Mean Justice

by Edward Humes

  She put the computer printout down and picked up the telephone. She had a new trip up the Grapevine to plan.

  PART IV

  Epilogue

  Justice delayed is not only justice denied—it is also justice circumvented, justice mocked, and the system of justice undermined.

  —RICHARD NIXON

  Like the Hydra slain by Hercules, prosecutorial misconduct has many heads.

  —JUSTICE JOHN PAUL STEVENS

  1

  WINTER 1998

  IN THE FIVE YEARS SINCE PAT DUNN’S CONVICTION AND sentence to life in prison, controversy has continued to shake the justice system of Kern County. The war on crime, fought harder here than most anywhere else, continues to claim innocent casualties.

  Few can attest to this more convincingly than Offord Rollins. In August 1995, the California Court of Appeal declared Rollins’ trial fundamentally unfair, overturned his conviction, and ordered a new trial. In its opinion, the court lambasted a juror and the prosecutor for misconduct, as well as the defense attorney and judge for numerous errors.1 Taken alone, any one of these problems might be overlooked. Together, however, these problems made granting Rollins a new trial inevitable.

  The clincher for the Court of Appeal was the matter of jury misconduct. The justices could not abide the juror who shared with his colleagues his own inside (and incorrect) knowledge of flies, supposed pesticide spraying near the crime scene, and why there might have been no flies, fly eggs or maggots on the murder victim’s body. This brought before the jury improper evidence on a critical issue in the case. Maria Rodriguez, of course, had been found dead and bloody in a patch of desert teeming with insects, yet her corpse showed no sign of fly eggs or maggots. Experts testifying for the defense insisted this meant that Maria had died after dark, since flies cannot see or navigate in darkness, and therefore do not feed and lay eggs once the sun goes down. And Rollins had an alibi beginning five hours before sunset that day and continuing through the evening, something even prosecutor Lisa Green conceded.

  However, this one juror’s “knowledge” gave the rest of the jury an excuse to disregard the expert testimony, clearing the way for conviction. When challenged on the issue during hearings in Kern County, the prosecutor called this and any other such transgressions harmless error, and the trial judge agreed. But the Court of Appeal felt otherwise: In a case already troubled by prosecutorial misconduct and judicial errors, and in which the question of guilt or innocence was so close, the only just outcome would be to declare the trial unfair, erase the conviction, and start over again.2

  District Attorney Ed Jagels called the appellate court’s reasoning “silly.” He was already seething over another embarrassing opinion handed down earlier that month from the same court, setting molestation-ring defendant Donna Sue Hubbard free because of coerced child witnesses. As he had done in the Hubbard case, Jagels asked the California Supreme Court to intervene to restore Rollins’ conviction. And, as in the Hubbard case, the Supreme Court declined to do so. Offord Rollins, once again presumed innocent, walked out of custody, hoping to salvage what he could of a promising college and athletic career shattered by three years in prison.

  Rollins was, however, not quite free. In the spring and summer of 1996, despite pleas from the Bakersfield black community that he be spared a second trial, the district attorney’s office pressed forward with Offord Rollins’ case before a new judge and jury, with a new and pugnacious defense attorney, and a new prosecutor on board as well—Ed Jagels’ second-in-command, Stephen Tauzer. The new judge scrupulously went about policing the second trial for any signs of the misconduct and error that undermined the first. The case now turned squarely on the scientific evidence—blood, fibers, plants and the quality of work performed by the county’s aged, contamination-prone crime laboratory—and on Offord’s own credibility and inconsistencies. At the heart of the case remained the question of why there were no flies on Maria’s body, and what this implied about Offord’s guilt or innocence.3

  Despite the judge’s best efforts, the trial became an angry, rancorous affair, marked by ugly confrontations between the defense attorney and the prosecutor. All the anger, resentment and distrust that had festered for years within the Kern County justice system seemed to boil to the surface in the second Rollins trial. There was no room for compromise, no walking in the other man’s shoes. This was a war, as cases often are in Kern County, though this one seemed stripped of even the veneer of civility. Shouting, petty bickering and name-calling on both sides constantly mired the proceedings.4

