Mean Justice (66 page)

24
. This point was hotly disputed at Rollins’ trials. Others at the scene reported from the outset that the blood spots and puddles
they examined appeared hard and dry. One detective revised his opinion, initially describing the blood as fresh, but later said it was baked dry. Sources: Testimony in
The People of Kern County vs. Offord Rollins IV,
Kern County Superior Court Case 47815; the unpublished opinion of the California Court of Appeal, Fifth Appellate District, in
People vs. Rollins,
Case No. F18547; and the author’s interviews with attorneys H. A. Sala and Jim Fahey.

25
. Testimony of Dale Knox, Detective Randy Raymond and Deputy Paul Hussey in
People vs. Rollins;
and Raymond’s August 5, 1991, report in Kern County Sheriff’s Department Case BW91-00538.

26
. The account of the initial investigation of Maria Rodriguez’s death, including the exchange between Detective Raymond, Miriam Rodriguez and Victor Perez, is drawn from reports by Raymond and Deputy Paul Hussey in Kern County Sheriff’s Department Case BW91-00538; the testimony in
People vs. Rollins
of the civilian and law-enforcement witnesses who were present at the crime scene; and Appellant’s Opening Brief to the California Court of Appeal in
People vs. Rollins.

27
. Much later, Offord’s father, in an interview with the author, would assert that an attorney had prompted the young suspect to claim he had met Maria on Thursday in order to explain away the evidence, when in fact he had not. At the second trial, evidence was presented that Maria often showed up unexpectedly at Offord’s house, and may have simply leaned against or even sat inside the car while waiting for Offord to show up on the Friday she died.

28
. To address these shortcomings, Kern County has since built a new crime lab under the control of the district attorney.

29
. Testimony of Deputy Hussey,
People vs. Rollins.

30
. Dale Knox would testify in
People vs. Rollins
that he had tried to be as consistent as he could in his recollections and that, though he admitted using the phrase “dumb Mexican,” he said this was more a comment on the erratic nature in which the maroon car was being driven than an accurate observation of the driver’s ethnicity. He testified he was never certain of the driver’s race.

31
. Statements and testimony of Maria Rodriguez’s friend Alma Gonzalez in
People vs. Rollins;
and the author’s interview with Susan Penninger.

32
. The statements and testimony of Maria Rodriguez’s neighbor and friend Juan Escalante in
People vs. Rollins.

33
. In reviewing the case, the California Court of Appeal rejected claims that the black jurors were dismissed improperly for racial reasons, finding that the prosecution justified excluding those jurors for other reasons, such as bias or a relationship with parties involved in the case. Allegations that minorities have routinely been excluded from jury service in Kern County were common throughout the eighties and early nineties, and led to several complaints and successful appeals. In June 1992, for example, Kern County Superior Court Judge Lewis E. King disqualified himself from the trial of a black murder defendant because he felt himself unable to remain impartial after a prosecutor excused black jurors in the case. The defendant, Jimmie Lee Pollard, was being prosecuted for a second time; an earlier trial ended in a hung jury, with an 11–1 vote in favor of acquittal.

34
. Jim Fahey, appellant’s opening brief in
People vs. Rollins,
in which Fahey points out Green’s attempt to make the “sexual savage” argument and relates it to long-standing racial stereotypes; and the opinion of the Fifth District Court of Appeal, in its unanimous May 11, 1995, unpublished opinion in the case. The court found no support for Fancy’s complaints of racial animus, which Deputy DA Lisa Green adamantly denied. The appeals court did, however, agree that Green improperly questioned Rollins and other black witnesses about their sexual activities. The opinion is unclear as to whether Green’s improper questions constituted prosecutorial misconduct. She may have committed misconduct in asking some of them, the opinion states, but the fault might instead lie with the trial judge for erroneously authorizing and even encouraging those improper inquiries.

35
. Deputy DA Green questioned Andre Harrison, a friend of Rollins, about his allegedly watching Rollins have sex with Maria Rodriguez, something Harrison had denied in early testimony during a preliminary hearing in the case. As the Court of Appeal wrote, it is prosecutorial misconduct to ask such a loaded question knowing the answer would be no. The court also found the whole line of sexual questions to Rollins and others to have been improper. In its analysis of the case, the appeals court wrote, “Once again, whether this is deemed prosecutorial misconduct or trial court
error because it was sanctioned by the court’s ruling, the jury heard evidence it should not have.”

