Appeal hinges on shaky "confession"

Heavy police pressure again and selective use of evidence allowed by the judge

It was no surprise that a jury convicted Richard Kolacki of first-degree murder. After all, he provided the gun and a getaway car to the killer who shot an Alviso grocer in February 1993. He confessed to police that he knew the killer, William Harley, planned to commit a robbery when Kolacki drove him to the store. And that knowledge made him legally responsible for murder.

But Kolacki's case, which seemed open and shut, has become one more controversial Santa Clara County jury trial, marred by trial judge errors and compounded by a faulty appellate review. In a federal court petition, Kolacki says jurors never learned that his confession was false, given under duress. And he says the judge's errors, coupled with new evidence, caused an injustice. Bolstering his contention, three jurors now say they would never have convicted him had they known then what they know now.

In its series ``Tainted Trials, Stolen Justice,'' the Mercury News documented that a sizable percentage of Santa Clara County jury trials have been marred by questionable conduct of prosecutors, judges and defense lawyers, or appellate justices in their review. Such errors increase the small but significant chance of wrongful conviction.

The danger is heightened when a prosecution is based on certain kinds of evidence, such as eyewitness identification or a jailhouse informant. And earlier this year, the state Commission on the Fair Administration of Justice identified false confessions as another significant source of wrongful convictions. ``Most people do not believe that an innocent person would confess to a crime,'' said Richard A. Leo, a University of San Francisco law professor. But Leo, a false-confessions expert, said the pressures of police interrogations can cause some suspects, worn down by the process, to tell police what they want to hear -- even if it is false.

Kolacki's interview with two detectives was recorded on three cassettes. Superior Court Judge Paul R. Teilh permitted jurors to hear the tapes of Kolacki confessing that he knew Harley intended to commit a robbery. But Teilh did not allow jurors to hear the lengthy first cassette, in which Kolacki insisted he did not know Harley was planning to do anything but collect some money. Higher courts later found Teilh's ruling wrong. Only after jurors voted to convict both men in 1996 did Harley tell them that Kolacki had no idea Harley intended to commit robbery. Kolacki has passed a polygraph supporting that contention. But lawyers in the state Attorney General's Office say Harley's statements and the jurors' reaction have been considered and rejected by the state courts.

A cold-blooded killing

The Feb. 11, 1993, murder of Antone Amireh, 60, who operated the Marina Market in Alviso, was cold-blooded: A bullet was fired from a revolver held to the back of his head, according to testimony, and his cash register was emptied. A forensics examiner later concluded that the murder weapon was the revolver police recovered later that night, when they responded to a report of a disturbance at a Southwest San Jose apartment complex. The arriving officers were directed to the apartment of Kolacki's uncle, who was also a friend of Harley's. Inside, police found Harley, who had pointed the revolver at someone before it was wrested away. He was arrested.

The next day, an alert jailer was struck by the similarity between Harley and a sketch of the suspect in Amireh's killing, which was based on accounts from witnesses who saw a man running from the store. Police returned to the apartment and found a sweatshirt bearing the words ``The Hog Farm,'' which matched the description of the suspect's clothing. Police learned that the gun belonged to Kolacki, who was staying with his uncle. Police brought Kolacki, who had prior misdemeanor convictions but no felony record, to the station for two hours of questioning with breaks.

According to transcripts of the interview, Kolacki told police during the first, and longest, session that he had taken methamphetamine, smoked pot and drunk liquor hours before they brought him in for questioning -- information that one juror later testified would have caused her to distrust his confession. On tape, Kolacki initially denied that he was with Harley at all that afternoon. But under questioning by the two detectives, he repeatedly changed his story, gradually implicating himself further and further. The officers eventually got Kolacki to admit that he gave Harley a ride to Alviso so Harley could collect a debt. Kolacki told them Harley took Kolacki's gun ``because he, he figured the guy had a gun, and he didn't want the guy to shoot him.''

The officers pushed harder. They told Kolacki they knew he was still lying and he would be in worse trouble unless he told the truth. They falsely told him that Harley had already told them all about the crime. During interrogations, police are permitted, under past U.S. Supreme Court decisions, to lie to suspects. What they cannot do is coerce a confession through force, threats or promises of leniency. Sgt. Jeff Ouimet told Kolacki that the officers already knew Harley, not Kolacki, was the shooter, according to the transcript. ``There's no sense lying about it. You knew he was gonna do the robbery. You didn't know he was gonna kill the guy, though. But you knew he was gonna do the robbery,'' Ouimet told Kolacki. Kolacki insisted he did not know about the robbery.

