by Ian Graham
When Janet told Mario what she had heard about his case, he was initially hesitant.
“I can tell you the same thing I told the cops,” he told her. “I didn’t see who was shooting because I was hiding behind a car. I didn’t have a gun on me. I didn’t shoot anyone.”
“I understand,” Janet replied in a calm, even voice. “Believe me, I understand about that. But let’s just talk about you. Do you know why you were arrested?”
“The police say they have a witness against me,” Mario responded, looking her in the eye. “Someone who saw me shoot. But I didn’t do it, so I guess that person is lying, or else he thinks he saw me.”
With Mario’s permission, Janet contacted Mario’s attorney, Anthony Garcia, to offer her help in locating or talking to witnesses. Garcia seemed annoyed and told her curtly that the case against Mario was weak and that he would be acquitted.
Janet was relieved. She allowed herself to be cautiously optimistic that a jury would not convict Mario based on the testimony of one eyewitness. “I thought, he’s going to win this trial.”
For the next year and a half, while Mario sat in Juvenile Hall awaiting trial, he continued to attend the writing classes and to develop his voice as a writer. He read relentlessly and became known around the Hall as “the guy with the books.” With Duane’s and Janet’s encouragement, he took and passed his GED exam. He began writing to authors he admired, asking them for guidance and to send him books. Janet called Mario a “scholar of stone and steel.” She believed he could have been an outstanding student and teacher under different circumstances. She got to know Mario’s mother, Virginia, and his aunts, Bertha and Martha, who visited him often at Juvenile Hall.
After more than a year at Juvenile Hall, Mario wrote a poem called “Dreams”:
I may not be free to do many things but nothing can stop me from having these dreams:
Dreams of going to college and obtaining an education that will help me achieve my aspirations;
Dreams of becoming the famous Chicano writer Mario Rocha, and one day writing a play that will change someone’s life;
Dreams of writing a movie that will help society understand “the barrio” and let them see the realities of “street life”;
Dreams of counseling and being there for a troubled child;
Dreams of delivering the Good News of our lord to those in need;
Dreams of spending a whole day with my family and treasuring every single moment;
Dreams of being out there to be an uncle to my nephews, Carlitos and Lil’ Danny;
Dreams of enjoying the life of an average eighteen-year-old;
Dreams of listening to some Zeppelin in my Kenwood stereo system, making the whole house vibrate with intensity;
Dreams of holding a girl in my arms, sharing a warm and loving feeling;
Dreams of waking up at home and not in here;
Dreams of using this talent which I have found to connect people of all races and classes;
Dreams of living these dreams;
Dreams of freedom.
CHAPTER 8
God Boxed Me In
Thou shalt not be a victim. Thou shalt not be a perpetrator. Above all, thou shalt not be a bystander.
— U.S. Holocaust Memorial Museum, Washington, D.C.
LOS ANGELES, DECEMBER 1997
SISTER JANET ATTENDED every day of Mario’s two-week trial. She sat with his mother and other family members in the first row, immediately behind Mario and his two co-defendants.
The trial was held in Judge Morris Jones’s courtroom in the Criminal Courts Building, a block from City Hall in downtown LA. The building is the centerpiece of the largest court system in the country. Its government-functional lobby bustles every day with a cross-section of Los Angeles: jurors, cops, parolees, lawyers, reporters, street people, and the idly curious. O. J. Simpson’s 134-day trial was held there, in 1995, in Judge Lance Ito’s ninth-floor courtroom. Judge Jones’s courtroom, like all the others, was worn, functional, and surprisingly small.
The DA’s office had signaled the priority it was giving this case by assigning as lead prosecutor Deputy District Attorney Bobby Grace, an up-and-comer who had made his reputation in the Hard Core Gang and Family Violence divisions of the Los Angeles District Attorney’s Office. Grace had won convictions in dozens of murder cases and handled many high-profile cases, including the 1996 murder charges against celebrity rapper Snoop Dogg.
It worried Sister Janet that Mario was being tried together with two known gang members. She had sat through a lot of trials, and she knew the danger of guilt by association. And from his opening statement, Bobby Grace made it clear that the prosecution intended to lump all three defendants together as gang members and make gang terror the primary theme:
The evidence will show that these defendants began hitting up people at the party. And you will learn through the evidence that that is slang for — gang slang — for asking people where are you from, and that asking people that question is a prelude to trouble, to fights, and escalating even beyond that… You will hear evidence that these defendants ordered people at the party to take off baseball caps that offended them, that disrespected their gang, the Highland Park gang.
Despite this opening promise, the prosecutor Grace presented no evidence at all during the trial that Mario had “disrespected,” “hit up,” or accosted anyone. There was no evidence that he had ordered anyone to take off a baseball cap or that he was involved in the ensuing fight.
Arturo Torres — who had been accosted for wearing a California Angels baseball cap — identified Raymond Rivera (Cartoon) as the person who had pressed a gun into his ribs and “hit him up.” He said nothing about Mario.
