Mean Justice

by Edward Humes

  In Florida, meanwhile, the state Supreme Court, after reversing seven death sentences in recent years because of prosecutorial misconduct, issued an unprecedented warning to state prosecutors that it was fed up with ethical lapses in such high-profile, high-stakes cases. In freeing a Tampa man, Walter Ruiz, from a death sentence in April 1999, the high court wrote that “this trial was permeated by egregious and inexcusable prosecutorial misconduct,” railing against the prosecutors on the case for trying to tilt the playing field in their favor through misstatements of the law, insulting the defendant, attempting to generate sympathy among jurors for their own personal tragedies, and introducing improper evidence. The high court said such transgressions had been occurring with “unacceptable frequency” in other death cases throughout Florida, and that something had to be done to protect the innocent from wrongful conviction—and execution.

  Yet, even as such concerns mount and the number of innocents discovered on death row has increased, so has the pace at which executions in general are carried out. This will only continue, as new laws designed to reduce the number and scope of appeals take effect. The justice system must have finality, it is said. Victims must have closure. It has always been assumed that only a tiny fraction of death sentences are unjust, and that prosecutorial misconduct is a small problem in such cases. But this turns out not to be true: Of the approximately six thousand death sentences imposed between 1973 and 1997, a total of eighty have been reversed,27 with a third involving substantial allegations of police and prosecutorial misconduct. Most of these sixty-nine men and women, in fact, have been fully exonerated and released, when previously they had been scheduled to die.

  That means one out of every eighty people sentenced to death in the United States since 1973 has turned out to be innocent. And the pace is quickening.28

  2

  PAT DUNN LIVES AT CORCORAN STATE PRISON NOW, A home built of concrete and concertina wire surrounded by mile after mile of farmland that occupies the drained and dry bed of ancient Tulare Lake. A mere hour from Bakersfield, the prison is most notable for the unusually high number of inmates shot to death by guards under questionable circumstances.

  These days, Pat spends his time working in the prison library and administrative offices. In his cell on his own time, he carefully reads the Bakersfield Californian, tearing out any articles that even hint at some injustice in the Kern County courts. He has a notebook full of them, a chronology of wrongful convictions: the releases of the Kniffens and McCuans, Offord Rollins, Charles Tomlin. Each overturned conviction, for a time, gives Pat new hope, but it is followed by the crushing realization that no one seems to be interested in his case anymore. If these other people could be imprisoned because of errors or lies, Pat asks anyone who will listen, is it so hard to believe he could have suffered a similar fate? The other cons just stare at him, appalled at his naiveté.

  It has been a frustrating time for Pat, and he has withdrawn even further into himself, closing off his emotions from view even more than when he was free. He describes himself as viewing his days in prison as if through a telescope. That’s how he pictures himself when he allows himself to consider his fate—as if he is outside his own body, on some distant hilltop, watching Pat Dunn trudge from cell to mess hall to showers, to yard and back to cell again. The imaginary telescope is his personal trick; everyone on the yard has a trick, whether they admit it or not. It is his trick to stay sane as the time creeps by, days without end, the rest of his life consigned to a gray place of bars and cinder blocks. He has no friends, no visitors. Not even his family comes to see him, except his older brother Jay, who stops by for an occasional hour or two. His older son, Pat Jr., lives too far away, and Pat has not seen his other son, Danny, in years. His daughter, Jennifer, still in Bakersfield, bursts into tears at the thought of visiting. “Too painful,” she says.

  There is little left of his old life. Everything he owned—money, furniture, cars, house, books, even his dogs—is gone. He cannot say where. He watches from afar as his former sister-in-law, Nanette Petrillo, with the paralegal assistance of City Councilwoman Pat DeMond, disposes of one piece of Sandy’s estate after another, millions of dollars’ worth of real estate. By law, DeMond is required to send Pat written notice of the sales in advance, but somehow the letters always get addressed incorrectly and never arrive on time. Even the Columbus Avenue property, where Pat and Sandy had wanted to erect a movie theater complex, has been sold. The same city council that stymied the Dunns’ plans to build there has allowed the new owner to develop the property without a hitch. And someone else has constructed a new movie-theater complex a short distance from where the Dunns wanted theirs, no problem.

