by Edward Humes
“I really am scared, I am scared to sit down,” Pohlson admitted. “Please, keep saying to yourself, what did they prove, what did they really prove?”
At last, though, Pohlson did stop, with one last plea. “Please, do the right thing,” he all but begged the jurors. “Do the right thing.”
As far as the jurors were concerned, that’s exactly what they did.
• • •
The day and a half awaiting the verdict was a strange one, with everyone on the defense team but Laura again convincing themselves that Pat would be acquitted after all. That juror with the heavy wooden cross—the foreman—kept shooting them smiles and thumbs-up gestures in the hall. What else were they to think? Laura, though, kept remembering some of the other Kern County cases she had heard about, how confident Offord Rollins’ lawyers and family were that he, too, would be acquitted—only to see him receive a life sentence instead. And she recalled listening in the hallway to that same jury foreman at the beginning of the case, hearing him describe to a fellow juror the kind of music he played: Country. You know, the kind of music those defense lawyers wouldn’t like.
Pat told Laura he was unable to eat or sleep as he awaited the news. He had developed a terrible rash from the stress, a constant itching. Yet when he was brought up from the holding cell to hear the verdict, Laura saw him walking straight and holding his head up, suddenly calm and dignified.
Then the verdict was delivered. Pat was pronounced guilty of first-degree murder, leaving Gary Pohlson stunned and in tears, a still-calm Pat gently patting his lawyer’s back. There had never really been that much debate among the jurors, as it turned out, just a few who expressed some uncertainty, then quickly caved to the majority. Somers’ argument that Pat Dunn and everyone who testified on his behalf were liars had carried the day. Gary Coble, Rex Martin, Ann Kidder—all were disregarded. And the smiling foreman with the cross had led the charge to convict from the start.
“Why did you leave him on the jury?” Laura would later ask Gary Pohlson. “After what he said about the defense lawyers and country music.”
Pohlson looked at her blankly—he had never heard about that. Laura’s boss had never passed on the information. The attorney appeared stricken when Laura explained it to him. “I never would have left that man on the jury if I had known that,” he said.
As the stunned defense team waited for the judge to schedule a sentencing date, then fled the courtroom, they had no idea that there was a great deal more information they had not been told, and that it went far beyond the musical prejudices of the jury foreman.
The Kern County District Attorney had won a conviction in The People vs. Patrick O. Dunn. It had done so with a brilliant performance by John Somers, though his case did depend in part on errors and misstatements of fact. But, beyond that stellar performance, the conviction was won only after key, and damaging, information about some of the government’s most important witnesses, evidence and theories was withheld from the defense. This phantom information was so explosive it could have made all the difference in the trial’s outcome—if the defense and, more importantly, the jury, had known about it.
But neither did. And Pat Dunn’s fate was sealed.
7
LAURA LAWHON SPENT THE REST OF THE SPRING OF 1993 alternately consoling a despondent client and hunting for evidence that might allow the guilty verdict against Pat Dunn to be overturned. She needed witnesses who could further corroborate Pat’s story, or some missing or forgotten pieces of the puzzle—anything that might undermine the startlingly effective road map to conviction John Somers had drawn.
The first task facing her was interviewing the jurors. One by one, she appeared at their doors a week after the trial. “Cold calls,” she called her modus operandi: Just show up without warning, knock on the door, and hope for the best. Those willing to talk to her revealed a jury that had, for the most part, accepted the prosecutor’s arguments about the bits and pieces of evidence, and rejected virtually all the defense had to offer.
Their first vote had been ten to two for conviction, Laura learned, a tally that quickly became eleven to one. The one holdout clung to his not-guilty vote until after lunch on the second day, then caved in to the majority. He told Laura he had been concerned by the lack of physical evidence linking Pat to the murder, and by the phone call Ann Kidder spoke of receiving from Sandy after the murder was supposed to have taken place. But, in the end, the defense’s lone advocate during jury deliberations decided Pat had been too inconsistent—at least on Somers’ chart—and that the rest of the circumstantial evidence pointed unerringly toward guilt. Laura got the impression the holdout had finally given in less out of firm belief than to just get the case over with, for he also admitted that he did not believe the prosecutor’s suggestion of motive in the case.
“I didn’t think he did this for financial gain,” the holdout juror said of Pat. “He had more to lose by having her die.”
This statement floored Laura, because this same juror had voted with the others to find—beyond a reasonable doubt—that Pat killed Sandy for financial gain. He had joined the unanimous vote for this “special circumstance,” a separate enhancement to the charge of first-degree murder in California, which qualified Pat for life in prison without parole (and could have sent him to death row had the DA asked for it). Murder for financial gain is one of a list of such special circumstances that must be found by the jury to allow a sentence of death or life without parole. When Laura asked the juror why he would vote that way if he didn’t believe Pat had killed for money, the juror replied, “Oh, was that the second count? I guess I did go with that, even though I didn’t think so.” Laura left this cheerful man’s home feeling sick to her stomach.
