California: Judge wipes out wrongful conviction for Foley

A "clever" prosecutor works a great evil

Kenneth Wayne Foley's long road to vindication and justice ended in court Thursday when a wrongful burglary conviction that had cost him more than 11 years in prison was erased with the help of prosecutors and steadfast defense attorneys. In a hearing that took less than a minute, Judge Ray Cunningham vacated the 1995 conviction as Foley stood beside attorneys who crusaded for his release - his original trial attorney Steve Nakano and Linda Starr, of the Northern California Innocence Project - and prosecutor David Angel, who re-investigated the facts and determined Foley was innocent. "Mr. Foley, you are discharged of this matter," Cunningham said. "Good luck to you." With that, Foley, 38, walked out the court doors, no longer haunted by the conviction.

Asked what he thought the moment Cunningham wiped the conviction off the books, Foley replied: "That it's finally over. I've been so long with it, with the hopeless feeling when you're inside (prison) ... I got my fresh start and I'll be OK." Foley, who was released from prison in September, has been splitting his time between the South Bay and Manteca, where he's been living with one of his sisters. He currently is a truck driver, but said he hopes to go to college, perhaps to major in business administration.

The re-examination of Foley's case came in the aftermath of the Mercury News series, "Tainted Trials, Stolen Justice," which examined questionable conduct by prosecutors, defense attorneys, and judges that led to wrongful convictions.

In 1995, Foley was accused of burglarizing a truck parked at a lot in Campbell. It started when Mashelle Bullington let a man she only knew as "Luke" use her Pontiac Firebird while trolling for recyclables. Bullington accompanied him but said she fell asleep. When she awoke, they were at a parking lot in an industrial area of Campbell and Luke was breaking into a truck owned by Robert Buck, according to Bullington.

Buck, who was inside an office, was awakened by noise and looked outside a window to see a man rummaging in his truck. He grabbed a .22-caliber revolver, went outside and confronted the burglar. At that point, Buck would tell authorities he believed Bullington was pointing a gun at him - an allegation she denied. Her account was confirmed by the district attorney's investigation years later. Buck let the pair go and reported the incident to police, providing them with the Pontiac's license plate number.

Police traced the plate to Bullington. Later that day, Foley would borrow the Pontiac and get a citation for making an illegal turn. Officers learned that Foley had a prior record for burglary. They provided separate photo lineups of Bullington and Foley for Buck, who picked them both out as pair he confronted. An investigator hired by Nakano eventually identified Luke Gaumond as the actual burglar who was with Bullington.

Despite the possibility he could be charged with robbery or burglary, Gaumond testified he broke into the truck - not Foley. Gaumond, who was never charged, also said Bullington was not armed. But Deputy District Attorney Charles Slone went ahead with the prosecution of Foley and a jury returned a verdict of guilty. Foley was sentenced to 25 years to life.

During the trial Slone said he was "physically sickened" by the lies told by the defense and that a "fraud is being perpetrated" on the jury to save Foley from a third strike and a long sentence. The judge found Slone had crossed the line into misconduct at times during final arguments but it did not stop the conviction. As years passed, a persistent Gaumond contacted Nakano asking what could be done to free Foley. After the publication of the Mercury News series, Nakano called then-Chief Assistant District Attorney Karyn Sinunu, who then assigned Angel to re-examine the case.

Angel's work cast doubt on the conviction, leading then-District Attorney George Kennedy and Judge James Emerson to write the state Department of Corrections, recommending that Foley be resentenced. Foley, who by then had been in four state prisons, was released late last year, pending the resentencing. Instead prosecutors dropped the charges at the urging of the Northern California Innocence Project, which filed a writ of habeas corpus asking Cunningham to vacate the conviction because of new evidence.

In court documents, Angel said Buck now acknowledges Bullington did not threaten him with a gun. A person who spoke to Buck shortly after the incident said Buck told him she had "pointed her finger" at Buck. However, the district attorney's office said it cannot confirm defense assertions that Slone concealed evidence that would have helped establish Foley's evidence.

"Mr. Foley spent a long time in prison," Angel said, "but there is hope and satisfaction in that the system eventually was able to bring the truth to light." Gaumond, expressed relief Foley is finally clear of the charges. "I've been saying since Day One: It wasn't Kenny," Gaumond said. After the hearing, Foley admitted he still harbors anger over the wrongful conviction, but he is also grateful the district attorney's office reopened the case. "This district attorney's office is pretty honorable and noble because I'm sure a lot of offices around the country would probably sweep this under the rug," Foley said. Foley has received congratulations from friends in prison, and also some advice. "They all just tell me to be good and don't come back," he said. "It's a worthless existence in there."

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