Unbillable Hours: A True Story

by Ian Graham

  LACH: You first hear what you later believe were shots. Do you know where Matthew is, or are you focused on something else?

  NEVAREZ: No, Matt was, like I said, walking towards where the two were fighting.

  LACH: And it’s most important to you to just tell us what you actually remember, you actually have a picture in your mind. And not, not a feeling or filler of details.

  NEVAREZ: Well, see, I actually thought I saw Matt, but obviously he [pause], well, he says that he wasn’t there for the fight, so I mean…

  INVESTIGATOR: [interrupts] So what makes you say that you… [Lach interrupts]

  LACH: It’s what you remember… [Investigator interrupts]

  INVESTIGATOR: If you don’t remember it, then you don’t remember it. That’s what you have to understand. If you don’t remember it, then you don’t remember it. That means you don’t remember it.

  LACH: And you’re not being bad if you don’t remember. I mean people don’t remember some things.

  LACH: [a few minutes later] Ok, so, back to this. Is it correct now you don’t recall Matthew Padilla being in a particular position when you hear the banging shots that you later determined as shots? You don’t know where he was at that time.

  NEVAREZ: [pause, then meekly, barely audible] Yeah, I don’t know where Matt was.

  It was more of a brainwashing than an interview. After hearing the tape, we didn’t really know what Nevarez would say on the witness stand.

  The day before the hearing, I spoke to Mario over the phone. Among other things, he excitedly told me that his family and friends were planning a demonstration in support of him outside the courthouse on the morning of the hearing, including marches, chanting, and Aztec dancers. “Sounds cool,” I said. When I mentioned the planned demonstration to Bob, he shook his head and said, “We can’t have any of that going on. It’s not going to help Mario in court and it could be a real problem. You need to go over [to the Rocha house] and you’ve got to stop that from happening.”

  After work that evening, I dropped by a pre-hearing gathering of Mario’s family at Virginia Rocha’s house in Highland Park. Sister Janet was there, along with Virginia Rocha, aunts Bertha and Martha, Mario’s father Ralph, brother Danny, cousin David, and others. They were all crowded into the small living room. It was the first time I had met some of the Rocha family, and tensions were high. “Ian has something he would like to say,” Sister Janet said, offering me the floor to speak. The room went silent. After explaining a little bit about the procedures for the next day’s hearing and what they could expect to see and hear, I cautiously broached the subject of the rally.

  “I’ve been told there is a protest planned for tomorrow…” I began.

  “It’s a rally, not a protest!” I was quickly corrected by one of Mario’s aunts.

  “Right, sorry. Demonstration. That’s what I meant to say. We have talked about this at the law firm, and we think it really isn’t the best thing for Mario for any distractions to be happening outside the courthouse.”

  “But this is what Mario wants! This is what we talked to him about,” said a cousin.

  “I understand. But this is a different kind of hearing. The deck is stacked against us. This judge is going to have to be pretty courageous to overturn Mario’s conviction, and we don’t want to give him any excuse not to. We don’t want him to see the demonstration and say, ‘I can’t rule for Mario because it will look like I’m caving in to the protest.’”

  “You don’t understand, Ian,” Mario’s aunt Bertha began calmly. “I see Mario and he is so tired. He is keeping his head up, but he is so tired.” She suddenly became emotional at the image of Mario in prison playing in her mind’s eye, and her voice began to rise. “He’s been in there for years! For what!? Those people in there, they kill you. They’ll kill you if you look at them wrong. We’ve been through this once! We went to court before and we did nothing, and look at what happened. And now you want us to do nothing again?”

  I was speechless. I wasn’t going to say another word about the demonstration. But after a moment of tense silence. Mario’s brother Danny spoke up. In a slow, deep voice, he said, “If you are telling us it is going to hurt Mario in court, then we won’t do it.”

  “I certainly don’t want to tell you what to do,” I said softly, still a little shaken from Bertha’s words. “I understand, or I try to, what you all are going through with this. If you want to demonstrate, I’m not telling you no. But it really is better for Mario if you don’t demonstrate.” The room fell silent for a few seconds, until Danny nodded his head.