  As he has watched this last chapter in his life unfold, Pat has become a pale and nervous old man, beset by rashes and bowed by the strict routines of prison life. He has the shuffling walk so common on the prison yard, the over-the-shoulder glances, the ceaseless hoarding of every little possession to protect against thieving inmates. His manner is dominated by the need to keep one’s eyes to oneself, to avoid giving offense in a world where there is little reason to live and therefore little reason not to lash out and kill—a world where men forget that, in other times and places, it is considered polite to look a man in the eye. Still, he is left alone for the most part, too old to be recruited into gangs or lusted after for sex or harassed by guards. He is respected for his intelligence, his quiet dignity and his status as a murderer, for murder sits at the top of the penitentiary pecking order, even for old men. Thieves, burglars, crackheads—they all come from the same world, the bottom feeders of the prison food chain, Pat has observed. But murderers come from all walks of life, a true cross-section of society, from gangsters to millionaires. “I’m a member of the elite,” Pat likes to say with a bitter laugh. Sometimes, he can say it without his voice cracking.

  His appeals and writ of habeas corpus did not go well. The DA won on every point, as happens with the vast majority of appeals. The one major issue raised in his appeal was whether Pat’s real estate lawyer, Teri Bjorn, should have been required to testify at his trial about their discussion of power of attorney. Pat’s appeals attorney, Richard Schwartzberg, attempted to argue that Kern County Superior Court Judge Robert Baca incorrectly interpreted the law and therefore violated Pat’s attorney-client privilege of confidentiality when Baca ordered Bjorn to testify. The Court of Appeal found this argument without merit, affirming that the law had been applied correctly. If Pat sought Bjorn’s help in obtaining a power of attorney over Sandy’s money, the court ruled, it would have been a violation of the law, and Pat could not use attorney-client privilege as a shield.

  The problem, though, was not in Baca’s interpretation of the law, but in his interpretation of the facts. Judge Baca and prosecutor John Somers had repeatedly stated during the trial that Pat sought a power of attorney—which would, indeed, have been illegal. But their statements were not true: Teri Bjorn, the sole witness to these events other than Pat, made it clear that Pat did not know what a power of attorney was, and merely asked about it, with no attempt to get Bjorn to do anything illegal. But this critical distinction was never clear to the appeals court. The misstatements of Bjorn’s testimony were never corrected by Pat’s attorney, or anyone else, to this day.

  Likewise, Pat’s appeals attorney did not raise the issue of the numerous errors and false statements made by the prosecutor during the trial and in closing arguments—the lies he attributed to Pat Dunn that were not lies, the incorrect statements he made about Sandy’s jewelry and glasses. Nor did the appeals attorney raise the question of possible incompetence by the defense attorney, Gary Pohlson, for neglecting to object to the prosecutor’s misstatements, or for the defense attorney’s failure to point out the many inconsistencies of crucial witnesses in the case, including Marie Gates, Kate Rosenlieb, John Soliz and other detectives on the case, and Pat’s housekeeper, Cindy Montes. And, of course, there was no mention of the crucial evidence that was n
ever given to Pat, because his defense and appeal teams remained in the dark—there was no way for them to know about it, and no way for the appeals court to consider it.

  Pat’s habeas petition, in which he was permitted to present new evidence, fared no better. His plea for a new trial relied primarily upon the new information Laura Lawhon had turned up from the state Department of Motor Vehicles. The DMV computer printout showed Jerry Lee Coble’s license plate had been queried by local authorities right around the time Pat and Rex Martin had seen him skulking around the house—and when Pat’s friend Jerry Mitchell recalled passing on the number to Detective Soliz to check out. Laura and Pat’s lawyers had hoped they could use this information to prove that Jerry Coble and Kern County authorities had framed Pat Dunn.

