Wrongful Convictions: National Picture

The release of men and women wrongly convicted of murder and other major crimes has become an almost weekly event in the United States — with no sign of that miscarriages of justice will end any time soon. Indeed, with critics of official misconduct muzzled by post 9-11 fervor and angst, there seems little likelihood that the causes of wrongful convictions will be pursued vigorously, and some indication that existing efforts to confront the problem — expanded DNA testing, death-penalty moratoriums, proposed legislation to regulate prosecutors — are faltering. The founding fathers questioned the actions and motives of law-enforcement authorities as acts of personal patriotism, as when Thomas Jefferson wrote in 1819, “The law is often but the tyrants’ will, and always so when it violates the rights of an individual;” now our leaders call such comments treason that protects the bad guys. Meanwhile, misconduct by police and prosecutors, mistakes by eye-witnesses, false (sometimes coerced) confessions and, most recently, a disregard for the Bill of Rights in pursuing anything the government claims is terrorism-related (see the extraordinary ruling by the secretive FISA court that reveals repeated falsehoods and civil rights violations by the feds), continue to lead to injustices and the imprisonment of innocents.

Some recent examples: In New York, a man named John Duval walked out of prison 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 story from the start. Two days after Duval’s release, 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 in 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.

In Florida, meanwhile, the state Supreme Court, after reversing several death sentences because of prosecutorial misconduct, issued an unprecedented warning to state prosecutors that it was fed up with ethical lapses in such high-profile, high-stakes cases. In freeing a Tampa man, Walter Ruiz, from a death sentence for a 1995 murder, the high court wrote that “this trial was permeated by egregious and inexcusable prosecutorial misconduct,” railing against the prosecutors on the case for trying to tilt the playing field in their favor through misstatements of the law, insulting the defendant, attempting to generate sympathy among jurors for their own personal tragedies, and introducing improper evidence. The high court said such transgressions had been occurring with “unacceptable frequency” in other death cases throughout Florida, and that something had to be done to protect the innocent from wrongful convictions.

This warning has yet to show an impact: In the summer of 2002, yet another man, Juan Robert Melendez, was released from death row in Florida when it was revealed that prosecutors had withheld critical evidence for eighteen years.

In Texas, meanwhile, prosecutors fought hard to uphold the death sentence of Calvin Burdine, despite the fact that his court-appointed attorney slept through much of his 1984 murder trial. The Texas courts ruled there was no problem with executing a man whose attorney did little more than snore, but a federal appeals court felt something a little more might be at stake — such as basic constitutional rights. Burdine must now either be retried or set free; the US Supreme Court refused to hear an appeal from Texas prosecutors who insisted he should be put to death anyway. Concerns that President Bush and his administration seem unconcerned with constitutional rights and guarantees — as with the secret detentions that followed 9-11, the government’s refusal to obey court orders to open immigration hearings to the public, and the administration’s repeated refusals to disclose public records about secret meetings with Enron officials — need only look at the Burdine case. It was then-Texas Governor George W. Bush who refused the man’s pleas for clemency.

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Wrongful Convictions: Kern County

Meanwhile, the overturned convictions and allegations of misconduct continue to mount in Kern County.

In May 1999, after fifteen years in prison, Jeffrey Modahl was released, yet another victim of the Bakersfield Witch Hunt, convicted because of the misconduct of authorities and 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. Serious allegations of hidden evidence and false testimony by Kern County officials were raised in the case — yet prosecutors inside and outside the community have shown no interest in holding the culprits accountable.

The following year, four more men were released from prison because of misconduct by prosecutors or investigators — including two other Witchhunt cases (once again, it was alleged, the authorities hid critical evidence and coerced witnesses, though the local newspaper characteristically soft-pedaled these allegations by calling a crucial missing medical report, obtained by Kern County authorities and kept from defendants for sixteen years, “late surfacing"). Also overturned were yet another murder case, and the conviction of a local parolee advocate, Jerome Valenta, who was imprisoned for tape recording conversations with sheriff’s deputies. He got an unprecedented seven years in prison, but one his freedom by proving, among other things, that he was the victim of gross prosecutorial misconduct. In several other cases, evidence that favors defendants were found to have been kept secret by prosecutors, requiring dismissals and mistrials — exactly the sort of problems at the heart of the case against Pat Dunn, the principal character of Mean Justice.

