by Ian Graham
But this proximity to crime has a hardening effect on some district attorneys. Defendants become dehumanized. The job of the DAs, and the advancement of their young deputies, too often comes to be about convictions more than justice. The state is their client, and by the time they get a case, the state wants a conviction. And if a conviction turns out to be wrong, the justice system is to be protected against embarrassment or liability, no matter what.
The loyalty to the lie, as Sister Janet calls it.
SHORTLY AFTER MARIO’S conviction was vacated by the Court of Appeal, the DA’s office appealed to the California Supreme Court seeking to have the ruling overturned. When that failed, they quickly refiled charges against Mario for murder and attempted murder. They announced their intention to retry him.*
At this point, not a single shred of credible evidence remained implicating Mario in the shootings. Of the three eyewitnesses who testified against him at his 1997 trial, Lauro Mendoza admitted in court that he “wasn’t sure” of his identification; Bryan Villalobos had officially recanted, writing out a sworn statement that he “never meant to identify Mario as a shooter;” and Matthew Padilla’s identification of Mario as the driveway shooter, given a week after he had told the police he hadn’t seen anything, was undermined by Laurie Nevarez’s and Christina Aragon’s statements that Padilla was in the backyard in a spot from which he could not have seen the shooter.
After the DA’s office announced its intention to retry Mario, Marcus McDaniel met with Bobby Grace, the original prosecutor, and Pat Dixon, Grace’s boss and the head of the DA’s Major Crimes Division. McDaniel hoped to explain to them the lack of any evidence of Mario’s guilt and to persuade them to drop the charges against him. It didn’t go well.
“What new evidence do you have that he’s innocent?” Dixon barked at McDaniel. Marcus tried to explain that in a case such as this, with no physical evidence, it was impossible to affirmatively prove innocence, and that in any event, it was the state’s burden to prove guilt, not the other way around. And the point was there was no evidence of guilt. Dixon quickly interrupted him, saying that they still believed Mario was “good for” the murder and that if Latham couldn’t prove he was innocent, the meeting was over.
Mario desperately wanted to get out of jail, and his family wanted badly to have him home. The DA’s office knew that, and apparently they hoped to leverage the threat of a retrial to get Mario to cut a plea deal — to plead guilty to a lesser crime — that would allow the DA’s office to save face. Although we never received a formal plea offer from the DA’s office (not that Mario would have accepted it if we had), intermediaries informed us that the DA’s office “might accept a manslaughter plea and only ten additional years in prison.”
We filed a motion for bail to get Mario out of prison while the charges were pending. At the bail hearing before Superior Court judge Michael Pastor on July 28, 2006, Bobby Grace, the original prosecutor who had sent Mario to jail, opposed the motion. When it became clear that the judge was inclined to grant bail, Grace asked for $2 million, an amount that would guarantee Mario stayed in jail. Judge Pastor set Mario’s bail at $1 million, still an amount no one thought could be raised.
But by then, Mario’s case had made the papers, and a documentary about the case, Mario’s Story, was playing at film festivals; it won the award for best documentary at the 2006 Los Angeles Film Festival. Mario’s case was attracting attention and support. As word of his bail amount spread, checks began arriving at my office: fifty dollars here, one hundred dollars there, from a wide cross section of people. Associates and staff at Latham sent checks. A childhood friend of mine who had made it big on Wall Street sent $5,000. A couple of other well-heeled and generous supporters who had seen Mario’s Story sent $10,000 each. Members of the board of directors of the InsideOUT Writers program (which Sister Janet had founded in Juvenile Hall) sent checks. Mario’s family put in money and offered their homes as collateral. Within a few weeks, we had raised $60,000, enough for Chickie’s Bail Bonds to guarantee the rest.
On August 25, 2006, Mario Rocha walked out of the Men’s Central Jail and into the arms of his family, surrounded by friends and supporters. It was more than ten years after his arrest and incarceration, and eight months after the Court of Appeal had vacated his conviction.
