A Man Consumed by His Convictions

The epiphany of Charles R.B. Kirk came 26 years ago. He had been a prosecutor for seven years, toiling in the San Francisco division of the state attorney general’s office, and he was agonizing about his career choice.

As he headed across the Richmond-San Rafael Bridge toward Marin County, he felt overcome with the failure he saw everywhere: the broken homes, broken lives and broken bodies. He was deep into his gloomy reverie when he saw San Quentin prison, home of California’s death row.

The prison was “bathed in sunshine,” aglow. “And I thought to myself, some of the guys I put there, or kept in there, are still there, and then I began to think, they are there and not on the streets . . . “

Cheered by this, Kirk stopped doubting and embraced prosecution with such fervor that he became known as “Mad Dog,” a moniker given in jest but aptly reflective of his relentless, aggressive style.

“I am sort of frightened by what I consider to be a certain talent,” Kirk said, referring to his own abilities, “and I have chosen to use that talent to the greater public good. Criminal defense is not for the public good.”

Today, however, toward the end of a long career, it is Kirk, now 59 and a senior state prosecutor, who is being forced to defend himself.

An appeal by a Los Angeles man who is awaiting execution charges Kirk with “monumental” misconduct in his murder trial and paints a portrait of him as “notoriously dishonest.”

Charges of prosecutorial misconduct are common in death penalty appeals. But the number and severity of the allegations against Kirk are highly unusual. In addition, they follow a previous sanction on Kirk for withholding evidence, a rare event for any lawyer, even over the course of a long career. In yet another case, an appellate judge chastised him for misleading a court.

The California Supreme Court, which normally rejects most constitutional challenges of death sentences, has already asked the attorney general’s office to respond to the charges in Kirk’s case. Even Kirk believes the court is considering appointing a neutral third party to investigate them.

The charges are being made at a time when the actions of prosecutors are coming under renewed scrutiny. For the first time in more than a decade, the state Supreme Court last year overturned a death sentence in a murder case because of “outrageous and pervasive misconduct” by a longtime Los Angeles County prosecutor.

In Chicago, a group of seven prosecutors and sheriff’s deputies are being tried on charges of conspiring to frame an innocent man. In Washington, members of Congress--including Republicans who have long championed “tough-on-crime” prosecutors--are examining a flurry of bills designed to put limits on some prosecutorial tactics. Further controversy has been aroused because of what critics charged were heavy-handed prosecutorial tactics in the long-running investigations headed by independent counsel Kenneth W. Starr.

Courtroom Dramatics

The allegations against Kirk have already attracted attention in the legal press because of his status within the state attorney general’s office. He has tried more death penalty cases than any other deputy attorney general, taking cases when local district attorneys have a conflict of interest or limited staff.

The fiercely competitive Kirk employs the courtroom dramatics and creative strategy of the most effective trial lawyers, although as a prosecutor he is held to higher ethical standards. Prosecutors are supposed to seek the truth and aim for justice, even if it rules out a conviction.

Kirk’s admirers say he would not deliberately violate ethics.

“If he went over the line, it wouldn’t be unethical in the sense that he did something intentionally,” said Court of Appeal Justice William D. Stein, Kirk’s former supervisor in the attorney general’s office and a friend.

“He might play it so close to the line that he fell over,” Stein added. “I could see that happening.”

Kirk counts the death sentence he won against Larry Roberts for a prison murder as one of the jewels of his career--”No one in the office thought I could win that case”--and dismissed as “such a crock” any notion that Roberts might be innocent.

In one murder case he prosecuted, Kirk stunned a courtroom by dressing a life-sized dummy in the victim’s clothing. Then, with his knee on the dummy’s back, Kirk strangled the dummy with a belt. While he choked the dummy, a big clock ticked off the minutes it took the real victim to lose consciousness and die. The defendant was eventually sentenced to life without parole.

The defense lawyer in the case recalled the demonstration as “horrifying,” and the judge said Kirk “was going for the jugular and that was that.”

Retired Alameda County Superior Court Judge Richard Haugner said Kirk could steamroller a weak judge.

“Charlie pushes,” Haugner said. “He was very aggressive, opportunistic and basically a very good trial lawyer.”

Kirk is solidly built, with short, silver hair that falls in even bangs across his forehead, brown eyes framed with gold-rimmed spectacles and a blunt, informal manner. He wears khakis and flannel shirts to his downtown corner office, where he has a view of the Bay Bridge and works long hours, fortifying himself with cans of warm Diet Coke.

Although Kirk relishes his fearsome reputation, he is aghast at the charges against him in the Roberts case. The attack on him is unusually personal, he said.

“You read that petition and you would think I burn small children,” he snapped.

Roberts, 45, who is from Watts, went to prison because on his 17th birthday, he killed a guard during an attempted robbery of his high school. “He should have died for that one,” Kirk said, but a jury instead sentenced Roberts to life in prison.

Roberts and another Black Guerrilla Family member subsequently were accused of killing a fellow inmate and causing the death of a guard in 1980 at the California Medical Facility at Vacaville.

The inmate victim, after being stabbed, staggered after his assailant and met a guard. The wounded inmate then stabbed the guard, and both men died.

Kirk prosecuted the case. The jury sentenced Roberts to death for the inmate’s murder, and life in prison for the murder of the guard.

The California Supreme Court later overturned the conviction for the guard’s murder, ruling there was no evidence that Roberts premeditated or even anticipated the guard would be killed. The ruling did not affect his death sentence, however.

