by Edward Humes
Even so, Cohen and Bjerkhoel stayed with the case. Cohen worked on it through three years in law school, another year in a civil law practice while she waited for the innocence project to find enough grant money to hire her, and then continued when she was finally hired as a staff attorney in 2011. (Like a parolee facing a review board, every year Cohen anxiously awaits word on whether her grant will be renewed again, guaranteeing her one more year on the job.)
Throughout these years and job changes, she continued to visit Rivera, investigating and searching for new holes in the case against him. She also helped him seek freedom through parole as he continued his college studies and received counseling in prison that helped him overcome his bitterness from what he saw as his wrongful conviction for being the victim of a beating. Gradually, he accepted that he was not blameless—that his decision to return to a party he could have easily avoided had precipitated a needless death. Parole boards don’t necessarily require a literal confession to a crime, but they do insist that potential parolees admit responsibility, and Cohen helped him understand that his choices led not just to his own loss of freedom, but also to another family’s grief. His expression of remorse even persuaded members of the Luna family to support his parole. Rivera was released in December 2014, twenty years after the shooting and eight years after Bjerkhoel and Cohen first began working the case.
A few months before Rivera walked out of prison, DNA testing cleared another of Cohen’s clients in a very different sort of case—a man convicted of three separate sexual assaults in 1998. All three involved attacks on young Latina women on their way to work or school early in the morning, all accosted in the same general area of Los Angeles. All three women pointed to Luis Vargas as their assailant, but only after much prodding by police detectives turned shaky descriptions into firm identifications. Based on that eyewitness testimony and despite his employer swearing Vargas was at work on his regular shift at the time of the rapes, he was convicted and sentenced to fifty-five years in prison. Meanwhile, the police remained silent about the fact that the same area of Los Angeles was being stalked by a serial rapist nicknamed the Teardrop Rapist, for a tattoo of a tear under one eye, who was linked to more than thirty rapes exactly like the ones Vargas had been convicted of committing. Vargas had a very faded teardrop tattoo of his own, from when he was thirteen years old and homeless. But after he was jailed, the real Teardrop Rapist continued his reign of terror for fourteen years after Vargas’s arrest. More years passed before Cohen finally won a court order for DNA testing. The results showed the real Teardrop Rapist, who was never caught, was responsible for the crimes that sent Vargas to prison.
Yet it would take Cohen two more years to get him exonerated. And that was with a district attorney’s office that agreed—eventually—that he should go free. In other cases, when prosecutors ignore even compelling evidence of innocence and fight to uphold convictions, many more years can pass before the molasses movement of the legal system finally lets the cell door creak open. William Richards, accused of murdering his wife on the basis of false testimony about his bite mark being found on the corpse, was cleared by the California Innocence Project in 2007, but he remained in prison ten more years due to the dogged opposition of prosecutors in San Bernardino, California.
From a legal standpoint, Cohen felt, Jo Ann Parks fell somewhere between the Rivera and Vargas cases. On one end of the spectrum was Rivera, whose case raised questions but lacked irrefutable proof of innocence. At the other end of the spectrum lay the DNA evidence that cleared Vargas, which, even according to the prosecutor on the case, pointed “unerringly to innocence.”
The Parks case was muddled somewhere in the middle. Cohen felt she had science on her side in the Parks case, too, but unlike DNA analysis, which left no doubt when it excluded Vargas as the culprit, fire science relied on interpretation and opinion. Once Cohen had settled on exactly what sort of legal attack would be right for Parks, she would try to convince the DA’s office to do what it did with Vargas: admit that a mistake had been made and Jo Ann Parks should go free. Cohen thought there was some chance of that happening. More likely, the DA would consult an expert who agreed with the original conclusion that put Parks in prison for committing a monstrous crime. In that case, a pitched and nerve-wracking courtroom battle would ensue. Then anything could happen.
