Commentary: Great Defense Work and Unconscious Bias Key to Acquittal in Murder Case

The perception around the country is that if you get a public defender, you will get subpar defense work.  That’s unfortunate because, in a lot of places, you probably get better representation by the public defender’s office than by private attorneys.

In Yolo County, when people call and ask about defense attorneys, and they do a lot, I tell them they are probably better off with a public defender.  There are good reasons for that – the office is well-funded, there are a number of great attorneys, they are dedicated to the cause, and they know the judges and prosecutors.

With that said, what I saw in the acquittal of Lance Ornellas-Castro was hands down the best defense job I have seen in my eight years of coverage and that is to take nothing away from a good many worthy efforts over the years.

Here is what Dan Hutchinson was up against – his client had acknowledged shooting and killing the victim, there were a good many seemingly incriminating text messages between Mr. Ornellas-Castro and the accused accomplice, Jorge Garcia.  Jorge Garcia cut a deal with the prosecutor to testify against his friend in exchange for a lesser sentence.

The state’s theory was that this was an attempted robbery gone bad that resulted in the shooting, which automatically made this first degree murder with special circumstances.  The defendant was facing life without parole.  This was an all or nothing case, and the odds were stacked against the defendant in this case.

And yet, on Tuesday, Dan Hutchinson walked his client out the door – a free man.

How did he get there?

He needed a little luck and he got it when Jorge Garcia went sideways during cross-examination and suddenly turned on the prosecution.  Yes, he eventually testified to a robbery plan, but by then his credibility was shot with the jury, who probably reasoned, as Mr. Hutchinson did, that he cut a deal to save his own skin.

The text messages – as Mr. Hutchinson explained in meticulous detail – were less incriminating under full scrutiny than they first appeared.  Yes, the men were low on money but most of the texts were not about robbery – and the one text that was, involved an ATM that had nothing to do with the incident that happened in December of 2015.

The prosecution focused their attention on the slang phrase “hitting licks,” which one witness translated to mean a robbery, but Mr. Hutchinson was able to show that that theory was concocted by Sheriff’s Detective Thomas Hayes.

The credibility of Det. Hayes and several other witnesses badly damaged the prosecution’s case.

The jury had apparently quickly acquitted Mr. Ornellas-Castro on the robbery and conspiracy to commit robbery charges along with murder.  The key question – as they articulated in court – focused on the reasonableness of self-defense for the main charge.

The jury foreman indicated that the jury would benefit from additional arguments on whether Mr. Ornellas-Castro acted reasonably when he shot the victim, as they sat in the car and the victim made a arm movement.

At this point, a conviction on voluntary manslaughter with the use of a gun enhancement would still lead to a 21-year-sentence.  Really, that was already a victory for the defense, facing a life without parole sentence initially.

But Dan Hutchinson, in a second round of arguments, simply outclassed the prosecutor, Melinda Aiello.

For Ms. Aiello, it was not reasonable that Mr. Ornellas-Castro would shoot an unarmed man based on an arm gesture, but the jury probably saw it by this point through the eyes of Mr. Hutchinson.

The men didn’t know that Mr. Andrew Phaouthoum was unarmed, and the context of the shooting was important, Mr. Hutchinson argued.

He pointed out that Mr. Phaouthoum was a known drug dealer.  He sold a large amount of drugs.  He was an Asian gang member.  There was a reasonable belief that he would carry a gun.

The key is not what was true, but what they reasonably believed.  As Mr. Hutchinson pointed out, this wasn’t two guys who were riding the bus.  They had a drug deal which was going sideways over money, and it got heated.

Andrew Phaouthoum was a large man, and he was wearing baggy clothes.  Lance already believed, from the back seat, that the money had changed hands – so the victim would not be reaching into a pocket for anything related to the transaction.  Then there was the arm movement.

Mr. Hutchinson pointed out that they could have waited to see if he had reached for something, but if they had waited and it was a gun, they would be dead.

That seemed to be the winning argument, as it flipped the last four jurors to not guilty.  It was already 8-4 for acquittal when the jury came back on Tuesday morning.

The issue that the jury raised was how reasonable the actions of the defendant were, but personally I believe that the blatant dishonesty of the prosecution’s witnesses – in particular, Detective Hayes – played a huge role in this verdict.

Unconscious Bias in the Prosecution’s Case

Deputy DA Melinda Aiello twice made a remark that caught my attention.  During the re-argument, she was almost done and said to the jury, if this were self-defense, that would have been the first thing the defendant told the police when he was arrested.  Instead, as she recounted, he spent about 40 minutes dissembling and lying to the police.

This argument resonated with me because the basis for it is a kind of unconscious bias about how an individual would act in a given context.

On one level, I think it is important to recognize that both attorneys in an adversarial system are simply trying to make arguments that they think will persuade the jury to their side.  However, in this case, there is a bias that underlies this argument.

If you are a law abiding citizen who trusts the police, maybe you tell the police from the onset that you shot the guy but you were in fear for your life at the time.


Ms. Aiello believes that a reasonable person will trust the police enough to essentially confess to shooting and killing a person, with the hope that the police will acknowledge the self-defense component.

That is a huge leap of faith, frankly, for anyone – not to mention a guy with a rather lengthy criminal record, a Latino, whose experience with the police is probably not a good one and who ironically saw one of the detectives attempt to fabricate a case against him.

If you are the defendant in this case, a former military man suffering from PTSD, a man with gang background, you have no reason to trust that the police are going to believe you, and the situation is probably murky at best – the last thing you are going to do is acknowledge you shot the guy.

