PHOTO EVIDENCE IGNORED IN ROBBERY CASE

A federal judge has awarded a new trial to Michael Hutchinson, the Milpitas man who was convicted in 1999 of robbing a 7-Eleven, ruling that his attorney improperly failed to pursue photographic evidence that cast doubt on Hutchinson's guilt. The order from U.S. District Judge Jeffrey S. White came six years after Hutchinson's appellate lawyer first went to court contending that photographs taken by a store surveillance camera showed Hutchinson was too tall to be the robber captured on tape.

Hutchinson's case was featured as part of the Mercury News' ongoing series, ``Tainted Trials, Stolen Justice,'' documenting questionable conduct in Santa Clara County jury trials. The newspaper hired an expert to conduct the analysis Hutchinson was denied when the 6th District Court of Appeals rejected his appellate attorney's request for money to analyze the photographs.

Lawrence Gibbs, one of two attorneys who initially took the case for free after Hutchinson first appealed to federal court, said, ``This should have happened six years ago. Michael Hutchinson spent six years in prison because the court would not give a couple thousand dollars to his attorney.'' The 39-year-old Hutchinson, in a telephone call from prison, said simply, ``I'm shocked.''

In a 37-page opinion issued late Thursday, White ruled that trial attorney Dennis Kazubowski failed to give Hutchinson adequate representation because he did not investigate the photographic evidence. White also found Kazubowski's explanations, given at a hearing last month, not credible. The judge gave the state of California 60 days either to retry Hutchinson or release him. The state now must decide whether to appeal and ask that Hutchinson remain in prison.

The Mercury News discovered the case during reporting for its ``Tainted Trials, Stolen Justice'' series, which reviewed five years of appellate decisions in Santa Clara County criminal jury trials. Based on the refusal of the 6th District to grant money to explore evidence that Hutchinson could have been wrongly convicted, the Mercury News hired photogrammetry expert Gregg Stutchman, who concluded that the man in surveillance photographs appeared substantially shorter than the defendant. Stutchman became a critical witness in a new effort Hutchinson launched in federal court to overturn the verdict. Stutchman testified at the hearing last month before White, a San Francisco judge appointed by George W. Bush, who said Stutchman's testimony ``was very persuasive.''

The Mercury News series documented repeated instances of questionable conduct by prosecutors, defense lawyers, trial judges and appellate justices during Santa Clara County criminal trials. Such conduct, the newspaper found, increases the small possibility of wrongful conviction.

Hutchinson's case was one of three detailed in a March article on the vagaries of eyewitness identification, a form of evidence that experts consider particular troubling, because it is both persuasive with juries and too often unreliable. Earlier this month, the 6th District Court of Appeals reversed the conviction in another one of those cases. The court found that Jeffrey Rodriguez did not receive adequate representation in his case.

Hutchinson's case began Oct. 25, 1998, when a man wearing a stocking mask burst into the convenience store, hopped the counter and took $200. He was arrested and charged after the store clerk identified him from a photographic lineup. On Friday, Santa Clara County Deputy District Attorney Ed Fernandez said he remained ``absolutely convinced'' of Hutchinson's guilt and said it ``boggles my mind'' that Stutchman's conclusions were considered scientifically valid. White's ruling ``is not a get-out-of-jail-free card,'' added Fernandez, who said he is preparing for a possible retrial.

The key issues before White were whether the expert analysis cast doubt on Hutchinson's guilt and whether Kazubowski failed Hutchinson by not exploring that defense before the trial. Hutchinson, according to trial testimony, is 6 feet 1 or 6 feet 2. Stutchman studied the apparent height of the robber as he took a full stride running through the store's door and testified that the robber appeared at least 6 inches shorter. The two sides disagree on whether that difference could be explained by the gait and posture of someone in motion, but the state did not call an expert to contest Stutchman's testimony. White this week ruled that posture would not account for the large discrepancy in height.

At trial, prosecutors built their case on the testimony of the store clerk, as well as the store manager and a Milpitas policeman. Neither the manager nor the officer was present at the robbery, but both thought the man in the photo resembled Hutchinson. On the witness stand, the clerk went beyond her initial statement to police and testified that she saw Hutchinson outside the store moments before the robbery and watched him put the mask on his head.

Hutchinson testified he had been wrongly accused. He had a prior conviction for assault with a deadly weapon and had been arrested for domestic abuse. But since getting out of prison, he had worked as a pastor, counseling young people. A poster for his church, bearing his photograph, was on display at the 7-Eleven.

Kazubowski on Friday said ``I know I did my job'' in representing Hutchinson. He testified last month that he made a tactical decision not to seek expert testimony about the surveillance photograph, after he examined it and concluded that the robber captured on film was his client. But White rejected that explanation, writing, ``Neither his recollection nor his credibility can be credited here.''

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