Mean Justice (72 page)

It should be noted that prosecutorial misconduct in the courtroom was only one of many grounds of appeal cited by the Pitts defendants. Other grounds cited included the coercive and suggestive questioning of children by the authorities; the use of improper and false medical evidence; the withholding of evidence that would prove the defendants’ innocence; and Gindes’ successful argument to prevent defense experts from examining the child victims because more exams would be too traumatic—an argument he advanced even as his office secretly arranged re-examinations by a prosecution expert. The appeals court never considered these other grounds, however. Once the courtroom misconduct was found to have occurred and to have rendered the Pitts trial unfair, the court did not examine the other grounds—the case was over.

Gindes, who left the district attorney’s office after the opinion in the Pitts case, has always denied committing misconduct. He said in an interview with the author that his only interest had been protecting children and punishing molesters, and he asserted that he behaved in exactly the same fashion during the trial of the Kniffens and McCuans in Kern County’s first ring case. In reviewing that case, a different panel of judges on the California Court of Appeal found no misconduct on his part (though improprieties in the investigation of that case ultimately were proved). Gindes also suggests he was vindicated when he prevailed in a civil rights suit filed by the Pitts defendants in Kern County Superior Court.

46
. Miles Corwin,
Los Angeles Times,
September 10, 1990. “Court Ruling Forces New Look at Sex Abuse Case,” “Defendants say they were victims of overzealous investigators and hysteria in Bakersfield area at the time. Prosecutors are confident that convictions will be upheld if a new trial is ordered,” read the
Times’s
subtitle. Such confident predictions aside, the Kern County District Attorney later decided not to retry the case, and dismissed all charges.

47
. Kelly remains in prison, his appeals denied, serving a sixty-one-year term for seventeen felonies.

48
. Hubbard’s son, Richie, was interviewed numerous times
over the course of six weeks. During that time, he never mentioned any involvement by his mother, who had been fully cooperating with the investigation and had initially called the police because she had heard that Kelly was under investigation and he had spent time with her son. The sheriff’s investigator who finally coaxed Richie into accusing his mother was later accused himself of browbeating and threatening children who failed to confirm his belief that they had been molested—allegedly shouting at them in near-hysterical outbursts, threatening them, and allegedly striking one girl in the mouth. (He denied any such misconduct.)

49
. The very same informant used to generate the illegal—and almost certainly fabricated—confession against Duncan also gave birth to the charges against Hubbard. This informant was the first to suggest to sheriff’s investigators that Hubbard was involved in the molestations, claiming Duncan had implicated her during one of his “confessions.” This was the tip that led investigators to repeatedly ask Richie and the other two child victims whether Hubbard was involved. As in other ring cases, their initial denials were ignored, and the kids eventually agreed with insistent investigators that Hubbard had molested them. But, unlike Duncan, the informant did not testify against Hubbard, leaving her no illegal confession to complain about, despite the information that launched the case being every bit as unreliable.

50
. Judge Clarence Westra, “In the Matter of Donna Sue Hubbard, writ of habeas corpus,” ruling in the order to show cause from the court of appeals, Kern County Superior Court Case No. 5.5-2738, January 18, 1994.

51
. Tom Kertscher, “Molestation hysteria left sad legacy in overzealous Kern County,”
Fresno Bee,
September 10, 1995.

52
. Author’s interview with Andrew Gindes.

53
. “Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions,” Staff Report of the Subcommittee on Civil and Constitutional Rights, House Judiciary Committee, October 21, 1993; “Justice Revisited: An innocent man is finally freed from Alabama’s death row,”
Time,
March 15, 1993; “U.S. High Court rejects Alabama sheriff liability,” Reuters, June 2, 1997; and “A grant for their thoughts: 2 MacArthur winners have ties to Atlanta,”
Atlanta Journal and Constitution,
June 13, 1995. The reaction to the outcome of the case was instructive. McMillian’s determined
appeals attorney, Bryan Stevenson, executive director of the Alabama Capital Representation Center, which represents the poor in death cases, received a MacArthur Foundation “genius” grant of $230,000. Around the same time, Congress cut funds to centers like his around the country, making it much harder for indigent defendants like McMillian to prove their innocence. And the Supreme Court dismissed a lawsuit in the case, deciding that county sheriffs were not legally liable in such cases, even when the misconduct is undisputed and extreme, as in McMillian’s case. Courts and lawmakers often respond to allegations of prosecutorial misconduct not by placing greater supervision on prosecutors, but by making it harder for defendants to prevail on appeal when they have been victims of misconduct.