  “All right,” he said.

  I got up to say my good-byes to the family, but suddenly found myself standing in a circle, shoulder to shoulder, and holding hands with the family members and Sister Janet. Everyone bowed their heads as Mario’s grandmother said a prayer for the hearing.

  CHAPTER 15

  Strike Two

  LOS ANGELES, OCTOBER 16–28, 2003

  THE HEARING BEGAN on the morning of October 16, 2003, the day after my twenty-ninth birthday. It was the first time I had been in a courtroom as a lawyer. Dressed in my best suit and lugging a litigation bag (a big, rectangular hard-shelled briefcase) filled with exhibits and legal pads, I waded through the security line in the crowded lobby of the downtown Los Angeles Criminal Courts Building and crammed myself into an elevator. I got out at the ninth floor, a high-security area that required passing through a second metal detector and bag scanner, and found my way to Department 105, the Honorable Bob S. Bowers’s courtroom.

  We had drawn Bowers as our judge and, according to lawyers with experience in front of him, we “could have done worse.” He was an experienced Superior Court judge who, according to almost everyone we talked to, was “fair, but not particularly bright.”

  The hallway outside the courtroom was already packed with Mario’s family and supporters. I greeted Mario’s mother, cousin David, brother Danny, and aunts Bertha and Martha. Sister Janet was buzzing around in good spirits. “I can’t believe this day is finally here!” she said with a big smile. Finally, I spotted Bob Long sitting on a bench outside the courtroom, and I took a seat next to him. “Some showing,” he said casually. Mark Geragos, the famed criminal defense lawyer known for having represented Michael Jackson, Gary Condit, and Scott Peterson, among others, stopped by to say hi to Bob and wish him well. A slick-looking criminal defense lawyer in a cheap suit and sunglasses walked up and down the hall yelling, “I am Brandon Starr, which one of you is Hector, my client?”

  Bob seemed calm and confident. I was a quivering mass of nerves. Just then, the court clerk opened the door to the courtroom and announced that it was time to begin.

  Every seat in the courtroom gallery quickly filled as Mario was led from the holding area and into the courtroom. He held his head up as he shuffled along the floor, tightly shackled at his wrists and ankles. Almost seven years earlier, on his bus ride from Juvenile Hall to the maximum-security prison, he had written of his fear that “this may be my final glimpse” of the “beauty I may never again behold.” This was his first time out of prison since then. Thankfully, his mother had been able to get him khaki pants and a dress shirt to wear so he wouldn’t be seen in a prison jumpsuit. Mario took his seat next to me at the defense table.

  “How are you doing?” I whispered.

  “I’m good, man. Just a little nervous.”

  A few minutes later, Judge Bowers came out of his chambers, took his seat on the bench, and called the proceedings to order.

  Bob Long stood up and began his opening statement:

  “Today begins the evidentiary hearing on Mr. Rocha’s petition for habeas corpus. As the court indicated, this is a hearing on which a determination will be made of whether Mr. Rocha’s criminal judgment should be overturned because of ineffective assistance of counsel in his criminal case. We intend to prove in this proceeding that Mr. Rocha’s judgment should be overturned, because his trial for murder was so flawed as to be f
undamentally unfair to Mr. Rocha and unreliable as an indication of his guilt or innocence. We intend to prove by the preponderance of the evidence, which is our burden, that the flawed trial was the product of the ineffectiveness, ineptitude, errors, and omissions of Mr. Rocha’s trial counsel, Anthony Garcia…”

  Bob sounded good and was doing well. But Judge Bowers seemed preoccupied with something else. He was reading something, then he began doing paperwork, then whispered something to his clerk. He wasn’t even looking at Bob and didn’t appear to be listening. What the hell is Bowers doing? I thought. Mario nudged me in the shoulder and slid me a note he had written with the two-inch pencil the bailiff had provided him: “He’s not paying attention!!!”

