Unbillable Hours: A True Story

by Ian Graham

  I decided to stick to my guns. I thought it might send Greene over the brink if I told him my new case was pro bono. So I only said, “The case is with Bob Long, so there’s not much I can do.” I put my hands up and shrugged. “Sorry.”

  STILL GRUMBLING ABOUT having to work with Steve Newman again, I spent four hours that Saturday in a UCLA Law School lecture hall listening and taking notes as two deputy district attorneys explained, in painful detail, the ins and outs of habeas corpus procedure.

  Habeas corpus, Latin for “you have the body,” one of the most fundamental principles of Anglo-American law, entitles an imprisoned person to challenge in court the legality of their confinement. Habeas corpus is a citizen’s ultimate protection against unlawful and arbitrary arrest and detention. It is enshrined in the U.S. Constitution and the constitutions and legal codes of all fifty states. With few exceptions, such as newly discovered DNA evidence, habeas corpus petitions don’t second-guess the results of a trial. Instead, they challenge the procedures that led to the conviction — for example, whether an arrest, interrogation, or conduct of a trial met the minimum constitutional guarantee that no person shall be deprived of liberty without due process of law. Habeas corpus is the grounds on which many Guantánamo detainees challenged their arrest and detention without trial or access to legal counsel.

  While habeas is a revered legal right, so many habeas corpus petitions are filed that they tend to clog the judicial system. Thousands are filed in state and federal courts every year, most of them handwritten by inmates representing themselves without legal counsel. Although the increasing number of convictions overturned by DNA evidence through habeas proceedings has shined a light on the number of wrongful convictions in the justice system, the hard fact is that a great many habeas petitions make wild and unfounded claims. Courts simply don’t have time to read them all carefully. So with the Supreme Court’s blessing, the barriers to winning a habeas corpus petition are almost impossibly high. Courts view them with great skepticism. Almost all are thrown out soon after they are filed.

  The DAs running the UCLA seminar made that point painfully clear: “The first thing you should make clear to your client, before undertaking any habeas corpus efforts on their behalf, is that this is a long, costly process and they have virtually no shot of winning. You need to make that clear in their mind. No shot. There is literally a court clerk who reads — or skims, actually — these habeas petitions with a red ‘Denied’ stamp poised in one hand. Unless you have exculpatory DNA evidence, there is about a one-in-a-million chance of success on a habeas petition.”

  From there it got worse.

  “Ineffective assistance of counsel is probably the most difficult basis for a habeas claim,” the district attorneys agreed. The legal test for ineffective assistance of counsel set by the Supreme Court in the case of Strickland v. Washington (known as “the Strickland test”) requires a petitioner to prove two things, both by a preponderance of the evidence (meaning “more likely than not”): First, he must prove that his lawyer’s performance was “deficient according to prevailing professional norms as they existed at the time of trial.” This, the DAs explained, was nearly impossible. “There is a strong presumption of trial counsel’s competence at the habeas stage. Lawyers are afforded wide berth for their tactics and ‘strategic’ decisions at trial. You won’t get any sympathy from a judge on this one. Judges were lawyers once, too. They are aware of the difficulties and vagaries of trial practice, and they are skeptical of habeas lawyers picking apart a lawyer’s decisions and actions with the benefit of 20/20 hindsight.”

  And even if the lawyer did screw up, the baseline standard of competence for a lawyer is remarkably low. “Only in the most dramatic and outrageous cases — such as a lawyer sleeping through his client’s trial — is any relief going to be given. And even in that case, he must have slept through ‘substantial portions’ of the trial.”

