Mean Justice

by Edward Humes

  • • •

  There is one other curious aspect to Pat Dunn’s case and, oddly enough, it has to do with flies—the same sort of evidence so critical to young Offord Rollins.

  It came out in Pat’s trial, when John Somers launched an odd series of questions to the medical examiner who autopsied Sandy’s badly decomposed body. Somers wanted to know about the maggots and fly eggs found on portions of the corpse that had been buried. Through his questioning, he established that the insects could have gotten there only if those parts of the body were exposed to the elements for some length of time before burial. Otherwise, there would be no flies or maggots.

  Somers dropped the subject then, and it played no further role in the case or in the jury’s deliberations. Yet the very same questions had been crucial in the Rollins trial, just a few months earlier. Somers had nothing to do with that case, but he knew that the testimony had been critical. That’s why, he later explained, he brought it up in the Dunn trial, just in case he needed it later. Indeed, because of the Rollins case, the Kern County District Attorney’s Office, as well as the county’s medical examiners, knew all about flies and their habits. They knew that flies lay eggs above ground only. And they also knew something else: that flies lay eggs in daylight only. Entomologists have long known that flies, blind in the dark and unable to navigate without light, neither feed nor lay eggs at night. That’s why the defense in the Rollins case was so sure the murder had happened after dark: There were no flies or eggs on Maria Rodriguez’s body in a desert teeming with them by day.

  Yet John Somers, when he argued his theory of the Dunn case to the jury, said that Pat Dunn killed his wife in the evening, dragged her body to his truck at one in the morning, drove ninety minutes into the desert to bury her, then returned home before sunrise in order to receive a five o’clock call from his housekeeper, who remembered him being out of breath and the sound of water running in the background.

  It was the theory that convicted Pat Dunn, so tidy, so neat, seeming to fit together like all of John Somers’ puzzle-piece cases. But how can it be true? When, in that nighttime scenario of murder and covert burial, did Sandy’s body lie exposed to the daylight so the flies could lay their eggs?

  At times I think I will explode, Pat Dunn says. I spend too much time thinking about the lies and the mistakes and the injustice that put me here. I probably say this too much—Laura can tell you that—but I am sixty-one years old now, and I repeat myself. It is hard to think about anything else.

  His voice is hoarse, his stare unfocused. Physically, he is in the prison visiting room. Mentally, he is on the hilltop with his telescope, far away, where it is bearable to speak of such things.

  I used to be such a believer. We learned it all in social studies in grade school. Hell, I taught it to my own students: If you need help, call the men in blue. They’re your friends. I always believed that, right up until the day they marched me in here. I even guess I still believe it. I think the system works most of the time the way we want it to. But more often than anyone wants to admit, it fails. When officers of the court violate their oaths and lie—or turn their heads from other people’s lies—the system fails. And the guilty go free. Or the innocent are imprisoned.

  Sometimes, though, I can clear my head for a while and think about other things. I think about riding fence with Mom, and looking at the land, talking about our plans for it. I can still see the excitement on her face when we’d make a decision and know it was good, and I knew it was like looking in a mirror, because I had the same expression on my face, too.

  It was a good partnership that we had. I know people lied on me and said Mom and I always fought, but it’s just not true, and least of all when it came to money. We agreed early on that we both would always try to make good decisions, and that neither would ever use the word fault. We kept that agreement to the very end.

  I’ll swear here and now and to anyone who cares to listen that I did not kill Mom. But I must confess that at this moment, I sure do miss her.

  DAVID P. BAYLES

  EDWARD HUMES was awarded the Pulitzer Prize in 1989 for specialized reporting, and has received a PEN Center U.S.A. West Award for research nonfiction. He is the author of four other nonfiction works, Buried Secrets, Murder with a Badge, No Matter How Loud I Shout: A Year in the Life of Juvenile Court, and Mississippi Mud. He lives in Southern California.