I would have loved to watch Mario walk out of prison, but I was in Fresno that day, handling the exhibits in a meaningless deposition for a securities litigation case. I had tried to explain to the partner on the case what Mario’s release meant to me, but all I got was a cold stare and a lecture about priorities.
That was it for me. I gave my two weeks’ notice shortly afterward. This time there was no back-recruiting. Bob Long was retired. When I emailed him to say I was leaving the firm, he said simply, “I understand. This isn’t for everyone.” Teddy McMillan, who took me to lunch before my last day at the firm, was also understanding. “If you look around the firm, and there isn’t a senior lawyer or partner you would want to emulate or consider a role model, then it’s probably a good decision,” he said. When I emailed David Moran, the partner on the Associates Committee, to tell him I was leaving, he replied simply, “Okay. Bye.”
It felt strange to be leaving something that had occupied such a big part of my life for five years. Latham had become something of a second home to me. I knew which elevators ran the fastest, which conference rooms had their refrigerators stocked with drinks, and where the best spots in the library were to hide out and get some work done. But the cases and the deadlines that I had been juggling and that had kept me up at night had instantly been assigned to other associates and were no longer my concern. I was free just to walk out the door. Which I did, on a Friday afternoon, with a small box of personal items under my arm and a big smile on my face.
When I left Latham, in October 2006, only five of the forty-seven members of my first-year associate class of 2001 remained at the firm. Two of those left within the next six months.
FOR MORE THAN a year, the District Attorney’s Office kept the charges pending against Mario and the threat of a retrial hanging over his head, limiting his employment opportunities and his ability to travel outside the state to attend the speaking engagements he was being offered. Although Bob Long was now retired, and I was no longer at Latham, we stayed involved in Mario’s case, assisting two criminal defense attorneys, Mike Adelson and Joe Gutierrez, who were volunteering their services pro bono to help prepare for the retrial. Latham & Watkins continued to support Mario’s case, paying for the services of a private detective for Adelson and Gutierrez.
Finally, on October 28, 2008, Bobby Grace announced to a crowded courtroom that the state was dropping all charges against Mario Rocha because they were “unable to locate some witnesses who originally testified against Rocha” and that as a result, they “could no longer move forward with the case.”
Mike Adelson didn’t let it go at that. “Before you is someone who many, many believe is factually innocent,” he said to Judge Pastor. Pastor commended Mario for inspiring unwavering faith among the supporters who regularly filled his courtroom. “I have no doubt that you will go on to serve your friends and community in the future,” the judge said.
Outside the courthouse, as Mario celebrated with his family and friends, Bobby Grace told a reporter covering the scene, “It isn’t cut and dried by any means that he didn’t do this.”
Mario, however, remained humble. “For years, my story has become the story, but I am not the victim. The real victim is Martin Aceves.”
IN THE FALL OF 2008, Mario, Sister Janet, Susan Koch (director of Mario’s Story), and I were invited by the Sidwell Friends School in Washington, D.C., my alma mater, to be that year’s Peace Speakers. We spent the entire day at Sidwell, speaking at assemblies for lower-, middle-, and upper-school students. It was a great experience for us to share our story with the Sidwell community, and we were warmly received by the students. The upper-school students, after watching the do
cumentary Mario’s Story, gave Mario an extended standing ovation.
But the most memorable moment of that day came in the morning, during our talk to the lower-school students. Speaking to a roomful of second-, third-, and fourth-graders, Mario broke down. As he talked about his life and his family, he began to cry and couldn’t stop. It was as if a dam on the pain he had kept in check all those years had suddenly burst. The room fell silent and I thought, “This isn’t going well.” Then a tiny third-grade girl sitting in the front row raised her hand.
“Has anyone told you they were sorry?” she asked.
Mario pulled himself together and smiled at the girl. “That’s a great question,” he said. “Not yet.”
*Technically, this would not have been a case of double jeopardy, as Mario had not been acquitted by a trial court.
ACKNOWLEDGMENTS
THE ROLES OF Mario Rocha, Sister Janet Harris, and Bob Long in making this story possible will be obvious to the reader. I hope it will also be obvious that I am grateful for knowing and working with them. I am grateful also to Susan Koch and Jeff Werner for creating the excellent documentary film Mario’s Story, which shows the strength and endurance of the people involved and serves as an invaluable record of their efforts.
