Transcript
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INNOCENCE LOST
WHAT HAPPENS
WHEN THE
CRIMINAL JUSTICE
SYSTEMIN THE
WORLD KEEPS
LOCKING UP
THE WRONG
FOR LIFE
SPECI AL I NVESTI GATI ON
78 S A N f r a n c i s c o
TOUGHEST
PEOPLE
—
November 2004 79
“A billion dollars can’t fix what they did.”
RICK WALKER, 48
SENTENCE: 25 YEARS TO LIFE, FOR MURDER EXONERATED: JUNE 2003
JAILED: 13 YEARS CURRENTLY: AUTO MECHANIC
“They did a damn dirty thing to me.”
JOHN STOLL, 61
SENTENCE: 40 YEARS, FOR SEX ABUSE EXONERATED: APRIL 2004
JAILED: 20 YEARS CURRENTLY: UNEMPLOYED
November 2004 81
John Stoll met only one other man in prison he is cer-
tain is innocent, though he is sure the California penal
system is full of them—he just never asked. For one
thing, the places where he was incarcerated—San
Quentin, Avenal, Tehachapi, Mule Creek—were teem-
ing with meth freaks, white supremacists, desperadoes,
guys he had nothing in common with and did not espe-
cially want to get to know. Nor did he want to talk
about his own ordeal; it would be asking for a knife in
his back. Back in 1984, when he was a carpenter and
foreman at a gas plant in Bakersfield, he had been
accused of leading a child-sex-abuse ring whose sup-
posed victims included his own five-year-old son. It was
a weird, weird time in Kern County, with dozens of
men and women accused of ritual sexual abuse by the
same whacked-out group of cops, social workers, and
prosecutors, but judges and jurors bought into the hys-
teria, and Stoll was lucky that his sentence for 17 counts
of child molestation was only 40 years. (Some people got
400 years.) Over the next decade, most of those convic-
tions were overturned after the child witnesses recanted
or courts found that their testimony had been coerced;
in one of the stranger twists, the man who had prose-
cuted Stoll was stabbed to death by a police investigator
who suspected he was having an affair with the cop’s
son. Two of Stoll’s codefendants won their state appeal
15 years ago; his own appeal was denied in part because
of a mistake his lawyer had made during the trial—fail-
ing to introduce a psychologist’s finding that Stoll showed
none of the telltale traits of a pedophile. In 20 years, Stoll
told only six other inmates this story. “I did not need
people thinking I was a child molester,” he says. At one
The strangest thing happened to
John Stoll this past spring. After 20
years in jail for an infamous crime he
did not commit, a judge said it had all
been a mistake, and he was set free.
“You win some, you lose some,” the prosecutor
shrugged, refusing to offer any admission of
error or hint of an apology for all that her office
had put Stoll through. None of his family was in the
courtroom; they were all dead or far away and not terribly
interested in what happened to him anymore. He was
released from custody on his 61st birthday; after treating him
to filet mignon and chocolate cake, his lawyers took him to buy socks
and underwear, and then they took him to live with them in San Jose,
because he had nowhere else to go and barely a penny to his name.
“I want to walk around and shake every person’s hand and say, ‘Enjoy your freedom.’”
JOHN TENNISON, 33
SENTENCE: 25 YEARS TO LIFE, FOR MURDER EXONERATED: AUGUST 2003
JAILED: 14 YEARS CURRENTLY: CLERK, SAN FRANCISCO PUBLIC DEFENDER’S OFFICE
November 2004 83
prison, he went to the library and razored all traces of his
case from a law book so no one would discover his secret.
Every few years, Stoll would try to interest someone
on the outside—a famous lawyer, a pro bono legal
group—in helping him pursue another round of
appeals. “I wrote to the ACLU. I wrote to everybody
like that. The ACLU told me they weren’t working on
that particular type of case at that time. Then I saw that
they were suing some city because of a manger scene in
a park. And I’m thinking—what the hell! Here I am
sitting in prison and you’re worried about how Christ-
mas is run.” Eventually he lost heart. “It gets to be like
picking open a scab, telling that story 20 times,” Stoll
says. “You’ve got to put it away.” So when the lawyer
who had won his codefendants’ appeal found someone
to help him, Stoll wasn’t sure he wanted to cooperate.
“Because after 18 years, you know, it’s pretty much: Do
I want to do this again?”
It took another two years for lawyers at Santa Clara
University School of Law’s Innocence Project, part of a
national pro bono movement dedicated to exonerating
innocent inmates, to track down witnesses, put together
a habeas petition, and persuade a state judge to free him.
