Mean Justice (73 page)

2
. The appeal in the Rollins case differs in this respect 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.

6
. The appeal in
People vs. Pitts
ring case that led to reversal because of prosecutorial misconduct by Deputy DA Andrew Gindes was decided by a different three-man panel of justices at the California Court of Appeal’s Fifth District than the group of judges who denied the initial Kniffen-McCuan appeal two months later.

7
. The original trial judge, Marvin Ferguson, who normally would have conducted the hearing, had died, and the defense feared the case was being sent deliberately to the most hostile judges in Bakersfield. First it went to Gary Friedman, the judge who was excoriated by the California Court of Appeal in the Pitts molestation-ring case for allowing rampant prosecutorial misconduct and for his biased and incorrect rulings. Friedman recused himself from the case. Next, Judge Len McGillivray, in the midst of the Offord Rollins retrial, was assigned to hear the
matter, but he stepped down because of his history as a former prosecutor, and because his brother was the assistant DA who could be heard on the now-notorious taped interviews of Brian and Brandon Kniffen that the defense deemed coercive. Following McGillivray, the case went to Judge Kenneth Twisselman, who had earlier refused to hold a hearing in the case despite the Court of Appeal ruling authorizing one. Twisselman left the case in a fury after defense lawyers accused him of bias and of making rulings both ignorant of the law and the case—criticisms he denied and termed “impertinent, scandalous, insulting and contemptuous.” That, he said, left him too outraged to be fair to the defense.

8
. The Kniffen-McCuan petition for habeas corpus listed ten separate issues that the defense believed warranted granting a new trial:

1. The failure of the original trial court to unseal Mary Ann Barbour’s mental-health records, which the defense sought in order to prove that Barbour fantasized the molestation allegations and pressured Jenny and Jane McCuan into repeating them. (The same records were released to other ring defendants, whose cases subsequently were dismissed.)

2. Failure to provide exculpatory evidence, including information contained in hidden tapes or destroyed tapes of child interviews, and inaccurate police reports that masked the coercive questioning methods used with the child victims.

3. Failure of the Kern County District Attorney’s Office to recuse itself because of bias and because the DA had taken legal custody of the children at one point, creating a conflict of interest.

4. Intimidation of defense witnesses.

5. Appointment of attorneys to represent the children who were agents of the prosecution rather than independent representatives of the children’s best interest (one such attorney wrote letters to relatives of the Kniffens containing thinly veiled suggestions that they should commit suicide for their “crimes”).