Ouimet responded, ``Well, I'd believe you if you said you knew he wasn't gonna shoot the guy. I'll believe that.'' Kolacki relented: ``He said he was gonna do a robbery and I didn't want nothin' to do with it. I gave him a ride over there and I was gonna leave him there.'' The officers took a break and the questioning continued, recorded on two additional cassettes, as they sought details to bolster the version that Kolacki knew in advance a robbery was in the works.

Tried together

Harley and Kolacki were both charged with first-degree murder, and Deputy District Attorney Peter Waite sought the death penalty. The case against Kolacki was built on the felony-murder theory: He had participated in a robbery, so he bore equal responsibility for the killing.

Before trial, both defendants' attorneys tried to keep jurors from hearing Kolacki's admissions. His attorney argued that the statement had been coerced by police, but Judge Teilh disagreed: ``I don't see anything but normal police interrogation in the course of the examination.''

Harley's attorney said the tapes would violate Harley's right to confront witnesses against him. U.S. Supreme Court rulings generally prohibit prosecutors from introducing out-of-court statements by co-defendants that implicate others on trial. But Teilh noted that Harley's name was not used on the later tapes. (The officers and Kolacki refer to the shooter only as ``he.'') Therefore, Teilh decided, he would allow jurors to hear the two later tapes, but not the first tape, on which Harley was repeatedly referred to by name. Teilh also denied a request to try the defendants separately, which would have permitted Kolacki to introduce the full interview -- with his initial denials and his statement that he had been doing drugs and drinking earlier.

Although the jury convicted both men of first-degree murder, they agreed that only Harley should face the possibility of a death sentence. As jurors heard testimony to determine Harley's fate, the case against Kolacki took a surprising twist. Harley took the stand for the first time: ``Myself, I knew that I was going there to do a robbery of a store. And Rick didn't know. Richard Kolacki didn't know this at all. He had no idea of it.'' Instead, Harley said he had told Kolacki he was going to collect a drug debt. The jurors voted to send Harley to prison for life without parole. Kolacki was sentenced to 25 years to life.

In 1998, the 6th District Court of Appeals upheld both convictions. The unanimous opinion of a three-judge panel, written by Justice Eugene Premo, says Teilh erred in handling the case. Harley and Kolacki should have been tried separately so that Kolacki's full interview could have been introduced. The court also found fault with Teilh for allowing only part of the tapes, saying the pronoun ``he'' did not disguise that police and Kolacki were referring to Harley. Nevertheless, the panel wrote, there was enough other evidence to convict Harley, and the errors were deemed harmless. But while considering the tapes' effect on Harley, the panel never examined whether it was unfair to Kolacki to introduce the later portions without allowing jurors to hear his initial denials.

Kolacki continued to press for a new trial. At a 2003 hearing before Superior Court Judge James Emerson, Harley's trial lawyer, Craig Kennedy, testified that Harley privately told him midway through the trial that he never told Kolacki he planned to commit robbery. At that hearing, Kolacki's new lawyer, Clifford Gardner, also presented the testimony from jurors who said they would have voted to acquit Kolacki had they heard the excluded portions of the taped interview or Harley's statement that Kolacki was not aware of the robbery plan. ``It would have made a difference,'' Elise Saito testified. ``I would have found him not guilty.''

Emerson found fault with Teilh's rulings. He also criticized the logic of the 6th District's opinion and its failure to address Kolacki's claims -- a highly unusual reproach by a lower court judge. But Emerson ruled the series of errors did not warrant a new trial. For the judge, the key was a detail in Harley's testimony at the sentencing proceeding: that he told Kolacki he was going to Alviso to recover a drug debt. Because Kolacki knew the debt was based on an illegal transaction, he still could be convicted of committing murder under the felony-murder rule, wrote Emerson. Kolacki's attorney, Gardner, counters that Emerson's analysis is flawed: Because there was never any discussion during trial of whether Harley told Kolacki that the source of the debt was drugs, Kolacki never had an opportunity to rebut the claim. The matter is now before U.S. District Judge Marilyn Patel.

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