Most of the other jurors who talked to Laura told her that they had not believed Jerry Coble, or his brother Gary either. The only testimony that they had asked to have read back to them during their deliberations was Jerry’s, and only that portion concerning the cars he saw in the Dunns’ driveway, the part of his story the defense pointed to as proof he had framed Pat. (Several other jurors who would talk only to John Somers after the trial told him they had believed Jerry Coble’s story.) Two of the jurors Laura contacted were critical of John Soliz, who they felt had been less than honest in his testimony, and others had doubts about Kate Rosenlieb. If she was such a good friend of Pat’s, one juror asked, why was she writing notes about her conversations right from the beginning? It was an unanswered question that still bothered Laura, too. Marie Gates, in contrast, was particularly impressive to most of the jurors, Laura learned. Gates’ sworn testimony that Sandy wanted a divorce tied everything together for the jury, and made it very clear why Pat committed the crime, several said.8
Still, the idea that some members of the jury disregarded Coble’s testimony and yet still convicted Pat baffled Laura. What did the prosecution have if you disbelieved Coble’s eyewitness testimony? To the private investigator, all that remained—even if you accepted at face value everything the DA claimed—was a marriage on the rocks; a wife who disappeared before she could carry out plans to give her husband more financial control; a husband unconcerned, even happy to see his wife gone; a man who immediately tried (unsuccessfully) to raid his vanished wife’s accounts; and a hard-drinking husband who was inconsistent in his various descriptions of his wife’s disappearance.
How, Laura kept asking the jurors, could that prove that Pat Dunn committed murder? It might make you suspicious of him, she conceded. It might make you wonder. But how did that prove beyond a reasonable doubt that he picked up a knife and stabbed the life out of his wife? And furthermore, if Pat really hated Sandy, as John Somers suggested, then his being happy at her disappearance was not evidence that he killed her—it only verified that he hated her. If one truly believed the Dunns despised one another, one could just as well decide any displays of grief by Pat had to be phony and suspicious. Somers had cleverly constructed a portrait in which Pat, no matter what he d
id, always appeared guilty.
When Laura tried to nail the jurors down on the specific pieces of evidence and testimony that convinced them Pat was a killer and sealed their verdict, they grew increasingly vague. One said, “He just didn’t act right.” Another juror, shifting the burden of proof from the prosecution to the defense, said Pat’s lawyer spent too much time trying to contradict the DA “instead of proving Pat didn’t commit the crime”—standing the principle of presumption of innocence on its head. Another thought the testimony from the mechanic who said Pat had brought his Blazer in for service the day after Sandy disappeared, and that the two front tires were replaced, showed Pat was covering something. Yet another juror apparently entered the case looking for ways to convict. As she told Laura, this juror spent most of the trial fretting over the lack of physical evidence and repeatedly asking herself, “How are we going to find this man guilty?”9
One juror who would not speak with Laura was the foreman, the man with the cross whom she had overheard deriding the defense lawyers during jury selection (and who, in notes sent out from the jury room, identified himself as the “floor person”). According to another juror, he had been elected foreman because he told everyone that he was “happy” to be on the case, while everyone else grumbled about the vicissitudes of jury duty. When Laura went to see him after the trial, his mother came to the door to inform her that he wasn’t home, but that she doubted he would talk to anyone associated with “the murderer” in any case. She explained that her son was very religious and that he felt he had to “do his part to fight the evil that is so predominant now in the United States.” As an example of this evil, she cited the furor that erupted when a Los Angeles jury acquitted the policemen who had been videotaped beating black motorist Rodney King in 1992. Of the case that set off riots in Los Angeles and a scandal within the Los Angeles Police Department, which admitted that King had been brutalized by officers, she added, “Everyone knows King is guilty.”
The unanimity of the sitting jury was sharply contrasted by two alternate jurors. From them, Laura got a completely different response to the case. As standby jurors, they, too, sat through the entire trial, ready to step in if one of the twelve voting jurors became sick or had to depart for some other reason. Their comments couldn’t have been more at odds with what the others had told Laura.
Expecting a quick acquittal and hoping to hug and console Pat during postverdict celebrations, these two alternates had lingered in the courtroom after the deliberations began. One, a corrections officer, told Laura she found the verdict inexplicable and shocking. This woman thought the evidence quite clearly showed that Jerry Coble had cased Pat’s home in order to frame him. Pat’s behavior after Sandy’s disappearance meant nothing to her, she said. “How can anyone have the right to decide how another person should act under such extraordinary circumstances?” she asked, a look of disgust on her face.
The second alternate told Laura she thought the sheriff’s department had been terribly unprofessional. She couldn’t believe detectives would interrogate a man all night and not record anything. “Mr. Somers gave a convincing argument, but when you went back to the evidence, it just wasn’t there,” she asserted. “Something had to have gone wrong in that jury room . . . I don’t feel this man is guilty. And I can’t stop praying for him.”10
It was just luck of the draw that these two women were seated as alternates rather than placed on the main jury panel. Each was adamant that she would not have convicted Pat no matter what, a heartbreaking but meaningless footnote to the case as far as Laura was concerned. While these insights were interesting, they didn’t give Laura what she needed. The jurors and alternates were quite clear on one critical point: They had obeyed all the judge’s orders and restrictions, steering clear of news reports, avoiding discussions of the case outside of court, focusing only on the evidence and not on extraneous issues. Laura had hoped one among them would reveal some overt misconduct, some violation of the jurors’ oaths—that might win Pat a new trial. Such juror misconduct had recently been revealed in the Offord Rollins case, where defense attorneys still were fighting hard for a new trial. But nothing of the sort had happened in Pat’s case: His jurors had behaved exactly as they were instructed and sworn to behave.