Click here for the Kern County District Attorney’s response to Mean Justice and author Edward Humes’ reply.

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Mean Justice Reaction

The publication of Mean Justice created a firestorm in Bakersfield, its principal setting, that soon spread as the subject of wrongful convictions and prosecutorial misconduct became of greater interest nationwide. Kern County District Attorney Ed Jagels had refused to cooperate or comment prior to Mean Justice’s publication, but once it appeared in February 1999, however, Jagels broke his silence, launching a series of television and newspaper interviews in which he angrily denied any wrongdoing by his office in the Dunn case or any other.

The legal reasons for his previous unwillingness to comment — that it would be improper to speak about pending cases (though none were pending) was conveniently forgotten. Jagels opined that the evidence of wrongful prosecution contained in Mean Justice was “fantasy” and “sheer, unadulterated bull.” He offered few specific rebuttals, preferring instead to make sweeping condemnations, such as his view that the book showed “contempt for the victims’ movement, contempt for... a law-enforcement-oriented community like ours... (and) a sneering L.A. view of Kern County.”

The District Attorney got specific in one interview, however, when he assured the citizens of Kern County that his office would never rely on an informant like Jerry Lee Coble unless prosecutors were certain he was being truthful. “We don’t use an informant or make a deal with him,” Jagels vowed, “unless he saw something, unless his statement is something that he could not have known unless he was actually there and is actually telling the truth.”

If this is the practice of the Kern County District Attorney when dealing with informants, it would be a model policy, one that would greatly reduce instances of propitious lying by informants anxious to bargain testimony for freedom. But, notwithstanding Jagels’ assurances, no such policy was in evidence in the Dunn case. Sheriff’s reports and trial testimony show that informant and three-time-felon Jerry Coble’s “eyewitness” account of inadvertently witnessing Pat dispose of Sandy’s body contained no such corroborating information — there were none of the telling details Jagels promised, none of those “he-had-to-have-been-there” hallmarks of a truthful witness, none of the proof the D.A. said he required before cutting a deal with a crook. Indeed, Coble’s account contained errors and omissions that should not have been there had he actually been present to see Pat hurling his wife’s body into the back of a pickup truck, yet Jagels’ office still bargained away a prison sentence in exchange for Coble’s testimony.

Although few who saw Jagels’ angry words on the nightly news knew enough about the Dunn case to recognize the misinformation, the truth about Jerry Coble was exactly the opposite of what District Attorney Jagels claimed it to be: The record in the Dunn case shows no official attempt at all to corroborate Jerry Coble’s story. Coble’s tale was taken at face value and embraced as a means of making an arrest in the murder of Sandy Dunn — the “turning point” in the investigation, as Detective John Soliz saw it — despite the fact that Soliz’s own colleagues at the sheriff’s department had previously rejected the heroin-addicted felon as unreliable when he first offered to work as an informant.

District Attorney Jagels next responded to the serious issues raised in the book by hiring a private polling firm, which reported that the D.A. remained very popular in Kern County despite the publication of Mean Justice. The poll purported to show that most voters did not believe wrongful prosecutions were a problem. One of the poll respondents later contacted the local newspaper to assert that the pollster’s questions were biased and slanted to produce results favorable to the District Attorney. Those polled, for the most part, had not read the book, and only had a distorted summary provided them by the pollster — who was paid through Jagels’ campaign funds.

