The opinion
BIRD, C. J., Concurring.
This young man spent almost three of his most formative years in prison because basic rules of procedure were not followed. If the police had taken the time and care to conduct a fair lineup, a faulty identification would not have occurred. If the prosecutor had followed proper practice, he would not have entered into a plea bargain that sealed the lips of a person who knew the truth. If the trial court had taken the time to review this matter properly, these errors would have been disclosed and corrected at a much earlier time. I agree with the majority that the writ of habeas corpus should be granted.
This case brings home to us the human costs that result when those in authority within the judicial system fail to follow the rule of law.
For example, consider the questionable practices of the district attorney’s office here.
Several days after petitioner Hall was sentenced to life imprisonment for the murder of Jesse Ortiz, the district attorney entered into a plea *436 bargain with Alfred Reyes. Reyes had made a statement to the police shortly after the Ortiz homicide implicating Sanchez, rather than petitioner, as the murderer of Jesse Ortiz. At the time of this plea bargain, Reyes had pending against him the charges that he had participated in the murder of Jesse Ortiz and in an unrelated murder.
In this plea bargain, consummated in March 1979, the prosecutor agreed to dismiss the counts which charged Reyes with the murder of Ortiz. In exchange, Reyes entered a plea of guilty to the other murder. A further term of the plea bargain was that Reyes was not to “make any statement, under oath or by declaration under penalty of perjury” concerning the Ortiz murder, without first notifying the prosecutor of his intent to do so. He had to agree to submit to a complete interview with the sheriffs department and to take a lie detector test. The prosecutor further reserved the right to refile the counts charging Reyes with Ortiz’s murder if Reyes violated the plea agreement and made any statements about Ortiz’s murder.
While not completely sealing Reyes’ lips about the Ortiz murder, this plea bargain agreement made it much to Reyes’ advantage to refuse to cooperate with petitioner’s attorneys when they sought evidence which would overturn petitioner’s conviction. As long as Reyes refused to make any statement under oath or penalty of perjury, he had the assurance of the district attorney’s office that the Ortiz murder charge would not be refiled. If Reyes nonetheless wished to make a statement under oath, he first had to notify the prosecutor and submit to a complete interview by the police, including a lie detector test. Not surprisingly, Alfred Reyes refused to make any statement until January 1981 after the prosecutor finally agreed to waive this condition of the plea bargain.
This aspect of the plea bargain was a form of witness intimidation that should not have been engaged in by prosecutorial authorities. This is especially true when the prosecutor knew that Reyes had information which pointed to petitioner’s innocence and Oscar Sanchez’s guilt. As this court stated in In re Ferguson (1971) 5 Cal.3d 525, 531 [ 96 Cal.Rptr. 594 , 487 P.2d 1234 ]: “In light of the great resources at the command of the district attorney and our commitment that justice be done to the individual, restraints are placed on him to assure that the power committed to his care is used to further the administration of justice in our courts .... ”
*437 The administration of justice was in no way furthered by the unusual plea bargain the prosecutor made with Alfred Reyes. The prosecution knew that Reyes had earlier told police that he had picked up Oscar Sanchez near the scene of the homicide and that Sanchez had admitted to him that he had “just shot some dudes.” The placement of onerous conditions on Reyes’ ability to give evidence which was exculpatory to petitioner Hall, conditions which were enforceable by the refiling of murder charges against Reyes, was clearly designed to hinder inquiry into a conviction that the district attorney’s office knew was questionable at best.
A prosecutor’s responsibilities in the pretrial context are clear. (See, e.g., In re Ferguson, supra, 5 Cal.3d 525 ; People v. Ruthford (1975) 14 Cal.3d 399 [ 121 Cal.Rptr. 261 , 534 P.2d 1341 ].) This same duty not to suppress or otherwise make unavailable evidence favorable to the defendant (i d., at p. 406) must also apply to postconviction proceedings. To rule otherwise would be to limit the availability of remedies created to vacate erroneous convictions.
Rather than merely allude to “doubts as to the propriety” of the plea bargain with Reyes (maj. opn., ante, at p. 422), I would specifically disapprove this plea bargain and any plea bargain which would utilize the prosecution’s considerable bargaining power to inhibit the flow of exculpatory information to a defendant, either pretrial or during the pursuit of postconviction remedies.
At a time when exclusionary rules and procedural protections in the criminal law are loudly assailed as barriers to the accomplishment of justice, it is appropriate to note that had petitioner’s trial attorney pursued the appropriate procedures for the suppression of the tainted identification testimony, the miscarriage of justice suffered by petitioner might well have been prevented. Finally, the authorities could have turned their full energies toward solving the murder of Jesse Ortiz rather than defending the fatally flawed procedures employed to convict petitioner of a crime he did not commit.