Packed House Watches Judicial Watch Program on Wrongful Convictions

On November 3, 2011, 285 people packed the Yolo Judicial Watch Fundraiser and Awards Ceremony to listen to a night about wrongful convictions highlighted by Maurice Caldwell, an individual who spent 20 years in prison for a crime he did not commit, and Linda Starr from the Innocence Project, one of the attorneys that helped to free him.

Wrongful convictions, in a lot of ways, is really what Yolo Judicial Watch is all about at the end – whether it results from plea agreements, overcharging, or flat-out wrongful convictions by the district attorney.

As the night began, I related the story of Don Cabana, the former warden at Mississippi State Penitentiary, known as Parchman, who in an interview many years afterwards, shared what had happened at the execution of Edward Earl Johnson.

In the clip, Mr. Cabana says, “Edward, it’s not important for you to confess to this crime, it’s not important that anybody here in this room hears the truth. The only thing that’s important is that you let your maker, your God, know the truth and you be at peace with him.”

Edward looked at the warden and very calmly said, “Warden, I’m at peace with my God; how are you going to be with yours?”

Warden Cabana has come to believe that Edward Earl Johnson was innocent of the crime for which he was executed.

One of the things we learned in 2010 when we began Yolo Judicial Watch as a court watch project, with an army of interns, monitoring and reporting on problems within Yolo County Courts, is that Yolo County’s problems are a manifestation of the problems in the judicial system overall.

The worst part about a wrongful conviction is that it turns everyone into a victim – people like Don Cabana, who have to live with the consequences from wrongful executions, and people like Maurice Caldwell who were robbed of years of their lives. Also, the victims of the crimes do not get the justice they deserve, and in the case of Maurice Caldwell, the actual killer went on to kill another innocent life.

In addition to great speeches, the evening was also about honoring people in our community and elsewhere who are fighting the good fight.

We honored Alana de Hinojosa for having the courage to stand up for her right to protect confidential sources in the incident that occurred at Davis High School.  She was not able to attend the event, attending Hampshire College this fall as a freshman.

However, her mother Evelina Hinojosa accepted the Vanguard award in her place.  She said that Ms. Hinojosa’s father had told her that this incident, while frightening and frustrating, would be something she would look back on with pride.  She said that this award and honor is helping her to realize that good has come from what could have been a dark moment in her life.

The Vanguard also honored Mark Merin for his work fighting against the Gang Injunction in West Sacramento, along with a lifetime of fighting for social justice causes.

Cruz Reynoso was honored for his lifetime of work for social justice, as well, in particular his advocacy for Luis Gutierrez, to ensure that justice was done in his case and to uncover the truth about his shooting death in 2009.  Natalie Wormeli was honored for her work with the Yolo County ACLU and her fight for social justice.

One person who was honored, not from our immediate community, was Michael Romano.  County Supervisor Jim Provenza, in presenting the award to Mr. Romano, noted that he had first come in contact with him through the work of Steve Cooley, who as District Attorney in Los Angeles was looking for reforms to Three Strikes to ensure that cases where someone stealing cheese for their third strike did not receive a lifetime sentence.

Mr. Romano heads up the Stanford Three Strikes Project, which represents defendants charged under the Three Strikes law with minor, non-violent felonies.  Mr. Romano, in his acceptance speech, noted a case where he has failed, where he had the former judge and the former prosecutor all saying the decision was a mistake and they still have not been able to get the defendant out of prison.

Currently, Stanford Law professors are working on an initiative that would limit the Three Strikes law, by allowing hard-core criminals including murderers, rapists and child molesters, to be put away for life for any felony, including shoplifting, while restricting the third strike to a serious or violent felony for everyone else.

Finally, London Biggs, a staffer for Senator Mark Leno, accepted the Vanguard Legislator of the Year Award on behalf of her boss for his work in getting the passage of a new law that ensures that a defendant cannot be convicted based solely on the uncorroborated testimony of an in-custody informant.  A law that might have prevented the conviction and execution of Troy Davis, recently executed.

Ms. Biggs read prepared remarks from Senator Leno, who had tried very hard to make it to the event.

“As the former Chair of both the Assembly and Senate Public Safety Committees, I am passionate about policies that secure the integrity of our justice system,” he said.

He wrote, “Senate Bill 687 was authored to improve the quality of evidence presented at criminal trials. It creates higher standards for the use of uncorroborated testimony from informants who are already prison inmates. This will help judges and juries make more informed decisions about testimony that could be motivated by a desire for better confinement conditions or other incentives.”