“Then how could they find me guilty?” Pat asked during his next jailhouse meeting with Laura. Deep circles were etched beneath his eyes; he had dropped forty pounds since his arrest. Haggard and despondent, he kept shaking his head, seemingly unaware of the gesture, as if he were silently and reflexively chanting no, no, no all the time. “If they believed Jerry Coble, if they believed the lies, I could at least understand it. But this . . . Where’s the sense of it?”
Laura nodded at him. He didn’t expect an answer, knowing that she had none. Still, there were answers, hidden from them both.
• • •
First there was the story of how Jerry Lee Coble came to make the deal that made him the star witness against Pat Dunn. It was a story the defense never heard.
Laura knew there had been a meeting at a Denny’s restaurant between Detective Soliz and Coble, at which Coble first told his story and asked for a deal to elude his own legal troubles. But neither Laura nor any other member of the defense team knew about an earlier meeting bringing Coble together with Kern County law enforcement—the one in a sheriff’s interrogation room a year before Sandy’s murder, when Jerry Lee Coble first begged to be allowed to make a deal. At that time, Coble promised to testify against—and to help set up—virtually anyone the sheriff’s department wanted. Strangers, relatives, he didn’t care. Just so long as he didn’t have to go back to prison.
“I’ll do whatever it takes,” he had promised. “ . . . I want to make a deal.”11
Sheriff’s Detective Eric Banducci, who had arrested Coble for grand theft, wrote in his report on the interrogation, “I told Jerry that I suspected he was lying. . . . Every time I asked Jerry about a specific item of inventory or loss, Jerry would again ask about making a deal.”12
In the Dunn case, Jerry Coble had presented himself on the witness stand as a man who just happened to stumble on a murder in progress, a good citizen who wanted to do the right thing. But Banducci’s report showed a very different Jerry Lee Coble, one who kept insisting that he be allowed to deal, that he should be transformed into a witness against someone else so he could avoid his own prison sentence. “What a coincidence,” Banducci would observe after Pat Dunn’s trial, his voice thick with sarcasm, “that Coble would say all that, then end up a year later with a deal to put Pat Dunn away.”13
Banducci’s report was never given to Pat Dunn or his lawyers, as the law requires.14 And Banducci, the detective who busted Jerry Coble, never appeared on the lengthy list of witnesses and officers relevant to the Dunn case painstakingly compiled by Laura and her colleagues, because they never heard of him. Prosecutors are legally obliged to reveal all information in a case that might be helpful to a defendant. Even an inadvertent failure to disclose important material can be grounds for a new trial or dismissal of charges. In the Dunn case, though, no one on the defense team knew what they were missing. For his part, Detective Banducci was relieved—and surprised—at not being called as a defense witness in the case.
Had they been given the report, the defense could have called Banducci to the stand and asked him why he had not made a deal with Jerry Lee Coble immediately after Coble’s arrest, given that such arrangements are not uncommon in criminal investigations, and Coble seemed more than willing. The detective has since said he would have explained his refusal to deal by pointing out that Coble had been caught in numerous lies during his interrogation and had little credibility at the sheriff’s department. Banducci said he would never base a case on the word of such a person as Jerry Coble: “I believed Jerry Coble would say or do anything to avoid going to prison, so he could get back on the street and score more dope.”15
Such testimony, had the defense known it was available, could hav
e been devastating to Coble’s credibility as a witness, as well as the prosecution’s entire case, particularly because Banducci could also have shed new light on the unusual manner in which Coble finally got his deal with Detective Soliz and Deputy DA Somers. Contrary to typical practice in such cases, Banducci was kept in the dark about his own suspect and case when the deal was forged. When Soliz returned from his initial meeting with Coble, he knew he had a witness who could be the turning point in the case. Yet Soliz, who knew that Banducci was in charge of the pending case against Coble, did not talk to his colleague. Banducci and Soliz worked in the same office and occupied desks less than ten feet apart, yet Soliz never asked his fellow detective’s opinion about Coble’s credibility or reliability.16
Instead, Detective Soliz decided to keep his new witness in the Dunn case a secret, and never mentioned it to Detective Banducci. Nor did Deputy District Attorney Somers consult with Banducci before dispensing with his grand theft case against Coble as part of the plea bargain that made Jerry Lee a witness against Pat Dunn. Such consultation is normally made when a prosecutor settles a detective’s case, but this time, Somers dealt only with Soliz, and therefore presumably had no idea that Banducci thought Coble would make an untrustworthy witness.17 Banducci would not know anything about Coble’s involvement in the Dunn case until Soliz approached him in the office several months later and requested Jerry Coble’s driver’s license.