Mean Justice (59 page)

Indeed, the Lambert and DiPrete cases are the general rule when misconduct occurs—judges declare “no harm, no foul.” Although there have been an increasing number of reversed convictions that have been upheld in recent years, more often, convictions won after prosecutors lied, hid evidence, coerced false testimony or made wildly improper argument have been allowed to stand, with no relief for the convicted or consequences for the government officials who broke the rules. Legislators and courts have effectively worked in concert to enhance police and prosecutors’ powers at the expense of suspects, defendants and the convicted—innocent and guilty alike. Many states, as well as the federal government, have adopted legislation making it harder to file, much less win, appeals to criminal convictions, even in cases where evidence of innocence appears to exist. Tough Texas laws designed to give prosecutors enormous and unfettered powers left Kevin Byrd no alternative when, after twelve years in prison for a rape he did not commit, new DNA tests proved his innocence beyond any doubt: the law literally left him no legal appeal. His only option was to seek a pardon from Texas governor George W. Bush—who denied it, declaring that it wasn’t his job to be a judge. (Bush relented some months later and issued the pardon.) Meanwhile, in Idaho, the courts approved the
police practices of lying to obtain search warrants and intimidating witnesses who might otherwise help the defense. Such transgressions were harmless error, it was opined. And in Kentucky, Charles Howard West, sentenced to twenty-two years in prison for murder in a case with slim evidence, was subjected to “a barrage of vilification, misleading innuendo and outright deception” by the prosecutor, the Kentucky Supreme Court found. Yet, much as the federal appeals court had in Lisa Lambert’s case, the Kentucky court still upheld West’s conviction because his lawyer neglected to follow proper procedure by seeking a mistrial while the prosecutor was carrying on in open court. Federal appeals courts have upheld this ruling as a matter of states’ rights.

Perhaps the surest indication that the trend toward false convictions and prosecutorial misconduct represents a national phenomenon rather than one limited to a few distinct communities like Kern County may be found on death rows around the country. Thirty-two death sentences have been overturned since 1993, when Pat Dunn was convicted. These cases involved some of the highest-profile criminal prosecutions in the country, in which public scrutiny and expectations were great, and major resources were expended to achieve justice. Yet twenty-eight of these condemned men and women were not only granted new trials, they were exonerated and set free, innocents who were found to have been wrongly convicted and sentenced to death—more often than not because of misconduct by police or prosecutors. Further, the rate at which these innocents have been found on death row has accelerated as well—nearly double what it was between 1973, when the Supreme Court restored the death penalty in America, and 1993.
²⁶
The release of men and women
wrongly convicted of murder came to be an almost weekly event in the United States by the end of the century. In New York, a man named John Duval walked out of prison after twenty-six years when it was finally shown that the only eyewitness to the crime had initially told police he saw nothing—a story he changed after being held in jail for seven months as a material witness. The police report that documented this shifting story was never given to the defense, judge or jury, making it appear that this witness told the same, consistent account from the start. Two days later, in Oklahoma, Ronald Keith Williamson, who spent twelve years on death row and whose loved ones had to make funeral arrangements when they were told his execution was imminent, was proven innocent of a brutal rape and murder and set free. Williamson was lucky—his appeals had been exhausted, but his supposed accomplice, a high-school teacher named Dennis Fritz, was able to convince a judge to order DNA testing of hairs left behind by the killer. Prosecutors opposed this testing as a waste of time and money. But not only did DNA analysis exonerate both men, it proved prosecutors had relied on bogus scientific examinations in the first place to falsely link those same hairs to Fritz and Williamson. Further tests showed DNA traces at the crime scene actually matched the prosecution’s chief witness in the case, a criminal who had been given leniency in exchange for his convenient but false testimony. It seems prosecutors may have cut a deal with a killer in order to prosecute two innocent men.

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

P
AT
D
UNN LIVES AT
C
ORCORAN
S
TATE
P
RISON 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 never 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.