Mean Justice (52 page)

The fallout from this string of embarrassments in the ring cases and other short-circuited prosecutions was not obvious to the public, as Ed Jagels, with his thunderous attacks on liberal judges, remained as popular and electable as ever. Beneath the surface, though, everything had changed.

Andrew Gindes, once lauded by Jagels as brilliant, left
the DA’s office in disgrace. He began accusing his former boss of improprieties, of burying cases for friends, and of deliberately “throwing” the appeals and retrials of ring cases because he was unwilling to stake his political career further on risky cases. Gindes’ legal career was in ruin, and he was forced to take a minimum-wage job as a cashier before finally getting work as a court-appointed attorney in Kern County Juvenile Court—representing the interests of abused kids.
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Several of the other ring-case prosecutors also left the office a short time later.

Meanwhile, Carol Darling, the sexual-abuse coordinator whose questioning of children had absorbed harsh criticism as the ring cases unraveled, also left the DA’s office. Jagels, who once praised Darling for making the molestation prosecutions possible, now opined that she should never have been allowed to interview victims in the first place—a startling indictment of one of the main instigators of the ring prosecutions. During the attorney general’s investigation, in fact, he called Darling “the great crack” in the DA’s system of investigating cases. (For her part, Darling told investigators for the attorney general that, based upon the children’s discredited accusations against a DA, a sheriff’s deputy and a social worker, she still believed there was a satanic influence in Kern County law enforcement—but was too fearful to say more.)

Around the same time, her husband, Brad Darling, was transferred to the sheriff’s transportation department and away from child-abuse cases for good. Other task-force investigators were transferred out of sex crimes; one, Don Fredenburg, who had been caught on tape coercing accusations from the Kniffen boys, was fired, arrested and sentenced to prison for four years for misappropriation of funds and other improprieties related
to his affair with a jail inmate. His boss, Sheriff Larry Kleier, enmeshed in a variety of scandals after staking his career on the satanic-abuse cases, was voted out of office. Within a year of the attorney general’s seething report, virtually everyone involved with putting together the massive ring cases and the Satanic Task Force was gone.

The impact of that personnel shift would appear to be dramatic. To this day, no more molestation rings have ever been uncovered in Kern County. Almost immediately, the number of felony molestation prosecutions requested by the Kern County Sheriff’s Department dropped by nearly half and became statistically consistent with the Bakersfield Police Department and the police in other communities in Kern County. News coverage of these numbers—in the past so critical of the city police for failing to find any molestation rings—began to suggest that something must have been very wrong at the
sheriff’s
department to produce such an abnormal number of cases. The room at the district attorney’s office with the toys and crayons, where the child-victims once were interviewed, became a secretaries’ lunch room.

In the end, of the fifty-three men and women formally prosecuted in Kern County as members of molestation rings, only six continue to serve their prison sentences. All the rest have had their cases dismissed or overturned, or else they were allowed to plead to crimes requiring no incarceration. Fewer than one out of six ring defendants prosecuted in Kern County were actually guilty of the charges against them. And these figures do not include the twenty-one other cases in which children were removed from families for as long as two years, only to have every allegation against them dropped as well, or the eighty-five other people suspected and traumatized, but never charged.

Yet no one in power in Kern County would admit to making any mistakes when it came to those who still remained in prison, among them the original ring defendants, Scott and Brenda Kniffen, and Alvin and Debbie McCuan. After everything that had come to pass, after all the questions, scandal and dismissals, the Kern County District Attorney still insisted that those four, whose case had started it all, were clearly guilty. Prosecutors—particularly John Somers—insisted that nothing could shake their confidence in those original convictions. The Kniffen boys had recanted and proclaimed their parents innocent, the medical evidence had been shown to be unreliable, and the investigators’ credibility and prosecutor Gindes’ reputation had been reduced to a shambles. Yet the DA had continued to prevail in the Byzantine world of appeals, writs and
habeas corpus
pleas that Ed Jagels so liked to criticize. Although each ring case involved the same issues, each, for purposes of appeals, required the defense to start from scratch and prove everything, every allegation of misconduct and mistake all over again. Improprieties in one case might lead to freedom, while similar official behavior would be condoned in the next, depending on which judge or panel heard the appeal. The Kniffens and McCuans watched all the other ring prosecutions come unglued, for all the same reasons that they believed their own convictions were flawed, and wondered if their turn might ever come.