Bryan Villalobos also testified that Richard Guzman (Pee Wee) and “two of his friends,” including Rivera, approached him during the party and asked him “where you from?” Villalobos said he responded that he “wasn’t from nowhere,” and that Guzman replied that he was “Pee Wee from Highland Park.” Villalobos testified that Mario was not part of the group that hit him up.
Other witnesses testified that Rivera and Guzman had started the fight with Lauro Mendoza. Not a single witness testified that Mario was involved in the fight.
Another witness, Nigel Lobban, testified that he was watching the fight and saw Guzman pull a gun from his waistband and fire a shot at Martin Aceves (the murder victim) from a distance of a few feet.
Regarding the second shooter, who fired down the driveway and hit Anthony Moscato in the hand, José Plascencia, a Cathedral student, testified that he had witnessed Rivera in the driveway firing a gun toward the crowd as they scattered. Peter Barragon, another partygoer, described Rivera as the person he saw shooting in the driveway. Barrragon also testified that he had known Mario since they were kids and was sure Mario was not the driveway shooter.
Apparently, these witnesses convinced the prosecutor. Later, at the end of the trial, Bobby Grace would argue in his closing statement to the jury:
Clearly, Defendant Rivera is shooting in the driveway. What facts support that? He is shooting at individuals in the driveway based on his description. Consistently, among all the witnesses that testify, his description consistently comes up as the individual that was shooting in the driveway… Defendant Rivera is the only one the witnesses talk about… he is the individual who is seen shooting down the driveway.
Not a single witness testified to seeing more than two shooters. A police ballistics expert testified that a thirty-five-caliber bullet was recovered from Martin Aceves’s body, and a twenty-two-caliber bullet was recovered from a wall inside the house. According to the LAPD’s expert, this indicated that “two guns were fired.”
Prosecutor Grace asked if there could have been a third gun that didn’t expend a shell, such as a revolver, and the expert testified that there “could have been.”
That’s their case? Janet thought. There could have been?
A police gang expert testified that Guzm
an and Rivera were known, documented Highland Park gang members and that their gang monikers were Pee Wee (Guzman) and Cartoon (Rivera). He said nothing about Mario. Not a single witness testified that Mario was a gang member or was involved in the hitting-up incident or the fight that preceded the shootings.
So far, the prosecution’s own witnesses appeared to be exonerating Mario.
The only evidence implicating Mario came from three witnesses. Bryan Villalobos, a Cathedral High School student, testified that he had picked Mario out of a sixteen-pack photo lineup card — a sea of similar Latino faces — as someone who “looks like” the person he saw shooting down the driveway into the crowd as people fled. However, he added that he was “not sure” of his identification and “never saw [Mario] with a weapon at any time.” Legally, that was a non-identification. Villalobos also testified that he was a habitual marijuana smoker who had smoked marijuana every day for the past six years, that he had smoked marijuana the night of the party, and that he had drunk several cups of beer before the shooting. And he was unable to identify Mario in court.
Lauro Mendoza testified that after hearing the first gunshots, he was running down the driveway toward the street when he caught a “glimpse” of the person shooting toward Moscato. Mendoza saw the side of the shooter’s face for “a few seconds” and could not describe what the shooter was wearing, nor his height or weight. Mendoza admitted that immediately after the shooting, he told the police that he did not see anything. However, four days later, he identified Mario from the sixteen-pack photo lineup card as the person “that looks like the guy I saw shooting the gun.” Again, legally, this was a non-identification.
The only witness to implicate Mario with any degree of certainty was Matthew Padilla. Padilla testified that he was standing in the driveway on the street side of the tarp, collecting an entrance fee and acting as a gatekeeper to the backyard, when he heard voices in the backyard getting louder and “it seemed like something was happening.” At that moment, he heard gunshots and “people began running through the tarp toward the street.”
Padilla testified that he stayed on the street side of the tarp and stepped aside to avoid being run over by the people fleeing toward the street. From that vantage point, Padilla said he “peeped out” and saw a person “come to the middle of the driveway, get down on his right knee, place a gun in his left hand, and start firing down the driveway.” Padilla acknowledged that the driveway was “dark,” that he was not wearing his glasses at the time, and that in his police station interview shortly after the shooting, he had identified someone other than Mario in a six-pack photo lineup card. Yet Padilla identified Mario in court as the person he saw shooting in the driveway. He said he was “certain.”
Janet was familiar enough with the justice system to be skeptical about eyewitness testimony, especially when that testimony came from high-school kids who had been drinking at a party late at night. Police, often under pressure from their bosses or the media, sometimes get tunnel vision about making an arrest. It’s easy for a police photo identification session to become suggestive or subtly coercive. Some witnesses fear the police, or want to please them, and are easily led or susceptible to influence. Some, particularly friends or family of the victim, rush to identifications to help find and convict the culprit. Other factors, such as intoxication, stress (known as “weapons focus,” where a gun is involved), chaos, poor visibility, or faulty memory can very easily cause mistaken identifications. People with similar features can simply be confused with one another. On top of all this, jurors, who are usually unaware of such weaknesses, often treat eyewitness identifications as compelling evidence.