54
. These cases are: 1992: Sabrina Butler, Mississippi; Jay Smith, Pennsylvania; Federico Macias, Texas; Sonia Jacobs, Florida; John Henry Knapp, Arizona; Muneer Deeb, Texas; Herbert Bassette, Virginia (death sentence commuted to life).

1993: Walter McMillian, Alabama; Gregory Wilhoit, Oklahoma; Thomas R. Merrill, California; Kirk Bloodworth, Maryland; Clarence Smith, Texas; Andrew Lee Mitchell, Texas; Kerry Max Cook, Texas; Andrew Golden, Florida; Gary Gauger, Illinois; Clarence Chance and Benny Powell, California (freed from life sentences); John Demjanjuk (freed from life sentence in Israel because of U.S. prosecutorial misconduct).

See also
Appendix B
.

55
. There is no reliable or complete source of data on the total number of individuals released from prosecution or prison due to official misconduct. Primarily through press reports and reported federal appellate decisions, the author has been able to identify more than one hundred major felony cases around the country that were undone by prosecutorial misconduct between the time of Sandy Dunn’s disappearance and Pat Dunn’s sentencing, a twelvemonth period (July 1992-June 1993). Of course, this represents only a tiny fraction of the nation’s felony convictions in this period, most of which were untainted and fairly won, with the attendant prison sentences richly deserved and sometimes all too short. Still, the magnitude of the problem is greater than many in the justice system wish to admit. More than a hundred defendants in a year released from wrongful convictions because of government
malfeasance is a significant number. These cases represent only a sampling, for they did not include other instances of misconduct litigated solely in state courts, where most appeals die, or those cases in which misconduct may have occurred, but—because they were resolved by guilty pleas—were never appealed at all. There simply are no comprehensive statistics on such cases, and no way to know the magnitude of the problem.

There is no agency that polices or keeps track of prosecutorial misconduct. In many cases, state attorneys general are the only agencies in any position to monitor the conduct of individual district attorneys. But since the role of most states’ attorneys general is to litigate appeals on behalf of the DAs—in essence, defending the DAs’ work while fighting to uphold criminal convictions—the AGs have a vested interest in minimizing or denying outright the existence of prosecutorial misconduct (hence, a common argument in appeals is that, either the misconduct didn’t happen, or if it did happen, it was harmless error). Indeed, when one senior assistant attorney general in California suggested that his office stop defending the molestation-ring convictions in Kern County because of the official conduct in those cases, he was chastised and instructed that the appeals process would continue unabated. Even though the California Attorney General’s investigative staff previously had issued a harshly critical report of the Kern County molestation investigation methods, its appellate staff continues to this day to defend the few remaining convictions against any and all appeals, keeping people in prison on the basis of interrogations and testimony deemed unreliable by the attorney general’s own investigators.

56
. From
Convicted by Juries, Exonerated by Science
(Washington, D.C.: National Institute of Justice, June 1996). According to the report, the advent of DNA testing has, since 1992, led to the reversal of at least twenty-eight wrongful rape convictions, in which men served an average of seven years in prison for crimes they did not commit. Of these twenty-eight cases, a majority involved erroneous eyewitness identification; eight—29 percent—involved misconduct by police or prosecutors.

57
. 
U.S. vs. Kojayan,
8 F. 3d 1315 (9th Cir. 1993). Among other cases quoted, Kozinski turned to the late Justice William O. Douglas, known for his vigorous dissents, who wrote in
Donnelly
vs. DeChristoforo
(1974): “The function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial.”

58
. Ibid. Nora Manella, the U.S. Attorney for Los Angeles who assumed office after the Kojayan case concluded, took issue with the court’s ruling in the case and argued that an error had been blown out of proportion by Kozinski, whom she described as a legal scholar with great insight into the law, but relatively little experience in the practical matters of trying a case in court. She said the prosecutor on the case had been undeservedly vilified and had been devastated by the justice’s assault on his professional reputation.

59
. At the time, Sinek’s boss was acting U.S. Attorney Terry Bower, who left office to prosecute war crimes in the Hague.

60
. 
Brown vs. Borg,
951 F.2d 1011 (9th Cir. 1991).

61
. Dan Weikel, “When the Prosecutor Is Guilty,”
Los Angeles Times,
May 13, 1994; and Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam,
In Spite of Innocence: The Ordeal of 400 Americans Wrongly Convicted of Crimes Punishable by Death
(Boston, Mass.: Northeastern University Press, 1992).