One thing gave Cohen heart at the outset: The judge assigned to the case was Los Angeles County Superior Court Judge William Ryan. This judge did not have a regular court trial calendar. Instead, he specialized in deep-dive post-trial cases like Parks’s, and he had a reputation for being thorough and independent, even if he tended to be unforgiving of lawyers who showed up unprepared.
Cohen was not sorry he had the case. It meant the judge who set Luis Vargas free would also determine Jo Ann Parks’s fate.
* * *
• • •
Raquel Cohen prides herself on being tough. She is fueled by outrage at the system’s failings and what she firmly believes is an inflated sense of certainty about its outcomes. This is not unique in her office and others like it around the world: Outrage is basically a founding principle and motivation for those who make innocence work their careers. “It’s certainly not the money,” she says.
But Cohen soon realized that the Parks case was not like any of her others. The outrage was there, but the toughness, the nothing-gets-to-me posture, had begun to fail her. It started with the pictures.
The Parks case file was filled with pictures. They were the heart of her case, because there was no physical fire scene left for her or any expert to examine. The apartment had been torn down decades ago. Its contents were long gone, thrown out or destroyed, the bodies long ago buried. Only photos were left.
So, using the big monitor on her desk at the innocence project, Cohen had begun a painstaking study of each crime scene photograph supplied in the original disclosure file. The disclosure file is the collection of police reports, images, interviews, witness statements, search warrants, and forensic analyses that are produced during the investigation of a crime. Most disclosure files are minuscule, because most cases don’t generate much investigative work product. Many get scant consideration by the lawyers on either side who plea-bargain the results without a trial, the summary approximation of justice that keeps an overburdened system hobbling along. But in the minority of cases that do go to trial—the big cases and especially the capital cases—the disclosure materials become voluminous. Prosecutors are legally required to turn over all of it to the accused, even if—especially if—some of that material hurts the state’s case and helps the defendant.
In theory this is a straightforward matter. The government has been required to show its hand ever since prosecutors in Maryland hid evidence that a convicted killer by the name of John Leo Brady hadn’t actually committed the murder. This sufficiently outraged the US Supreme Court in 1964 to lead the justices to instruct all prosecutors everywhere that in the future, they were obliged to turn over all helpful evidence to defendants. These disclosures are now universally referred to as “Brady materials,” and judges have the authority to punish prosecutors and free defendants when there are major violations. Many guilty verdicts have been overturned because prosecutors or police concealed important disclosures by accident or design. The State of California recently made it a felony for prosecutors to deliberately withhold evidence of possible innocence.
Nothing was missing from the Parks disclosure file Cohen received. But the digital photographs in the case, as is typical in any disclosure dump, were a disorganized mess mixed in with all the other files. Each photo was labeled by a computer-generated file name rather than a name that actually described the subject of the photograph, which meant Cohen had to sort through every one, looking to see if the actual image matched up with prosecutors’ claims. So “12.jpg” turned out to be an exterior shot of the burnt-out hull of the Parkses’ old apartment after the sun rose on
the day of the fire. Photo “01h.jpg” showed the allegedly sabotaged extension cord lying on the floor amid ash and debris. Cataloguing all this proved a slow process, as Cohen kept clicking through, frowning at images that the prosecution claimed held incriminating burn patterns, where she only saw general devastation, char, and ash. She made notes of photos she wanted her expert to examine closely. And then came photo “AA029.jpg.”
Cohen froze, at first not quite sure what she was seeing. The fire had distorted the form and coloration of the subject of the photo, which showed a portion of a fire-ravaged kids’ bedroom. Then the charred objects at the center of the photo resolved into something recognizable and Cohen recoiled. She had stumbled on a photo of one of the dead little girls, RoAnn, sprawled across her burned twin-size bed. And this battle-tested lawyer, who blithely marches into the nation’s most dangerous prisons to interview convicted killers, who faces off with seasoned prosecutors and cops with far more experience and resources at their disposal, had to fumble to clear the screen and flee the room—anything to avoid looking at any more of those images of Parks’s dead children.