I would like to thank my agent, Rafael Sagalyn, for believing I could turn this story into a book and my editor, Don Fehr, for the advice and guidance that helped me do so. Thanks also to Michelle Ward, whose encouragement and honest opinion helped keep me going. And finally, I want to thank my parents, Rosemond and Tom, for not laughing when I said I wanted to quit law practice and write a book, and for their invaluable counsel without which this book would not have been possible.
POSTSCRIPT
IT WAS AN EMOTIONAL moment when finally I was able to reach Mario by phone after the lockdown, a few days after the Court of Appeal had vacated his conviction. By then he knew about the decision from the ABC News program.
I had spoken with the whole network of Mario’s family and supporters: Sister Janet; his cousin, David; his mother, Virginia; Bob Long; Marcus McDaniel; the investigator, Aldo Velasco; and even with his once-skeptical aunt, Bertha. They had all come down to my office at Latham for a celebration.
Mario was ecstatic yet eloquent. “Everything has a purpose,” he said. “The injustice brought those of us who believe in justice together.”
Then he paused a long time and said, “Ian, it’s been an honor to work with you.”
“It’s been an honor to work with you, too,” I replied.
TODAY MARIO is twenty-nine. He is completing his sophomore year as a full-time undergraduate at George Washington University in Washington, D.C., where he was awarded a full scholarship. He is thriving in the university environment and he even claims to have enjoyed the required freshman courses. He has also taken classes at UCLA as part of an eight-month Emerging Voices fellowship, awarded by PEN USA, an international organization of writers and free speech advocates.
He is active in speaking, counseling, and organizing in his home community.
He is still finding his way, between school, work, and social activism. His life is not without struggle. Those essential, formative teenager-to-young-adult years, when most of us have the chance to learn about life through trial and error, were taken away from him. But he remains bright, compassionate, open to the world around him, and eager to use his experience to help others and to be a voice for social justice.
Mario and I remain friends and are in frequent contact.
After leaving Latham, I briefly took a job at another law firm in Los Angeles. I had to see for myself whether my frustration with big firm law practice was the result of my experiences at Latham or if I was simply unsuited to that environment in general. Unequivocally, it was the latter. Associate life at a big firm is a well-paid, all-consuming grind that sharpens some of the brightest young legal minds by severely narrowing them. Based on my experience, and the experiences of my friends at other firms, I believe that for those who want to practice law in a big firm, Latham & Watkins is perhaps the best place to do it. Although during my time at Latham I was often frustrated by the nature of the work and the intense demands of the practice, in hindsight I realize how much I learned there and how much I grew as a person. In the end, big-firm law practice just wasn’t for me. As a big-firm lawyer, you don’t cure anyone, you don’t build anything, you don’t create or own anything. You are a middleman, dedicating your life to resolving the problems of, or enriching, corporations. Or at least it seemed that way to me.
For those who truly enjoy the intellectual challenge of this kind of law practice, it is, I imagine, rewarding work. I got into it for the wrong reasons and found out I didn’t enjoy day-to-day big firm practice. The difficult part was getting out. Leaving behind a prestigious job and steady six-figure paycheck was a difficult thing to do. Mario’s case was my personal salvation — in the short term, because my emotional investment in the case was what enabled me to survive the grind at Latham for five years; and in the longer term, because the case unlocked the golden handcuffs and freed me to see a world and a life beyond the confines of a big law firm.
I STILL LIVE in the little house in Santa Monica, on a much tighter budget. It’s a trade-off I understand now and am happy to make. I worked again with Susan Koch, the producer of Mario’s Story, as associate producer of her latest documentary, Kicking It, about a group of homeless soccer players who made it to the Homeless World Cup. I’m on the board of InsideOUT Writers, the group Sister Janet started, which teaches creative writing in juvenile detention facilities. I’ve been speaking at law schools and public-defender organizations, when I wasn’t busy writing this story.
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© 2010 Ian Graham
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