  ALSO BY EDWARD HUMES

  No Matter How Loud I Shout

  Mississippi Mud

  Buried Secrets

  Murderer with a Badge

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  ENDNOTES

  PROLOGUE: BEGINNINGS AND ENDINGS

  1. From the tape-recorded and transcribed telephone call by Patrick Dunn to the Kern County Sheriff’s Department on July 1, 1992, in Kern County Sheriff’s Missing Persons Case KC92-14851, entered in evidence in the case of People of Kern County vs. Patrick O. Dunn, Kern County Superior Court Case No. 52347.

  2. Ibid.

  3. Ibid.

  4. Ibid.

  5. The preceding account of the defense team’s preparations and the trial’s concluding moments is based upon the author’s interviews with Laura Lawhon, Pat Dunn and Dunn’s lead trial attorney, Gary Pohlson.

  PART I: PAT AND SANDY

  1. Cynthia H. Craft, “Rogers Plans Talk to Group Termed Racist,” Los Angeles Times, April 27, 1994; Cynthia H. Craft, “Sen. Don Rogers Finds Favor with Militia Movement,” Los Angeles Times, April 30, 1995; “Lawmaker Used Race in Tax Ploy,” Associated Press, April 12, 1996. According to the “tax ploy” article, State Senator Don Rogers owed the IRS $150,000 in back taxes and penalties when in October 1992 he filed a signed and notarized document that argued he was not a U.S. citizen, that the Constitution’s Fourteenth Amendment applied only to citizenship of freed slaves, and that, as a white citizen, he had no tax or other obligations to the United States. The document was not discovered by newspaper reporters for four years because it was filed in Sonoma County, in the California wine country, hundreds of miles from Rogers’ own district in Kern County.

  2. Chris Brewer, “Stringin’ ’em up,” Bakersfield Californian, Centennial Edition, 1998.

  3. Kern County Grand Jury report on Ku Klux Klan activities in the County of Kern, C. A. Melcher, chairman, filed with Kern County Superior Court Judge T. N. Harvey on May 19, 1922; and “Klan Report High Lights,” Bakersfield Californian, May 20, 1922.

  4. According to Jennifer Dunn, in an interview with the author, her father’s drinking was a principal cause of the family’s problems and the divorce. While many friends and acquaintances of the Dunns’ described Pat as a problem drinker and believed him to be alcohol dependent, he denies this and asserts that he and his first wife simply drifted apart.

  5. Letter and attached reports to Stan Simrin, from private investigator Roger Ruby, November 21, 1992. According to Ruby’s report, Larry Cox, the attorney who drafted the will, recalled that Sandy wanted it, not Pat, that he saw no evidence whatsoever that Pat had pressured her in any way, and that Sandy was alone with the attorney when the will was drafted.

  6. Kate Rosenlieb described the incident in an interview with the author. She recalled that, when she arrived, it seemed to her Pat was acting strangely, babbling about politics and what a great governor Kate would make—things that seemed to make no sense. She assumed Sandy was asleep. Pat would later say he had been rattled and upset by Sandy’s behavior.

  7. Kern County Sheriff’s Department Report KC-8925184, October 20, 1989; and the author’s interview with Pat Dunn.

  8. Financial Planner Kevin Knutson relayed this account on a number of occasions, first to Kern County Sheriff�
�s detectives in a report dated July 7, 1992, in Kern County Sheriff’s Department Case KC-14851 (the Alexandra Dunn missing persons case); in a second report dated August 17, 1992, in Case M092-00633 (the Dunn homicide case); in his testimony in People vs. Patrick Dunn; and in interviews with the author. Although the Kern County authorities investigating Sandy’s murder theorized that Pat was after her money, Knutson was adamant that the trust was entirely Sandy’s idea. It would put Pat in charge were she to become disabled and, in the event of her death, it provided an economical way of bypassing probate courts and estate taxes, while also eliminating the possibility of other relatives challenging Pat as sole heir—something that easily could happen under a simple will. According to Knutson, Sandy expressed specific wishes that her estranged sister should receive nothing in the event of her death.

  9. Planning Commissioner Marino’s account is contained in his sworn testimony in People vs. Dunn, and in a report to attorney Gary Pohlson detailing his March 9, 1993, interview with Laura Lawhon. Although the question of Sandy’s mental state was raised from the first day of the sheriff’s investigation into her disappearance, detectives never spoke with Marino.