  And this “was the easy part.” A habeas petitioner must also demonstrate that there is a reasonable probability that but for the lawyer’s incompetence, the result of the trial would have been different. “Jury verdicts are afforded a strong presumption of reliability, so this amounts to requiring a showing that your client is in fact innocent, although you are not allowed to present direct evidence of your client’s innocence unless it is tied to the ineffectiveness-of-counsel claim. It is a mountain to climb.” Wonderful. I had just walked into a case that would take years of work with virtually no chance of success, wouldn’t make the firm any money, and would require that I work for Steve Newman, who had been quick to blame me in the past and, if we didn’t win, would probably miss no opportunity to blame me again.

  I SPENT ALL SUNDAY morning in the office drafting a detailed five-page memo to Steve Newman summarizing the habeas seminar and explaining relevant statutes, cases, procedures, deadlines, and rules. I figured it would give him something to chew on for a while and perhaps keep him off my back for a day or so.

  A few minutes later, Newman shot back a two-word response: “Thanks. Helpful.” And then another, a few seconds later: “Are you in the office?” I sprang up from my chair, closed and locked my office door from the inside, and turned off my overhead lights. I sat at my desk and waited about ten minutes before responding on my BlackBerry, saying that I had left the office and was almost home in Santa Monica. It was ridiculous to be hiding in my office, playing cat and mouse with Steve, but I needed an afternoon without emails or phones calls giving me “urgent” assignments to do. I wanted to get my bearings on Mario’s case, by going piece by piece through the complete case file in the five new boxes Steve had sent to my office, and by rereading the trial transcript and the habeas petition that Latham had submitted and that had recently been denied.

  And the more I learned, the more it began to register: I had stumbled into the case of a lifetime.

  SOON AFTER MARIO’S arrest, the court had appointed as his defense counsel Katie Trotter, a criminal defense lawyer in private practice who took court-appointed cases for indigent defendants for fees paid by the state. According to the information in the files, Trotter appeared to have begun work on the case immediately and was doing a fine job. She submitted requests to the prosecution that they provide her with contact information for all of the witnesses who had made statements to the police, even those whom the police had persuaded to sign statements saying they didn’t want to talk to defense counsel. She drew up subpoenas for twelve key witnesses who she thought might be resistant to testifying.

  Trotter represented Mario aggressively at his preliminary hearing, getting Lauro Mendoza to confess that he “wasn’t sure” of his identification of Mario, and questioning Matthew Padilla, the key witness against Mario, about his drinking on the night on the party and the fact that he wasn’t wearing his prescription glasses.

  But not long after the preliminary hearing, a member of Mario’s family was approached by Anthony Garcia, who claimed to be an experienced criminal defense lawyer with expertise in murder trials. “He came at us like a used car salesman, promising this and that and saying he could win the case,” said Mario’s father. The Rocha family, having little understanding of the workings of the justice system and believing that a private attorney would do a better job than a court-appointed one, mortgaged their home to pay Garcia $17,000, in advance, to cover all defense fees and expenses. In fact, at the time Garcia was hired by the Rocha family, his experience was limited to two murder cases, and state bar records indicated that Anthony R. Garcia (same first name, middle initial, and last name) served primarily as court-appointed counsel in juvenile dependency cases in the family court.

  After signing up the case and receiving his check from the Rocha family, Garcia had waited more than five months — until less than five weeks before Mario’s trial date — to begin his investigation. He did this even though the case was based on eyewitness testimony and even though there were more than fifty potential witnesses to be interviewed, many of whom were juveniles
who would be hard to find and get to cooperate. And when Garcia did finally begin, he didn’t do much. Although he had requested and received additional money from the court to conduct his investigation, his files contained only two witness interview reports from his investigator — out of the fifty or more potential witnesses at the party. Both of the witnesses Garcia’s investigator had interviewed were friends of Mario’s. They had been easy to find, but were not particularly helpful to the case, and at the trial they would be easily impeached as biased.

  The most shocking information came from Garcia’s own records of the time he spent working on the case. They showed that in the weeks leading up to trial date, he spent less than eight hours working on the case. I’d spent more time than that getting familiar with the case in my first two days.

