Mean Justice (63 page)

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 secretly 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.

In a passage that is still widely quoted in court opinions sixty years later (including in the California case law cited in the discussion of Jagels’ misconduct in the Perez case), the court explained why the conduct of prosecutors is so crucial to justice:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

17
. “Jagels’ attacks draw criticism,”
Bakersfield Californian,
May 27, 1982. Jagels was quoted by the
Californian
as saying he did not regret his behavior in the Perez trial, and that Perez might have been acquitted had he not acted accordingly. Jagels pinned the blame for problems in the case on opposing counsel’s misbehavior and the trial judge’s passivity. “It became obvious after a very short time that the judge was not going to control the defense attorney,” Jagels said. “If I had not done something to control defense counsel myself, there is no telling what would have happened in that case.” The appeals court opinion in the case refutes Jagels on these points, painting the prosecutor as the primary malefactor and stating that nothing the defense attorney did warranted Jagels’ misbehavior or could have led to an acquittal in the case. Jagels, however, remained adamant, and was quoted in the
Californian
as saying such advocacy as he displayed in the Perez case is required of a dedicated prosecutor. The appeals judges, on the other hand, were “the most extreme pro-criminal judiciary in the country,” he complained. Ironically, the defense attorney in the Perez case with whom Jagels found so much fault would go on to become a judge of the Kern County Municipal Court, where he regularly hears criminal cases brought by Jagels’ office.

18
. From the author’s interviews with
Bakersfield Californian
photographer John Harte, and confirmed by other Kern County journalists. District Attorney Ed Jagels declined the author’s requests for an interview.

19
. William Vogeler, “Kern County Prosecutor Attacked as Overzealous,”
Daily Journal
(San Francisco), July 6, 1989. According to this legal newspaper’s research, nineteen cases alleging prosecutorial misconduct against the Kern County District Attorney had reached the appellate level in the first six years of Jagels’ term in office—triple the number in the preceding twelve years. (Further research by the author indicates that number was actually twenty-three cases. At least eight of these cases involving
twenty-one defendants eventually were reversed, though misconduct provided the decisive grounds for reversal in only three of them, affecting a total of nine defendants.)

20
. Ibid. Justice George A. Brown of the Fifth District panel of the California Court of Appeal, now retired, made these comments in open court during oral arguments in the appeal of the 1986 first-degree murder conviction and life sentence of Jerry William Blackman of Bakersfield. Blackman’s attorney, Mark Christiansen, complained that Kern County prosecutors had failed to reveal the existence of a jailhouse informant in the case until trial, a form of misconduct. Christiansen asserted that the case fit into a “pattern of misconduct” among Kern County prosecutors, and that judges in Kern County had grown concerned. Another justice, James Ardaiz, followed up Brown’s comments by saying, “Trying every case to the edge and expecting the appellate court to keep you from falling over the edge is inappropriate.” Brown then suggested the state attorney general should look into the matter and “do something about it.” A representative of the attorney general subsequently telephoned Jagels’ office in response to Brown’s suggestion, but no formal action or inquiry was made. Notwithstanding the extraordinary public criticism—rarely made in the staid atmosphere of appellate oral arguments—the Blackman conviction was unanimously upheld, and the court’s opinion made no comment on the misconduct allegations. (The reason for Justice Brown’s apparent ire at Jagels and his office became clear a few months later, when the same appeals court overturned a massive criminal case involving seven defendants sentenced to thousands of years in prison. The seven men and women convicted in an enormous molestation-ring case had to be set free because of massive prosecutorial misconduct, the appeals court found. The opinion in the case was being written at the time of the Blackman hearing.)

21
. Pat’s recollections about Sandy’s odd behavior are not considered credible by Kern County authorities. They say that because Pat did not describe this driving incident in initial interviews with detectives, it probably did not happen, and Pat most likely manufactured the tale to bolster his story about Sandy developing Alzheimer’s disease and wandering off. Pat counters by saying he was distraught and simply forgot to mention the incident in
initial interviews with detectives, though he did describe other occasions on which Sandy seemed overly forgetful. It should be noted that Pat failed to mention several instances of Sandy’s forgetfulness that were witnessed by others, including James Marino.

22
. Pat Dunn and Jim Weins, interviews with the author.

23
. The account of Kate Rosenlieb’s discussions and meetings with Pat Dunn and Detective Kline, and her reasoning for suspecting Pat of killing Sandy, is based primarily on Rosenlieb’s recollections, as related in Kline’s July 5, 1992, report on his initial interview with Rosenlieb, filed in Kern County Sheriff’s Department Case KC92-14851; Rosenlieb’s personal journal, portions of which were contained in the legal discovery file in
People vs. Pat Dunn
and portions of which were never disclosed until Rosenlieb provided copies to the author; and the author’s interviews with Rosenlieb. Kline, in an interview with the author, provided some additional details.

24
. The account of Detective Kline’s meeting with Pat Dunn is based on Kline’s July 5, 1992, report in Kern County Sheriff’s Case KC92-14851; and the author’s interviews with Kline and Dunn.

25
. The account of Jerry Coble’s interrogation by Detective Banducci is based upon Banducci’s report, in Kern County Sheriff’s Department Case KC91-06787, and the author’s interview with Banducci and his partner, Sheriff’s Detective Jeff Niccoli, who was witness to Coble’s arrest and interrogation. Coble, in an interview with the author, called Banducci a liar, and denied any connection between his desire to strike a deal after his arrest in the theft case and his eventual plea bargain and agreement to testify against Pat Dunn.