  In the end, though, the motor vehicle information turned out to be a tantalizing clue that seemed to prove nothing definitively. The request for information on Coble’s car did not originate from computers at the Kern County Sheriff’s Department, where Sandy’s murder was being investigated, but from the Bakersfield Police Department, which at that time had nothing to do with Coble or the murder investigation. The defense team could find no way to connect it up, no way to identify what police officer made the request or why. Prosecutors wrote it off as a meaningless coincidence, probably a mere traffic stop. Laura felt the timing was too suspicious to be mere coincidence, but she had no proof. The argument was shot down by the appeals courts.

  Meanwhile, the hidden information on Jerry Coble, Kate Rosenlieb and other witnesses remained hidden, even as the government fought to have Pat’s conviction upheld by claiming there was no new evidence to consider. Had the information been revealed, Pat’s bid for an overturned conviction and new trial would have been a strong one, far stronger even than Offord Rollins’ already successful appeal. But without this information, the court of appeal had no choice but to reject Pat’s last, anemic bid for freedom. The state supreme court declined to review the case as well. Eighteen months after a jury pronounced him guilty, Pat’s appeals died.

  After that, nothing happened in Pat’s case for years. His lawyers moved on to other cases. He had no money to finance any further legal efforts, anyway. As a convicted murderer, he could inherit nothing from Sandy—everything went to Sandy’s sister, Nanette, except for some small trust funds that passed on to Pat Paola’s relatives. Pat’s brother Mike, who had financed the trial defense, became mired in his own financial problems and declared bankruptcy. Several bills from the defense attorneys and investigators remained unpaid.

  Only Laura Lawhon stayed in contact with Pat, though she had little time to devote to him or his case. She had parted company with her employer not long after the Dunn trial, and with several other colleagues formed her own firm, which quickly became one of the preeminent private investigation firms in Orange County. Later, she began splitting her time between California and her old hometown in Connecticut, where she had inherited a profitable gravel quarry after her father passed away. Yet with all that going on in her life, and despite no longer officially working on Pat’s case, she still kept in touch with him, certain of his innocence, still angry and disappointed at herself for not winning his freedom. The same woman who penned postcards to her convicted former clients while vacationing in Hong Kong still accepted Pat’s regular collect phone calls, and she still read his voluminous letters scrawled on yellow legal tablets filled with outrage and pain, piling up quickly enough to fill an entire file drawer in less than a year. In her spare time, she tried to chase down some new leads Pat had developed through fellow inmates—tips about Jerry Coble, mostly, which never panned out. Laura suspected the other inmates were using Pat, conning him for one reason or another—profit or sport, she figured. In any case, the pattern became depressing: Pat would get his hopes up, then Laura would have to crush him with bad news. A year passed in this way before it suddenly hit Pat—as if it hadn’t occurred to him before—that he might never get out of prison. “I’m going to die here, aren’t I, Laura?” he asked her one day.

  “I don’t know, Pat,” she said quietly. “I hope not.” The lack of conviction in her voice scared both of them.

  It was around then, in early 1995, that Laura mentioned the case of The People of the County of Kern vs. Patrick O. Dunn to this author. In short order, she produced three boxes of files—everything she had on the case—and handed them over with this comment “Judge for yourself.”

  It was in the course of researching this book that the errors, hidden evidence and new information about the murder of Sandy Dunn came to light. As often happens when a criminal case is prosecuted unfairly, the justice system of Kern County and the State of California simply failed to detect, or at least acknowledge, any problems on its own. No one had noticed that the DA had failed to disclose to Pat’s lawyers, as the law required, a wealth of evidence that could have helped prove his innocence. The defense remained in the dark about the lobbying efforts by Kate Rosenlieb and other city officials to have Pat prosecuted; they never heard about statements made by the Dunns’ housecleaner that Sandy never wore her jewelry on her predawn walks, a critical point in the prosecution case. Most dramatically, the defense never knew that there were new charges against Jerry Lee Coble, or that the police and the DA neglected to pursue this new case against the star witness despite overwhelming evidence of his guilt. Pat and his lawyers never knew that, even as the DA vowed there was no new information in the Dunn case and urged the court to get on with Pat’s sentencing, Coble had been allowed to elude arrest despite a plea bargain requiring him to maintain a crime-free existence.

