Unbillable Hours: A True Story

by Ian Graham

  The jury deliberated for two days before returning their verdict. Garcia was confident, telling Mario that he was going to walk, no doubt about it, and telling Mario’s family that he would be home in a matter of days. As Mario walked into the courtroom that morning, with his hands shackled in front him, he didn’t look at the jury, but he kept his head raised.

  The courtroom was filled and tense. The family of Martin Aceves, the murder victim, sat on one side, and Mario’s family and supporters filled most of the other side. Sister Janet sat in her usual place in the front row, near Virginia Rocha, squeezing her hands together as the jury foreman rose to announce the verdict. She saw Mario’s shoulders rise and fall as he let out a deep, quiet breath. In the next few seconds, he would either be set free or taken away to prison for life.

  The verdict for Pee Wee came first: guilty on both counts, murder and attempted murder.

  Next came Cartoon: guilty on both counts.

  “The two men next to me had lost their lives in a matter of seconds, and the cause of their doom was coming my way. ‘Not Guilty!’ ‘Not Guilty!’ I prayed,” Mario would later write.

  The foreman began. “We find the defendant, Mario Rocha…” Mario drew a deep breath and tensed his body.

  “Guilty of murder and attempted murder,” the foreman read.

  There was a stunned silence in the courtroom. Mario exhaled slowly, closed his eyes, and went numb. “I felt spiritually killed, right there,” he would say later. As he was escorted out of the courtroom by deputies, his hands cuffed behind him, Mario didn’t look back at his mother. It was not an image he wanted to remember.

  The sentencing came a few months later. As Mario prepared for court that morning, he wrote in his journal, “Today is the day of my funeral. I wonder who will show up to pay their last respects.”

  Pee Wee, Cartoon, and Mario, who had just turned eighteen, were all sentenced to two consecutive life terms with no possibility of parole.

  “I have been in court for a lot of verdicts and sentencings, but none like that,” said Father Kennedy, the priest at Dolores Mission, who knew the Rocha family and attended Mario’s trial and sentencing. “You could feel the weight of the cell door slamming shut on him.”

  Janet was devastated. “I gave God a piece of my mind,” she said. “Sometimes when injustice has gone on too long, you just need to tell Him off.”

  Walking in the church garden one morning, Janet stopped in front of a plaster bust of St. Francis of Assisi. St. Francis was one of her favorite saints. She kept up a running dialogue with him. This time, Janet stood and stared for a long time at the saint who was known for his love of the poor, his generosity, and his simple life. Janet knew that until the age of twenty-six, Francis had been a juvenile delinquent, a wealthy and spoiled kid who robbed and stole for sport.

  Janet let him have it. “Francis, you wouldn’t be a statue in these gardens today if you had been judged on what you did in your youth,” she nearly shouted. “They would have put you away for life!”

  Janet didn’t know what to do. She knew the value that the court system placed on the finality of jury verdicts, even those as egregiously wrong as Mario’s. She viewed this as part of “the loyalty to a lie.” She knew that even if she could find a competent lawyer to take on Mario’s case, overturning a conviction was a million-to-one long shot. She wasn’t sure she was strong enough to throw herself into such a cause again, knowing it almost certainly would fail.

  As she prayed and thought of little else, Janet received a letter from Calipatria State Prison. It was from Mario. He had written an essay during his bus ride from LA County Jail to a lifetime at the maximum-security state prison in the desert.

  Sitting on this LA County Jail bus, shackled at my waist, wrists and ankles, and wearing my last orange juvie jumpsuit, I gaze through barred and graffiti scarred windows at the beauty I may never again behold. It has been more than two years since I have last seen the outside world, and I fear this may be my final glimpse. Like a soldier going off to war, wondering if he or she will come home again, I wonder if I will make it. Will I survive? Passing through silent cities and peaceful fields, secluded small towns and endless green, yellow, brown hills, everything vanishing too quickly, I stare dead into the eyes of this scared boy on the glass. Grappling for hope through a tunnel of terror I search everywhere until I find, smoldering in the center of this humanity, a stone of black, red rage — color that unfolds as you close your eyes to the bright sun when losing the liberty of life as a sixteen-year-old kid; color that evolves into something cancerous, developing and growing inside; the forest of fear blocking one’s vision of hope. It is the energy that keeps this brown-eyed boy on the window battling against the fear in the eyes of the young lifer on this bus. Me.*

  Reading Mario’s letter, Janet realized that the harder question was how could she not fight for Mario? She had built her life on faith in a transcendental right that exists regardless of any tallies of wins and losses. Mario was a test of that faith.

