by Edward Humes
24. The author’s interviews with Kate Rosenlieb and Stan Harper. Harper recalled that the effort to persuade Jagels to prosecute Pat Dunn included officials at the highest levels of municipal government. However, Harper, a close friend of Jagels’, said he believed Jagels was resistant to such political pressures. Harper recalls bringing up the subject, only to have the DA tell him he did not wish to discuss pending criminal investigations, and that his office based its charging decisions on legal, not political, factors.
25. The author’s interviews with Kate Rosenlieb.
26. Ibid. Rosenlieb explained her contradictory accounts by asserting that much time had passed since the events at issue.
27. Ibid.
28. The prosecution, of course, could argue that Sandy’s statements to Rosenlieb about divorce were months old, and that Sandy could well have changed her mind by the time she spoke to Marie Gates. However, Rosenlieb’s testimony would still have added greatly to the defense, especially when considered with Kevin Knutson’s testimony about Sandy—on the day she disappeared—acting in a loving way toward Pat, saying she wanted to take care of him financially and give him more control over her money.
29. People vs. Sergio Venegas 98 C.D.O.S. 3561. Resolving a long-simmering dispute over the reliability of DNA matching in criminal cases, the California Supreme Court authorized its general use throughout California, even as it rejected the specific way it was used in the Venegas case. The court ruled that prosecutors must employ a more conservative statistical analysis than the one used in Kern County to measure the likelihood that a particular DNA sample comes from a particular individual. In securing Venegas’ conviction, Deputy DA Green introduced evidence that the DNA traces recovered from the rape victim—who could not identify her assailant—had only a 1-in-65,000 chance of coming from someone other than the defendant. But the more conservative calculations deemed reliable by the Supreme Court (and previously endorsed in an authoritative and widely accepted study by the National Research Council) reduce those odds to as little as 1 in 378—a less than overwhelming match in a case with little corroborating evidence.
30. John Soliz, reports filed in Kern County Sheriff’s Department, Case DE94-00151; and Steve E. Swenson, “Suspect falsely ID’d released from jail,” Bakersfield Californian, October 25, 1994.
31. People vs. Abelardo Gamboa et al., California Court of Appeal, Fifth Appellate District, Case F017155, an unpublished opinion in the appeal of Kern County Superior Court Case 45981.
32. The account of the Stallion Springs case and official reaction to the appellate ruling overturning the convictions is drawn from: the unpublished Court of Appeal opinion in People vs. Gamboa et al.; Steve E. Swenson, “Cops hid evidence, judge says,” Bakersfield Californian, December 12, 1991; and Steve E. Swenson, “Huge PCP conviction overruled,” Bakersfield Californian, June 16, 1993. The erasure of PCP manufacturing convictions due to the illegal search meant Abelardo Gamboa was freed from a prison sentence of twenty years; Abel Bernard Medina, nineteen years; Benjamin Tiburico Torres, seventeen years, and Manuel Chavez, fifteen years. Because the critical evidence—the $4 million worth of PCP and everything related to it—had to be suppressed because of the government’s constitutional violations, there was no way to retry the four.
33. The defense lawyer, Thomas P. “Skip” Daly, a veteran of 175 murder trials, even brought up the subject of the lineup before the jury—something the prosecution had been barred from doing. The prosecutor then pounced on this mistaken “opening of the door,” using it as an excuse to bring in evidence about the lineup and repeatedly arguing that it had been “fair,” when in fact it had been illegal. Source: Mark Arax, “A Long, Bitter Wait for Freedom Ends,” Los Angeles Times, October 30, 1994; “Conviction Overturned,” Bakersfield Californian, July 29, 1994; and Tomlin vs. Myers, 30 F. 3d 1235 (9th Cir. 1994).
34. Commenting on the conduct of police and prosecutor in the case, Justice Alex Kozinski wrote for the 2-to-1 majority, “We’re quite troubled by the prosecutor’s actions. . . . The government’s behavior here, in the face of its own initial culpability in conducting an illegal line-up, and doing nothing to later correct the error, pushes hard on the limits of acceptable [argument].” Kozinski also noted that Tomlin’s original defense attorney was led by the prosecution to believe that the teenaged middleman to the fateful drug deal—the person who supposedly wrote the Treetop note—would testify against Tomlin if the attorney successfully challenged Leticia Mendez’s identification. This turned out to be false. Source: Tomlin vs. Myers.