She would try very hard never to look at them again. And she would have nightmares for weeks about seeing the one.
That’s when Cohen started to realize People v. Parks might differ from her other cases. There were several reasons for this. There was her own family history and its slight parallels with Parks’s, in the form of a disappointing and dysfunctional father figure. Cohen’s biological father had been an alcoholic and an abuser who left the household when Cohen was five. In the years that followed he would regularly promise to visit, or to attend one of his daughter’s competitions. And each time, she’d wait, looking through the window for his car to pull in the driveway, or craning her neck in some gymnasium, peering over the crowd to see if she could spot her dad in the stands. Almost every time, he disappointed her. Only later did she learn that he had lived just two long Vegas blocks from the family for five years, yet he never let them know, never came by. His final act, after announcing to a sixteen-year-old Raquel that he was dying of cancer and promising a lavish inheritance for her and her two brothers, was to leave behind an old wallet with five dollars inside, to be split three ways.
Her mom, like Parks’s mother and Parks herself, ended up marrying the first man who came along after the divorce—the real estate agent who sold the family home after the breakup. But there the parallel to Parks’s experiences ends: Cohen adores her stepdad, and after thirty years, he and her mom are still happily married. Cohen ended up with the nurturing, loving, happily chaotic extended family Jo Ann could never find for herself—which only heightened Cohen’s sympathies.
Then there was the sheer trauma Parks suffered by losing her three small children, compounded by being accused and convicted of causing those deaths, made all the worse if she was actually innocent, then exacerbated once again by feelings of guilt and remorse for not doing more to save those kids. What greater hell could there be for a mother? How, Cohen wondered, do you even go on?
Soon Cohen found herself worrying about the wiring in her own house. She checked and rechecked the batteries in the smoke alarms, pushing the test buttons repeatedly to make them emit their earsplitting shrieks. She hired an electrician to check the house wiring for fire risks. Next she labored into the night drawing up escape plans for the family should fire ever break out, then worried that she had become obsessed. “That’s just common sense,” Ryan Cohen reassured his wife. “We should have done that long ago. It’s a good thing.”
Around that same time, a pair of San Diego–based therapists volunteered free services to all the innocence project’s exonerated clients. The stressed-out staff attorneys also had the option of six free weekly sessions. When this was announced at a staff meeting, Cohen clapped and shouted out happily, “Ooooh, I’ll go! Everybody needs a little therapy.”
Telling herself it was a lark, more out of curiosity than any perceived need, Cohen started her free sessions, determined to keep it to the six freebies. “Then I’ll just stop and get on with my life,” she told Bjerkhoel.
Sure enough, six weeks later, Cohen walked into the therapist’s office in downtown San Diego, confident that it would be her last visit, and that she would make her counselor feel comfortable with that as well.
“Instead, it was a total disaster,” Cohen told her husband when she came home that night. “I started bawling my eyes out, and all this stuff from the Parks case came up. I didn’t realize how much it was weighing on me.”
Far from presenting herself as the impervious professional ready to say goodbye to therapy, she embarked on an emotional, tearful discussion with her therapist about her sorrow for her client, her worry about raising Parks’s hopes too high then letting her down, and her intense fears that there would be a house fire in her own home (a recent air conditioner installation, she admitted, devolved into a virtual inquisition of the electrician on the job). Finally, Cohen spoke of the parallels between her life and Parks’s, how Cohen was a relatively new mother herself, a second child on the way, her first almost exactly the same age as Ronnie Parks at the time of the fire. Despite her best efforts to build boundaries between her personal feelings and her work, this case had bored through her professional armor like no other, and the thought of losing terrified her. And because she genuinely believed Parks should be exonerated, Cohen knew a loss would be devastating.
When Cohen finally fell silent, the therapist had looked at her and said, “Why don’t we keep coming once a week.” Then she promised the attorney discounted sessions for the duration of the Parks case. It’s been more than two years since then.
“Hopefully we win,” Cohen says, “and then I really can get on with my life.”