In July 1999, five months after the initial publication of Mean Justice and more than two years after Jagels was first asked to respond to questions raised during the course of research for the book, the Kern County District Attorney issued a 154-page report entitled Junk Journalism. The report purported to correct “factual errors and distortions” in Mean Justice, but it consisted primarily of a rehash of the prosecution’s original case in People vs. Dunn, and failed to respond directly to most key issues raised in the book.

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Pat Dunn’s Appeals

While the D.A. spoke out, Gary Pohlson, Pat Dunn’s old trial lawyer, found in the initial publication of Mean Justice the ammunition he needed to launch a last-ditch round of appeals. With the help of law clerk Mike Turrell, Pohlson — who was not being paid by his penniless client but who still believed in his innocence — filed a new writ of habeas corpus in March 1999. The writ demanded that the murder conviction be overturned, alleging that the trial had been infected by official misconduct, the hiding of evidence favorable to the defense and damaging to the prosecution, false testimony by Jerry Coble, and other problems that rendered the verdict unfair.

The case landed back on the desk of Judge Robert Baca, who had presided over the trial six years earlier, retired now but still hearing cases from time to time. Baca ordered both the D.A. and the Kern County Sheriff to respond separately to the allegations of misconduct, setting in motion a long and uncertain process that could lead to Pat Dunn’s freedom, or seal his fate for good — all the while leaving him to wonder just how much life would be left to him should he succeed in prying open his prison cell door. Baca ultimately denied Dunn’s petition, and it is now winding through the appeals courts.

There are no guarantees Pat Dunn will ever see freedom, he knows. As has been the case with so many others in his position, proof suggestive of innocence may not be enough to set him free. It is fairness, not innocence, that is at issue: He must prove that the authorities behaved so badly in his case that justice can be served only by wiping his conviction from the books. And this is something that the Kern County D.A. simply cannot abide. Ed Jagels has fought such findings long and hard in all the other cases of wrongful prosecution and conviction that have emanated from his county. He has never admitted a serious error in those cases, even when they were overturned and led to severe criticism of his office.

Such is the power of prosecutors that it would be a simple matter for the Kern County District Attorney to engineer Pat Dunn’s freedom, or at least grant him a new trial. With Jagels’ assent, this could be accomplished in a matter of days, without the protracted litigation that otherwise will be required, with uncertain results. But the district attorney has opposed overturning the Dunn case with the same trademark ferocity he has always relied upon, using all his considerable power, credibility and ability to persuade the people of Bakersfield, who have so long trusted him as their guardian of public safety.

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The Death of Pat Dunn’s Son At the Hands of Sheriff’s Deputies

As Pat Dunn prepared to launch one last bid for freedom, police officers were called to investigate a disturbance at an apartment building in Bakersfield. They found a man, cut, bruised and disoriented, standing in his underwear on his second-story porch. He was thirty-seven years old but he looked older to the officers, aged by a troubled life of minor crimes, mental illness, problem drinking and drug abuse. “What’s your name?” one of the cops called out as the man swayed and shuffled at his porch rail.

“Danny,” he yelled back, his voice slurred. “Danny Dunn.”

Here was Pat Dunn’s long-estranged son, still spiraling downward, sick and in trouble again, seemingly drunk. The officers didn’t know he had been in a bicycle accident half a day earlier. They didn’t know he had suffered a concussion, confirmed by head scans, but that he had fled the hospital before he could be treated. With his wobbly gait, slurred speech and confused behavior, Danny Dunn appeared intoxicated to the officers (though blood tests would later disprove this — he apparently was disoriented from his head injury). Fearing for his safety as he stood unsteadily on his upstairs porch, the policemen decided to make a misdemeanor public intoxication arrest.

After letting him get dressed, the officers brought Danny Dunn to the county jail, which is run by the Kern County Sheriff, so that he could “sleep it off.” Because he was said to have both AIDS and hepatitis, the detention officers at the jail were wary of touching him, wearing gloves whenever they were forced to have contact with him. Jail records make it clear they viewed him with distaste; though the Bakersfield city police officers who made the arrest reported him to be quiet and cooperative, the sheriff’s department would report that he was combative and abusive, requiring physical restraints and imprisonment in an isolation cell. He was also observed to be delusional.