By 1993, when Pat Dunn’s trial ended and he joined them in prison, they were still waiting.

9

K
ERN COUNTY, THOUGH IT SEEMS TO HAVE SENT AN
unusual number of innocents to prison, is by no means unique. Just as the county pioneered a national explosion of molestation-ring cases, so did it anticipate a broader trend—a trend of increasing law-enforcement and prosecutorial misconduct. Kern County, it seems, is not an anomaly. It has merely ridden the crest of a wave just now breaking upon the justice system. And no region of the country has been immune.

In March 1993, the same month as Pat Dunn’s trial, Walter “Johnny D” McMillian of Monroeville, Alabama—the model for the racially torn town at the center of
To Kill a Mockingbird
—was set free after seven years on death row. Three key prosecution witnesses in the case had lied, and law-enforcement officials knew it and even encouraged it. The misconduct was revealed only after an appeals attorney accidentally received an unedited police tape of one of the witnesses’ statements. Unlike earlier versions given to the defense and appeals teams, this one included a portion in which the witness complained that the police wanted him to frame an innocent Johnny D. Even then, the television news show
60 Minutes
had to air a report on the scandal before Alabama authorities finally agreed that the case had been mishandled and decided to reopen it.
By that time, McMillian had already been through four rounds of failed appeals and was within days of being executed. Once free, he was asked to testify before Congress about his experience. “I was wrenched from my family, from my children, from my grandchild, from my friends, from my work that I loved, and was placed in an isolation cell the size of a shoe box, with no sunlight, no companionship and no work for nearly six years,” he testified. “Every minute of every day, I knew I was innocent.”
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Pat Dunn heard about Johnny D on
60 Minutes.
“Laura,” he said, calling her collect from jail. “That’s me on TV.”

Nationwide, during the months surrounding Pat Dunn’s legal travails alone, at least seventeen death sentences (seven in 1992, ten in 1993) were reversed because the men and women convicted were innocent. These people were not just given new trials; they were simply set free. Several had come within days, and one within hours, of execution before last-minute stays rescued them from wrongful deaths. In addition, at least another three convicted murderers, who had been sentenced to life instead of death, also were freed in 1992 and 1993.
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Of those twenty capital cases, sixteen—80 percent—were overturned because of prosecutorial or law-enforcement misconduct. Most of these reversals owed to police and prosecutors’ failure to turn over evidence that would have showed defendants’ innocence: A high school principal in Pennsylvania was set free after seventeen years on death row because a prosecutor hid evidence that someone else might have killed the teacher and two children who were victims in the case. A man framed and convicted for murder in New York was released after two
decades in prison, with the appeals court writing that the only explanation for the moral bankruptcy of the prosecutor in his case was that “The district attorney [failed] to train or supervise her employees as to such basic norms of human conduct as the duty not to lie or persecute the innocent.” John Henry Knapp of Phoenix, Arizona, was sentenced to death for the 1973 arson murder of his two children, and spent twenty years awaiting execution despite the prosecution having evidence that fingerprints on the gas can used to start the fire belonged to someone else—a fact never revealed to the defense until another prosecutorial agency took over the case. A Texan who came within two days of execution, Andrew Lee Mitchell, was freed after it was learned the sheriff’s department had covered up police reports stating that the victim was seen alive two hours
after
Mitchell was alleged to have committed murder. A woman in Mississippi, sentenced to death for killing her nine-month-old baby, was released from death row after two years because there was no actual evidence that she had done anything wrong—the police had responded to her baby’s tragic death, most likely from sudden infant death syndrome, by locking her up after she frantically brought the child to the hospital for treatment.