  At one point, prosecutor Tauzer grew so angry at private investigator Susan Penninger that when the judge and jury cleared the courtroom for a recess, he charged the witness stand, growled an insult, slammed a heavy chart down in front of her, and appeared to physically menace the five-foot-three private investigator. As Penninger, whom Tauzer had known for twenty years, recoiled in shock, thinking she was about to be struck, H. A. Sala, Rollins’ dapper defense attorney, interposed himself between the two. Assuming something close to a boxer’s stance, he forced Tauzer to take a step back. “You think you’re such a big man,” Sala hissed, pacing nervously, his face red above his pointed goatee. “Try someone who can defend himself.”

  Tauzer stalked off, and the strange scene ended as abruptly as it began. The prosecutor later apologized.

  Such incidents aside, in the end, the misconduct and error that infected the first trial—including the racial overtones, improper evidence, irrelevant rap poems and sexual innuendo—were generally avoided in the second go-round, in the courtroom and jury room alike. And the result showed just how close the case, on its own merits, was: After four days of exhausting deliberations, the jurors declared themselves hopelessly deadlocked.

  Six were certain that Offord was innocent. Six voted guilty. The scientific evidence about flies—and the possibility that crime-lab technicians accidentally planted incriminating evidence from the murder scene in Offord’s car—had convinced those jurors voting to acquit. The fibers consistent with Offord’s car seat that were found on Maria Rodriguez’s body—coupled with Offord’s inconsistent statements—convinced those who wanted to convict.

  The second trial’s hung jury opened the door for a third, but the following month, the DA threw in the towel. A cost-benefits analysis won out in the end: Offord Rollins was fast approaching age twenty-five, and since he had been sentenced as a juvenile, he would have to be released at that age, anyway, even if the DA managed to convict in a third trial. “It would be pointless,” District Attorney Jagels explained. “But that does not imply we have any doubts about the evidence against Mr. Rollins.”

  Rollins’ attorney, H. A. Sala, disputed the DA’s comments, certain that Jagels would have prosecuted again if he thought conviction possible—if only to make sure that Offord wore the label of murderer for the rest of his life. But the defense would have been even stronger a third time around, Sala believed, because he might have been able to introduce evidence that someone else could have killed Maria—an option that the defense had been denied in the past.5 Sala had learned that Rodriguez family friend Victor Perez—an alternative potential suspect long favored by the defense—did not have the alibi prosecutors had always claimed he had.

  “They didn’t want a new trial because they knew they couldn’t win,” Sala told Offord in a phone call as soon as he learned of the DA’s decision. “You’re free. That’s it. It’s over.”

  Offord hung up the phone, speechless. Five years had passed since his arrest. The teenager had become a man, though he had been robbed of those final years of childhood—of proms, of track meets, of leaving for college, of birthdays with friends and family. He had borne the weight of being the accused murderer, then the convicted murderer, then the appealing murderer for so long that, like a bad back or a broken limb, he no longer knew what it felt like to be without it. Too nervous to eat some days, he had lost ten pounds during the two months of his second trial. He was a quie
t and withdrawn man now, unwilling to show any emotion, always fearing that it might be used against him in some future courtroom proceeding. But with exoneration, he was not sure what to do. He was unaccustomed to this feeling of complete freedom, the notion that he could get on a plane and fly anywhere and not be called a fugitive, that he could make plans for the future and not have to worry about whether his room would have bars on it, that he was now officially and legally innocent.

  As his mother began telephoning everyone she knew with the news, as his supporters planned a party to celebrate, and as his lawyer gave television interviews, Offord Rollins decided what he needed to do next. He excused himself and left the house. He had a class to go to.

  In his cell at the California State Prison in Corcoran, Pat Dunn read and reread the article in the newspaper describing Rollins’ victory. He was happy for the young man, but envious, too, longing for his own phone call that might, one day, set him free.

