”

The California Court of Appeals concluded that the trial judge had overstepped her authority in considering any of this evidence because it had never been presented to the jury. Gage’s conviction was upheld, and he was sentenced to die in prison. Fifteen years later, in 2015, when Gage’s case finally reached the 9th Circuit, AEDPA essentially mandated that the state court’s ruling be upheld. The federal judges, led by George W. Bush appointee Richard Clifton, were outraged, and subjected the deputy attorney general, David Cook, to a grilling that was similar in tone and substance to what Vienna experienced in the Baca case.

Prosecutors who lie or who conceal evidence should be disbarred and prosecuted. And any guilty verdict that was obtained with a prosecutor lying (on the stand or in his or her arguments) or concealing evidence should be automatically thrown out.

After being pressed repeatedly to explain why Gage’s rights had not been violated, Cook reminded the federal judges that the law required them to assume that the state appellate court decided the case correctly. Clifton was not persuaded. “I gotta say it doesn’t give me a lot of confidence in the verdict.” There was a long pause as Cook, clearly uncomfortable, stared down at the lectern. Judge Clifton pressed, “Does it give you a lot of confidence in the verdict?” Cook started to respond that it was not his place to question the verdict, but again Judge Clifton cut him off. “On some level you are,” Clifton said. The prosecutor’s job, he said is “not simply to obtain convictions, it’s to do justice.”

Clifton concluded, “I have some concerns about this conviction. I would hope the state of California has some concerns as well.” Cook offered to take the case back to his supervisor for a second look. “If he is not already listening by the Internet,” he added. He may well have been, but few others were. There was no judge with Kozinski’s star power on the panel hearing Gage’s appeal and no attendant press coverage. To date, less than 350 people have viewed the oral argument.

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