by Edward Humes
The DA has denied these allegations, conceding that failure to disclose the tape was a violation, but calling the omission a harmless error. As for the medical report, Phillips never knew about it because it was handled by Murillo, who then worked for the Kern County welfare department, not the Kern County District Attorney’s Office. “If I didn’t know about it, I couldn’t disclose it,” Phillips says. (Simrin accuses the district attorney’s office, though not Phillips specifically, of creating a secret and illegal system designed to keep prosecutors—and, therefore, defense attorneys—conveniently in the dark about exams that help the defense, though they always received copies of exam reports that confirmed signs of abuse. Ironically, the source for that accusation is the autobiography of former molestation-ring prosecutor Andrew Gindes.)
Phillips’ main legal argument, however, has been to ask the court to disregard the new allegations of government misconduct on procedural grounds, asserting that, as they were not included in Modahl’s original habeas petition, they should not be the subject of any hearings at all. Phillips has conceded that, if Modahl is allowed to add the new allegations to his case, the office would stand accused of criminal acts and would have to recuse itself from the matter.16 In the end, however, no recusal was necessary. Kern County Superior Court Judge John Kelly found no deliberate misconduct by prosecutors. Nevertheless, the judge ruled, Modahl’s conviction was tainted because evidence in the case had been withheld that would have shown Modahl’s daughter was never molested and that Kern County authorities interrogated children in such a way as to likely generate false and unreliable accusations of sex abuse. In May 1999, after fifteen years in prison, Jeffrey Modahl was released, yet another victim of the Witch Hunt freed despite the vigorous opposition of the Kern County District Attorney. In response to this ruling, the district attorney’s office offered its stock response: Prosecutors still believed Modahl was guilty. But they did not back up this assertion by appealing Kelly’s ruling, nor would they retry Modahl in order to prove they were right. In short order, prosecutors announced they were dropping the case against Modahl for good.
• • •
With the release of Jeffrey Modahl, the Kniffens and McCuans, and Harold Weimer, the number of erroneous or wrongful prosecutions in recent years in Bakersfield reached ninety-two. Ninety-two men and women—arrested and charged with murder, molestation or other serious crimes—have had their cases dismissed or overturned because of official misconduct or mistakes, hidden or erroneous evidence or improper interrogations and investigations. The number is particularly extraordinary because the American justice system is designed to make such reversals extremely difficult, with laws that favor prosecutors over defendants at virtually every juncture once a person is pronounced guilty.
A few of these ninety-two cases involved the clearly guilty, released because of bad searches or improperly obtained evidence. But a majority involved men and women for whom considerable evidence exists to suggest—and, in some cases, prove outright—their innocence. These were not criminals turned loose on mere technicalities; they were ordinary people who, for the most part, had never been in trouble with the law before they were caught up in something dark and terrible.
This pattern, far from being limited to Bakersfield, has spread to other American communities. Throughout the 1980s and 1990s, official misconduct and the conviction of innocents appears to have risen steadily. All around the country, and despite painful past experience, shockingly similar molestation-ring cases continue to rise up like ghosts from Kern County’s past, only to fall apart for the same reasons, the hard-earned lessons of Bakersfield’s Witch Hunt lost or ignored. In San Diego, for example, a developmentally disabled man named Dale Akiki watched his careful, quiet life be destroyed in 1991 when he was jailed and charged with the ritual abuse of young children. His trial took seven months; his acquittal by jurors in 1993, who were outraged by what they found to be false charges, took seven hours. The case eventually contributed to the ouster of the once-popular local district attorney, Ed Miller, who had been in office twenty-three years. A highly critical grand jury investigation followed, detailing how a cadre of investigators and therapists promoted community hysteria and false prosecutions with spurious allegations of a widespread satanic conspiracy.17 In North Carolina, the last of seven alleged ritual abusers from the infamous Little Rascals Day Care Center molestation-ring case was released after gross prosecutorial misconduct was proved.18 Around the same time, day-care workers imprisoned in the infamous Massachusetts Amirault case were released from lengthy sentences for similar reasons.19 Each of these sensational cases, and many others like them, followed the lead of the Kern County ring investigations, using the same discredited techniques and interrogations so likely to generate false accusations and wrongful convictions, and stole years of freedom away from several hundred innocent men and women before the cases self-destructed. Some of these men and women remain imprisoned, though the evidence against them has in many cases been discredited.20