The conviction of innocents in the months surrounding Pat Dunn’s arrest and trial was not limited to murder cases.
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In September 1992, a massive cocaine-smuggling case against seven men disintegrated when it was revealed—after trial, convictions and sentencing had occurred—that the assistant U.S. attorney on the case had kept hidden a scathing Drug Enforcement Administration memo about the untrustworthiness of the star witness. The memo labeled this key witness a frequent liar who had falsely accused others in the past, yet
was rewarded by the U.S. Customs Service with free cars, free run of government offices, phones and safe houses, and other forms of undisclosed payments. The cover-up, with its startling parallels to information about Jerry Lee Coble kept from Pat Dunn’s defense, led to the reversal of all seven convictions.

Meanwhile, in Chester County, Pennsylvania, prosecutors fought hard to prevent a man serving a forty-two-year prison sentence for rape from undergoing a DNA test. When the state supreme court finally ordered the test, Dale Brison was proved innocent and released. A few months later, a New York hospital employee convicted of raping a mental patient was also set free after DNA testing proved he had not committed the crime. In that case, prosecutors had disregarded the victim’s statements accusing others of the rape, and had not even tried to check out the hospital worker’s ironclad alibi.
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Around the same time, a former Disney movie actor, Jay Kerr, had drug conspiracy charges against him dismissed in federal court in Montana because of improper evidence and argument by prosecutors. And within a month of that, a federal prosecution in Chicago of sixty-five gang members accused of maintaining a huge drug-running organization—one that bought favors from judges and politicians and whose members were linked to numerous murders—was derailed by prosecutorial misconduct. Convictions were overturned, indictments dismissed and investigations abandoned when it was learned that as reward for their favorable testimony, key witnesses against the notorious El Rukn gang had received beer, money, narcotics and the opportunity to do drugs and have sex in prosecutors’ offices—lawbreaking that would have destroyed the witnesses’ credibility
(not to mention that of prosecutors), and which therefore was covered up. (Many of the defendants were successfully retried and convicted in untainted proceedings.)

Not long afterward, the deportation of John Demjanjuk, accused of Nazi war crimes by the United States Justice Department’s Office of Special Investigations, was harshly criticized by the Court of Appeals for the Sixth Circuit, which found that prosecutors had “acted with reckless disregard for the truth” and “committed fraud on the court” because, even as it set about ruining the elderly Demjanjuk’s life, it had evidence in hand of his innocence. The Israeli Supreme Court, not known for its leniency toward accused Nazis, set Demjanjuk free because the United States had concealed evidence proving he was no war criminal at all.

One of the most stinging court decisions on prosecutorial misconduct in recent years involved not a capital crime, but a relatively minor case in which two people were convicted of selling $100,000 worth of heroin to an undercover officer. At trial, Assistant U.S. Attorney Jeffrey Sinek repeatedly told the jury that a third individual arrested but not on trial was unavailable to testify because he had claimed the right to remain silent. Sinek made this statement to rebut a central defense contention that the prosecution was keeping this witness under wraps because the individual in question could help exonerate the defendants. The prosecutor’s more innocuous explanation for the witness’s absence helped his case—but it wasn’t true. Federal prosecutors had cut a deal with that person and so knew that, as the Ninth Circuit Court of Appeals later put it, this individual “would sing like a nightingale” if called as a witness. The resulting testimony could well have benefited the defense,
but the prosecutor and his superiors in the Los Angeles U.S. Attorney’s Office kept the information hidden throughout the trial and long after, reluctantly divulging it only when the Ninth Circuit justices forced them to reveal it during appeals arguments. A conservative justice appointed by Ronald Reagan, Alex Kozinski, then wrote a blistering opinion that summed up the temptations and difficulties of prosecutorial misconduct. In it, he noted that, alone among government officials, prosecutors operate with little public scrutiny or accountability in deciding who to prosecute and what evidence to share with defense attorneys—operating on an honor system entirely dependent on each prosecutor’s personal integrity—which is why, since the Supreme Court’s 1935 ruling in
Berger vs. United States,
it has been a bedrock principle that the prosecution’s duty “is not that it shall win a case, but that justice shall be done.”
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