  It was clear at a glance that Garcia’s defense of Mario at trial had been incompetent.

  Lauro Mendoza had testified on direct examination by the prosecutor that he caught only a “glimpse” of the side of the face of the person shooting down the driveway toward Anthony Moscato. From that, he had identified Mario out of a sixteen-pack photographic lineup card as a person who “looks like the shooter” he saw. On cross-examination, Garcia failed to highlight the fact that Mendoza had not identified anyone when he was first brought to the police station and shown the lineup cards, but instead, four days later, had suddenly identified Mario. And Garcia failed to bring out on cross-examination the fact that, at the preliminary hearing in July, 1996, Katie Trotter had asked Mendoza, regarding his identification of Mario, “You weren’t sure about that were you?” to which Mendoza had answered, “No, I wasn’t.”

  Garcia failed to explore the fact that Bryan Villalobos was the only witness to testify that there were two shooters in the driveway. He failed to point out that Villalobos had positively identified Guzman, not Mario, as the kneeling shooter in the driveway and that this was in direct contradiction to Padilla’s and Mendoza’s identification of Mario as the kneeling driveway shooter. He failed to point out that Villalobos had said Mario was a person — in a sixteen-pack photo lineup card — who “looks most like” a shooter he claimed to see standing behind Guzman (Pee Wee) in the driveway. He failed to explore Villalobos’s level of sobriety, in light of his testimony that he had smoked marijuana earlier that evening and every day for the last two or three years.

  Matthew Padilla’s identification of Mario as the driveway shooter was the only significant testimony against Mario, and Garcia had done nothing to undercut it, even though that would not have been hard. He failed to ask Padilla to give a detailed description of the shooter he claimed to have seen in the dark, for a few seconds, amid the stress of gunfire; failed to ask him to explain why he had testified to hearing twice as many gunshots as every other witness; failed to explore the nature of Padilla’s vision problems, even after Padilla testified that “I’m not totally blind, but I do need glasses for reading.” And the questions Garcia did ask allowed Padilla to reiterate and emphasize his identification of Mario.

  Garcia failed to object when the prosecutor repeatedly referred to Mario as a gang member, despite absence of any evidence in the trial record that Mario was a member of a gang. And he failed to emphasize the fact that there were only two shooters, not three. Amazingly, during his closing argument, his final chance to address the jury, Garcia said explicitly, “With regard to the two shooters, I’m not going to address that.”

  The more I wrapped my head around the case, the angrier I got. I had been naïve. I’d thought district attorneys were supposed to seek right and fair results, more than track records of convictions. In Mario’s case, the DA’s office had gone ahead with a prosecution for murder despite no evidence whatever of Mario’s involvement in the murder of Martin Aceves, and practically no credible evidence of any involvement by Mario in the “driveway shooting” of Anthony Moscato. They had done their best to bend evidence to paint Mario as a gang member to get a conviction. It was as if Mario were a freebie for them: try two gangbangers for murder and get a third conviction of a Latino kid from the barrio for free!

  A FEW DAYS AFTER Mario passed his polygraph test, Latham agreed to represent him. Bob Long believed there was considerable evidence of Garcia’s incompetence in the trial record and in Garcia’s files of his investigation of the case. What was needed was the second prong of the Strickland test — evidence that Garcia’s incompetence would have made a difference in the trial’s outcome, that if he had conducted his investigation in a timely manner and conducted the trial responsibly, Mario would have been found not guilty.

  Long immediately sought a private investigator to look through the transcripts and police files and to track down and interview as many witnesses as possible. The starting point was to do the investigation that Anthony Garcia had failed to do. Latham hired the private investigative firm of John Brown and Associates, and the case was assigned to a midtwenties investigator and aspiring filmmaker there named Aldo Velasco.

  Velasco spent months tracking down almost every witness who had testified at trial and others whose names appeared in the police murder books. Most of them, asking why he wanted to bring up “that stuff” that happened years before, slammed the door in his face. Some said they didn’t remember anything. Others told him they were too afraid of gang retaliation to talk to him.

