Mean Justice

by Edward Humes

  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.

  2. The appeal in the Rollins case differs in this resp
ect from another improper Kern County murder conviction, the Charles Tomlin case, in which a federal appeals court was bound by the factual determinations of the trial judge who found a key witness’s recantation unbelievable. The trial court’s determination in the Rollins case that the jury misconduct was harmless did not carry such weight, because the question was not whether the misconduct occurred—the juror admitted it—but whether it rendered Rollins’ trial and conviction unfair. This is a legal, not factual question, and thus subject to full review on appeal. At the same time, the appeals court was unable to consider other allegations of jury misconduct, because the Kern County trial judge made a factual determination that such misconduct did not occur and that the alternate juror who alleged that it had was not credible. Had the one juror who discussed his knowledge of pesticides with fellow jurors failed to admit it, the trial judge could have declared that it never happened, and Rollins’ conviction could well have stood up on appeal because of the rigid rules prosecutors use to protect convictions during the appeals process.

  3. The defense testimony on this point seemed more irrefutable than ever, with numerous experts—who normally testified for prosecutors—lined up to argue in favor of Rollins. But, to counter them, Deputy DA Stephen Tauzer shocked the courtroom by announcing that he had newly discovered evidence of pesticide spraying in the area of Maria’s murder, something Kern County officials always insisted had never occurred. Now Tauzer claimed to have found a helicopter pilot who recalled spraying pesticides in that area just before the murder—just as the juror in the first trial had claimed. Defense attorney H. A. Sala complained that this late revelation was a fabrication and an example of prosecutorial misconduct, remarks the prosecutor called slanderous. In the end, though, the pilot proved so contradictory, inconsistent, and in conflict with official county records of pesticide use that Tauzer never called him to the stand. The jury heard none of this. It was also revealed that the pesticide supposedly used, Lorsban, affected mosquitoes, not flies—the witness’s information was meaningless.

  4. For the second trial, the Rollins family hired H. A. Sala, a combative young attorney with a growing reputation as one of Bakersfield’s top defense lawyers, which he was not shy about pointing out to journalists. “This is gonna be a war,” Sala declared gleefully, as he hobnobbed with the TV and print reporters milling about outside court during the first day of the trial. “We’re taking no prisoners. In Kern County, when you’ve got an innocent client, there’s no other way to try a case.”

  Sala’s opponent, Stephen Tauzer, was a cagey, white-haired veteran of the DA’s office, Ed Jagels’ second in command, who often stepped in to handle politically sensitive cases. Tauzer had been Jagels’ roommate for a time after the DA’s divorce years earlier, and he was known to be fiercely devoted to his boss, to the point of harshly criticizing others in the office for anything remotely resembling disloyalty. Tauzer also had a reputation as one of the most able trial lawyers in the office, and for that he had been assigned to attempt to preserve the satanic-molestation cases before they self-destructed years before. (He had fought to keep secret the thousands of pages of investigative reports from the state attorney general documenting the errors and abuses of the ring investigations; when he lost this battle, he began cutting deals and with Jagels’ blessing, dismissing charges.) With his laid-back, soothing demeanor and easy, jowly grin, Tauzer provided a perfect foil to Sala’s hyperactive, hyperaggressive courtroom truculence. Tauzer had a rumpled, relaxed, country-boy persona that seemed to lull entire courtrooms as he continually poked fun at his own supposed failings, laughing aloud at his inability to find the right piece of paper in the stack of files at the prosecution table, or at his failure to master new courtroom technologies—in particular, the compact video disk player used to present evidence photos. Throughout the long trial, Tauzer always seemed to be hitting the wrong button on the machine’s remote control, though every time he did, somehow the same image invariably materialized in front of the jury: a coroner’s photo of Maria’s bloody, battered corpse. Tauzer’s apparent discomfort with the new machine, on at least four different occasions, ended up putting in front of the jury that same gruesome photo of a young woman senselessly murdered, an image that would make anyone with a heart anxious to punish the offender. Sala never quite decided if this was an accident or not.

  On virtually every other point, however, the two lawyers fought constantly and bitterly, hurling accusations of misconduct, concealing evidence, or putting perjuring witnesses on the stand. Sometimes their attacks degenerated into name-calling (“Liar” and “ethically challenged” were two favorites).

  5. Information about a possible alternative suspect developed along an unusual and twisting trail. Before the second trial, while Rollins waited out his appeal, the NBC television news show Dateline brought new controversy to the case, with a February 15, 1995, report questioning Offord’s guilt and featuring an interview with a new witness, an incarcerated car thief named Esther Jean Smith. Smith told Dateline she had been a friend of Maria Rodriguez and that they were together on August 2, 1991—the day of Maria’s murder—until about 4:30 that afternoon. At that time, according to Smith, as the two young women talked in a park, a light-skinned man—not Offord Rollins—pulled up, got out of a car and dragged Maria by the arm and by her hair into his car. That was the last time she saw Maria alive, Smith said. She had remained silent about this incident for years out of fear that she would be killed as well, she explained to Dateline.

