Monday Morning Thoughts: Prosecutorial Oversight Lacking in Yolo County

Last week we saw at the state level a shining example of how even a liberal attorney general is not sufficient to produce proper oversight.  In the Orange County jailhouse informant scandal, a case that a conservative judge referred to as “outrageous governmental misconduct,” AG Xavier Becerra did not even issue so much as a slap on the wrist following a four-year investigation.

The news is not much better at home.  In 2014, riding a wave of reformist innovations in local prosecutor offices, DAs created their own Conviction Integrity Units.  As the Cook County (Illinois) website explains: “The Conviction Integrity Unit (the ‘CIU’) investigates claims of actual innocence, to determine whether new evidence gives rise to a substantial probability that the convicted defendant was not the person who committed the offense of conviction.”

As we have seen across the country, CIUs can be hit or miss – either freeing large numbers of people that have been wrongly convicted or just window dressing, doing little to solve the systemic problems in the locale.

From the start, we expected that Yolo County’s would be the latter category.

This past weekend, I was reading a new book from Kyle Swenson which covered the exoneration of three men convicted of murder in 1975 and exonerated in 2015 – nearly 40 years later.  At the time, that was the longest wrongful incarceration in the nation resulting in exoneration.

Mr. Swenson writes of Conviction Integrity Units: “Although CIUs are popular, they can also be an empty gesture—ultimately ineffective window dressing. Of the fifteen CIUs open in 2014, only seven had produced exonerations. The other eight had yet to overturn convictions, including Cuyahoga County’s unit.”

Interestingly enough, that crop of CIUs from 2014 includes Yolo County.  In 2014, they opened their conviction integrity unit.

At the time, DA Jeff Reisig stated in a press release: “A prosecutor’s role is to ensure that our system achieves justice which includes not only convicting the guilty but also guaranteeing the protection of the innocent. The creation of this Unit helps us to obtain both of these goals.”

As the office explains, “This unit will be headed by an Assistant Chief Deputy District Attorney to review all claims of factual innocence made by persons who have been convicted of crimes.“

The release goes on to explain how the process will work: “The Unit will conduct an initial inquiry to determine whether further review or investigation is necessary. The Unit will review transcripts, evaluate forensic evidence in light of new scientific knowledge, conduct additional forensic tests, interview witnesses, or conduct any other investigation deemed necessary. This Conviction Integrity process supplements the appellate process already available to defendants and is designed to avoid the possibility of an innocent person being punished for a crime they did not commit.”

How effective has it been?  By last year, when we last requested records, they had only looked at six cases.  None even got a second level of review.  My friend who was doing research recently on CIUs told me yesterday that Yolo County’s CIU is one of the “fake” ones.

Compare that to the Conviction Integrity Units in Brooklyn and Houston.  In 2015 alone, the two combined to exonerate 58 people.  That is 58 out of the 149 exonerations in the country at just two units.

Mark Godsey, director of the Ohio Innocence Project which coincidentally helped to exonerate the individuals in Kyle Swenson’s book, writes in his own book:

“The CIUs in Brooklyn and Houston are, of course, a welcome and much-needed addition to the innocence movement. Combined with independent innocence organizations like my Ohio Innocence Project, they provide a blueprint for how we can eventually conquer the problem of wrongful convictions.

“But the failings of CIUs in other jurisdictions show that success in this area is hard to attain. Many of the other CIUs thus far appear to pay little more than lip service to the problem of wrongful convictions, because the prosecutors in charge seem understandably unable to move past their own psychological barriers to adequately reexamine old cases with a fresh eye.”

Yolo County’s CIU has not been one of the effective ones.  And that’s too bad because a good CIU could have freed some of the likely wrongfully convicted folks in Yolo County.

The Vanguard has identified at least 14 probable wrongful conviction cases in the past 13 years.  Fourteen.

Don’t believe me?  Well we are going to find out soon enough – perhaps even this week.

This week two of them will get hearings in Yolo County.  On Wednesday, James Olague will have a hearing under the new 1437 law barring felony murder as he tries to overturn his murder conviction as part of three co-defendants found guilty by a Yolo County jury of first degree murder and sentenced to life.

As we have been reporting, Ajay Dev is moving closer to an evidentiary hearing in his 2009 conviction.

In addition to those two cases, Ernesto Arellano also filed a motion under 1437 last week – although, based on the verdict in his case, he might not qualify, the public defender tells us.

Finally, while nothing has been set, Greg Zielesch, convicted in 2008 of conspiracy and murder related to the shooting of CHP Officer Andy Stevens, has also filed under 1437 to vacate at least the murder conviction.

Those are four of the probable wrongful convictions in Yolo County – people that could be helped by an effective CIU that objectively weighs claims of innocence and identifies problems in the prosecution’s case.