The hardest part of the process was seeing his son, Jed,
for the first time since his 1985 trial. Of the six kids who
had testified against Stoll then, five—now grown—
recanted at a hearing last winter. Only Jed, not even in
kindergarten at the time of the arrest, continued to insist
that his father had molested him, though under ques-
tioning he could give no details. The boy Stoll remem-
bers—happy, trusting, bewildered to have his father
ripped from his life—had become a wary and troubled
young man, himself the father of a child Stoll expects
never to meet. Stoll was unrecognizable, too—still hand-
some, with penetrating blue eyes, but balding and gray.
“He didn’t have any idea who I was,” Stoll recalls sadly.
“The only reason he knew I was probably his father was
because I was sitting in the defendant’s chair. Oh my
God…that was worse than the conviction—having him
there and thinking I did something to him. Because I
really love that little guy, you know? And I didn’t do
nothing to him. But if he…if he is going to believe it, I
can’t help it. There’s nothing I can do.”
Stoll says he talked to a child psychologist, who told
him that Jed faced a heartbreaking dilemma: either his
father had molested him, or he had been wrongfully
imprisoned and Jed was to blame. “And to protect your
sanity, you’re going to say your dad did something,”
Stoll says. “The damn shame is—it’s not his fault. He
was a five-year-old child when this started, for God’s
sake. I had people say, ‘Aren’t you angry at your son?’
How in the hell could I be mad at a five-year-old child
that I loved to death?” There are tears in his eyes.
Stoll looks around the sun-filled cottage behind his
lawyers’ house, his home for a year while he gets back
on his feet—the big, inviting bed; the new computer he
is teaching himself to use; the calla lilies lounging by the
door—and it’s clear: none of this makes any more sense
than anything else that’s happened to him in the past 20
years. You wish you could tell him that it had all been a
dream, that in the garden just outside, a lost little boy
waits for his father to come out and play. But the after-
noon is hot and still and the garden is empty.
■ ■ ■ ■
John Tennison used to see
Rick Walker and Albert
Johnson all the time in the
yard at Mule Creek State
Prison, in the dusty town of Ione,
30 miles southeast of Sacramento.
All three were African American
men from the Bay Area doing very long sentences—
Tennison and Walker for murder, Johnson for rape.
“But we never knew much about each other’s stories,”
Tennison says, a handsome 33-year-old with a proud,
wary face. “I didn’t speak about my case to other
inmates. I didn’t pry about theirs.”
Keeping quiet was something inmates learned early.
Prisons are full of desperate people willing to snitch on
each other for favors, better living conditions, a sentence
reduction. “There’s no telling what someone might get
out of the conversation and use against you,” he says.
Not that anyone would have believed him if he had told
his story. Tennison was innocent of the murder—a San
Francisco gang killing in the late 1980s—for which he
was serving a life term, with little possibility of early
release. “You hear a lot of people say they’re innocent. I
would take it with a grain of salt.”
Yet it turned out the other two men were innocent,
too. Johnson was the first to be exonerated; he was serv-
ing 39 years for two 1992 rapes in the Richmond area
when DNA testing cleared him in October 2002. The
following summer, Walker was set free after the Santa
Clara County prosecutor’s office finally conceded that
he did not suffocate and mutilate a former girlfriend
during a 1991 robbery-murder; he had been framed by
his codefendant, one of the real killers, and convicted by
a prosecutor who made secret deals with witnesses who
turned out to be liars. Tennison was the last to get out,
in August 2003, when a federal magistrate ruled that
San Francisco police and prosecutors had violated his
right to a fair trial by withholding evidence that pointed
to someone else as the shooter; his codefendant, Antoine
Goff, was exonerated as well. Now Tennison checks in
with the others regularly, though he wouldn’t call them
close. “These guys are people who have walked in my
shoes,” he says. “We’re trying to fit back into society the
best way we can. It’s like we were just dropped off on
another planet.”
Extraordinary as it may seem, yet another Bay Area
man who’d been scheduled to spend the rest of his life
in prison was freed last year, for a total of five exonerations
84 S A N f r a n c i s c o
in an 11-month period—hardly the kind of record you’d
expect in a place as liberal as this. Glen “Buddy” Nick-
erson Jr. was convicted of killing two San Jose men dur-
ing a 1984 robbery. Within a few years, the evidence that
had seemed clear-cut to prosecutors and jurors started
to crumble as police investigators came under scrutiny
and the real killers insisted he had nothing to do with
the crime. Still, it took until March 2003 to persuade a
federal judge to set Nickerson free. He had spent almost
19 years behind bars.