35. Steve E. Swenson, “Jury finds man innocent of murder,” Bakersfield Californian, May 15, 1993.
36. Jagels’ second in command, Stephen Tauzer, told a news reporter that his office had filed charges against people without sufficient evidence, hoping that the pressure of being prosecuted would lead to confessions or other breaks in the case—a practice universally recognized as an abuse of power. The senior prosecutor also lamented the fact that this practice had come to an end because of the flap over the satanic cases. “We’re just not going to file the charges if we can’t prosecute it. As bad as it sounds, the philosophy now is we don’t file charges if we can’t go all the way in the courtroom.” Source: Michael Trihey, “Molestation filings decline,” Bakersfield Californian, September 29, 1986.
37. Hubert Humphrey III, “Report on Scott County Investigations,” Minnesota Attorney General’s Office, February 1985.
38. Author’s interview with Andrew Gindes; and Gindes, Crimes Against Children.
39. One of these senior prosecutors, Sara Ryals, who years later was said (by Kate Rosenlieb, at least) to be hesitant about charging Pat Dunn, wrote a memo to DA Ed Jagels complaining that colleagues in the office were guilty of “indiscriminate, uninvestigated filing of charges.” She also stated she would never have a child alone in her office again because of the risks of false accusations from the “ring” children. Ryals was one of the law-enforcement officials eventually accused by one of the Nokes ring victims. Source: John K. Van de Kamp, California Attorney General, “Report on the Kern County Child Abuse Investigation,” September 1996, supplementary reports and data (May 7, 1986, interview of Deputy DA Sara Ryals by Special Agent Jack Richards and Special Agent Michiel Hyder, California Department of Justice).
40. John K. Van de Kamp, California Attorney General, “Report on the Kern County Child Abuse Investigation,” September 1986, supplementary reports and data (April 22, 1986, interview of Supervising Deputy DA T. Daniel Sparks and Supervising Deputy DA Stephen Tauzer by Special Agent Jack Richards and Special Agent Michiel Hyder, California Department of Justice).
41. Final Report of the 1985–1986 Kern County Grand Jury, Carleen A. Radanovich, foreman, released July 2, 1986. The report condemned a “presumption of guilt” assumed by county officials in their pursuit of molestation-ring suspects, and found that, instead of relying upon legally acceptable evidence, social workers and investigators were removing children from homes, denying family visitations, and arresting parents based on nothing more than “gut feeling.” The report also alleged that “guilt by association was sufficient to bring charges against individuals,” even while investigators and prosecutors ignored medical evidence that some of the victims had not been sexually abused. The grand jury also reported that judges in Kern County had abdicated their responsibility to make an independent review of files and evidence in the ring cases, and had instead blindly followed the recommendations of social workers and prosecutors when deciding whether to remove children from their homes and where children should be placed when in foster care,
The grand jury’s concerns had been a matter of public record for many months before the final report was issued. In an August 1, 1985, letter to California Attorney General John Van de Kamp, the grand jury requested an immediate investigation of the handling of child molestation and satanic cult allegations in Kern County. “Our prime concern is the obvious mishandling of the children involved,” the gran
d jury foreman wrote. “ . . . In addition, the arbitrary arrest and release of accused parents, with no charges filed, have become prevalent.” The attorney general’s review was nearly complete by the time the grand jury report was issued.
Official reaction to the grand jury report was less than favorable. Sheriff Larry Kleier, who was singled out for criticism by the grand jury, scoffed at the detailed report signed by the panel’s nineteen members. He characterized it as the result of a grudge against the sheriff’s department held by the grand jury foreman over an incident in which a sheriff’s department dog allegedly bit the foreman’s daughter. (Jim Steinberg, “Children ‘in limbo,’ report says: Kern grand jury criticizes molest case,” Fresno Bee, July 3, 1986.)