Shortly after one in the morning on February 19, 1999, two detention officers at the jail went to the isolation cell because, they would later report, Danny Dunn was yelling and banging the door. When the officers opened the cell, however, they found their prisoner lying quietly on the floor. When he tried to get up, one of the officers pushed him back down with his boot. A struggle ensued. More detention officers came. Pepper spray and carotid holds that block blood flow to the brain through pressure to blood vessels in the neck were used. Then he was dragged out into the cellblock hallway and placed in leg irons. When it was over, Danny Dunn was dead. His last words, screamed after he was doused with a searing shot of pepper spray to the face that brought him to his knees, were, “It burns, it burns!”

That same day, February 19, was the publication date of Mean Justice. At a hastily called press conference, the Kern County Sheriff volunteered the observation — without being asked — that Danny Dunn’s treatment in the jail had nothing to do with “that book” or its criticisms of the sheriff’s department and county prosecutors who led the investigation of Danny’s father, Pat.

Afterward, jail officers denied striking Danny during their struggle, saying they only used “pressure” to restrain him as he writhed and aimed wild kicks at them. None of the jail officers were injured. An autopsy would show the thin, pale son of Pat and Nancy Dunn died of massive internal bleeding. He had a broken rib, bruised chest and abdomen, and a badly lacerated liver. A lifetime of excessive drinking may have made the liver particularly vulnerable to injury, it was reported. The coroner’s office — part of the sheriff’s department — determined the fatal injuries occurred during the struggle with officers, but that the death itself was accidental.

It is a finding that has left Danny’s family, particularly his mother, Nancy Dunn, livid. She does not understand why her injured and delusional son was jailed instead of given medical treatment. She does not understand why a man in an isolation cell, designed to muffle noise and prevent him from harming himself or others, had to be restrained by three deputies using their leather boots, caustic spray and choke holds. She finds it hard to accept the notion that a mere accident could have injured her son’s liver so badly that it was nearly cut in half by the force of the trauma he suffered. She knows that x-rays taken after his bicycle accident showed no broken ribs, but that his autopsy showed one rib had been shattered — and that the break was located in a position that could have caused his liver injury. She fears Danny might have been targeted for revenge and abuse in the jail, either because of a just-published book in which the Dunn name figured prominently, or because Danny exposed deputies to AIDS, or simply because he mouthed off too much, which even she concedes would not be unusual for Danny. She wants — needs — to know the truth of this. If the tragedy unfolded as the sheriff’s department claims and the detention officers are blameless, Nancy Dunn says, let that be determined by an outside, independent investigation. Nothing else will satisfy the family.

But there has been no outside investigation of the circumstances surrounding Danny Dunn’s demise, and none is likely, unless his mother decides to sue and launches her own investigation, a daunting prospect on her high school counselor’s salary. Only one agency has examined what happened at the jail that night: The Kern County Sheriff’s Department. The same sheriff’s department that investigated Pat Dunn for murder — an investigation riddled with mistakes and miscues — and that had custody and control of Danny Dunn when he died, also investigated the younger Dunn’s death, then cleared itself of any wrongdoing. (Click here for a Fresno Bee article on Danny Dunn’s death.)

In October 2000, a year and a half after Danny Dunn’s death, his wearied mother decided she had to get on with her life and dropped her lawsuit against Kern County in exchange for a $65,000 settlement. No admission of liability, wrongdoing or error accompanied the settlement. As is typical in this community, which seems to rally around its law-enforcement officials no matter their conduct, news coverage in Bakersfield was one-sided and included only the county’s version of events — providing the official counter argument to allegations that Dunn was killed through excessive force without even mentioning the evidence cited by Dunn’s family in support of their claims.