In a recent essay, this is how Innocence Project founders
Barry Scheck and Peter Neufeld characterized the wave
of exonerations that has swept across the country in the
last few years, shattering faith in the criminal justice sys-
tem’s ability to protect the innocent: “Nothing compa-
rable has ever happened in the history of American
jurisprudence; indeed, nothing like it has happened to
any judicial system any-
where.” Of the hundreds of
wrongful convictions that
have come to light, revela-
tions about innocent people
on death row have caused
the greatest loss of confidence—116 capital convicts
exonerated around the country, forensic lab chaos in the
Texas county that sentences more people to death than
anywhere else, an Illinois system so riddled with error
that a Republican governor commuted 167 death sen-
tences in one stroke. In California, juries are handing out
fewer death sentences and the state Supreme Court is
scrutinizing them more carefully than at any time since
the late 1980s. Last February, squeamishness about the
state’s capital system came to this: convicted quadruple-
murderer Kevin Cooper was within 3 hours and 45 min-
utes of being executed by lethal injection at San Quentin
when a federal appeals court ruled that his lawyers
could do state-of-the-art DNA testing on incriminating
hair and bloodstains, based on the theoretical possibility
that traces of a preservative chemical found in earlier
tests might have indicated evidence tampering.
Yet as circumspect as California has become about
meting out the death penalty, it’s been almost cavalier
when it comes to locking people up for a very long time—
“death by incarceration,” some call it. By the end of June
2004, an astounding 30,492 state inmates—twice as many
as in the entire European Union, which has a popula-
tion over 12 times bigger—carried life sentences; of these,
7,500 are serving 25-to-life terms under the three-strikes
initiative (over half of them people whose third strike
was not a violent or serious crime). Some 17 percent of
California inmates are lifers, compared with 9 percent
of prisoners in the United States as a whole.
All this despite the fact that the same kinds of prob-
lems that lead to wrongful convictions in death penalty
cases also result in sending innocent people like Stoll,
Tennison, and Goff to prison for the rest of their lives.
Few criminal justice experts doubt that California,
whose penal system is thought to be the third largest in
the world, has put more innocent people behind bars
than any other state. In the past 15 years, with surpris-
ingly little fanfare, at least 200 Californians have been
freed after courts found they were unjustly convicted—
nearly twice the number of known exonerations as in
Illinois and Texas combined. Just a handful were death
row inmates, versus dozens of men and women sen-
tenced to very long terms. California’s innocence prob-
lem, it turns out, is primarily a matter of life, not death.
Implicit in the state’s lock-’em-up stance is a funda-
mental assumption: that the criminal justice system is
just, and that in the rare cases when innocent people are
sent to jail, the system corrects the error. This impres-
sion—aided and abetted by Law & Order reruns, 11th-
hour death penalty appeals, even the brief blast of pub-
licity that attends each new exoneration—turns out to be
wrong. As California has put the screws on the guilty,
it’s also gotten much tougher on the innocent.
San Francisco has spent the last year reviewing Cali-
fornia’s largely unexamined record on wrongful con-
victions, going back to 1989, the year of the country’s first
DNA exoneration. We’ve spoken to dozens of lawyers,
prosecutors, judges, and criminal justice experts. We’ve
read through thousands of pages of court documents in
30 cases. What we’ve learned about how the system treats
innocent people facing life or very long terms should dis-
may anyone, liberal or conservative, who values decency,
fairness, and the rule of law. California’s legal system has
its own inexorable momentum, which pushes for convic-
tion even when the evidence should give serious pause.
Once an innocent person lands in jail, the mistake
becomes almost impossible to undo. For those convicted
of the worst crimes, even parole is unlikely.
At every stage, the safeguards in place to protect the
innocent seem small, considering the severity of a long
or life sentence. Defendants facing the death penalty
get two court-appointed trial lawyers plus funds for
investigators and expert witnesses. If they are convicted,
the state pays for multiple appeals in the California
Supreme Court, then the federal courts. Lifers, on the
other hand, are entitled to a single lawyer at trial and
then another one for a state court appeal, with almost
no chance of review by the state Supreme Court; after
that, they’re on their own. The state pays to reinvesti-
gate cases that result in death sentences, but not botched
cases that result in life. Capital cases get a decade or
more of appellate scrutiny; lifer cases, just a year or two.
As the U.S. Supreme Court sees it, “actual innocence”
is reason in and of itself to reverse a conviction only if
someone is on death row—not if the sentence is life.
In short, an innocent Californian convicted of mur-
der is almost better off being sentenced to death than to
At least 200 Californians have been freed—
almost twice the number of exonerations
as in Illinois and Texas combined.
“Believe me, if this could happen to someone like me, it can happen to anyone.”
GLORIA KILLIAN, 58
SENTENCE: 32 YEARS TO LIFE, FOR MURDER EXONERATED: MARCH 2002 JAILED: 18 YEARS
CURRENTLY: FOUNDER, THE ACTION COMMITTEE FOR WOMEN IN PRISON;
PLANS TO TAKE CALIFORNIA BAR EXAM
life in prison—at least the case will get a long, hard look. Lawyers
find death cases more glamorous, too. When he was the lawyer
for John Tennison, Jeff Adachi, now San Francisco’s public de-
fender, tried to line up pro bono legal assistance to free his client.