In the case of Ajay Dev, there is significant new evidence of innocence.  In the case in Cleveland covered in Mr. Swenson’s book, when the key witness recanted, the DA listening to the testimony decided to drop the opposition to a new trial and, once granted, dismissed the charges, allowing the men to be released after nearly 40 years.

But as we saw in the case of the three men convicted in Cleveland, justice moves slowly.  These men lost decades.  The four men we identify above have each been in prison for over a decade for crimes we do not believe they committed.

But the system is ill-equipped to deal with them properly.

As Mr. Swenson writes: “The American criminal justice system isn’t wired for claims of innocence.”

The most effective way to fix that is for the local prosecutor to find cases like these and do their own research to determine if they put the wrong people in prison.  Or, in the case of Ajay Dev, put a man in prison for a crime that never happened.

—David M. Greenwald reporting


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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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10 Comments

  1. Jim Hoch

    You seem to not understand Senate Bill 1437. People who are having their sentences reviewed were not “wrongfully convicted”. They may get a new sentence under a new standard but that does not imply in anyway that there was some failing in their original conviction.

    1. David Greenwald

      I do understand that SB 1437 eliminates the conviction for a felony murder and this would not constitute an exoneration. But it would provide a little justice for them nonetheless.

      1. Jim Hoch

        Then what is the connection between “14 probable wrongful conviction cases” and “On Wednesday, James Olague will have a hearing under the new 1437 law”?

         

        1. David Greenwald

          Should have fleshed out the point better but the failure of the system to deal with claims of innocence plus an update on where four of the 14 probable wrongful cases stand. Keep in mind that the Ajay case is likely to have an evidentiary hearing the same day on new claims of innocence.

  2. Jim Hoch

    I scanned this.

    https://www.leagle.com/decision/incaco20090407020

     

    I don’t see any obvious reason to believe that Olague is “wrongfully convicted”.

     

    I also read

    https://wronglyconvictedgroup.wordpress.com/2017/08/05/james-joseph-olague/

    Which seems to offer up the idea that he was wrongfully convicted because he said so.

    Since he was convicted of being involved in a crime where it would be reasonable to expect someone to die I don’t see how SB1437 will help him. Wait and see I guess.

    “At trial, the prosecution presented evidence supporting its theory that, although the Norteño and Sureño gangs were rivals, their members cooperated in committing these crimes because Arellano (a Norteño leader or “shot caller”) and nonparty Candelario Garza (a Sureño leader) cooperated in the sale of drugs in Woodland. Arellano (a Norteño) ordered the hit because victim Stepper (a Norteño) owed him money for drugs, and Arellano wanted to send a message to others who owed money and re-instill fear in the community. Christina Marten (a Norteño) brought Stepper to the place of attack. The shooter was Cervantes, who was not a gang member but who associated with Norteños, Sureños, and Crips. Stepper was the target, and the other victims were shot either because they were in the “kill zone” or because Cervantes intentionally shot them in an attempt to eliminate witnesses. Easlon (a Crips gang member3) acted as lookout. Arellano’s neighbor, Gilberto Lopez (a Sureño), was the getaway driver. Olague (a Sureño) was on the street at the time of the shooting to ensure that all participants did what they were supposed to do.”

    The bill reads

    “This bill would require a principal in a crime to act with malice aforethought to be convicted of murder except when the person was a participant in the perpetration or attempted perpetration of a specified felony in which a death occurred and the person was the actual killer, was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or the person was a major participant in the underlying felony and acted with reckless indifference to human life.”

    If he was convicted of managing the murder and the underlying conviction will not be reviewed I don’t see how a 1437 hearing will help him.  Why do you think he was wrongfully convicted?

  3. Eric Gelber

    I’m not sure how the number of exonerations, in itself, is a valid measure of the effectiveness of a CIU. The number of exonerations may be a reflection of the exercise of prosecutorial discretion in pursuing a criminal matter at all. How do we know, for example, that the high number of exonerations in Brooklyn and Houston is not more a result of the poor exercise of prosecutorial discretion at the outset in pursuing charges rather than the good job they are doing in re-examining resulting convictions?

    1. David Greenwald

      Eric – I wouldn’t go with number of exonerations as the valid measure either. Although in the case of Brooklyn and Houston, I would argue it’s a bit of both – the system was bad there, but what they created worked to help correct it. In the case of Yolo – six cases reviewed in five years, none elevated is a problem. Talking the guy from the Innocence Project, he apparently had a conversation with someone from Yolo and came away unimpressed.

      1. Jim Hoch

        I spoke to someone who spoke to someone else who once read The People’s Vanguard of Davis and was also “unimpressed”.

        What are you going to do about it?

    2. Jim Hoch

      Note also that Harris County and the Borough of Brooklyn must have more than 7,000,000 people and presumably a higher number of persecutions. Yolo County has 220,000 people so a number that was 50x-100x higher would be reasonable even if all else were equal.

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