62
. “Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions.”

63
. 
Herrera vs. Collins,
slip op. No 91-7328 (January 25, 1993).

64
. Ibid.

65
. 
Coleman vs. Thompson,
504 U.S. 188 (1992); No A-877 (91-8336). “Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent,” Death Penalty Information Center, July 1997; “New Clues Fuel a Race with Electrocutioner’s Clock,”
The New York Times,
May 8, 1992.

66
. 
Herrera vs. Collins
(1993).

67
. 
People vs. Dunn,
transcript of proceedings, June 14, 1993. Alternatively, Somers also suggested that even if Unsell was right and there had not been ample time to bury Sandy during the early morning hours of July 1, Pat could simply have stashed the body somewhere else and buried Sandy at a later date. Though this contradicted the theory of the case presented to jurors, it still fit the evidence, the prosecutor argued. However, it raises new questions. Had Somers suggested this theory at trial, the defense could have
poked numerous holes in it. Given Pat’s documented activities on the morning after Sandy disappeared, as well as the difficulty in handling a dead body in broad daylight, he would have to have buried her sometime
after
he reported Sandy missing to the sheriff’s department. This would have been a needlessly risky venture—why, for instance, didn’t he dispose of the body once and for all that first time?

68
. In an interview with the author, Somers said he seriously considered trying the case without calling Coble as a witness at all, but then decided to go with him, out of an abundance of caution, fearing that jurors—or the judge—might find insufficient evidence to convict without Coble’s eyewitness testimony, however flawed it might be.

69
. 
People vs. Dunn,
transcript of proceedings, June 14, 1993.

70
. Even if Somers did not personally know about the new charges against Coble, as he has since said, the law requires that prosecutors set up procedures for ensuring that law-enforcement officials pass on all relevant information in a criminal case. Claiming prosecutorial ignorance is no defense when favorable evidence is suppressed.

71
. 
People vs. Coble,
Bakersfield Municipal Court Case BF066673, May 24, 1993. Years later, when asked by the author to explain the case, which was discovered during research for the book, John Somers would say that he had no personal knowledge of it. He said that his inquiries at the DA’s office suggested that the report in the court file of Coble being in custody was erroneous, that Coble actually was never arrested, and the arrest warrant request that should have been issued by the DA’s office was for some reason never issued. These were innocent mistakes, Somers maintained, though he agreed that, “It does look bad.” Somers said these mistakes could create the appearance that Jerry Coble received additional secret consideration in exchange for his testimony, though the prosecutor asserted this was not the case. (Somers, interview with the author.)

PART IV: EPILOGUE

1
. 
People vs. Rollins,
California Court of Appeal, Fifth Appellate District, unpublished opinion in Case FO18547.
Offord Rollins’ appellate attorney, Jim Fahey, a veteran of Kern County appeals though he lives hundreds of miles north in the small town of Arcata, filed a brief detailing a virtual laundry list of prosecutorial misconduct, jury misconduct and judicial error, much of which was adopted as true by the Court of Appeal. The brief accused the prosecutor, Deputy DA Lisa Green, of misconduct for her use of racist stereotypes, improper inquiry into the sex lives of Rollins and other defense witnesses in an effort to attack their characters, inflammatory comments and arguments unsubstantiated by evidence, and inadmissible and irrelevant—but highly prejudicial—information before the jury (such as hearsay testimony from Maria’s sister that “someone” said Offord might have had a gun in his car at one time, or the suggestion, without evidence, that Offord demeaned Maria by letting others watch him use her sexually). Fahey also criticized the judge on the case, Len McGillivray, for condoning and even joining in the prosecutor’s excesses by asking embarrassing sexual questions of his own that were irrelevant to the case. In addition, Fahey’s brief cited numerous occasions on which Rollins’ trial attorney failed to object to possible instances of prosecutorial misconduct and evidentiary errors, even blatant and egregious ones. Finally, Fahey alleged numerous examples of jury misconduct; some of the jurors who found Offord guilty after two days of deliberations were said to have discussed the case outside of court, asked the opinions of others about the case, read news coverage, made up their minds in advance that Offord was guilty, and considered information that was not presented as evidence in the case—all in violation of their oaths as jurors. While agreeing with most of Fahey’s points, the appeals court rejected his argument about racist stereotypes, and suggested some improper conduct by the prosecutor may have been the trial judge’s fault for permitting the introduction of irrelevant and inflammatory evidence and argument.