36
. This account is based on the author’s interviews with H. A. Sala, who represented Rollins at his retrial, and a review of pleadings in
People vs. Rollins.
The district attorney’s office does not dispute the sequence of events, but argues that no harm was done to Rollins in the process, noting that Rollins almost certainly would have been transferred to adult court on the basis of the murder charge alone. In addition, while the district attorney’s office had information in hand showing the sodomy allegation to be incorrect, the individual prosecutor handling the juvenile-court hearing apparently did not personally receive that information until later.

37
. California Court of Appeal opinion in
People vs. Rollins.
After the prosecutor asked Offord’s seventeen-year-old steady girlfriend about their sexual relationship, and the girl answered, “It wasn’t limited to kissing but it wasn’t sex,” the trial judge, Len M. McGillivray, decided to pose a question of his own: “Did that sexual activity from kissing on up, if you will, involve any acts of penetration of any kind?” Later, the judge explained that he wanted to ask the follow-up question because the girl’s reply “left things up the air.”

Rollins’ attorney during his first trial, Timothy Lemucchi, then considered one of Bakersfield’s top criminal-defense lawyers, objected occasionally but remained silent throughout other portions of this bizarre episode. The Court of Appeal would later find he could have—and should have—objected more frequently than he did. The appellate justices added, however, that the defense lawyer could reasonably have concluded from the trial judge’s rulings (and questions to witnesses), that many potential objections to prosecutorial improprieties would have been futile. In any case, the trial seemed to take on the aspect of a lurid soap opera, in which Offord Rollins was cast as some sort of sexual predator equipped with, as Lisa Green suggested again without evidence, “a drawer full of condoms.” Jim Fahey, Rollins’ appeals attorney, would later say in an interview with the author that such questions had a devastating impact on the case: “That trial became an old-fashioned morality play, a classic battle of good versus evil. Such a thing could not have occurred anywhere but Kern County, where the right to a fair trial is often treated as though it were a mere technicality. . . . It was a travesty, from start to finish.”

38
. Dean Wayne, “Shock Over the Evil Poetry of Offord Rollins,”
Bakersfield Bi-Weekly Report,
October 3, 1991. The article detailed several of the rap poems, claimed one of them described the murder (something even the DA never asserted at trial) and appeared to be based on documents supplied by the sheriff’s department, as well as an interview with Detective Randy Raymond.

39
. The gun testimony came from Maria’s sister, Marisol, who recalled she had seen Offord and his friend Andre Harrison together a few months before the murder, and one of them mentioned having had a gun at the house. Since Offord denied ever having access to a gun, this was key, but the vague nature of the testimony, and the fact that Marisol could not remember exactly who said what, made it inadmissible as proof that there was a gun. There was a limited use for such evidence—to “impeach” Harrison’s testimony that neither he nor Offord ever said such a thing—but the prosecution attempted to use the evidence as firm proof that there was a gun in Offord’s possession. This was improper, the Court of Appeal later decided, even though the defense attorney failed to object, and the trial judge failed to address the matter as well at the time.

40
. From the Court of Appeal opinion in
People vs. Rollins
(5th Cir. 1995). Piceno denied the “damn lie” comment, but admitted that he had made mention of his familiarity with the area and the possibility that pesticides accounted for the absence of flies.

41
. Judge McGillivray also discounted testimony from two customers of a bank in which one of the jurors worked as a teller. These two witnesses claimed that the juror expressed opinions about Offord’s guilt and discussed the case with them before the trial ended, again in violation of the juror’s oath. (The juror denied the allegations.) Any juror misconduct that might have occurred, the judge decided, was so minor that it had no impact on the case. The Court of Appeal was, by law, bound to accept McGillivray’s assessment of the bank customers’ credibility and that of alternate juror Peggy Traylor. But because Piceno and some of the other jurors acknowledged having the pesticides discussion, the appeals court still found sufficient information to make a finding of prejudicial jury misconduct, since Piceno’s comments revolved around a key point of evidence that may have had a
direct impact on the verdict. Source: The unpublished opinion of the California Court of Appeal in
People vs. Rollins;
defense motion for new trial in
People vs. Rollins;
Steve E. Swenson, “Rollins jurors violated orders, alternate says,”
Bakersfield Californian,
June 6, 1992; Steve E. Swenson, “Jury made trial ‘a mockery,’ alternate says,”
Bakersfield Californian,
June 9, 1992; Steve E. Swenson, “Rollins’ plea for new trial dashed,”
Bakersfield Californian,
September 2, 1992.