“Without the safeguards created in SB 687, the potential for the miscarriage of justice when informant testimony is involved is just too high. SB 687 will reduce the number of wrongful convictions in California and ensure that no person loses life or liberty based solely on the uncorroborated testimony of a jailhouse informant,” he said.

“I offer my heartfelt congratulations to the other honorees and speakers tonight – Linda Starr, Maurice Caldwell, Natasha Minsker, and Tracie Olson. Your tireless dedication to social justice serves as an inspiration to us all,” he continued, “I am honored by your recognition and will continue to fight to secure integrity in our judicial system.”

We were honored to have Yolo County Public Defender Tracie Olson speak to this issue of wrongful convictions, from both a local perspective and also the perspective of a defense attorney.

As I noted in my remarks, a strong system of indigent defense, which we have in Yolo County, is the first line of defense against wrongful convictions.

As the ACLU writes, “The Sixth Amendment guarantees every person accused of a crime the right to an attorney for his or her defense, regardless of ability to pay, and the Fourteenth Amendment guarantees all citizens equal rights regardless of race or national origin. Yet all too often, these rights are violated by indigent defense systems that leave low-income people, including many people of color, without adequate representation.”

Fortunately, as I noted, this is not among the problems facing defendants in Yolo County.

Ms. Olson opened many people’s eyes, talking about how plea bargaining leads to wrongful convictions.

“You might think how could plea bargaining result in wrongful convictions?” she asked rhetorically.  “Isn’t that what defense attorneys are for – to make sure not only that a defendant doesn’t get CONVICTED of a crime he didn’t commit but surely to make sure a defendant doesn’t PLEAD to a crime he didn’t commit!”

“Ideally, yes,” she said.  “But OUR criminal justice system is not ideal.  Our System is Flawed.”

She gave the example of the Alford Plea, known because Henry Alford was accused of murder and faced the death penalty, where enough evidence existed that could possibly have been enough to cause a jury to convict him.

“The evidence was strong but Henry said he was innocent.  Henry, however, pled guilty to a charge of 2^nd degree murder in order to avoid the death penalty,” she said.  “Of course, I don’t know as I stand here today whether or not Henry was actually innocent.  However, I’ve been a criminal defense attorney in Yolo County since 1998, and I truly believe that innocent people have taken pleas because they felt they were in a situation like Henry’s.”

She said, “Just because the system allows the innocent to plead guilty doesn’t mean that we should tolerate a system that makes it easy to do so…  And that’s the type of system we currently have.”

She said, there is a long-standing joke that she has been told, … “Innocence is only a factor in mitigation.”

“Jokes are sometimes revealing,” she said.  “Justice is not served when defendants are leveraged into plea bargains.  Forcing a defendant to choose between pleading to a crime he did not commit or going to trial and risking a draconian result is not the path to ascertaining the truth.”

“If the current system is not delivering the Justice that you as citizens expect, change the system,” she concluded.

Natasha Minsker is the Death Penalty Policy Director for the Northern California ACLU.

“Innocent people are wrongfully convicted every day in this country and innocent people continue to face execution,” Ms. Minsker said.

“Just a few years ago, Texas executed Cameron Todd Willingham even though experts now agree that he was innocent of the crime he was convicted,” she continued.  “Millions of people around the world believe Troy Davis was innocent when he was executed by the State of Georgia.”

The SAFE California campaign is collecting signatures to put the death penalty initiative on the ballot for next November, and Ms. Minsker was able to get over 100 signatures to benefit that effort at our event.

The feature presentation of the night was by Linda Starr, Legal Director of Northern California Innocence Project.  She presented the case about Maurice Caldwell, who was our featured speaker relating his experience to the overall cause.

There were a few things that struck me in what Mr. Caldwell had to say.  He said that he was blown away by the interest in this subject.  While he was in prison, he had no idea that people cared this much about our justice system.

Just over six months ago, 43-year-old Maurice Caldwell walked out of the San Francisco Jail a free man, for the first time since his conviction of second-degree murder in a fatal shooting of an individual named Judy Acosta at the Alemany Public Housing Project on June 30, 1990.

Linda Starr us walked through Mr. Caldwell’s case.  Ms. Starr said that a single eyewitness identified Mr. Caldwell, his next door neighbor, Mary Cobb.  The police had no leads until an anonymous call told police to consider Maurice Caldwell.  Ms. Cobb told police that she had seen the entire thing, she saw two men, one with a handgun and one with a shotgun.

She claimed to have seen the shooting from her bedroom window.  She initially told the police that the shooters did not live in the area and she did not know their names or nicknames, but she recognized them because they came around to buy drugs.  However, Mr. Caldwell had lived next door to her months.