  10. The account of Kevin Knutson’s June 30 meeting with Pat and Sandy is based upon Knutson’s testimony in People vs. Dunn; his statements as reported in Kern County Sheriff’s Department Case KC-14851 and Case MO92-00633; his January 15, 1993, interview with defense investigator David Sandberg as reported by Sandberg in an undated memorandum to attorney Gary Pohlson; and in interviews with the author.

  11. Michael Trihey, “Feuding in court: Prosecutors rap judges in articles,” Bakersfield Californian, November 8, 1981. The article details the fallout from a series of four articles on Kern County judges published October 20-October 27, 1981, in the Los Angeles Daily Journal, a newspaper devoted to covering California legal issues. The Foster Farms reference was to Kern County Superior Court Judge William A. Stone, a highly regarded jurist who later rose to the Fifth District panel of the California Court of Appeal that Jagels so despised. The article reports that Stone learned from other Kern County prosecutors that Jagels was the unnamed source and, as a result, he disqualified himself from a death penalty case Jagels was trying. Another Journal article again quoted an unnamed prosecutor—the Kern County bench once more suspected Jagels—as harshly criticizing Judge Marvin Ferguson for presiding over “Department 352.” This was a derogatory reference not to Ferguson’s courtroom number, but to the California evidence code section under which a judge may exclude evidence he deems confusing or prejudicial. It is a code section most often used to the benefit of defendants who want to toss out incriminating evidence. The unnamed source for the article claimed this judge used Section 352 more than any other in Kern County. “It’s death to take a case in there,” the unnamed prosecutor said, “because he’ll emasculate it.” Ferguson was so incensed by the article that he called then DA Al Leddy down to his chambers, screamed at him about his inability to control his arrogant young prosecutors and told him he should punish and possibly fire the culprits. When Leddy declined, Ferguson announced he would run for district attorney, so he could take over the office and banish Ed Jagels to a distant and undesirable branch court deep in the wastelands of the Mojave Desert, where he would spend his days prosecuting traffic violations. The threat, Jagels would later say, provided additional motivation for his own ultimately successful run for the office of district attorney.

  12. Michael Trihey, “Murder charges dropped,” Bakersfield Californian, August 12, 1983. The Californian reported that murder charges against Neil Shewcraft, a Kern County rancher, were dismissed by Jagels’ office in the wake of a California Supreme Court decision limiting a sweeping “Victims’ Bill of Rights” voter initiative. The initiative had been championed by Jagels, and was designed to allow prosecutors to use any relevant evidence, even if it was illegally obtained through unlawful searches or coercive interrogations. Shewcraft’s attorney presented compelling evidence that the rancher had been coerced into incriminating himself by Kern County Sheriff’s deputies who persisted in interrogating him despite his repeated statements that he wished to remain silent, and even threatened to sue the man’s elderly father if he didn’t confess. The rancher later insisted that he was innocent and had been forced by threats to tell detectives what they wanted to hear. Decades earlier, Bakersfield’s most prominent but least appreciated figure, U.S. Supreme Court Justice Earl Warren, had ruled that evidence obtained in this manner had to be excluded to protect the innocent from false charges and established the famous “exclusionary rule” that the Victims’ Bill of Rights sought to eliminate. When the California Supreme Court ruled that the Victims’ Bill of Rights did not apply in Shewcraft’s case, the confession had to be tossed out, leaving the prosecution with no evidence. This sent Jagels into a fury, and he advocated the recall of six of the seven justices on the high court. The California Supreme Court justices “simply do not care about public safety,” he ranted. “They don’t care to balance the defendant’s rights with the victim’s. They sit up there, in San Francisco, surrounded by state policemen and wring their hands about what’s going to happen to criminals.” Stan Simrin, the president of the Kern County Bar Association, who represented Shewcraft, and who would later represent Pat Dunn for a time, labeled Jagels’ comments as “contemptuous of the Supreme Court, the rule of law and common decency,” and declared that “To even suggest that six respectable justices would deliberately oppose the promoting of public safety is not only incredible, but extremely dangerous.”