  • • •

  As Offord Rollins’ trial came to a sputtering conclusion, another case rose from Kern County’s past, again to present the specter of innocents wrongfully convicted. Just down the hallway from the Rollins trial, in the same dreary county-courthouse basement with its tired linoleum and hard wooden benches, the first of the convicted molestation-ring defendants, Scott and Brenda Kniffen and Deborah and Alvin McCuan, had at last returned to court after fourteen years of imprisonment. Their habeas corpus hearing would, one way or another, put a stamp of finality on the saga of the Kern County Witch Hunt.

  Theirs had been the first such prosecution of its kind, a sensational case that launched five years of hysteria in Bakersfield and ignited a national frenzy of similar cases, some of which are still rocking the justice system with allegations of misconduct and wrongful convictions. Now, it seemed, the first ring case to be tried, with its thousand years of imprisonment for the four parents involved, would be among the last to be revisited.

  As in other Kern County ring cases, the Kniffens and McCuans had lost their initial round of appeals. Their prosecutor, Andy Gindes, had been flayed for his behavior in other cases, but claims by the Kniffens and McCuans about his conduct in their trial were denied.6 However, the appellate justices who rejected these appeals made one ruling that gave the four convicted parents hope: The California Court of Appeal would welcome new hearings—to be held at the trial-court level in Kern County—if new evidence could be presented to show that key testimony was false or fabricated. It would not be easy, because even though coercion and false testimony had been proven in many other cases, the Kniffens and McCuans had to find new evidence from scratch. According to appellate rules, legally, their convictions were automatically presumed just, their trials fair, the investigations that swept away their children and put them behind bars, unbiased—despite what had been proven in comparable ring cases. Nevertheless, it was a genuine chance, even in the face of the Kern County District Attorney’s Office, which was determined to fight their case just as hard as it had the others, mustering all its resources to keep the Kniffens and McCuans behind bars, and acknowledging no doubts about the evidence or official conduct in the case.

  By the time of their hearing in the summer of 1996, the Kniffens’ lives and families had long been in shambles. In the Corcoran State Prison, north of Bakersfield (where Pat Dunn also was sent), Scott Kniffen had to be placed in protective custody, so reviled are child molesters in the hierarchy of prison life, targets for every sharpened screwdriver and smuggled razor on the yard. Housed with the most notorious inmates in the state, he saw Charles Manson nearly every day and played chess with Sirhan Sirhan, Robert Kennedy’s assassin. Meanwhile, Scott’s wife, Brenda, dodged lit matches and human waste hurled at her through the bars in her women’s prison cellblock. The couple had not seen their children—had barely talked to them—for most of Brian’s and Brandon’s lives. They had missed the boys’ birthdays, their graduations and their first dates; their transformation from boys into young men. Brenda still had the first tooth Brandon, her younger son, lost—she hadn’t been there to see it loosen and fall, but the boy’s foster parent had taken pity on the imprisoned mother and sent it to her. Brenda would stare at that tooth for hours, a frail woman who had wasted away to seventy pounds by the end of her trial and who fainted at the verdict. Prosecutors at the time complained she was acting.

  The Kniffen boys were now twenty and twenty-three. Both maintained that they had never been molested and supported their parents’ bids for release. But over the ten years since the charges were first lodged, they had recanted, affirmed and recanted their accusations so many times (depending upon whether Kern County authorities or their parents’ defense team was doing the questioning), it was difficult, if not impossible, to determine the truth. It was one of the ironies in the case that the prosecution, which in the past had tried to conceal and ignore contradictions and falsehoods in their child witnesses, now pointed to the very same inconsistencies to argue that Brian and Brandon could not now be believed in their recantations. During the Kniffens’ habeas hearing, the boys sat in the courthouse hallway with friends and relatives, seething in resentment at this turn of events. As far as they were concerned, it was yet another betrayal by officials who were supposed to protect them, but who in their view had ruined their lives.