Perhaps if you are white, do not have a criminal record, and trust the police, then maybe you tell them that you shot the guy, but it was in self-defense.  Again – maybe.

I have to say, I don’t know that I would admit that I had killed the guy, hoping that the police were willing accept that it was self-defense.  I certainly wouldn’t do it without having a lawyer present.

What she was arguing, therefore, was unreasonable, and couched in her own subconscious bias that police are honest and trustworthy.

Moreover, looking at the facts, this was not exactly a black and white, open and shut case for self-defense.  There was a good deal of nuance here – one that reasonable people, the jurors in this case, were initially split on.

There is a bigger concern here.  There has been a lot of work in the last two years about how unconscious and implicit bias permeates the courts.

We see that at play here.  Part of the problem in this case is that the prosecution attorney was so blind to the world of the defendants that she was not in a position to judge what a “reasonable” person would do.

We have an ongoing concern about the makeup of juries in this county not being representative of the ethnic and racial composition of the defendants.  In this case, the jury was able, with the remarkable defense work of Mr. Hutchinson, to overcome that.

But if you imagine a mostly white, upper middle class, college-educated jury, trying to determine if it was reasonable that the defendant would be reluctant to confess to shooting the man and asserting self-defense from the get-go – you can see a more systemic problem in the court system, where defendants are not really being judged by a jury of their peers who might understand their actions in a complex case.

The strong defense was able to overcome that here, but when I exited the court on Tuesday, it concerned me – what if the jury bought into the People’s argument?  Should we take solace in the fact that this jury, this time, didn’t?  Or should we be concerned that the next jury might not be so discerning?

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. John Hobbs

    “Should we take solace in the fact that this jury, this time didn’t?  Or should we be concerned that the next jury might not be so discerning?”

    We should demand that each case is heard upon its own merits.  Do you believe that the reasonable person standard should be different for a person with a non-English surname or a particular complexion?


    1. David Greenwald

      No. My point is that the prosecutor here was biased in terms of her own experiences and predilections and not taking into account how someone would behave – even if it was self-defense – in the shoes of the defendant.

      1. John Hobbs

        Yet you clearly state,”Part of the problem in this case is that the prosecution was so blind to the world of the defendants, she was not in a position to judge what a “reasonable” person would do.”

        I see no evidence of that.

        ” a former military man suffering from PTSD, a man with gang background,” does not a reasonable person make. What such a person believes is “reasonable” is irrelevant to the legal standard. Instead the jury members or judge must consider the conduct of the accused comparison to that of a reasonable person under similar circumstances.

  2. Howard P

    Let’s see… a man is dead… another man caused the death, by use of a gun… except for incarceration awaiting trial, no consequences… no ban on owning a firearm and carrying it around in a car… ‘yep, sounds like ‘justice’ to me…

    Oh… the state should compensate the defendant for false arrest/incarceration…

      1. Howard P

        So it would appear…

        From the narrative given in the articles, the individual may have been “innocent” of the charges presented (I do not take exception to the verdicts), but was hardly “an innocent”…

        [Yeah, my last line was totally gratuitous/unnecessary, and for that I apologize.]

        My point is, repeating the same narrative in the future for this individual is hardly in his nor society’s best interest.

        1. David Greenwald

          The distinction between not-guilty and innocent is important.  This one is more complex since we know stuff happened but the question is what and what are the criminal elements of it.  Putting this to first degree murder and LWOP was always a huge stretch and I think it ended up compromising their case as the detective clearly attempted to push the robbery aspect when in fact, it seemed more like a drug deal gone bad.

        2. Howard P

          Then, David, we understand each other… and are in substantial agreement… hope the defendant doesn’t equate ‘acquittal’ to ‘license’…

          Agreed that over-charging played in this… seeming exoneration under-plays it.  Like he did nothing wrong.

          Seems like there is a missing piece, but not sure what that would look like… not sure if “restorative justice” concepts would apply… if I ‘head-shot’ someone, with a knife to the throat of spouse, children, etc., when we were just enjoying a park, that’s one thing.  This case doesn’t fit that hypothetical. [Relax folk, I don’t own a gun, much less carry one]

          This case is definitely some shade of gray, but the outcome should not be considered anywhere near ‘white’… IMO…

  3. John Hobbs

    “Would you have admitted to the police that you had shot someone without a lawyer involved?”

    Lol, thanks for the deflection.

    I cannot recall any real situations where I have been in a position to answer that.

    In real encounters with the police, I am generally quite circumspect. (That is largely because they almost never get the facts right, instead writing the report that makes sense to them.)

    Since I was not on the jury, I cannot really know what their rationale for acquittal was, but I have been on a jury where the testimony of the officers involved was so contrived and even then contradictory, that we acquitted based on the character of the prosecutions witnesses. I suspect that was actually the case here.

    1. Howard P

      I’ll answer the question posed by David, as to what I might do… if I owned and carried a gun (neither of which apply), and a family member or innocent person was clearly at risk, as I saw it (assuming not paranoid, nor “impaired”), and I shot someone dead, yeah, I’d tell the police exactly what happened, without a lawyer (they seem to prefer to call themselves ‘attorneys’ or ‘advocates’) present.

      But that’s just me… once, I was fully prepared to use lethal force to avoid injury to another by someone UI of something (and he was carrying a 5-6 inch blade sheath knife)… fully justified to my way of thinking… fortunately, the way things played out, didn’t need to “go there”.  Had he reached for the knife, things could have turned out differently…

      [and yes… we were on a picnic, in a park, with the only possible criminal intent of ‘porking out’ on the delicious food.]

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