Lack of Identification of Defendants Leads to Acquittals in Alleged Gang Attack

In a case beset by identification problems and a grainy surveillance video that yielded few real clues about who did it and what did they do, it ended as it only could, in a split verdict – two acquittals, one hung jury, and one conviction of the lesser charges.

Then one individual leans through the door, makes a move, and slashes the victim in the face.  While it is one individual who does this, all four are charged with aggravated mayhem, which is maliciously attacking someone with the specific intent to cause disfigurement.

To add insult to injury, as they leave, they steal beer from the victim.

All four individuals are charged with aggravated mayhem, robbery, assault and a gang charge, with gang and weapons enhancements.

In the end, Matthew Martin was the only one that prosecutors could clearly and unequivocally identify as being on the scene.  The reason: he has only one arm and thus could be clearly identified in the video.  His attorney acknowledged his involvement, but argued that he was unaware of what the actual perpetrator was going to do.  Mr. Martin escaped the most serious charge of aggravated mayhem, and also was acquitted of the gang charge.

For Jose Rivas, whom the prosecutor identified as the one who slashed the victim’s face, the jury hung on all charges.  Arturo Vega and Michael Santiago were acquitted on all charges.

According to prosecutor Robin Johnson’s case, you cannot judge police on television and expect DNA evidence.  She acknowledged that the real issue was identification of the defendants in this case, because the video makes very clear what happened.

Mr. Rivas, she argued, was identified by the by the victim who recognized Mr. Rivas, the individual the prosecution claimed perpetrated the knife attack, as an individual he saw talking on the cell phone.

The other critical evidence of Mr. Rivas’ involvement came from Parole Officer Haw, who testified that he recognized Mr. Rivas from his distinctive walk, his stature, build, hair, chubby cheeks and everything put together.

But under cross-examination from the defense, Mr. Haw acknowledged that he was only 80% sure it was Mr. Rivas and he admitted to defense attorney Deputy Public Defender Ron Johnson that there is nothing unusual about Mr. Rivas’ physical appearance. Mr. Haw says that there was not one specific point where he recognized Mr. Rivas, but rather it was from a viewing of the video ten times as a whole.

Another witness was unable to identify Mr. Rivas at the scene but eventually pulled him out of a photo lineup.  She would identify both Mr. Rivas and Mr. Santiago when police came to her house a week after the incident to show her mug shots. However, she could not recognize any of the defendants in the video provided by ampm.

In this recorded interview, the witness is heard saying the only one she wants to identify is the one with the tattoo she saw, that was distinguishable by a five-point star in the middle.  That was, again, Mr. Martin.

Mr. Vega was also identified by Mr. Haw, based on his build and how he walked.  A critical piece of evidence was that Mr. Haw identified the individual he saw punching and kicking with his left hand and foot as Mr. Vega, saying that he remembered Mr. Vega signing his parole papers with his left hand.

Mr. Santiago is identified by the witness through a photo lineup and also by Agent Perez, reportedly for the shape of his head and his sunken eyes.

With the exception of the identification of Mr. Martin, all of these identifications are thin, at best.  The problem is that no one was able to initially identify the defendants.  It was only later with the video and photo lineups that they identified people, and even then, it was not convincing.

Mr. Haw was only 80% certain of his identifications – is that alone enough for reasonable doubt?

Defense Attorney Chan argued that while four people identify Mr. Rivas, there are flaws in each of the witnesses’ identifications.  The victim was unable to identify Mr. Rivas in a photo lineup but somehow could identify him two years later in court, despite the fact that he admitted he had not seen the perpetrator well, and the lighting and it being at night were not conducive to a clean identification.

The witness could not identify any of the suspects. She picked Mr. Rivas in a lineup the first time, but the second time she picked the wrong guy and never got the right guy. However, in court two years later, she identified the right guy.

Mr. Chan argued that neither of these witnesses were sure about whom they picked, and neither picked Mr. Martin, whom we know was at the scene.

Mr. Chan further argued that Officer Haw was not 100% sure about his identification of Mr. Rivas.  He argued that Mr. Rivas has two gigantic and visible tattoos but not a single witness identified him by the tattoos.  He wore a short sleeve striped shirt, but police were never able to find that shirt or match any other evidence to connect him.

Fingerprints were found at the scene, but they belonged to a fifth individual, Aaron Valadez.  It was never explained to the jury why Mr. Valadez’ fingerprints were at the scene.  It was never explained to the jury why he was not in this case.  Robin Johnson told the jury that they did not need to know the reasons for this – but they had to be wondering why.

