California panel to probe wrongful convictions and withheld evidence

For 20 years, Mark Sodersten insisted he was innocent of the brutal murder of a Visalia woman that sent him to prison for life. Year after year, Sodersten lost one court ruling after another. Finally, in January, an appellate court ruled that he "most certainly did not receive a fair trial" in Tulare County because the prosecution team improperly withheld evidence that could have cast doubt on two key witnesses. But the ruling was too late for Sodersten. He had died in prison months earlier.

The case of Mark Sodersten - which the court said "calls to account the American system of justice" - is one more striking example of the damage that can be done when errors infect trials, an issue documented throughout last year by the Mercury News series "Tainted Trials, Stolen Justice." The series established that questionable conduct by prosecutors, defense lawyers and trial judges often infects Santa Clara County criminal trials and that such conduct increases the small but significant chance of wrongful convictions.

A state commission Wednesday will examine the impact prosecutorial misconduct and ineffective defense have on wrongful convictions. Wrongful convictions involve two common errors: either prosecutors have withheld evidence or defense attorneys have failed to devote adequate time and money to their cases. For Sodersten, the issue was tape-recorded statements from the victim's 3-year-old daughter and a witness whose fingerprints were found at the crime scene - statements the defense contended were never turned over.

Sodersten was prosecuted, initially by Ronn Couillard and at trial by Phillip Cline. By the time his conviction was overturned, Couillard had become a Superior Court judge in Tulare County and Cline the county's elected district attorney. Both men gave sworn declarations to support the state's contention that no evidence was withheld; their practice, they said, is to turn over such statements. Nevertheless, a three-judge panel of the 5th District Court of Appeals concluded that the tapes were wrongly withheld and found that failure "carried with it grave risk of convicting an innocent man."

The integrity of the system was compromised "by the conduct of the very people who are sworn to uphold the system, and who are charged with seeing that justice is done," wrote presiding Justice James A. Ardaiz.

In any trial, the prosecutors' duty seems clear enough: They are required to turn over all material evidence that might help the defense, whether it is in their files or in the files of police, prosecution experts or other members of the prosecution team. But that duty is not as simple as it seems. Disputes over withheld evidence have repeatedly marred Santa Clara County cases and are frequently contentious, with both sides arguing about the value of the information.

Sometimes, the argument hinges on who is a member of the prosecution team. That is the case with Agustin Uribe, convicted last year on charges that he had sexually assaulted a child. Uribe insisted he was innocent and the girl's version of what happened was not consistent. That gave special importance to the findings of a physical examination of the girl conducted by Mary Ritter, a physician's assistant at Santa Clara Valley Medical Center. Ritter concluded that the exam supported the allegation of sexual assault.

But experts disagreed about whether photographs taken during the exam supported Ritter's conclusion. The defense expert, Dr. Theodore Hariton, concluded that Ritter was misreading the images and focused on one key photograph to support his view. Ritter's boss testified that the defense expert was relying too heavily on a "bad photograph" with a shadow. Only after Uribe's conviction did the defense learn a videotape of the exam existed, which provided additional evidence. Hariton contended that the videotape reinforced his conclusion that no sex occurred.

When Uribe sought a new trial based on the withheld evidence, the district attorney's office argued that the videotape was conducted for training purposes only. As a result, they said, the prosecutor had no duty to provide it to the defense. Trial Judge Paul Bernal agreed. Uribe has appealed to the 6th District Court of Appeals.

Minutes after Dennis Sierra killed his grandfather, police made a tape recording of his statements that was not turned over to the defense until after Sierra's conviction for first degree murder in 2005 by a Santa Clara County jury. The issue on appeal is whether that tape provides important evidence of Sierra's mental state. No one disputed that Sierra suffered from significant mental illness. The jury heard testimony that at the time of his arrest, Sierra was walking the streets, naked, with his eyes closed, saying he was a government agent named James Dean. But deputy district attorney Richard Titus, who has since retired, contended that Sierra was exaggerating his symptoms to avoid punishment.

It is not clear why the tape was not turned over. Court records show that before trial, Deputy Public Defender J.J. Kapp repeatedly asked Titus for the tape without success. After he finally got it, Kapp contended the conviction should be overturned based on the withheld evidence. A Superior Court judge rejected that motion, agreeing with the prosecution that jurors heard sufficient testimony from police about Sierra's statements that night.

When the case was argued last month before the 6th District Court of Appeals, Sierra's appellate lawyer, George L. Schraer, said the tape provides a far more powerful picture of Sierra's mental state. The court has not yet ruled. But Presiding Justice Conrad L. Rushing telegraphed his sense of the evidence: "The tape is devastating," Rushing said in court. "It's very helpful to the defense" and demonstrated that Sierra had "very serious problems." ....

Inadequate defenders

One critical way defense attorneys can save time and money is if defendants agree to plead guilty ahead of time, forgoing the expense and time of a trial. Last month, a federal district court overturned the conviction of Milan Pakes after finding that Pakes' San Jose attorney, Miguel Chacon, wrongly advised his client to enter a guilty plea that clearly was not in his interest.

Pakes was arrested after he hit the rear of an off-duty police officer's vehicle and sped away. There was a 12-year-old girl in Pakes' car, and he was charged with evading arrest and endangering a child. Santa Clara County prosecutors dropped the evading arrest charge in return for a guilty plea to endangerment. Pakes - who was a "three strikes, you're out" defendant - received a sentence of 26 years to life.

But the federal court concluded that Chacon never advised Pakes of a key legal issue: It was unlikely he could be convicted of both charges, meaning there was no benefit to Pakes in pleading guilty to the "third strike" crime. Chacon testified that he did tell Pakes of the legal issue, but last month, U.S. District Judge Vaughn R. Walker accepted a magistrate's finding that Chacon's testimony "lacks credibility." That conclusion was based on several factors. There was nothing in Chacon's file suggesting he had researched the issue. And because Pakes gained nothing from the plea bargain, the court ruled, that suggested he thought he faced a longer sentence if he went to trial.

The determination that Chacon was not believable marked the second time in a year that a federal judge has found Santa Clara County defense attorneys not credible when they have been called to explain their performance. Last year, U.S. District Judge Jeffrey S. White overturned the robbery conviction of Michael Hutchinson, finding that Hutchinson's attorney, Dennis Kazubowski, failed to properly investigate the case and that the attorney's post-trial explanations were not credible.

Chacon's representation of Carlos Toscano, convicted of raping a child, is also at issue in an upcoming Santa Clara Superior Court hearing. The appellate court ordered that hearing into evidence the jury never heard: Toscano had undergone a series of reconstructive bone surgeries and was wearing metal frames and a cast at the time of the crime, and medical evidence raised doubts about whether the girl had been raped. Chacon could not be reached for comment. He failed to respond to a letter and phone calls from appellate attorney Philip Brooks about the matter, court records show.

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