  When Bob Long finished, Bowers looked up, nodded at Bob, and turned to Lach. Lach’s opening statement was curious. She spent most of her time arguing that we, Mario’s big-firm, white-shoe attorneys, were improperly trying to relitigate this entire case and didn’t understand that the issue was limited to whether or not Mario had received ineffective assistance of counsel at trial.

  “Contrary to petitioner’s counsel’s protestations, the people do believe what’s going on here is a retrial of this case with resources and time and money that were not available to Anthony Garcia.”

  This was surprising, considering that we had never given any indication that we were attempting to broaden the scope of the hearing, and Bob had expressly stated in his opening that we understood the narrow scope of the hearing and that we intended to abide by it. But Lach seemed intent on painting us as naïve, moneyed outsiders. According to Lach, Garcia had put on the “best defense possible” for Mario, and we were simply armchair quarterbacks nit-picking the strategic trial decisions made by Garcia with the benefit of 20/20 hindsight and the “unlimited resources” of Latham & Watkins.

  Anthony Garcia took the witness stand. Garcia’s appearance alone was a point in our favor. He was short, maybe five-five, even in elevated cowboy boots, and squarely built, with a thick mustache and a braided ponytail that now ran down the length of his back. For the next two and a half days, Bob Long led Garcia step-by-step through his representation of Mario. Garcia admitted to waiting more than five months and only beginning his investigation of Mario’s case less than five weeks before the trial was to begin. He offered no explanation for his delay. When his investigation did begin, he hired (with court funds) an investigator named Patrick Sullivan, whom he had told merely to “go out and interview all the witnesses” in the case.

  As to the fact that Garcia’s files contained only two very brief written reports of witness interviews by Sullivan, Garcia said he “didn’t know” if he relied on written reports or “carried around in [his] brain…the status of the investigation.” With time running short before trial, he testified that he had made a strategic decision to narrow the scope of his investigation and focus on alibi witnesses and witnesses who had seen a shooter, thereby excluding Laurie Nevarez, Christina Aragon, and perhaps others who could have undermined Padilla’s identification of Mario.

  When confronted with the fact that he had spent only eight and one-half hours on the case in the month leading up to trial, Garcia replied that he had worked additional time on the case but must not have recorded it. He admitted that he had never interviewed the occupants of the home where the party and shooting took place and had never asked his investigator to do so. He had no recollection of ever trying to find out who had organized the party. He claimed that his trial strategy was to point the finger at the two other defendants, but he could not cite a single example in the trial in which he did so.

  Bob hammered home example after example of how Garcia had failed to emphasize crucially important exonerating evidence for Mario during the trial: evidence that there were only two shooters (Garcia told the trial judge and jury that he “wasn’t even going to address that”); evidence that Mario’s two co-defendants were known, documented Highland Park gang members, and that Mario was not; the shaky identifications of Mario as the third driveway shooter by Bryan Villalobos and Lauro Mendoza, whom Garcia did not effectively cross-examine. (Mendoza was on record in the preliminary hearing before the trial as having said he “wasn’t sure” of his identification, and Villalobos had given our investigator a sworn statement saying he was only 50 percent sure of his identification of Mario.)

  Finally, Bob asked Garcia about his cross-examination of Matthew Padilla regarding his identification of Mario as the left-handed driveway shooter:

  LONG: Did you recognize that in this account [Padilla’s statement to police identifying Mario], according to the detective, Mr. Padilla was saying that the person he saw, who he identified as Mr. Rocha, had kneeled down on his right knee and then placed the gun in his left hand and fired six to seven shots?

  GARCIA: No, I don’t. I don’t remember that.

  LONG: Okay, let me ask you to turn your attention to the second page, about the third line down, beginning with the sentence “The guy then kneeled down on his right knee and then placed the gun in his left hand and fired about six to seven shots.”

  GARCIA: I am looking at that, yes, sir.

  LONG: Did you ever ask Mario whether he was right-handed or left-handed?

  GARCIA: [long pause] I don’t remember.