  “I didn’t have a choice,” she said later. “God boxed me in.”

  * Excerpted from the forthcoming manuscript by Mario Rocha, Young Lifer.

  CHAPTER 9

  Right to Counsel

  LOS ANGELES, DECEMBER 2001

  MARIO’S CASE READ like a crime thriller, especially when compared to the hundreds of pages of commercial leases and mezzanine loan guarantees waiting on my desk. It had gangs, guns, murder, and corruption.

  Even on my first reading of the trial transcript, something about the case didn’t smell right. There were only two shooters. Why had three defendants been prosecuted and convicted of murder? There’d been no charge or jury instruction for aiding and abetting; all three defendants had been convicted of the actual murder. There was not a single shred of evidence that Mario had had anything to do with the shooting of Martin Aceves, the murder victim. The overwhelming evidence pointed to the two other defendants, Guzman and Rivera, as the shooters. They were known, documented Highland Park gang members. Numerous witnesses had seen them accosting people at the party and carrying guns, and had identified them as the two shooters. There was no evidence of a third shooter and no evidence that Mario was a gang member, had been aggressive, was anywhere near the fight, owned a gun, or had a gun at the party.

  The trial was a mess. Even the prosecutor appeared not to know who had done what. Some prosecution witnesses identified Guzman as the one who shot and killed Martin Aceves. Others testified that Rivera had shot Aceves. Some identified Guzman as the shooter who fired down the driveway into the fleeing crowd, injuring Anthony Moscato. Others said the driveway shooter was Rivera. One witness, Matthew Padilla, had identified Mario as the driveway shooter. Two others had viewed a police sixteen-pack photo lineup days after the murder and had pointed to Mario as someone “who looks like” the driveway shooter. Even though there was no evidence that Mario was a gang member, the prosecutor, Bobby Grace, had called him one repeatedly in his closing argument. Grace succeeded in blending all three defendants together in the minds of the jury by repeatedly referring to them as “they,” “these three gang members,” and “the three shooters.”

  Where was Mario’s lawyer? Why hadn’t he objected? How had he let this happen?

  The second box contained police files and records of their investigation, known as “the murder books.” What I found inside was shocking. On February 22, 1996, a week after the murder, the police procured Ramey warrants (warrants that allow the police to bypass the district attorney and go straight to the judge) to arrest Nigel Lobban, Gabriel Ramirez, Anthony Ramirez, and Mario’s brother, Danny Rocha, for the murder of Martin Aceves, even though there was not a shred of evidence — physical, circumstantial, or eyewitness — implicating any of them in the shooting. Nigel Lobban testified at a preliminary hearing and provided a sworn statement that while waving a warrant in his face, the detectives told him he was a suspect in the murder. They threatened to arrest him and get him fired from his
job working for a former LAPD officer if he didn’t sign a false statement incriminating Mario Rocha. According to Lobban, when he persisted in maintaining that he and Mario were innocent, the officers wrote out a statement and forced him to sign it without giving him a chance to read it. During Lobban’s three-hour interrogation in the Hollenbeck police station, he was not read his Miranda rights nor offered a chance to be represented by an attorney.

  Gabriel Ramirez, Anthony Ramirez, and Danny Rocha were also brought into the Hollenbeck station and shown, during interrogation, warrants for their arrests for murder.

  Later, the investigating officers admitted they knew they lacked “probable cause” — the legal standard for obtaining a warrant — but that they had procured the warrants and detained the targets without formally arresting them in order to “try to obtain a statement” from them, and not because they were suspects.

