Yolo County Jury Quickly Convicts Man of Burglary Despite Heavily Circumstantial Case

Despite these convictions, Mr. Barrientos still likely faces probation, given his age at the time of the crime and his lack of priors.  Nevertheless, his conviction was based entirely on circumstantial evidence, most of the pieces extremely flawed to the point where Deputy DA Sulaiman Tokhi suggested that the defense would be that he is the most unlucky person around.

The lady said no and thought it to be an odd question, considering it was a school day just before noon and her 11-year-old daughter would not be home.

As the lady left for work, she left the bathroom window partially open, and walked out surprised to see the girl still out there in a red SUV.  She also saw a young man with facial hair in the SUV, sitting in the passenger seat.

She was called home later that day to find that her home had been burglarized.  Police were able to lift four fingerprints from the window the burglars entered, and one of those, a partial left palm print, was found to be a match with Oscar Barrientos.

West Sacramento Police Detective Michelle Tate took the photo to the woman and she apparently identified the man in the photo as the man she saw outside of her house.

Detective Tate called the defendant and he returned her call and agreed to go to the police station to meet with the detective in January 2009.

He denied everything, including having gone to West Sacramento and knowing anyone in West Sacramento.  DDA Tokhi argued that he was lying at this point, that he was seen in West Sacramento in May of 2009 and his girlfriend lived on the same street as the home of the victim.

That is the sum total of the prosecution’s case.

Public Defender Amber Poston attacked the crux of the case, however.  She argued in her opening statement that while this case looked like a perfect diamond, closer inspection reveals numerous flaws.

First, there were no prints found inside of the house.  Second, the Detective made no effort to canvass the neighborhood looking for the red SUV.

Moreover, the photo identification was improper.  Detective Tate called the victim and told her she was bringing a photo of the person whose prints were found on the outside window.  She only brought a single photo and had completely contaminated the eyewitness evidence.

Despite this, the victim testified that she was only 7 or 8, out of 10, sure of the identification and as we previously reported, she was unable in the previous trial to identify him in the courtroom as the person she saw outside of her home.

One of the more interesting questions would be, given the last trial and the mistrial, how the victim would testify.  In the previous trial, she stunned DDA Tokhi by failing to identify Mr. Barrientos in court as the man she had seen outside of her home. 

Would she be coached?  No, she testified as she had previously.  However, this time the DA was prepared for the response and sought to minimize it by arguing that the passage of time and the changing appearance played a role and that the 80 to 90 percent identification originally was the most important evidence.

Among the more interesting exchanges was the testimony of Department of Justice analyst Kumar who had performed the analysis of the fingerprints.  This was the key evidence in the case that conclusively linked Mr. Barrientos to the burglarized home.

However, as Public Defender Amber Poston would demonstrate, fingerprint evidence is not the rock-solid scientific evidence that many would claim.

There are two key problems with the “science.”  First, while the computer pulls up possible matches, a human must make the identification.  Second, in the US there is no accepted standard for fingerprint analysis.

Mr. Kumar told the jury that the way they do it at the DOJ is that they use a standard of 8 points of identification (other nations use 16 points).  He found 21 points of identification here and proclaimed that he had no doubt that the known print and the latent print lifted from the window were left by the same individual.

He also told the jury that another analyst has to verify the work and if there is a discrepancy, a supervisor has to examine it.

Under cross-examination he testified that he has never had another analyst disagree with his work.  That he has never disagreed with another analyst’s work.  That he was not aware of any disagreements ever at the DOJ about the identification of fingerprints.

He testified that the error rate is zero, according to his knowledge, and that his office has never made an error.

Ms. Poston then brought up research performed by the National Academy of Sciences, which classifies fingerprint analysis, especially that in the US, as flawed.

There is, of course, the famous case of the Madrid Subway bomber, where a fingerprint falsely brought up the identity of a US man as a possible suspect, which had to be discarded after it was proved he had never been out of the country.

She brought up a study where there were 10 known samples that were sent to experts across the globe and they were asked to identify the print.  There was no consistency, across the board.

Other studies have shown a poor regard for the US not having a national standard.  There are a number of known cases of wrongful ID where individuals have been exonerated through DNA testing.