42. Cynthia Cheski, “Grand jury gets 19 all-new members: Outgoing forewoman assails judge for not retaining current panelists,” Bakersfield Californian, July 3, 1986; and Michael Trihey, “Ex-grand jurors fear muzzling of new panel,” Bakersfield Californian, July 6, 1986. The departing grand jury foreman, Carleen Radanovich, reacted to the decision by Judge Friedman not to retain some hold-overs on the new grand jury panel, a past tradition intended to provide continuity, by alleging, “Government doesn’t want government checked out. Citizens do.” Judge Friedman said he merely wanted to bring “more diversity” to the grand jury by appointing, in addition to Gindes’ wife, the retired former chief investigator for the district attorney’s office, the mother of a deputy sheriff, and, for the panel’s foreman, a retired police captain.
43. Van de Kamp, “Report on the Kern County Child Abuse Investigation.”
44. “In the matter of [Kevin] Nokes, a minor,” Kern County Superior Court Case 58875, transcript of proceedings before Judge Robert Baca, July 1, 1986.
45. People vs. Pitts, 223 Cal. App 3d 606 (1990). Unlike most court opinions that criticize prosecutors for misconduct, this decision was certified for publication—and took the almost unheard-of step of naming the offending prosecutors in the opinion, a public “shaming” that can have devastating effects on lawyers’ careers. In the opinion, both Gindes and his co-prosecutor at trial, Michael Vendrasco, were faulted for misconduct by the appeals court. But Vendrasco’s improprieties were termed “fairly isolated,” while the court wrote that “Gindes’ behavior . . . can only be termed gross misconduct.” Of the two prosecutors, only Gindes was reported by the court to the state bar association for further investigation and possible discipline for his misconduct. (The presiding judge of the appeals court recommended disbarment, but no disciplinary action was ever taken by the bar against Gindes.) The court also wrote: “Interspersed throughout trial, to an extent this court has never before seen, were comments by one or both prosecutors which disparaged defense counsel; questioned their tactics, competence, and/or ethics; accused them of wasting time; etc. We have reviewed the entire record and have identified instances too numerous to chronicle where misconduct clearly or arguably occurred. Thus, the examples we set forth herein, while necessitating extensive quotes from the record, should not be viewed as isolated conduct, but as representative samples of what occurred. To set forth all of the misconduct would literally take many hundreds of pages.”
It should be noted that prosecutorial misconduct in the courtroom was only one of many grounds of appeal cited by the Pitts defendants. Other grounds cited included the coercive and suggestive questioning of children by the authorities; the use of improper and false medical evidence; the withholding of evidence that would prove the defendants’ innocence; and Gindes’ successful argument to prevent defense experts from examining the child victims because more exams would be too traumatic—an argument he advanced even as his office secretly arranged re-examinations by a prosecution expert. The appeals court never considered these other grounds, however. Once the courtroom misconduct was found to have occurred and to have rendered the Pitts trial unfair, the court did not examine the other grounds—the case was over.
Gindes, who left the district attorney’s office after the opinion in the Pitts case, has always denied committing misconduct. He said in an interview with the author that his only interest had been protecting children and punishing molesters, and he asserted that he behaved in exactly the same fashion during the trial of the Kniffens and McCuans in Kern County’s first ring case. In reviewing that case, a different panel of judges on the California Court of Appeal found no misconduct on his part (though improprieties in the investigation of that case ultimately were proved). Gindes also suggests he was vindicated when he prevailed in a civil rights suit filed by the Pitts defendants in Kern County Superior Court.
46. Miles Corwin, Los Angeles Times, September 10, 1990. “Court Ruling Forces New Look at Sex Abuse Case,” “Defendants say they were victims of overzealous investigators and hysteria in Bakersfield area at the time. Prosecutors are confident that convictions will be upheld if a new trial is ordered,” read the Times’s subtitle. Such confident predictions aside, the Kern County District Attorney later decided not to retry the case, and dismissed all charges.
47. Kelly remains in prison, his appeals denied, serving a sixty-one-year term for seventeen felonies.
48. Hubbard’s son, Richie, was interviewed numerous times over the course of six weeks. During that time, he never mentioned any involvement by his mother, who had been fully cooperating with the investigation and had initially called the police because she had heard that Kelly was under investigation and he had spent time with her son. The sheriff’s investigator who finally coaxed Richie into accusing his mother was later accused himself of browbeating and threatening children who failed to confirm his belief that they had been molested—allegedly shouting at them in near-hysterical outbursts, threatening them, and allegedly striking one girl in the mouth. (He denied any such misconduct.)