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New Evidence in the Dunn Case

In April 1999, as prosecutors drew up legal briefs opposing Pat Dunn’s bid for freedom, his friend and former business partner, Rex Martin, received an unexpected telephone call. The caller offered something that had eluded the defense team for six years. He provided seemingly irrefutable corroboration of the central theme of Pat Dunn’s defense — that he had been framed by a convict desperate to avoid his own prison sentence.

At the trial, Rex Martin had been a key witness on this point, claiming to have witnessed Jerry Lee Coble casing Pat’s house in the weeks after Sandy’s murder. Rex swore he followed Coble, memorized his description, and wrote down his license plate number some three or four weeks after Sandy vanished to give to the sheriff’s department. The defense had argued this occasion marked the first time Coble ever visited the Dunns’ neighborhood, a reconnaissance mission that enabled the informant to construct a phony eyewitness account, which he then used as a bargaining chip to negotiate his plea bargain. But Coble swore the only time he passed by the Dunn house was on the night of the murder. Detective Soliz denied being told about the license number. And Deputy District Attorney John Somers stood up before the jury and branded Rex Martin a liar with a financial motive to concoct a cover story for his friend. The jury went with Somers’ version of events; Rex left the courtroom livid, his faith in law enforcement shattered.

Six years later, his voice still shook with the memory of it as his life-long friend, Bob Patterson, spoke to him on the phone and asked him to recall the events surrounding the trial. Patterson had just finished reading Mean Justice, he told Rex. One passage in particular caught his attention: the one about a curious defense discovery that went nowhere, that Department of Motor Vehicles printout on Coble’s license number, created at the Bakersfield Police Department right around the time Coble was seen outside Pat’s house.

“You know who ran that license number, don’t you?” Patterson asked his friend. And when Rex, puzzled by the question, had no answer, Patterson said, “It was me.”

At the time of the Dunn murder and trial, Bob Patterson was Bakersfield’s chief of police, one of the most respected figures in law enforcement in his community. He had since retired. “Don’t you remember?” he continued, “You wanted to know if that might be an unmarked police car hanging around outside Dunn’s house, so you asked me to check it out.”

And with that, Rex did remember. He had forgotten all about it, mostly because it seemed so insignificant at the time, and because another friend, a retired sheriff’s deputy, had promised to pursue the matter — something that was explored in-depth at the trial. The occasion was easy to forget because Rex had never heard back from Patterson. The former chief explained he had never said anything about it at the time because the mysterious green car Rex followed came back registered to an ordinary citizen — Coble’s mother. The chief dismissed it at the time as not worth mentioning to Rex and he, too, had forgotten all about it. After all, Coble’s role in the case would not be known to Pat or anyone else for months. Patterson’s city police department had nothing to do with the investigation of Sandy’s murder — that was a county sheriff’s case, completely separate. By the time Pat’s trial rolled around, Rex and Patterson forgot all about their inquiry into the car registration — until the book jogged Patterson’s memory.

“I have no doubt whatsoever that Rex was telling the truth when he testified he saw Coble,” Patterson says now. “Because he told me all about it at the time.”

With the computer printout backing him up, Patterson’s recollection puts the defense case in an entirely new light. Bob Patterson is not only a veteran investigator and police chief, with an impeccable record — he’s a personal friend of District Attorney Ed Jagels. Prosecutors could never brand him a liar as they did with Rex Martin, nor could they challenge his recollection of the date in question, because the computer printout he requested is dated: July 27, nearly four weeks after Sandy disappeared, exactly when Rex recalled following Coble. Deputy D.A. Somers and Detective Soliz, who had argued that the motor vehicle printout was meaningless, were mistaken. The printout proves there is no way the incident outside Pat’s house could have been concocted, as Somers exhorted jurors to conclude in convicting Pat Dunn. Jerry Coble did stalk Pat Dunn. Then he denied it in court.

With that one phone call, the defense had been given tangible proof to back up their theory that Pat Dunn had been framed.

Nothing, it seems, is ever final in the case of the People vs. Patrick O. Dunn.

His appeal is now before the federal courts.

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