Defense attorney Jeff Raven, representing Mr. Santiago, pressed Parole Officer Perez on whether he had been informed prior to his initial viewing of the video about whom he should be looking for.  Officer Perez says that he had not been informed of whom to look for, but the police report from that day in 2009 indicates that he did have information prior to viewing the video.

However, Officer Perez insisted that he had no information prior to viewing the video and said he picked a poor choice of words in his police report to describe the events.

Ron Johnson argued Mr. Vega had no unique size, build or stature.  One of the parole officers had identified Mr. Vega due to his light complexion, but that suffered a strong blow when Mr. Johnson pointed out that the camera inside and outside had a huge variance, that it actually changed the color from one location to another.  There was simply not enough evidence there to determine Mr. Vega by his complexion.

If there was a “gotcha” moment, it was Ron Johnson who pulled it off.  Mr. Haw had argued that Mr. Vega was left handed, based on his viewing of Mr. Vega’s signing of probation papers at the probation office.  But following that testimony, Mr. Johnson had Mr. Vega submit handwriting samples to a specialist, who analyzed them.

Mr. Johnson never said what they showed, but he held the two samples up to the jury with the clear indication that they showed he was right handed.

Robin Johnson attempted to minimize this evidence, suggesting that Mr. Vega knew what they were looking for and could have altered his handwriting to make it look like he was right handed.

Mr. Johnson called this the usual suspects, which refers to the 1990s film in which a number of well-known criminals were put in the same room randomly even though there was no known connection to the crime.  The hope was that one of them was the perp and would eventually let the cat out of the bag.

Mr. Johnson took it further with the handwriting exercise, arguing how dangerous it is for  suspects to be identified based on what one thinks they know.  Mr. Johnson suggested to the jury that the probation officer was simply matching things to the video that he thinks he knows, and even then he’s only about 80% certain.

He argued that means that there is a 1 in 5 chance of his being wrong, which is reasonable doubt.

For defense attorney Charles Pacheco, the argument was somewhat different.  His client, Mr. Martin was the only one identified clearly on the video.  His job was to minimize his involvement.  He pointed out that the aggravated mayhem charge requires a specific intent to maim.

In this case, there was not enough time that elapsed from a conversation with a female who claimed the victim made derogatory comments about her, for the others to know that the perpetrator was going to slice the victim’s face with a knife.  Mr. Pacheco argued that there was simply no time – as shown on the video – to have a conversation or make plans.

For his part, Mr. Martin had no weapon, the person with the striped shirt had a weapon and the person with a striped shirt acted on his own.

The prosecution in this case argued that the aggravated mayhem charge did not depend on a theory of aiding and abetting or even a conspiracy.  Rather it only required a “foreseeable and natural consequence” of the event.

The gang tie is critical to the case because that was the motivation as articulated by Robin Johnson. She said they were intending to intimidate and attack the victim for the purposes of gang respect.

The gang charges were a problem, however.  The crime was supposedly a gang crime, but there was never an indication that this was gang-related.  There were no colors worn.  And, while some of the defendants had a history of gang activity, Mr. Rivas had no picture, no colors and no North Star tattoos to identify him as a gang member.  The same was true for Mr. Martin.

Mr. Raven made it a point to argue that not only had Mr. Santiago never been arrested for anything gang-related, but also, ironically that his charge for narcotics possession contradicts Norteño code, which prohibits drug abuse.

Mr. Pacheco argued that, while it looks like a gang hit, there are several missing elements.  There is no bagging going on.  The victim was never threatened or felt threatened.  It was calm prior to the attack, and there were no colors.

There were probably enough different people claiming Mr. Rivas was at the scene to at least lock up the jury.  He will likely be re-tried for this case, but given the paucity of evidence, it seems unlikely that another trial will yield a conviction.

The jury convicted Mr. Martin of the robbery and the assault, both of which he clearly participated in.  They apparently determined there was not enough evidence that Mr. Martin could have foreseen the knife attack to hold him responsible for the actions of another.

And finally, while Mr. Martin might have been in a gang, his attorney pointed out that was not illegal.  The question is whether this was in fact a gang attack, but as the attorneys made it clear, there is no evidence that it was other than a brutal and seemingly coordinated attack.

Mr. Santiago and Mr. Vega were acquitted, it would seem, due entirely to a lack of evidence.  The quality of the video was just not good enough to see their faces and identify them beyond a reasonable doubt.

Ms. Johnson attempted to shift the burden to the defense, even as she said she was not doing that.  She argued that if they had caught the wrong people the defense would have come forward with alibi witnesses and she argued that, because they didn’t, the jury could infer that they did not have them.

In the end though, that was not sufficient to get a conviction for anyone other than the guy who admitted he was there.

—David M. Greenwald reporting

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