  13. The incident involving the release of juvenile records during the 1982 district attorney’s race was investigated by the Kern County Grand Jury, the results of which are contained in a document entitled “A Special Interim Report of the 1982-1983 Kern County Grand Jury,” dated July 5, 1983, Bill N. Johnson, foreman. The grand jury was assisted by a lawyer and an investigator from the state attorney general’s office because of possible conflicts with the local district attorney’s office, which normally assists the grand jury. The report details what it calls the “unethical” and “unlawful” release of confidential juvenile files for “political purposes,” pinning blame on Colleen Ryan and tracing the files’ path from her to a representative of Jagels’ campaign consultant, Stan Harper, and from there to Jill Haddad and the embarrassing confrontation with Jagels’ opponent. The resulting controversy was subsequently reported in articles in the Bakersfield Californian July 6, 1983, September 2, 1983, and September 7, 1983, reflecting an initial denial by Jagels that Ryan had done anything wrong, followed by calls from grand jurors for disciplinary action against Ryan, and by Jagels’ concession that confidentiality policies should be changed and enforced to prevent similar incidents in the future.

  14. People vs. Tony Galindo Perez, Opinion of the California Court of Appeal, Fifth Appellate District, No. 4381, dated May 18, 1981. As is typical when appellate courts criticize prosecutors, the official opinion was designated “not to be published in official reports,” sparing Jagels from having the account of his conduct available to attorneys and law libraries throughout the state.

  15. This notion is advanced in Bennett Gershman’s annual Prosecutorial Misconduct (Deerfield, Ill.: Clark Boardman Callaghan), the seminal legal work on its title subject. In his introduction, Gershman, a Pace University Law School professor and former prosecutor in the Manhattan District Attorney’s Office, writes:

  First, it becomes inescapably clear that the prosecutor, for good or ill, is the most powerful figure in the criminal justice system. To be sure, the judge exercises considerable power, but only after the prosecutor has made the crucial decisions about whom to charge, whom to punish and how severely. And this power to charge, plea bargain, grant immunity, and coerce evidence is largely uncontrolled. Second, acts of misconduct by prosecutors are recurrent, pervasive, and very serious. Case reports do not adequately describe the extent of such misconduct because so much of the prosecutor’s work is conducted s
ecretly and without supervision. . . .

  Restraints on prosecutorial misconduct are either meaningless or nonexistent. Relatively few judicial or constitutional sanctions exist to penalize or deter misconduct; the available sanctions are sparingly used and even when used have not proved effective. Misconduct is commonly met with judicial passivity and bar association hypocrisy. This judicial and professional default is not easily explained. Perhaps the prosecutor’s standing, prestige, political power, and close affiliation with the bar may account for the lethargic responses. Another explanation may be the confusion between disciplining prosecutors and freeing guilty defendants. Some courts believe that reversal of a conviction because of prosecutorial misconduct may punish the prosecutor but exact too great a toll on society. Whatever the reasons, the absence of significant external controls requires prosecutors to be self-regulating. With so much at stake, however, and the potential for abuse so great, self-regulation is not an acceptable safeguard.

  16. In a landmark case, Berger vs. United States, 295 U.S. 78 (1935) the United States Supreme Court outlined the duties and responsibilities of prosecutors and the consequences of prosecutorial misconduct. The case involved a conspiracy to produce and sell counterfeit money. The evidence against one of the four defendants, Berger, was weak and contradictory, with ample evidence to suggest his innocence. Berger, however, was convicted anyway. In his appeal, the catalogue of criticism recited by the high court bore a striking resemblance to the criticisms leveled against Jagels in the Perez case, and focused on the fact that the federal prosecutor “overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer.” In order to bolster his case against Berger, the federal prosecutor “was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of conducting himself in a thoroughly indecorous and improper manner.” Had the case been overwhelming, it might be possible to sustain the guilty verdict against Berger, the justices opined, but in a close case, “the evil influence” of the misconduct could not be overlooked. Berger’s conviction was overturned and a new trial granted.