And it continues still: More than a decade after Kern County’s molestation-ring hysteria spent itself, an eerily similar investigation unfolded in the small town of Wenatchee, Washington, a farm community in many ways similar to Bakersfield, surrounded by apple, cherry, peach and apricot groves. In Wenatchee, a lone police detective’s aggressive questioning of one girl—whom he took in as his own foster child—blossomed into a series of increasingly grotesque sex-ring allegations against more than one hundred citizens, with forty eventually arrested. Suspected child victims were subjected to the same sort of leading and suggestive questioning that caused such problems in Kern County. As in Kern County, the accused in Wenatchee included people from all ranks of society—ministers, farm workers, even a social worker who knew the girl’s troubled history and expressed doubts about the allegations—and the many suspects who were not formally charged nevertheless found themselves ostracized in the small town. In a now-familiar turnabout, the girl at the heart of the case later recanted all of the accusations, claiming that her foster father had coerced and threatened her into fabricating charges—but her revelations came only after fourteen people had plea-bargained their way into prison, choosing to avoid the risk of a trial and potentially far tougher sentences. Virtually all of these fourteen were indigent and had been represented by appointed counsel who recommended the pleas. In contrast, many others—almost all of whom could afford to retain private attorneys who recommended fighting the case—went free. Several who were tried and convicted have since won freedom on appeal, though a civil rights lawsuit against the town failed. As of 1998, Wenatchee remains bitterly divided by the case, with officials still defending their work and neighbors frightened of one another and the police—the living legacy of the Bakersfield Witch Hunt.
Aside from the ring cases, in the six years since Pat Dunn was convicted of murder, literally thousands of criminal convictions have been called into question because of official misconduct, and at least three hundred of them reversed or dismissed so far. As in Kern County, the same players often appear repeatedly. A forensic expert, Fred Zain, has been accused of giving false scientific testimony—frequently pivotal evidence in winning convictions—time and again in West Virginia and Texas (one hundred thirty convictions have been reopened so far, with at least twelve men freed from prison or granted new trials).21 An entire police precinct in Philadelphia was charged with the wholesale framing of defendants, resulting in forty-two charges thrown out and one hundred sixty more in question. State troopers in New York state fabricated fingerprint evidence for years; several hundred cases are being reopened there. Among federal prosecutors, allegations of professional misconduct soared another 71 percent between 1993 and 1997, though the Justice Department has taken little, if any, disciplinary action (in fact, a congressional committee reported that, out of a sample of ten cases in which federal judges had admonished prosecutors for misconduct, the Justice Department took no disciplinary action whatsoever). In one extrao
rdinary case in Chicago, the state prosecutors and local policemen who allegedly framed a young man named Rolando Cruz for a murder he didn’t commit are now being prosecuted themselves in an unprecedented assault on prosecutorial immunity. Before proving his innocence, Cruz had been tried three times and in each case had been sentenced to die.
By some estimates, allegations of prosecutorial misconduct have nearly tripled since the seventies,22 in some cases reaching grotesque proportions. In San Francisco, a federal prosecutor brought a witness from the People’s Republic of China, Wang Zong Xiao, to appear as the star witness in a massive drug-conspiracy case, then threatened him with deportation back to China when he said that the defendant on trial was innocent. The prosecutor’s action was all the more repugnant because U.S. officials knew that Wang had been tortured by Chinese detectives wielding electric cattle prods to get him to implicate—falsely—the defendant on trial in San Francisco. It was also known to federal officials that Wang would almost certainly be executed were he to return to his homeland after refusing to testify against the defendant, making the deportation threat as powerful an inducement to lie as any cattle prod. The huge drug-conspiracy prosecution—the “Goldfish Case,” as it was known—was eventually dismissed when this chain of events was exposed, and the courts saved Wang from deportation and death. “The facts show such clear, flagrant and shameful constitutional violations that they shock the conscience of the court,” U.S. District Court Judge William Orrick of San Francisco declared as he threw the case out in 1993.