  Worse, potentially, the police had persuaded more than thirty witnesses to sign “witness statement forms” declaring that they did not wish to speak to defense counsel. These forms, though not legally binding, at a minimum encouraged witnesses not to cooperate with the defense.

  IT WAS A FASCINATING case, but I didn’t know what Latham could do for Mario at this point. He had been tried, convicted, and sentenced, and his conviction, based on the record of the underlying trial, had been upheld on appeal. His attorney’s incoherent and bumbling motion for a new trial (literally, the worst piece of writing by a lawyer I had ever seen) had been denied. And what was a murder case doing at Latham in the first place?

  I was about to call Bob Long when Steve Newman walked briskly into my office. “I hear you’re on Rocha,” he said. “Here’s a copy of the habeas petition we filed in Superior Court.” He tossed onto my desk what looked like a thick legal brief. “Read it to familiarize yourself with the issues. It was just denied, and we’ve only got three weeks to appeal, so things are going to be intense. I’ll have my secretary make a copy of my case file for you.”

  We? Please tell me you’re not…

  “There’s a seminar tomorrow at the UCLA Law School on habeas corpus,” Steve continued. “I need you to go, take notes on everything, collect any materials they hand out, and write up a memo for me by Monday…”

  “Hold on a second. I’m supposed to call Bob Long about this,” I interrupted, waving the note in my hand and hoping to God that I hadn’t signed myself up for another case with Steve.

  Steve waved his hand dismissively. “Don’t worry about that. Don’t bother Bob. I just spoke with him. Bob is the partner on this, but I’m running things day to day.”

  A string of expletives lodged in my throat. I didn’t like Steve and the last thing I wanted was to work closely with him for the next three weeks. I thought for a second about backing out of the case then and there. I could easily claim that Greene had just dumped a pile of work on me and I was too busy on his deal to work on a pro bono case, which was mostly true. Steve could find himself another first-year associate to abuse, and that would be that. But I was intrigued by Mario’s case, and I was dying to get away from the document reviews and due diligence, even if it meant working with Steve again.

  “Okay,” I said. “I’ll go.”

  “One question,” I added as Steve was about to leave my office. “How did we get involved in this case?”

  Steve smiled crookedly and said, “All roads lead to Sister Janet.”

  IT WAS LATE in the fall of 1999 when Sister Janet made her way to the reception area at Latham for her meeting with Bob Long. While she had a good feeling about the meeting, Bob had agreed to meet with her only as a favor to his friend Belinda Walker, a Harvard Law graduate who mentored at-risk youth at the Central Juvenile Hall and happened to be the wife of another Latham senior partner. A week earlier, Belinda had called Bob and told him about a remarkable nun she had met recently. The nun, Sister Janet Harris, had been trying to find a lawyer to represent a young Latino man who had been convicted of murder three years earlier. The nun was sure he was innocent. Belinda told Bob what Janet had told her about Mario and asked if Bob would meet with Janet and at least listen to her story. Perhaps Latham might take the case pro bono.

  Bob Long was skeptical. In addition to being a rainmaker bringing in big-fee cases for the firm, he was also one of Latham’s hardest-working attorneys, billing close to 3,000 hours a year and spending hundreds more hours serving on the firm’s management committees. Meeting with a nun about a convicted murderer she felt was innocent was perhaps not the best use of his time, which the firm billed out at more than $500 an hour. But Bob respected Belinda’s opinion and judgment, so he agreed to the meeting, “No guarantees,” he told her.

  Sister Janet and Bob Long met in a small conference room on the sixth floor. Janet was immediately taken with Bob. “I could tell in the first thirty seconds that he was brilliant,” she said. “He spoke so intelligently, and he was so handsome. He looked like a movie star, like Atticus Finch.”

  “Thank you for taking this case,” Janet began. The presumption was classic Janet, her way of persuading people to do things they might otherwise not want to do. It didn’t work as well on a seasoned trial lawyer. Bob explained that he hadn’t agreed to anything at this point, but Janet continued as if she hadn’t heard him. She laid it on thick, explaining the circumstances of the murder for which Mario had been convicted, describing how she had come to meet Mario in Juvenile Hall, emphasizing what a kind, intelligent person he was. She summarized the travesty of Mario’s trial, how the prosecutor had branded him as a gang member on no evidence, and how his attorney had failed him. She explained how she had spoken to kids who had attended the party and others who had told her that Mario was innocent.