  “What I seen I can’t say. If my name were just to pop up, forget about it,” one of the kids who had attended the party told him. “Not just me, but my family, too. Those fools don’t play.”

  “I felt like there was some other truth out there. Something that people knew but were too scared to say,” Aldo later recalled in the documentary film Mario’s Story.

  Frustrated, Aldo decided to start at the beginning. He visited the house on Ebby Street, where the party and shooting had taken place. The home still had the same owners, and they were willing to talk to Aldo. They showed him around and pointed out the bullet hole in the kitchen drywall. They explained that they were out of town during the weekend of the shooting and couldn’t be much help. But they gave Aldo the name and contact information of their niece, Laurie Nevarez, who had been staying at the house the weekend of the shooting and had helped organize the party.

  Before leaving the home where the murder occurred, Aldo asked the residents his standard questions. “Did any lawyer or investigator ever contact you or interview you about the shooting?”

  “No.”

  “Nobody named Anthony Garcia? No defense lawyers?”

  “No.”

  “If they had, would you have told them what you told me, about Laurie?”

  “Sure. Absolutely.”

  “Thanks very much.”

  The next day, Aldo contacted Laurie Nevarez by phone. She was now married and living with her husband in Alhambra. She agreed to speak with him, saying she would meet him at the house on Ebby Street that night. Laurie was shy, and nervous about rehashing the details of a painful experience. Aldo sensed that she felt somewhat responsible for what had happened.

  “Tell me what you remember about the party,” he said. Laurie explained what Aldo already knew — how her aunt had gone out of town that weekend and Matthew Padilla, the boyfriend of her friend Christina Aragon, had persuaded her to let him throw a party at the house. Padilla took care of getting the beer and liquor and finding the DJ. He strung a tarp up across the driveway at the rear of the house, which acted as a barrier to entry into the backyard. He stood in front of the tarp for most of the night, collecting money from people before admitting them into the party.

  “Did you see a fight at some point?”

  “Yes, a group of guys started fighting behind the house. Christina and I took a few steps back toward the rear of the yard, and Christina started screaming for Matthew. Matthew came into the back of the yard toward us and stood around for a second trying to stop the fight, when the shots were fired.”

  “Did you say Matthew Padilla came into the backyard before the first shots were fired?
”

  “Yes. I saw him. He was walking right toward us.”

  “Did he stay in the backyard after the first shots were fired?”

  “Yes, he was standing around near me and Christina when people were running down the driveway.”

  “Where was he standing? Can you show me?”

  They walked into the backyard and Laurie replayed what she had just told Aldo, pointing out the general area where she had seen Padilla standing when the shots were fired.

  “Do you know Mario Rocha?” Aldo asked.

  “No. I mean I know he was convicted, but I don’t know him personally. I’ve never talked to him.”

  “So you would have no reason to say something that wasn’t true to help him out?”

  “Right.”

  “One more thing, Laurie. Has anyone ever contacted you or spoken to you from the defense team? Any lawyers or investigators?”

  “No. Never.”

  “If they did, would you have told them what you told me here today?”

  “I mean, yes. It’s the truth.”

  After more than four months of getting doors slammed in his face, Aldo had finally gotten his breakthrough: Laurie’s statement contradicted Padilla’s trial testimony that he was standing in front of the tarp, on the street side, when the first shots were fired. According to Padilla, after hearing the shots, people began fleeing down the driveway, knocking the tarp down. To avoid being trampled, he said he’d stepped to the side, close to the house. From there, he saw the person he later identified as Mario get down on one knee, place a gun in his left hand, and fire down the driveway. But from the area where Laurie placed Padilla when the shots were fired, on the backyard side of the tarp, he would have been in no position to identify the driveway shooter. He would, at best, have seen only the back of his head.