Another report concluded that fingerprint identification should not be called a science, and furthermore, undermining the witness’ argument, the claim that there is no error rate is not based in science.  All science has a known error rate.

In a response to a jury question, we learned that the DOJ does not do an independent review.  The second analyst examines the identification that the first analyst has made, rather than doing the analysis from scratch.

The defense also questioned whether Mr. Barrientos could have been in West Sacramento at this time.  Several family members testified to the cancer that Mr. Barrientos’ father had in October 2008 and argued that Mr. Barrientos was taking case of his brother’s two-year-old child all of October, because his mother, who normally cared for her grandchild, was helping with his father.

Detective Tate came back to testify that when she called in January 2009, Mr. Barrientos’ sister said that he just slept there and that she would give him the message.  Mr. Barrientos would call back 15 minutes later.

In his closing arguments, Mr. Tokhi tried to restore the confidence in Mr. Kumar’s fingerprint testimony.  He argued that Mr. Barrientos must be the most unlucky man alive to have been pulled up a match for the fingerprint as he knows people on the same block, he has been seen there, he lies about it, and that Mr. Kumar with 18 years of experience has no doubt about the identification.

Then he focused on what he called the Big Lie.  When the defendant came in to talk to Detective Tate he first said that he didn’t know what the hell she was talking about.  Then he told her he had never been to West Sacramento and that he did not know anyone from West Sacramento.

A few months later he was seen a few blocks away from the scene of the crime and his girlfriend lived in West Sacramento.

Mr. Tokhi also attempted to minimize the lack of certain identification, based on three years’ passage and differing appearances.

In her closing, Ms. Poston hammered again on the lack of scientific foundation behind fingerprint analysis.  She argued that, given the fact that humans have to make the identification, there is no possibility that there can be no errors ever, and therefore Mr. Kumar’s testimony and knowledge is questionable.

During his closing statement, Mr. Tokhi made much about the fact that Mr. Barrientos launched into a profanity-laced defense of himself when he was interviewed by Detective Tate.  He argued time after time she gave him possible outs, and he never took those outs.

However, Ms. Poston would point out first the flaws in the photo line up, and then pointed out that the first question was asking him about the burglary and asking what he knew about it.  She argued this was an interrogation not an interview.  It lasted 15 minutes and the detective used every technique she had, but the defendant remained adamant that he had nothing to do with it.

The detective, Ms. Poston argued, was not giving him outs, she was trying to get him to confess.

In his rebuttal, Mr. Tokhi pointed out that, despite all of the claims to the contrary, there was no re-testing done by Ms. Poston with the fingerprints.  Ms. Poston would object that this was an improper burden shifting, it was not the defense’s obligation to re-test this evidence, that she only has the burden of taking the known record and calling it to question.

Judge Mock, however, overruled her on this key point.

The sum total of the prosecution’s case is that Mr. Barrientos was seen in the car out front prior to the burglary.  There are problems with that evidence as the woman was only partly sure of the identification and even her daughter, who was doing the translating, acknowledged that she had said she could not clearly see the face and was only 5 out of 10 sure about the identification.  However, each time she testified that number went up.

There is the fingerprint outside of the window which Mr. Tokhi argued was enough to prove entry.

There was the lie that Mr. Barrientos told about not having been to West Sacramento and the fact that his girlfriend was on the same block.

But what there is not is evidence that Mr. Barrientos was in the residence.  There were no fingerprints found inside.  None of the stolen objects were ever recovered.  So there is no evidence that Mr. Barrientos had illegally acquired or taken property.

Mr. Tokhi may be correct about the law with regard to burglary, which is merely the entry into a dwelling with the intent of committing a crime.  However, Judge Mock outside the presence of the jury said that the fingerprint does not matter if they can show Mr. Barrientos was not in West Sacramento.

A lot was made about the comment by Detective Tate that the sister said that he just slept there.  Mr. Tokhi, in his closing statement, also argued that the mother did not say that she had been taking care of the father.

But no one pointed out the obvious, that the family had testified that the surgery took place in October and that he spent all of October taking care of his brother’s child.  Detective Tate did not call until January.

As Ms. Poston argued, there are two explanations here.  One is that he is the most unlucky man.  The other is that there simply is just not enough evidence here – in part due to shoddy police work – to show that he had entered the residence and acquired the property.

—David M. Greenwald reporting