Now, Roberts’ attorneys are appealing, charging that Kirk and prosecution investigators threatened and bribed prisoners into giving false testimony. The inmates who testified were crucial because no guard had witnessed the first stabbing.

In a sworn declaration, one of the inmate witnesses now says he perjured himself because investigators told him he would be accused of the crime or sent to another prison where his name was on a hit list.

“Mr. Kirk . . . knew I was lying, and he, too, encouraged me to lie and make my story more credible with details, whether or not the details (or even the basic facts) were true,” said former prosecution witness Rayborn “Butch” Long.

Another prosecution witness, Ryland Cade, initially said he did not see the killing, but in interviews with the prosecution eventually identified Roberts as the killer. Cade was given early state parole in return for his help after he agreed to testify against Roberts, the defense lawyers contend.

Walking the Tightrope

Cade had previously been diagnosed as insane by three court-appointed psychiatrists, a fact that Kirk had not disclosed to the defense. Kirk said he disclosed what the law required.

Transcripts show that Cade repeatedly asked Kirk for favors, including early parole, help in marrying and meeting with his fiancee during the Roberts trial. Kirk promised to try to help, according to the transcripts. At one point, Cade made a statement that defense attorneys interpret as an offer to change his story on the stand if Kirk wanted him to.

Kirk said he did not coach witnesses or reward them for their testimony. All he did, he said, was try to protect them from reprisals and advise the parole board of their cooperation with him.

Roberts’ petition also examines other cases Kirk has handled, listing episodes in which his ethics were questioned. The most serious landed Kirk contempt convictions.

A federal judge in 1978 sentenced Kirk to 10 days in prison and a $500 fine for misleading and lying to the court about the existence or nonexistence of documents in a civil rights case. On appeal, two members of a three-judge panel overturned the sanction for lack of evidence.

In a Marin County murder case in the early 1980s, another judge found Kirk guilty of contempt and fined him $100 for withholding exculpatory evidence sought by the defense in a murder trial.

The murder defendant was accused of stabbing two fellow prison inmates, killing one and wounding another. In response to defense motions, Kirk said in writing that there was “not one scintilla” of exonerating evidence. All the evidence the prosecution possessed “ineluctably points to guilt,” Kirk declared.

But the surviving inmate had actually told Kirk that the defendant had not stabbed him. The inmate had said the defendant was across the room at the time he was attacked.

When the court learned of the statement on the eve of trial, the case was dismissed and a new trial ordered.

Deputy Public Defender Gaile O’Connor, the defense lawyer in the case, still seethes at the mention of Kirk’s name. She said she has never seen such misconduct in her long career as a public defender.

“I don’t understand what would motivate someone to do something that evil,” she said. “He broke the law, and he broke the law in a murder case.”

Kirk said he had not believed the inmate and dismissed his statement from his mind. “To me, this was just more of the bull . . . “ Kirk said.

Los Angeles Deputy Dist. Atty. Rod Leonard, an ethics expert, said such a contempt finding is unusual for a prosecutor, or any lawyer, even one who practices for many years.

Even so, Jack Montgomery, a defense lawyer in the trial in which Kirk strangled the dummy, said that apart from that performance, he didn’t consider Kirk “to be unethical by any stretch of the imagination. . . . I would personally be somewhat surprised if he were suborning perjury. I find that hard to imagine with him.”

Kirk struck Montgomery as “this mad Indian warrior type.” He and his staff joked that Kirk’s middle initials stood for “Running Bear.”

After the trial, Kirk and his investigator agreed to meet the defense for drinks at a local pub. They arrived dressed in Indian regalia with war paint.

Self-Described ‘Renaissance Man’

Kirk is an Oregon native from an educated family with prominent roots. He graduated at the top of his law class in 1965 from Willamette University and describes himself as a “Renaissance man,” a collector of Western art, a computer buff and outdoorsman. He is married to another prosecutor in the office and has a grown son from a previous marriage.

Colleagues say he is strongly opinionated. “He moves real fast into what is good and what is bad,” said one former colleague.

Kirk ran into San Francisco Chief Assistant Dist. Atty. Richard Iglehart in a courtroom here several months ago. Iglehart, a former deputy attorney general and at one time Kirk’s boss, now works for Terrence Hallinan, San Francisco’s elected district attorney, a former criminal defense lawyer and a liberal.

“You have gone over to the dark side,” Kirk told Iglehart, refusing his hand.

Kirk’s uncompromising view of life makes him a formidable opponent even outside his job. Kirk fought with his mortgage company over $20 a month, and nearly lost his house rather than pay what the company demanded for an impound account for taxes and insurance.

Unable to sleep at night, Kirk finally called real estate lawyer Cary Dictor for help in getting the house out of foreclosure.

“He was saying it was the principle of the thing. ‘This is the law, and they are supposed to follow it,’ ” said Dictor, who recalls that Kirk’s voice broke as he related his story. “That is the kind of guy he is. You really would have to be half crazy to go through what he did” over $20 a month.

Kirk filed a lawsuit, prevailed at trial, saved his house and won an undisclosed settlement from the mortgage company, which changed its policy for all homeowners.

Kirk said he also expects to prevail in the Roberts case. The state Supreme Court has asked the attorney general to respond to the misconduct charges, which involve the entire prosecution team, by today. Kirk said he will not let the petition’s “maliciousness” interfere with his work. He regards prosecution as a higher calling.

He never steps beyond what the law allows, Kirk insists, but “I do things that other people would like to do but don’t have the guts to do.”