The results can be disastrous, as has been proven conclusively by the recent use of DNA evidence. A study released shortly before Mario’s trial, examining the first forty cases where DNA evidence was used to exonerate wrongfully convicted people, found that in 90 percent of the cases, eyewitness identification had played a major role in the wrongful convictions. In one case, five separate witnesses had mistakenly identified the wrongly convicted defendant. An earlier study of five hundred wrongful convictions concluded that mistaken eyewitness identification had occurred in 60 percent, an astonishingly high number considering that eyewitness identification is an important factor in only 5 percent of criminal trials. At the time of Mario’s trial, The Innocence Project, in San Francisco, had recently released a study identifying faulty eyewitness testimony as the “single greatest cause of wrongful convictions nationwide, playing a role in more than 70 percent of convictions overturned through DNA evidence.” The United States Supreme Court has recognized that eyewitness identification, particularly in the criminal context, is by its nature fraught with possible error. People with similar features can easily be confused with one another. And yet, in the words of Supreme Court Justice William Brennan, there is “nothing more convincing to a jury than a live human being who takes the stand, points a finger at the defendant and says, ‘That’s the one!’”
The case against Mario was based on the testimony of one eyewitness, Matthew Padilla. There was no physical evidence that tied him to the crime or that could exonerate him.
Janet sensed there was something wrong with Padilla. During his testimony, he had kept his head down, avoiding eye contact with anyone. His tone and body language told her that he was either lying, scared of something or someone, or far less sure of his testimony than he claimed to be. Padilla had never met Mario before the night of the shooting. How, Janet thought, could he positively identify him based on a glimpse of a few seconds in the dark, from the side, without his glasses, amid all that chaos, with the stress of a gun being fired just a few feet in front of him? She hoped the jury saw what she did.
When the prosecution rested, Janet still thought the evidence against Mario was weak. But even before the defense had presented Mario’s case, his attorney had not been particularly impressive.
Anthony Garcia was in his late thirties, five foot five even in his elevated black cowboy boots, with a thick mustache and hair slicked back and gathered in a braided ponytail that extended below his shoulders. During the trial, Garcia spoke softly and tentatively, seemingly intimidated by the judge and the other lawyers. His opening statement had been short and unclear, skipping from argument to argument without any apparent outline or purpose, and the few objections he made during direct examination of the prosecution witnesses were mostly incoherent and were routinely overruled by Judge Jones.
Garcia called only three witnesses in Mario’s defense: Gabriel Ramirez, who had driven Mario to the party, and two other friends of Mario’s, Candace Avilar and Rosie Aldana.
All three testified that they were hanging out with Mario for most of the party in the rear of the backyard, near a blue van.
Gabriel Ramirez testified that when the fight began, Mario was not involved in it, but rather was standing by a keg of beer “picking up on a girl.” Rosie Aldana also testified that Mario was not involved in the fight, but had just stepped away from the keg area when the fight happened.
Gabriel testified that when the first shots were fired, Mario was walking toward him and that he saw Mario react to the shots by ducking and then running to join Gabriel, Anthony, Candace, and Rosie, all of whom took cover behind the blue van.
All three witnesses testified to seeing Mario hiding behind the van with them moments after the first shots were fired. And Candace Avilar testified that she specifically noted Mario’s location behind the van as the second volley of shots was fired — the shots down the driveway — because Mario was her boyfriend’s brother. And all three testified that after waiting behind the van for several minutes after the shooting had stopped, Gabriel Ramirez, Anthony Ramirez, Rosie Aldana, Candace Avilar, and Mario all walked down the driveway and left the party in Gabriel’s car.
But because all three witnesses admittedly were friends of Mario’s, Bobby Grace easily impeached — discredited — them on cross-examination, for being biased.
Garcia then rested his defense, without calling an eyewitness identification expert to cast doubt on the reliability of Matthew Padilla’s identification of Mario, without calling any non-biased witnesses to support Mario’s location during the shootings, and without recalling to the stand any of the witnesses who had testified that one of the other defendants had been the driveway shooter.
In his closing argument, prosecutor Grace (apparently realizing that the evidence against Mario was weak) took advantage of the three similar-looking Latino defendants sitting together at the defense table. He painted Mario with the same broad brush by using evidence that had been introduced against Guzman and Rivera:
There’s no getting around or trying to hide the ball on this. The circumstances of this case were gang-related. Those three defendants were Highland Park gang members. And this is where the gang evidence comes in with respect to motive and with respect to identification, when you relate it to what these gang members or what these gang individuals did the night of the party. The fight that occurred, everything that was involved were precipitated by these defendants, by their actions. They are the ones that injected gang influence or gang overtones into this by hitting people up, by bringing guns…
Sister Janet had to will herself not to jump up and yell, “Objection!” She was furious that Grace was lumping Mario together with the other two as a gang member despite the absence of any evidence whatsoever in the record that he was affiliated with a gang or had been involved in the hitting up or the fight.
She knew that Bobby Grace was a rising star in the District Attorney’s Office and that his job was to get convictions. But she felt that this was pushing the ethical boundaries. Where was Garcia, Mario’s attorney? Why was he letting Grace get away with this? Still, she felt the jury wouldn’t convict Mario on the testimony of Matthew Padilla, the one eyewitness.