  Smith’s story, if true, meant the prosecution theory of the case—that Offord killed Maria between 1:00 and 2:30 on the afternoon of August 2—was wrong. Given Offord’s alibi witnesses, who swore they could account for his movements after 2:30, Esther Smith’s new information suggested Offord was innocent, the Dateline report asserted.

  But Esther Smith’s story contained a fatal error. One day after the broadcast, District Attorney Ed Jagels held a press conference and gleefully produced records placing Smith in the Kern County jail on the day that Maria Rodriguez died, awaiting trial on charges of possession of stolen property and passing a bad check. Jagels’s own in-house investigators had talked to Smith and learned she was sure only that she had talked to Maria on “the second of the month”—she was not sure which month that had been. She had been heavily abusing cocaine at the time, Jagels explained to reporters, and could have had memory problems as a result. He did not suggest she was lying outright. Instead, Jagels theorized that the incident Esther Smith recalled, in which Maria was dragged into a car by the arm and her hair, might have occurred on July 2, an entire month before the murder. (Source: Marc Benjamin and Rob Walters, “NBC stands by story, despite new facts,” Bakersfield Californian, February 18, 1995.)

  The district attorney took great delight in skewering the national news show for failing to check on Esther Smith’s whereabouts at the time of Maria’s murder. And Dateline presented an easy target Two years before the Rollins/Smith story, the show had suffered credibility problems over a report in which it charged that the fuel tanks on certain General Motors trucks exploded during crashes. Dateline had illustrated the problem by planting incendiary devices on the trucks to make them explode on cue, but allowed viewers to assume these explosions were spontaneous. Dateline’s anchor later apologized on air to the automaker, and NBC paid $2 million in damages. “It would appear . . . this television news show learned relatively little from its General Motors experience,” Jagels dryly observed at his press conference.

  The Smith debacle effectively destroyed the credibility of every other point raised in the Dateline piece, even the completely valid ones, such as the insistence of the young man who discovered Maria’s body that the blood at the scene was wet. Wet blood would have been impossible had Maria died in the sunny, hot early afternoon, as the prosecution insisted.

  More interesting, though, was what Dateline failed to report: Esther Jean Smith knew the first name of the man whom she saw drag Maria away. She said it
was “Victor.” This was potentially stunning new evidence. A man named Victor Perez had lived with the Rodriguez family and, moreover, had a history of domestic-violence allegations involving Maria’s sister. Maria feared him, too, according to a friend and a teacher, and it was Victor Perez who had provided police with the incorrect information about Offord Rollins that had first made him a suspect. At the first trial, even without Esther Jean Smith’s information, Rollins’ original attorney had wanted to offer Perez up as an alternative suspect in the case, but had been barred from doing so. Yet when the Dateline story appeared, the Kern County district attorney put a new spin on questions about Perez. It was reported that the DA had “explored” him as a potential suspect, but rejected the possibility because he had an alibi.

  This was, however, not true: Kern County authorities never investigated Victor as a potential suspect in Maria Rodriguez’s murder. Indeed, during Offord Rollins’ trial, the DA fought hard to keep Perez from even being named by the defense as a potential suspect, claiming that he was with Maria’s mother at the time of the murder, and therefore had an ironclad alibi. But this was not true, either. Maria’s mother, Miriam Rodriguez would swear during the second trial that she was out searching the streets for her missing daughter—alone. She could not provide any alibi for Perez.

  The press and Rollins’ lawyers seemed to miss the true significance of Esther Smith’s recollections, so preoccupied was everyone with the fact that she had been wrong about the date of her last day with Maria. No matter what day the incident happened, Esther Smith remained adamant that the rest of her story was true, and Ed Jagels conceded as much. Whether it happened a few days before Maria died, or a month before, Esther Smith could provide eyewitness testimony to a violent confrontation between Maria and someone with first name Victor not long before the murder. In the hands of Rollins’ defense lawyer, this information could be used to suggest that Kern County pursued the wrong suspect from the very beginning. But Rollins’ second attorney, H. A. Sala, was unaware of this chain of events. As soon as Rollins’ conviction was overturned on appeal and a second trial granted, Sala rejected any defense that attempted to implicate someone else in the murder of Maria Rodriguez. Apparently Sala believed the DA’s assertion that Victor Perez had an alibi for the time of the murder. When Offord’s family asked him about this avenue of defense, Sala said, “Ain’t no way anyone’s going to believe the murder victim’s mother would lie to protect thue killer.” And that was the end of it. He never considered the possibility that the DA had simply been wrong about the alibi. After the second trial and hung jury, Sala realized from Miriam Rodriguez’s testimony that there was no alibi, and was prepared to retool the defense to go after an alternative suspect had a third trial been pursued.