Some Common Threads in the Wrongful Convictions Reviewed on Saturday
In my presentation this past weekend about three Yolo County cases, I went through some of the key causes of wrongful convictions, such as eyewitness misidentification, which played a huge hand in the Oscar Cervantes case.
But there are two things that are really striking to me about all three cases.
First, these three cases involve people essentially sentenced to life without parole. But none of these three were what we would call hardened or career criminals. Ajay Dev had no criminal record whatsoever.
Defense Attorney Rod Beede noted that, at the time, Oscar Cervantes had “virtually no criminal record” and “absolutely no record of violence.”
While Greg Zielesch had drug problems, he had no record of violence either.
It is not that it is impossible for someone without a criminal record to commit a crime and we do see cases of career criminals who were wrongly convicted, but their claim to innocence has to be bolstered by this.
The second common thread was that the criminal justice system failed all three.
In the case of Ajay Dev, Judge Fall blocked key evidence of a conviction in Nepal of the complaining witness that might have spoken to her motivation to lie in this case. More egregiously, the judge, in what I believe to be a moment of lost patience, allowed the complaining witness herself to translate the key moment on the pretext phone call.
In the case of Greg Zielesch, he was assisted by ineffective counsel who was subsequently disbarred. Key witnesses such as Rebecca Youngblood (now Rebecca Weinhardt) were not called, who could have debunked the claims by Rebecca Pina as to how the gun got to the shooter. And key rebuttal witnesses were not allowed to present key evidence.
In the case of Oscar Cervantes, the defense was not allowed to call a memory expert. They filed a motion to do that, retaining one of the most prominent eyewitness experts in the country to come and testify that the identification was false. The judge denied the motion to put this expert on the stand.
Mr. Beede noted that “subsequent to that, the Supreme Court has held that failure to put an eyewitness identification expert on the stand is ineffective assistance of counsel.” But they didn’t get that opportunity because the judge denied the motion.
“But the most outrageous thing that happened in the case, of all the outrageous things that happened in the case, was that Nate Easlon, purported to be an eyewitness to the shooting – he was arrested down in Solano County and they made a deal with him to testify.”
“Nate Easlon wrote a letter to my co-counsel and I, and said he not only fabricated the entire story but that his attorney and Jim Walker, who was trying the case with Jeff Reisig, had told him to fabricate. Had gone down to Solano County, met with him, told him that he was going to get a life sentence or worse if he didn’t come through.”
Mr. Beede said that “he felt really bad about it.” They went down to interview Easlon but, because he was represented by counsel, “we were referred to the California State Bar Association. The District Attorney’s Office of Yolo County searched my investigator’s home for notes of the interview.” The fact that they interviewed him with an attorney present was allowed to become known to the jury.
That’s prosecutorial misconduct, and they couldn’t get that evidence to the jury either.
In short, in all three cases, the defense had evidence that would have allowed the jury to acquit the defendants and, in all three cases, the defense was barred from presenting the evidence – either due to technicalities or judicial error.
The Human Factor
When the Vanguard trains interns going into the courts, we set rules and we have lists and guidelines to follow. One of the things we constantly tell the interns to remember is that this is real life. It’s otherwise easy to get caught up in your own life’s bubble and think of this as another class or an academic exercise.
But these are in fact people, real people in the real world, whose lives are on the line.
Sometimes I fall victim to that too.
A couple of weeks ago, a woman came in. Her son had been shot and killed in Woodland a few years ago by the police. She was hurting and not getting answers. We get caught up in the fight for social justice and sometimes it’s easy to forget there is a human being on the other side of that fight – someone you might not see.
For her, she just wanted to see the video of the shooting to put to rest a whole host of questions she had. She kind of felt like this was suicide by cop, and wanted to see it for herself. The police and the DAs were refusing to allow her to see the video. They gave her legal responses under the Public Records Act, I read the letters.
So I thought, you know, let me just call the Woodland Police Chief, he’s always been a decent and reasonable guy. What was interesting was he had already kind of reached the decision to let her watch the video. He told me that his first instinct was “who would want to watch the video of their son getting killed,” but he realized he didn’t walk in the shoes of others – and if that’s what she really wanted, they were going to make it possible.
I got to call her and deliver that news, and she was just so grateful. It was an unbelievable moment.
This weekend we had an event on local Wrongful Convictions. I really believe that we have put people into prison who do not belong there. When we got to Oscar Cervantes, his sister delivered a presentation and ended up breaking down at the end. Then his son broke down crying, a 13-year-old, who plays football and he never gets to see his father.
I know, for years in the Ajay Dev case as well, the kids are separated from their father due to the nature of the crime. As a father myself, I have young kids and Ajay is missing the best part of the experience. The human impacts here are so unimaginable.
These are the human terms in this struggle that humble you and get lost in the overall picture.
I’m very proud of the work we’ve done at the Vanguard, but I wish we could do more.
—David M. Greenwald reporting
“retaining one of the most prominent eyewitness experts in the country to come and testify that the identification was false”
Leaving aside the point that it is possible to find an “expert” to testify to anything, and high profile cases often have “experts” with diametrically opposed positions, how is it possible that someone is going to say that a specific identification is false?
1. Test showing that the individual could not have seen a face from the distance
2. Lighting distance
3. Research on biased identification process
There is a LOT of research on this. As I understand this case, they violated about every single now-established guideline for identifying the defendants.
http://www.innocenceproject.org/eyewitness-identification-reform/
Some of the information from attempts to hide evidence in this case: https://www.newsreview.com/sacramento/bad-mood-reisig/content?oid=1179902
quielo
“how is it possible that someone is going to say that a specific identification is false?”
The point is not “saying that a specific identification is false”. In our system, an accused is supposed to be presumed innocent until proven guilty. When the basis for guilt is not on physical evidence, but rather on eye witness identification only, it is only necessary for any witness ( expert or not) to demonstrate doubt in order to change the verdict. So in the case of an identification claimed by a witness, with another credible witness noting that it was too dark to say anything about the features of an accused may be enough to create reasonable doubt. Having an expert point out that while one witness claims to be able to identify through a tainted process ( inconsistency of identification for example or failure of other witnesses to corroborate may be enough to demonstrate reasonable doubt to the jurors. That could be sufficient to change the outcome but was not allowed for reasons not made clear by the article.
Hi Tia,
I understand that eyewitness identifications are not as conclusive as people suppose them to be however that is common to all trials that have such testimony. My assumption from the above is that the DV is advocating for the “expert witness full employment act” as everyone will want a $1000/hour expert discussing the pros and cons of eyewitness testimony.
David’s points above lighting/distance may have merit as it is specific to this situation.
If I advocate anything it would be the New Jersey test – http://www.nytimes.com/2011/08/25/nyregion/in-new-jersey-rules-changed-on-witness-ids.html?_r=0
In terms of your later point, most cases don’t hinge on eyewitness identification. But I do support the right of defense council to use experts, and as Beede demonstrated Saturday, the laws have changed in ten years and now he is basically required to put a memory expert on in a case like this. There’s a reason why the laws have changed, but this case needs to be reevaluated based on the new understanding
I am not a believer in eye witnesses and having some standard way to describe how to evaluate it would be useful. I am opposed to flying “experts” around.
Either way it will be difficult to overcome rationally someone on the stand says “s/he did it” and pointing.
I have seen at least one case where the defendants were acquitted due to the testimony of the memory expert casting doubt on the ability of the witness to have identified the defendants as his attackers and the use eyewitness identification technique of the police.