  Nor did anyone seem to notice that Pat Dunn’s defense team never received a critical police report about Coble that detailed how the man who claimed to have accidentally witnessed Pat Dunn commit murder had previously begged to be allowed to make a deal, any kind of deal, vowing he’d do whatever it took to stay out of prison. Without that report, the defense had no way of knowing about Detective Eric Banducci, who arrested Coble but who was left out of the loop when Deputy DA John Somers and Sheriff’s Detective John Soliz cut their deal with the career criminal—though Banducci sits less than ten feet away from Soliz. The defense had no way of knowing that Banducci, along with several other fellow detectives, considered Coble a chronic liar and a completely unreliable witness, and would have said so under oath as witnesses in Pat Dunn’s defense. Locked within the files of the district attorney’s office was a police report that could have destroyed Jerry Coble as a witness and seriously eroded the credibility of the entire case against Pat Dunn—except for the fact that Dunn and his lawyers never saw that report.

  At this writing, as the millennium draws to a close, the Kern County District Attorney has yet to provide an explanation for such oversights, though one had been promised by John Somers for more than a year. District Attorney Ed Jagels declined requests for an interview with the author, saying such matters either are or will be the subject of litigation, and that he was barred from discussing them by the county’s legal counsel.

  Once the first edition of Mean Justice appeared in February 1999, however, Jagels broke his silence, launching a series of television and newspaper interviews in which he angrily denied any wrongdoing by his office in the Dunn case or any other. The legal reasons for his previous unwillingness to comment apparently forgotten, Jagels opined that the evidence of wrongful prosecution contained in Mean Justice was “fantasy” and “sheer, unadulterated bull.” He offered few specific rebuttals, preferring instead to make sweeping condemnations, such as his view that the book showed “contempt for the victims’ movement, contempt for . . . a law-enforcement-oriented community like ours . . . [and] a sneering L.A. view of Kern County.”29

  The district attorney got specific in one interview, however, when he assured the citizens of Kern County that his office would never rely on an informant like Jerry Lee Coble unless prosecutors were certain he was being truthful. “We don’t use an informant or make a deal with him,” J
agels vowed, “unless he saw something, unless his statement is something that he could not have known unless he was actually there and is actually telling the truth.”30

  If this is the practice of the Kern County District Attorney when dealing with informants, it would be a model policy, one that would greatly reduce instances of propitious lying by informants anxious to barter testimony for freedom. But, notwithstanding Jagels’ assurances, no such policy was in evidence in the Dunn case. Sheriff’s reports and trial testimony show that Jerry Coble’s account of inadvertently witnessing Pat dispose of Sandy’s body contained no such corroborating information—there were none of the telling details Jagels promised, none of those “he had to have been there” hallmarks of a truthful witness, none of the proof the DA said he required before cutting a deal with a crook. Indeed, Coble’s account contained errors and omissions that should not have been there had he actually been present to see Pat hurling his wife’s body into the back of a pickup truck, yet Jagels’ office still bargained away a prison sentence in exchange for Coble’s testimony.

  A few months later, Jagels hired a private polling firm, which reported that the DA remained very popular in Kern County despite the publication of Mean Justice. The poll purported to show that most voters did not believe wrongful prosecutions were a problem. One of the poll respondents later contacted the local newspaper to assert that the pollster’s questions were biased and slanted to produce results favorable to the district attorney.

  Finally, in July 1999, five months after the initial publication of Mean Justice and more than two years after Jagels was first asked to respond to questions raised during the course of research for the book, the Kern County District Attorney issued a 154-page report titled “Junk Journalism.” The report purported to correct “factual errors and distortions” in Mean Justice, but it consisted primarily of a rehash of the prosecution’s original case in People vs. Dunn and failed to respond directly to most key issues raised in the book.