42
. The Kern County DA complained bitterly about this sentence, but was helpless to do anything about it: This was one of the few areas of the law in which judges retained full authority to do as they saw fit, although legislators have since curtailed judges’ discretion in such matters, leaving the question of fitness for the juvenile system more up to prosecutors to decide. After the Rollins case was reversed on appeal, the prosecutor assigned to try it a second time, Stephen Tauzer, decried the fact that the defendant could not receive a punishment that fit the crime and called sentencing laws that barred a more severe penalty should Offord again be convicted an outdated legacy of former Supreme Court Justice Rose Bird, whom Ed Jagels helped oust years before. But the reason for this law limiting sentences on retrial is a simple one: to curb prosecutorial and judicial abuses. Without it, convicts—even innocent ones—might be reluctant to pursue valid appeals, fearing that they could be punished with a tougher sentence later on. Rollins, for example, no matter how great a case for innocence he might build, would have been foolish to ask for a new trial in which his release by age twenty-five could be replaced by life in an adult prison. Hypothetically, without the sentencing safeguards, unscrupulous prosecutors and judges could keep their own misconduct hidden by threatening the wrongfully convicted with longer sentences should they pursue appeals.

Some in Kern County’s legal community wondered if McGillivray’s unexpectedly lenient sentence had been the judge’s way of expressing, if only tacitly, some measure of doubt about the case against Rollins. It has long been the unspoken prerogative of judges to impose light sentences in close or questionable cases, rather than run the risk of dismissing a case outright, because sentences, unlike convictions and dismissals, are rarely subject to appeals in state court. (This has changed somewhat
since the Rollins trial—recent laws limiting judges’ options in sentencing in both federal and state justice systems has led to more sentencing appeals, many of them by prosecutors urging lengthier prison terms for convicts.) The lenient sentence for Offord Rollins had been doubly surprising because it came after a blistering evaluation of him from the California Youth Authority’s own psychiatrist who, after ninety days of observation, declared Rollins a dangerous and potentially violent offender unworthy of treatment as a juvenile. Judges normally give such opinions great deference. However, a respected psychologist hired by Offord’s family testified at the sentencing hearing that the only justification for this negative opinion was the fact that Offord still insisted he was innocent and therefore showed no “remorse” for killing Maria Rodriguez. This was deemed unacceptable by the Youth Authority, which considers offenders hopeless in terms of rehabilitation unless they confess and express regret. Given his pending appeals—and the fact that he feared any such admission of remorse could be used against him if he ever won a new trial—it would be unfair to hold this supposed lack of remorse against Offord, the Rollins-family psychologist said. In every other respect, she stated, Offord had shown himself to be an ideal candidate for juvenile treatment rather than adult prison, in his behavior, attitude, acceptance of authority and desire to better himself while incarcerated. The judge agreed.

In prison, juvenile authorities kept up the pressure on Offord to confess, and he claimed it accelerated as his appeal moved through the system and it became increasingly dear that he might be released. He was transferred out of a facility where he had been able to attend college, and placed in another institution where his education came to a standstill. His lack of remorse for murder was cited as the reason. “They’re trying to break me down,” he told his father during one visit. Yet he never wavered in his insistence that he was innocent, and when he was finally released, the Youth Authority could not pass on any information to the Kern County District Attorney that might have been used against him in court. Source: Sentencing memoranda, reports and testimony in
People vs. Rollins;
Steve E. Swenson, “Rollins sentenced to CYA,”
Bakersfield Californian,
September 26, 1992; Steve E. Swenson, “Psychiatric evaluation calls Rollins ‘dangerous,’ ”
Bakersfield
Californian,
August 26, 1992; testimony of Adrienne Davis, psychologist and witness for the defense in
People vs. Rollins;
and the author’s interviews with Susan Penninger, H. A. Sala, Offord Rollins III and Offord Rollins IV.