Mean Justice (51 page)

The defense attorneys of Kern County, who had so long complained in vain about the Witch Hunt, had every right to gloat as the report was released, but their unofficial spokesman, Stan Simrin, offered one of the more sober and thoughtful reactions of the day: “What has taken place now is equally tragic from both points of view because one cannot really tell whether individual children are telling the truth. Innocent people have been hurt and guilty people may not be successfully prosecuted. Everybody loses.”

The portion of the attorney general’s report released to the public amid massive publicity made the sheriff and DA look bad enough, but the final blow came when Kern County Superior Court Judge Len McGillivray ordered the release of thousands of pages of previously secret transcripts and interviews collected by the attorney general’s investigators. These documents were infinitely more damning, embarrassing and detailed than the attorney general’s published report in exposing the massive official incompetence, back-stabbing and misconduct that pervaded the case. Jagels had fought hard to keep these records under seal, still hoping to preserve some of the ring prosecutions. When he lost the secrecy battle and all the information became public, the Witch Hunt era in Bakersfield came to an end.

One after another, then, the ring cases awaiting trial or a charging decision by prosecutors were dropped. Two men accused of being part of the Nokes ring of satan worshipers, once described as Kern County’s most dangerous monsters, were allowed to plead guilty to a single count apiece, freed from jail time in exchange for a quick dismissal of hundreds of felony charges that could have put them away for life. Though they protested they were completely innocent, the deal was too good to pass up for men who were drained, emotionally and financially, by their long battle. Their four codefendants were exonerated completely, while fourteen other suspected accomplices, as yet uncharged, were freed from further threat of prosecution. Their children, snatched from their homes by Kern County authorities, some for more than a year, were returned over prosecutors’ sullen objections. Freed also was Leroy Stowe, the one Nokes defendant already tried, convicted and sentenced to thirty years—a conviction
won while Kern County officials still were keeping secret the children’s false satanic allegations about him and the others. The California Court of Appeal overturned his conviction, with one justice calling Stowe’s case a “travesty of justice”; he was soon reunited with the eight-year-old son he had once been accused of victimizing. Meanwhile, during a custody hearing involving alleged child-victims in the satanic case, Judge Robert Baca ended the judicial passivity that had characterized the Kern County bench’s behavior during the Witch Hunt. Now he flayed the county’s social workers for destroying, rather than saving, children by turning them against relatives who had done nothing wrong and leaving them too terrified ever to return home.

“That is the most reprehensible thing that has ever come to my attention . . . You have made the children virtual prisoners, and brainwashed them,” the judge raged.
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It took years, but eventually attention shifted from pending ring cases contaminated by satanic allegations to the older ones that had never involved the devil and had already ended in convictions. The district attorney tried to argue that any cases that arose before the satanic allegations surfaced should not be called into question, but because the same children and the same investigators asking the same leading questions were involved in both, this argument did not carry much weight. The stunning convictions won in the original ring cases, the victories that had thrust the Kern County District Attorney into the national spotlight, were now being overturned one by one, crumbling in the face of grave questions about the medical evidence, about the way kids were interviewed, and about the conduct of prosecutors. People who had been sentenced to hundreds of years in prison regained
their freedom. It was a pattern that repeated itself around the country as well, as other similar cases fueled by hysteria and misconduct self-destructed, a process that bewildered communities that had been taught to believe and fear. Nowhere was this process more dramatic than in Kern County.

In one extraordinary opinion, the California Court of Appeal in 1990 struck down the convictions of seven defendants in the Pitts ring case, rescinding their more than two thousand years in collective prison sentences. The court excoriated both the judge, Gary Friedman, for his numerous errors and proprosecution bias, and the deputy DA, Andrew Gindes, who engaged in acts of prosecutorial misconduct “too numerous to chronicle”—though the court’s opinion included nearly a hundred pages citing instances of every type of misconduct imaginable, from providing false information to the jury to introducing Jesus Christ himself as an unsworn witness for the government.

In unusually strong language, the court further wrote of Gindes, “The record is replete with examples of an overzealous prosecutor who, in his blind quest to convict, forgot or ignored his constitutional and ethical duties as representative of the People.”
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Even the indignant Gindes, who denied behaving improperly, called the Pitts opinion “the harshest condemnation of a deputy district attorney in the history of California.”

After losing a bid to have the state supreme court reinstate the Pitts case, District Attorney Jagels decided not to retry it, though he denied that he had prosecuted innocent men and women. He suggested instead that it was unfortunate that appeals judges, his favorite targets, had overturned a legitimate jury verdict because of some “minor”
problems in the trial. Meanwhile, Deputy DA John Somers, who worked to defend the ring convictions from further appeals when he wasn’t prosecuting Pat Dunn, went a step further. He told a news reporter that the appeals court based its decision in the Pitts case solely on prosecutorial misconduct, not a lack of evidence. “This was a solid case with a proper investigation. This was not a case of hysteria with fabrication of charges,” Somers proclaimed. “We never had any doubt about their guilt then and we don’t have any doubt about their guilt now.”
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Somers’ statement expressed the DA’s party line: Once again, rather than look inward, Kern County officials circled their wagons. In this instance, they scapegoated Andrew Gindes, citing him and his performance in the Pitts case as isolated examples of misconduct that had marred otherwise strong, well-investigated cases. This, however, does not square with the record. Gindes may have been unique to the Pitts case, but his presence was all that distinguished it—all of the molestation-ring cases, Pitts included, were dogged by the same claims of bogus medical evidence and suggestive, even abusive, questioning of children. But the appeals court never had to consider the merits of these claims, at least as far as they applied to Pitts, because Gindes’ conduct, the first factor that they examined, provided more than enough reason to throw out the convictions.