Still, the U.S. government appealed Orrick’s ruling, so intent was it on deporting Wang Zong Xiao. In 1996, federal prosecutors lost their appeal and Xiao received asylum.23
A few months later in March 1997, in Rhode Island, a massive racketeering and corruption case against a former governor, Edward D. DiPrete, and his son—the most sensational case in the state in years—was dismissed on account of outrageous prosecutorial misconduct and hiding of evidence that reached the highest levels of the state attorney general’s office. The same prosecutors were already under investigation for improperly using informants and arresting dozens of innocents in drug cases. The lead prosecutor accused of misconduct in the governor’s case, Michael F. Burns, committed suicide in the midst of the controversy. (The Rhode Island Supreme Court, while agreeing that the attorney general committed egregious misconduct, reinstated the charges in May 1998, concluding that judges lack the power to punish wayward prosecutors by throwing out cases before trial.)24
In Lancaster County, Pennsylvania, meanwhile, a young woman named Lisa Michelle Lambert, sentenced to life in prison in 1992 for murdering a romantic rival, was set free in April 1997, after a federal judge declared her innocent, then wrote a riveting opinion saying prosecutors had obstructed justice, knowingly used perjured testimony, suppressed evidence of Lambert’s innocence and manufactured evidence of her guilt—all while allowing the real killer, Lambert’s boyfriend, Lawrence Yunkin, to escape with a light sentence as a mere accomplice in exchange for his testimony against Lambert. Of the justice system in Lancaster County, U.S. District Court Judge Stewart Dalzell wrote, “It lost its soul and almost executed an innocent, abused woman. Its legal edifice now in ashes, we can only hope for a barn raising of the temple of justice.”
The Lambert case garnered unusually extensive publicity—prosecutorial misconduct cases mostly just die quietly—and struck a nerve like no other before it. The fallout from the decision was enormous, angry and stretched across the nation. But the target of this anger was not the police and prosecutors of Lancaster County, who vehemently denied any misconduct to the press (though in Dalzell’s courtroom, they previously had admitted mishandling the case). The target was Judge Dalzell.
A drive to impeach him was launched. Prosecutorial agencies around the country filed “friends of the court” appeals briefs demanding the decision be overturned, on grounds that it suggested judges still held too much power over prosecutors. Legislation was immediately proposed in the U.S. Senate to limit the power of federal judges to proclaim prisoners innocent. Victims’-advocacy groups wielded their considerable clout and demanded “reforms” that would eliminate the possibility of release for others like Lisa Lambert. A conservative lobbying organization, the Free Congress Foundation, condemned Dalzell in a fund-raising video as yet another liberal judicial activist appointed by the Clinton administration (ignoring the fact that Dalzell, long known as a conservative, law-and-order jurist, was appointed to the bench by George Bush).