Two weeks after Mr. Caldwell was taken to her door, Ms. Cobbs identified Mr. Caldwell from a 6-pack as the shotgun shooter, and told police his nickname was “Twone.”

She was then moved out of the project – she was a single mother with two children and, in exchange for this testimony, they relocated her to a new apartment.  She would also apparently receive a key to the city and a trip to Disneyland.

The DA knew of one of the actual shooters, Marritte Funches, at the time of trial.  Mr. Funches was never investigated, never looked for, and never spoken with.  Three months after the murder, Mr. Funches fled to Nevada, where he shot and killed a cab driver.  Mr. Funches is currently serving a life sentence without possibility of parole in Nevada for that homicide.

A jury found Mr. Caldwell guilty of second degree murder, attempted murder, felony discharge of a firearm into an occupied vehicle, and the related enhancements.

He received a sentence of 27 years to life.  While that conviction was affirmed, he never gave up.  He wrote letters to the San Francisco Public Defender’s office and the Northern California Innocence Project and both entities began to investigate his case.

In 2008, Marritte Funches confessed to the murder and swore that Mr. Caldwell was not involved.

In his letter he said, “The truth is I do not care about Mr. Caldwell.  He is a rat!  If not for him I would not be here today.”  But he added, “I was willing to help you in the beginning on principle.  Mr. Caldwell is innocent.  He didn’t have any thing to do with what happened that night.”

As Linda Starr noted, “Mr. Funches’ confession also made him eligible for the death penalty should the DA choose to charge him with the murder of Judy Acosta.”

So why would Mr. Funches decide to tell the truth?  He wrote, “I was wrong saying there’s no way for me to benefit from this.  Just as Twone [Maurice Caldwell] is fighting for his freedom.  I am fighting for my humanity.  To redeem my soul.  And you are helping me to do that.”

In 2009, NCIP obtained a declaration from Marcus Mendez, who saw Mr. Caldwell running toward the shooting, empty-handed, after the shots.

In 2009 and 2010, NCIP located Maurice Tolliver and Demetrius Jones, who both had seen the incident. Both provided declarations and named Henry Martin as the shotgun shooter and Funches as the handgun shooter.  NCIP spoke to Henry Martin – who said that Mr. Caldwell was innocent, but was not willing to admit to anything without a guarantee of immunity.

According to Ms. Starr, the trial attorney admitted in a signed declaration that: “He did not hire an investigator to work on this case; he knew of Marritte Funches and his alleged involvement in the shooting, but did not speak with him; he never interviewed Mary Cobbs or questioned her about her identification of Mr. Caldwell; he never went to the scene of the crime to investigate.”

“On February 18, 2009 the NCIP filed a writ of habeas corpus alleging newly-discovered evidence, ineffective assistance of counsel, actual innocence, and false testimony,” Ms. Star said.  “The DA requested EIGHT extensions of time to file a response.  Over NCIP’s objections, the first seven requests for extensions were granted. The eighth request was denied on August 19, 2010.”

“On September 20, 2010 the DA filed a late response, over a year after the court issued an Order to Show Cause,” she said.

The court noted the late filing but considered it anyway, stating, “The court finds the delay in filing the return to be egregious, and possibly deserving of sanctions.  However, the petitioner has been convicted of murder and the safety of the public is at stake.”

They decided to retry Mr. Caldwell with a public defender as trial counsel and Paige Kaneb of NCIP as assistant counsel.

They filed motions to exclude:  “Motion to exclude the testimony of deceased witness Mary Cobbs because the testimony violates Caldwell’s Sixth Amendment rights under Crawford v. Washington.” “Motion to exclude Mary Cobbs’ identification because it was unreliable and a result of a suggestive procedure.” “Due process motion to dismiss because evidence is missing and Cobbs’ testimony and identification are unreliable.”

“This motion argued that a retrial of Mr. Caldwell would violate his right to due process and his right to effective assistance of counsel,” she said,  “Judge Haines found that admitting the testimony of Mary Cobbs without the exhibits would violate Mr. Caldwell’s due process right to a fair trial.”

The motion was granted on March 25, 2011 and all charges were dismissed.  On March 28, 2011: “Maurice “Twone” Caldwell walked out of jail on March 28, 2011, after serving 20 years for a crime he did not commit.”

The part I think that sums up Mr. Caldwell is that when the press asked as he was being released how he felt about the victim’s family, something that Linda Starr was angry that they would ask, Mr. Caldwell said: “I feel bad for them – all these years they thought they had justice – but there wasn’t.”

That statement pretty much summed up the night.

—David M. Greenwald reporting

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