It would fall to other ring cases to reveal how the errors and misconduct went far beyond one wayward prosecutor, to show they were, indeed, systemic and had been going on long before the excesses of the satanic investigation were exposed. Donna Sue Hubbard’s prosecution was one such case. Yet another high-profile ring prosecution from the 1980s, the Hubbard case began
with a single allegation against David Kelly, a self-styled “big brother” who insinuated himself into families, took kids on trips to amusement parks, then fondled and sodomized them. Even after all the reversals and questionable evidence, there seemed to be little doubt about his guilt.
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But the case unfolded during the hysteria of the Witch Hunt, and the feverish investigation that sprang from solid evidence of Kelly’s alleged abuse of three boys soon led to less substantial accusations against two others, including Hubbard, who had reported Kelly to the police in the first place. She ended up accused of molestation and of selling her ten-year-old son as a sex slave. The third defendant was named David A. Duncan. The investigation featured the usual discredited medical evidence and repeated, high-pressure interrogations of child-victims, with one investigator accused of verbally and physically abusing children because they insisted (truthfully, it turned out) that they had not been molested. The case also produced the familiar laundry list of grotesque allegations—drugged children, kiddie porn, hooks in the ceiling—none of which could ever be found, let alone proved.
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Still, all three of the ring “members” were convicted.

Four years into a sixty-year prison sentence, Duncan was freed on appeal because he had been illegally interrogated while in jail, despite having invoked his rights and being represented by a lawyer. The paid undercover informant who questioned him later testified that Duncan confessed, which Duncan swore was a lie. In any case, once his conviction was reversed, the Kern County DA declined to try Duncan a second time. When he sued Kern County for civil rights violations, a local judge not only dismissed the suit as frivolous, he ordered the
impoverished Duncan to pay $123,000 to the county for its time and trouble in fighting his suit. District Attorney Jagels expressed satisfaction with this ruling.

“It is one of the ironies of our system,” he told the
Bakersfield Californian,
“that a person who is convicted by a jury of his peers can sue years later after his case is reversed on a technicality in order to try to collect money from everybody who was involved in the case.”

As Pat Dunn’s trial was wrapping up, the California Court of Appeal reached into Kern County again, this time ruling that the judge and Jagels were wrong—Duncan’s suit should not have been thrown out, as he had the same rights as anyone in Kern County to seek redress in court. And, contrary to Jagels’ thoughts on the matter, the appeals court did not deem the violations of basic constitutional rights committed in order to falsely convict Duncan a mere “technicality.”

Meanwhile, Donna Sue Hubbard, sentenced to one hundred years in prison, remained behind bars. She had no illegal confession in her case,
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just the by-then standard claims of false medical evidence and coercive questioning of children that Kern County judges and juries routinely rejected. Her son, Richie, had recanted, saying pressure by investigators led him to make false accusations against his mother when only Kelly had molested him. Although many of the ring “victims” in other cases had told similar stories by then, no one in the Kern County justice system would accept the word of Hubbard’s son.

Still, she was given one more chance at freedom. Because of irrefutable evidence that false allegations had been made in other ring investigations, the appellate courts ordered Kern County to hold a hearing on
Hubbard’s claims. Superior Court Judge Clarence Westra, the same judge who had presided over Hubbard’s conviction, held this
habeas corpus
hearing even as Pat Dunn was being tried in the same courthouse basement. Westra heard testimony from Hubbard’s son and a variety of experts, including one psychiatrist who called the questioning of children in the case “a virtual catalog of every mistake you can make if you are looking for the truth.”

It was Judge Westra who, as a senior prosecutor years earlier, had resisted charging Glenn Fitts in the Dana Butler case. But when it was time to rule on Hubbard’s request for a new trial, he showed no such hesitation. His blistering opinion branded her and her son’s recantation unbelievable; Hubbard’s attorney, Michael Snedeker—a Portland, Oregon, lawyer who had grown unpopular in Kern County by winning appeals in several other ring cases—was called specious. And the judge savaged the expert who challenged the manner in which children were questioned in the case, labeling him biased and elitist for implying that Kern County jurors were too stupid to tell a coerced interrogation from a proper one. Hubbard’s trial was fair, Westra decided, as was the investigation of her case. Any other ruling, the judge wrote, “would be an absolute outright attack on the cornerstone of our legal system—the jury system.”
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District Attorney Ed Jagels pronounced Westra’s opinion an extraordinarily fine one. Donna Sue Hubbard would spend two more years in prison before the Court of Appeal in August 1995 told Judge Westra and the Kern County District Attorney that exactly the opposite was true, that the questioning of the children was so tainted by coercion that it could not be believed.
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Donna Sue Hubbard finally was free.

Jagels launched a war of words with the Court of Appeal’s Fifth District after this ruling, accusing it of bias against Kern County. In a press interview, he characterized the inch-thick opinion, with its discussion of fundamental violations of the Constitution, as having “to glom on to one tangential minor point” in order to reverse Hubbard’s conviction. He urged the state attorney general—the same office that had years earlier criticized Kern County’s ring-investigation practices—to appeal to the California Supreme Court, to try to put Hubbard back in prison. Surprisingly, the attorney general did so, despite objections from some staff members who felt that the office should not defend the Kern County DA in the ring cases, but it mattered little. The supreme court let matters stand: Donna Sue Hubbard would remain free. As in other such cases, Ed Jagels made no attempt to retry her, even as he continued to insist she was guilty.

“The basis for the reversals,” he said, “do not, in my opinion, lead to the conclusion that innocent persons were convicted.”

“My mother is innocent,” Hubbard’s son, Richie, said in retort. By the time Hubbard was out of prison, he was twenty-one and had named his newborn daughter after her. “I’ll never forgive Kern County for what it did to her. And to me.”

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