At no time, however, could the critics refute Dalzell’s actual findings—that Lambert had been framed and that government officials had committed misconduct in the process. Even so, seven months later, the U.S. Court of Appeals for the Third Circuit in Philadelphia overturned his ruling and returned Lambert to prison, where she remains. The reversal came not because the appellate justices disagreed with Dalzell’s factual findings, but because of a procedural technicality cited by prosecutors. The appeals court ruled that Lambert, who had filed her own handwritten appeal to Dalzell after she had been raped by a prison guard, had not completely exhausted all her possible state appeals before turning to the federal courts. In effect, the appeals court noted that whether Lisa Lambert was innocent or not, or whether there had been massive misconduct or not, simply didn’t matter. She had not followed the proper procedure in filing her desperate appeal. In the face of the law, innocence was irrelevant. Back in the Lancaster County courts, before the same judge who convicted her in the first place, Lambert’s appeal and Judge Dalzell’s findings were dismissed out of hand in a hearing in August 1998. Any improprieties by police or prosecutors were harmless errors, Lancaster County Judge Lawrence Stengel ruled.25
Indeed, the Lambert and DiPrete cases are the general rule when misconduct occurs—judges declare “no harm, no foul.” Although there have been an increasing number of reversed convictions that have been upheld in recent years, more often, convictions won after prosecutors lied, hid evidence, coerced false testimony or made wildly improper argument have been allowed to stand, with no relief for the convicted or consequences for the government officials who broke the rules. Legislators and courts have effectively worked in concert to enhance police and prosecutors’ powers at the expense of suspects, defendants and the convicted—innocent and guilty alike. Many states, as well as the federal government, have adopted legislation making it harder to file, much less win, appeals to criminal convictions, even in cases where evidence of innocence appears to exist. Tough Texas laws designed to give prosecutors enormous and unfettered powers left Kevin Byrd no alternative when, after twelve years in prison for a rape he did not commit, new DNA tests proved his innocence beyond any doubt: the law literally left him no legal appeal. His only option was to seek a pardon from Texas governor George W. Bush—who denied it, declaring that it wasn’t his job to be a judge. (Bush relented some months later and issued the pardon.) Meanwhile, in Idaho, the courts approved the police practices of lying to obtain search warrants and intimidating witnesses who might otherwise help the defense. Such transgressions were harmless error, it was opined. And in Kentucky, Charles Howard West, sentenced to twenty-two years in prison for murder in a case with slim evidence, was subjected to “a barrage of vilification, misleading innuendo and outright deception” by the prosecutor, the Kentucky Supreme Court found. Yet, much as the federal appeals court had in Lisa Lambert’s case, the Kentucky court still upheld West’s conviction because his lawyer neglected to follow proper procedure by seeking a mistrial while the prosecutor was carrying on in open court. Federal appeals courts have upheld this ruling as a matter of states’ rights.
Perhaps the surest indication that the trend toward false convictions and prosecutorial misconduct represents a national phenomenon rather than one limited to a few distinct communities like Kern County may be found on death rows around the country. Thirty-two death sentences have been overturned since 1993, when Pat Dunn was convicted. These cases involved some of the high
est-profile criminal prosecutions in the country, in which public scrutiny and expectations were great, and major resources were expended to achieve justice. Yet twenty-eight of these condemned men and women were not only granted new trials, they were exonerated and set free, innocents who were found to have been wrongly convicted and sentenced to death—more often than not because of misconduct by police or prosecutors. Further, the rate at which these innocents have been found on death row has accelerated as well—nearly double what it was between 1973, when the Supreme Court restored the death penalty in America, and 1993.26 The release of men and women wrongly convicted of murder came to be an almost weekly event in the United States by the end of the century. In New York, a man named John Duval walked out of prison after twenty-six years when it was finally shown that the only eyewitness to the crime had initially told police he saw nothing—a story he changed after being held in jail for seven months as a material witness. The police report that documented this shifting story was never given to the defense, judge or jury, making it appear that this witness told the same, consistent account from the start. Two days later, in Oklahoma, Ronald Keith Williamson, who spent twelve years on death row and whose loved ones had to make funeral arrangements when they were told his execution was imminent, was proven innocent of a brutal rape and murder and set free. Williamson was lucky—his appeals had been exhausted, but his supposed accomplice, a high-school teacher named Dennis Fritz, was able to convince a judge to order DNA testing of hairs left behind by the killer. Prosecutors opposed this testing as a waste of time and money. But not only did DNA analysis exonerate both men, it proved prosecutors had relied on bogus scientific examinations in the first place to falsely link those same hairs to Fritz and Williamson. Further tests showed DNA traces at the crime scene actually matched the prosecution’s chief witness in the case, a criminal who had been given leniency in exchange for his convenient but false testimony. It seems prosecutors may have cut a deal with a killer in order to prosecute two innocent men.