  “You can’t tell from the transcript,” Long would later say about his left-handed/right-handed question to Garcia, “but if you were in the courtroom at the time, you could see Garcia just look up at me for a long second with a look on his face that said, ‘Oh my.’”

  Bob kept an even tone, adding emphasis only when necessary to make a point clear. He let the evidence and Garcia’s own admissions do the talking. Even so, it was the most thorough, nonviolent pummeling of a human being I had ever seen.

  On cross-examination, Lach tried to rehabilitate Garcia by offering him a chance to explain his decisions as strategic and made under the stress of a trial. But by the time Garcia wearily limped off the stand, I figured we had won round one.

  Virginia Rocha took the stand next to testify briefly that Mario is right-handed.

  Bob Long had added to our defense team a junior partner named Marcus McDaniel, to handle the questioning of Laurie Nevarez and of our investigator, Aldo Velasco. “Nothing against the job you are doing,” Bob had told me, “but I have my hands full with Garcia. Marcus is excellent in a courtroom, and perhaps a life-and-death trial isn’t the best time for you to take your first witness.” I couldn’t have agreed more. Marcus, an African American in his early forties, was an experienced and unflappable employment litigator.

  Marcus called to the stand Aldo Velasco, who testified that he had found Laurie Nevarez simply by going to the crime scene and speaking to the owners of the house. Almost immediately, Lach objected to Velasco’s entire testimony as irrelevant. “Whatever might have occurred two, three, four years later is not relevant to the issue of what this attorney did back in 1997 and whether that was reasonable or not.”

  Marcus countered that it was entirely relevant that Velasco, even years later, was able to locate Nevarez simply by visiting the crime scene and that Nevarez had signed a declaration stating not only that she would have talked to defense counsel had they contacted her in 1997, but also that she would have testified at trial that Padilla was in the backyard at the time of the shooting, where he could not have seen who fired shots down the driveway.

  Judge Bowers mumbled for a moment and then sustained the objection, refusing to let Velasco testify.

  Then Laurie Nevarez took the stand. It was clear that she was frightened by the courtroom and that she didn’t want to be there. She spoke almost in a whisper and had to be admonished by Judge Bowers to speak up. Marcus led her through her involvement in organizing the party and her connection to Matthew Padilla, whom she described as having been a friend at the time of the party. She said she did not know Mario Rocha and had no reason to lie on his behalf. Using an overhead projection, Marcus asked Nevarez to show and explain the place, in front
of the tarp that separated the driveway from the backyard, where Padilla stood during most of the party, the place where the fight broke out, and the place where she, Nevarez, was standing when the first shots were fired.

  These questions and answers set up the testimony on which Mario’s future depended. You could feel the tension at our defense table as Marcus McDaniel carefully asked Laurie Nevarez questions intended to show whether Matthew Padilla’s identification of Mario as the driveway shooter should have been believed or could have been discredited by Nevarez if Anthony Garcia had called her to testify:

  MCDANIEL: Did there come a point that you saw Mr. Padilla at the time that you and Ms. Aragon were observing the argument?

  NEVAREZ: Yes.

  MCDANIEL: And where did you see Mr. Padilla located?

  NEVAREZ: I believe walking towards us.

  MCDANIEL: Toward you in the backyard?

  NEVAREZ: Yes.

  MCDANIEL: And this was at the time of the argument?

  NEVAREZ: Yes.

  MCDANIEL: Did you at some point see the argument turn into a fight?

  NEVAREZ: Yes. I believe it was during the fight that Christina hollered for Matthew.

  MCDANIEL: Did you see Mr. Padilla during the fight?

  NEVAREZ: I believe just coming towards us.

  MCDANIEL: And Mr. Padilla was on the backside of the tarp, is that correct?

  NEVAREZ: Yes.

  MCDANIEL: Did there come a point when you heard shots ring out?

  NEVAREZ: Yes.

  MCDANIEL: How much time would you estimate took place between the time you saw Mr. Padilla walk toward the argument and when the shots rang out?