  “I was ready to get down on my knees and beg if I had to,” Janet would later say of her meeting with Long.

  Bob admired Sister Janet’s passion and dedication to Mario’s case and respected her reputation, but he was still skeptical. He was a business lawyer, representing corporations in disputes over money, clients who paid the firm handsomely for his time, not indigent convicts seeking justice. And he wasn’t entirely sure how much credibility to give Sister Janet and her conclusions. She took up this kid’s cause because he is a good writer? She knows gang members by their body language? Perhaps Janet was so emotionally involved in the case that she may have let her emotions cloud her judgment. Even if the facts were as cut and dried as she presented them — and Bob was pretty sure they weren’t — overturning a conviction at this stage was almost impossible. Even if this kid was innocent, the only avenue left would be some kind of habeas corpus petition, a legal Hail Mary that would take a lot of time, effort, and expense with little chance of success. Bob backed Janet off gently by telling her he would take a look at the transcripts and the case file and let her know.

  A few days later, Bob received a letter from the prison at Calipatria. In perfect penmanship, Mario Rocha graciously thanked him for taking on his case, saying that Sister Janet had told him great things about Latham & Watkins and that he looked forward to working with Bob for justice and freedom. Bob smiled at the letter. Sister Janet was playing dirty.

  Over the the next few weeks, Bob and Steve Newman read through the papers in the boxes Janet had left with Long, including the transcript of the trial. Bob was pleasantly surprised that, for all her zeal, Janet had not embellished the facts. While it appeared to Bob that the evidence against Mario was weak, what jumped off the pages was the ineptitude of Mario’s lawyer. Bob had been lead trial counsel in several big legal malpractice cases in his career. He knew it was hard to show malpractice because the legal standard for competence by lawyers was surprisingly low. But it wasn’t impossible. The legal profession does have a bottom-line embarrassment threshold. And to Bob Long, Mario’s lawyer had fallen well below that threshold.

  But Long had to deal with the practical considerations of asking his firm to take on a case representing a convicted murderer that would surely cost millions of dollar
s in lost fees and out-of-pocket expenses, would take years, and would have almost no chance of success, all to try to right a single injustice — probably one out of thousands like it. He was not about to do that based solely on a legal technicality of ineffective assistance of counsel. To convince the firm, and himself, that Mario was worth the time, money, and effort, Bob arranged for Mario to take a polygraph.

  He passed.

  CHAPTER 10

  Denied

  A FEW MINUTES AFTER Steve Newman left my office, Adam Greene stormed in. “What’s the deal with the edits I sent you to proof?” His eyes were bloodshot, and he looked to be teetering on the verge of a breakdown.

  “I got staffed on another case this morning and had some work to do,” I told him. “I’m getting started on your stuff now.”

  Greene’s nostrils flared, and his voice went up an octave. “You should not be taking on other work right now! There is more to do on this deal than can possibly be done in the next few months. You need to clear your plate and focus on this!” he jabbed his finger into a stack of deal papers for emphasis.

  In a sense, he was right. In terms of career advancement at the firm, taking on the pro bono case wasn’t a good decision. Greene’s IPO was the biggest and most profitable corporate deal going on at the firm. The lead partner on it was Elaine Sherman, the office managing partner. Several other corporate, tax, and real estate partners were working on the deal as well. Although the low-level associate work wasn’t glamorous, it was an opportunity for exposure to a high-stakes deal and to get our names and faces in front of partners. But I already knew I wasn’t going to be a corporate lawyer. Pushing paper, dotting i’s and crossing t’s on corporate deal documents, and boring into the fine print of finance documents and stock option grants wasn’t for me. The one drafting session I’d been asked to sit in on, which Greene had called an exciting honor for a junior associate, had consisted mostly of a conference room full of lawyers jousting over semicolons and talking in circles about whether the sub-basement of a building counted in determining whether a building was fifty-four or fifty-five stories high.