  Four years earlier, their grandmother—Scott Kniffen’s mother, Marilyn—died of a heart attack, suffered at her kitchen table as she wrote a letter to her imprisoned son. She had never doubted his innocence. Nor did Scott’s father, Dick, who mortgaged his house and spent his retirement savings on investigators and lawyers, and who died in his sleep a few days after his wife. “They died of a broken heart,” Scott would later say, a weary bitterness in his voice and worn face leathery and pale from years of prison food and labor. “As far as I’m concerned, Kern County killed my parents, just as sure as if they had fired a gun into their hearts.”

  The McCuans had fared no better than the Kniffens. Their marriage had ended. Their daughters still lived with Mary Ann Barbour, the stepgrandmother who had leveled the first allegations of molestation. Jenny and Jane, now adults, had never recanted in their parents’ case, though their allegations against others had eventually been disproved or dismissed. The girls still believed wholeheartedly in their memories of molestation, and they wanted nothing to do with their parents, their parents’ lawyers or their parents’ quest for freedom. The very thought of their parents walking free horrified the young women. When Susan Penninger attempted to interview them at Mary Ann Barbour’s home, the door was slammed in her face, after which someone emerged from the house and tried to douse her with a garden hose.

  The McCuan-Kniffen appeal hearing began amid a carnival of news crews, lawyers, family members and courtroom voyeurs, the hallway outside transformed into a curious stage for posturing and speeches by various hangers-on mixed with a quiet dignity and anguish shared by those directly involved. Even before it started, several Kern County judges were disqualified from the case, owing to allegations of conflicts of interest, bias and improprieties.7 The matter finally landed before a newcomer to the Bakersfield bench, Jon E. Steubbe, a studious former law-school dean who had joined the Kern County Superior Court just seven months earlier. A virtual unknown to criminal lawyers, his main experience on the bench to that point was in divorce cases and custody disputes. Observers and prosecutors, as well as the attorneys representing the Kniffens and McCuans, all seemed to assume that the novice Steubbe would adhere to the same pattern every other Bakersfield judge had adopted in the ring cases—they figured he would deny a new trial and let the appeals courts sort it all out.

  “I’m always hopeful,” appeals attorney Michael Snedeker said on the eve of the hearing. “But let’s face it. No Kern County judge has ever overturned one of these cases.”

  Still, some of the best lawyers in Bakersfield, including Stan Simrin, who had won freedom for many other ring defendants years earlier, assembled to argue the case. They laid befor
e Judge Steubbe a multitude of issues, from the withholding of key evidence to official misconduct. The now-infamous wink test was debunked for Steubbe’s benefit, as it had been in other cases, portrayed by a procession of experts as little more than medical quackery rather than a valid indication that a child had been molested, as Kern County prosecutors had labeled it. And the coercive questioning of the children, it was said, made false allegations likely and the truth impossible to know.

  As the lawyers made their arguments and the experts gave their testimonies, it was apparent that they were doing so in a profoundly different atmosphere from the one that had prevailed fourteen years earlier at the beginning of the Witch Hunt. Outside the courthouse, there were no protesters this time, no activists demanding thousand-year sentences. The old hysteria had faded, bludgeoned into submission by years of revelations of official errors, overkill and misconduct; in its place was a tired public cynicism about the justice system, a fear that there could never be finality in any big criminal case in Kern County. The DA remained as zealous as ever in other cases, but in this courtroom, there were no prosecutors thundering about God and sin and the devil—only mounting evidence of unfair trials and potential innocence, and, with it, a shift in mood. The guards and bailiffs, who at first watched over the defendants with a stony mixture of fear and contempt, gradually began to relax. Their arms uncrossed and they could be seen smiling and joking with the prisoners; they even removed the defendants’ chains and allowed the long-separated Kniffens a brief hug and kiss. Much the same transformation occurred in Brenda Kniffen’s cellblock: As her case was made, guards and inmates alike came to believe her innocent. Where once she faced only abuse, now she was cheered and wished luck.

  This change in atmosphere was not lost on the district attorney. A decade earlier, Ed Jagels brashly urged the court to allow TV cameras to record the proceedings; now his office felt besieged by “biased” reporting. When a crew from the ABC television newsmagazine Turning Point showed up to film the hearing, the defense lawyers readily gave interviews. The district attorney declined.