Meanwhile, every time Cohen cracked open the file in the first few months of working on the habeas petition, she seemed to find a new source of outrage.
“Look at this!” Cohen jabbed at her computer screen, then banged her keyboard. “No matter what she said or did, they put a guilty spin on it. It’s unbelievable.”
She had finally finished her initial review of the massive Parks file, and she took exception to the original trial prosecutor’s interpretation of Jo Ann’s decision to have her tubes tied after giving birth to her third child with Ron Parks. He had made it into a motive for murder, and Cohen was fuming. “It’s such bullshit!” she said aloud to no one in particular.
Cohen ticked off the reasons behind her client’s decision. The Parkses were impoverished at the time. They had lost their home. Their car had been repossessed. They were behind on every bill. She had first asked about the possibility of tubal ligation right after the middle child, RoAnn, was born. She did this out of fear: She had been ill during the latter stages of that pregnancy, as she had been with David, the baby she lost. But then she changed her mind. She was only a few months past her twentieth birthday at the time, and she agreed with her doctor and Ron that she was too young for permanent sterilization. After Jessica’s birth, she decided it was the right time. They were more broke and behind than ever, the marriage stressed, the bill collectors dogging them. After three kids, she said she was done and had the surgery.
“So Jo Ann is trying to be a responsible parent, to seek birth control and not have more children they can’t afford and can’t take care of properly,” Cohen griped to her colleague Bjerkhoel, who was composing a brief about shaken baby syndrome on her desktop computer and listening at the same time. “And what does the prosecutor do? He argues that this perfectly reasonable choice is proof that she never really wanted children in the first place, that she viewed them as a cost and a burden and wished they had never been born at all. So she set the fire to get rid of them at last.”
Bjerkhoel rolled her eyes at the official spin. The two attorneys long ago slipped into an easy relationship allowing them to work, vent, and share their outrage over bag lunches, all pretty much simultaneously.
They say this mutual griping is a vital survival tactic inside a seven-lawyer operation battling juggernauts like the Los Angeles County District Attorney’s Office, which has more than 2,100 attorneys, investigators, and staffers and a three-hundred-million-dollar budget.
“They really don’t get how outrageous they’re being,” Bjerkhoel said of the DA’s position in the Parks case. “They think they’re on God’s side, the good side. So anything goes.”
Even as the two women shook their heads both in mock wonder and in agreement, Cohen smiled. She knew this almost precisely mirrored how prosecutors and police speak of the innocence project attorneys and experts, assuming they would be willing to say or do anything to win freedom for a client or cast doubt on police work because they are biased against authority. They are, in the words of one prosecution expert in the Parks case, “in the exoneration business.”
“They’re being ridiculous!” Cohen added some choice swear words to Bjerkhoel’s assessment. Her husband, Ryan, who met Cohen at the project as a fellow intern and law student, likes to say he fell in love with her because she lights up any room she enters. Cohen glares whenever he says this. “I don’t light up any room now,” she would tell him during the height of the Parks case. “I’m like a dark cloud now.”
This cobbling together of a motive out of seemingly innocuous, arguably praiseworthy information about a person’s past may have outraged Cohen, but it didn’t really surprise her. She knew this was how most criminal trials worked. Almost any fact can and will be spun to suit one side’s narrative or the other’s. If the Parkses had bought fire insurance right before the fire, that would have been cited as hard evidence of motive for arson. It’s one of the first things investigators look for in any potential arson case, and the lack of any sort of pathway to profit from a fire would normally give them pause. In this case, instead of accepting the absence of insurance as evidence of possible innocence, police and prosecutors spun that fact as proof of a guilty state of mind: Jo Ann Parks must have thought if she bought insurance she would make herself a suspect. So choosing not to buy insurance became possible evidence of guilt, too. This was the adversarial legal process at work, Cohen knew. It was a given. And, after all, she would try to shape her own narrative, too, with the firm belief that her view of reality was the correct one.