49. The very same informant used to generate the illegal—and almost certainly fabricated—confession against Duncan also gave birth to the charges against Hubbard. This informant was the first to suggest to sheriff’s investigators that Hubbard was involved in the molestations, claiming Duncan had implicated her during one of his “confessions.” This was the tip that led investigators to repeatedly ask Richie and the other two child victims whether Hubbard was involved. As in other ring cases, their initial denials were ignored, and the kids eventually agreed with insistent investigators that Hubbard had molested them. But, unlike Duncan, the informant did not testify against Hubbard, leaving her no illegal confession to complain about, despite the information that launched the case being every bit as unreliable.
50. Judge Clarence Westra, “In the Matter of Donna Sue Hubbard, writ of habeas corpus,” ruling in the order to show cause from the court of appeals, Kern County Superior Court Case No. 5.5-2738, January 18, 1994.
51. Tom Kertscher, “Molestation hysteria left sad legacy in overzealous Kern County,” Fresno Bee, September 10, 1995.
52. Author’s interview with Andrew Gindes.
53. “Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions,” Staff Report of the Subcommittee on Civil and Constitutional Rights, House Judiciary Committee, October 21, 1993; “Justice Revisited: An innocent man is finally freed from Alabama’s death row,” Time, March 15, 1993; “U.S. High Court rejects Alabama sheriff liability,” Reuters, June 2, 1997; and “A grant for their thoughts: 2 MacArthur winners have ties to Atlanta,” Atlanta Journal and Constitution, June 13, 1995. The reaction to the outcome of the case was instructive. McMillian’s determined appeals attorney, Bryan Stevenson, executive director of the Alabama Capital Representation Center, which represents the poor in death cases, received a MacArthur Foundation “genius” grant of $230,000. Around the same time, Congress cut funds to centers like his around the country, making it much harder for indigent defendants like McMillian to prove their innocence. And the Supreme Court dismissed a lawsuit in the case, deciding that county sheriffs were not legally liable in such cases, even when the misconduct is undisputed and extreme, as in McMillian’s case. Cour
ts and lawmakers often respond to allegations of prosecutorial misconduct not by placing greater supervision on prosecutors, but by making it harder for defendants to prevail on appeal when they have been victims of misconduct.
54. These cases are: 1992: Sabrina Butler, Mississippi; Jay Smith, Pennsylvania; Federico Macias, Texas; Sonia Jacobs, Florida; John Henry Knapp, Arizona; Muneer Deeb, Texas; Herbert Bassette, Virginia (death sentence commuted to life).
1993: Walter McMillian, Alabama; Gregory Wilhoit, Oklahoma; Thomas R. Merrill, California; Kirk Bloodworth, Maryland; Clarence Smith, Texas; Andrew Lee Mitchell, Texas; Kerry Max Cook, Texas; Andrew Golden, Florida; Gary Gauger, Illinois; Clarence Chance and Benny Powell, California (freed from life sentences); John Demjanjuk (freed from life sentence in Israel because of U.S. prosecutorial misconduct).
See also Appendix B.
55. There is no reliable or complete source of data on the total number of individuals released from prosecution or prison due to official misconduct. Primarily through press reports and reported federal appellate decisions, the author has been able to identify more than one hundred major felony cases around the country that were undone by prosecutorial misconduct between the time of Sandy Dunn’s disappearance and Pat Dunn’s sentencing, a twelvemonth period (July 1992-June 1993). Of course, this represents only a tiny fraction of the nation’s felony convictions in this period, most of which were untainted and fairly won, with the attendant prison sentences richly deserved and sometimes all too short. Still, the magnitude of the problem is greater than many in the justice system wish to admit. More than a hundred defendants in a year released from wrongful convictions because of government malfeasance is a significant number. These cases represent only a sampling, for they did not include other instances of misconduct litigated solely in state courts, where most appeals die, or those cases in which misconduct may have occurred, but—because they were resolved by guilty pleas—were never appealed at all. There simply are no comprehensive statistics on such cases, and no way to know the magnitude of the problem.