Several big law firms initially expressed interest. Then they
learned Tennison was only a lifer. They declined to get involved.
How many innocent people are sitting in California prisons,
unable to get anyone’s attention or too beaten down even to try?
How many millions of dollars does the state waste incarcerating
people who’ve done nothing wrong? How many violent crim-
inals continue to prey on an unsuspecting public because some-
one else is doing their time? The answers are mostly hidden,
and expensive and time-consuming to uncover, so no one knows
—and, it sometimes seems, not many people want to know.
Around the state, a handful of small Innocence Projects exist to
investigate these cases, and they have been overwhelmed, with
an estimated 1,000 requests for help each year. The advent of
DNA testing has revealed a higher error rate than most anyone
suspected: in one eye-opening FBI study, out of 18,000 sexual
assault cases in which biological evidence was available, pretrial
86 S A N f r a n c i s c o
“Sometimes I can’t stand to be around people. It’s hard to know what to say.”
BUDDY NICKERSON, 49
SENTENCE: LIFE, FOR MURDER EXONERATED: MARCH 2003 JAILED: 19 YEARS
CURRENTLY: UNEMPLOYED
testing cleared over 25 percent of the government’s prime sus-
pects, often after they’d already been arrested and arraigned.
Among academics, the most conservative estimates put the
wrongful conviction rate across the country at no less than 1 in
200 and probably 1 in 100; most experts believe a truer rate is
between 1 in 50 and 1 in 20. By these estimates, the judicial sys-
tem catches the right person 95 to 99.5 percent of the time—not
a bad record, unless you happen to be one of the mistakes.
Judges, D.A.s, police, lawmakers—even many defense attor-
neys—defend California’s legal system as among the nation’s
November 2004 87
most careful and sophisticated and deny that lifelong incarcer-
ations of innocent people are a major problem. Yet if the experts
are correct, in a state with 163,500 inmates, up to 8,000 are not
guilty of the crimes for which they were imprisoned. Mean-
while, the number of those innocent lifers who can expect to
die in prison eventually—of disease, despair, violence, old age—
is at least 150 and, if you believe the most dire estimates, as
high as 1,500.
There’s a temptation to look at the ones like John Tennison
and John Stoll who do get out as proof that the system works.
They’re flukes. There’s a temptation to see the confluence of
events that put them in prison and kept them there as freak acci-
dents. But so many accidents in such run-of-the-mill cases involv-
ing such a wide range of ordinary people mean something has
gone seriously wrong. Some might look at these cases and con-
clude that California’s criminal justice system is filled with reck-
less men and women who don’t care when they do harm. But
most of them—police, prosecutors, lawyers, judges—were just
trying to do their job the best way they knew how. It’s the sys-
tem itself that has become the problem—enormous, impersonal,
legalistic, myopic, and fueled by fear and wrath. Unable to admit
its failures, unwilling to hold itself accountable, it is destined to
perpetuate its injustices and repeat its mistakes. This is the sys-
tem we created. But is it really what we had in mind?
■ ■ ■ ■
“ALL I WANTED WAS SOMEBODY TO ANSWER
ONE SIMPLE QUESTION—WHO SEEN THE 430-POUND
FAT GUY?” —BUDDY NICKERSON
THE CONVICTION
>
Buddy Nick-
erson spent the most important
night of his life sleeping off a
hangover. Earlier in the evening of
September 14, 1984, he’d attended a
party at a friend’s house. Instead of
going home, he’d dozed off in his pick-
up in the friend’s driveway. As usual, he made a vivid impres-
sion: his bare feet—big, like everything else about him—were
hanging out the window, and his boots, which were in the
house, stank. It wasn’t till the next day that he heard about the
murder of an acquaintance named John Evans on the rough
edges of San Jose. Evans was the kind of guy whose high school
class might have voted him “most likely to die in a blaze of gun-
fire.” When he wasn’t manufacturing and selling meth, he was
a car painter of the naked-babe-on-the-hood variety, known for
his ugly temper and the wads of cash he kept stashed around
his house. According to his close friend Mike Osorio, three
armed robbers—white guys of average build, wearing ski
masks—had broken into the house where Osorio had fallen
asleep watching TV with Evans’s half brother. The assailants
pistol-whipped the two men, then lay in wait for Evans, who
returned home after midnight, sensed something was wrong,
and started shooting. Evans and his half brother died at the
scene; Osorio survived a point-blank bullet to the head. Neigh-
bors reported seeing three normal-sized men fleeing in different
directions, including one who—though wounded and bleeding
—escaped over a fence.
Santa Clara County sheriff’s investigators immediately pegged
Nickerson, then 29, as one of the killers. Barely a month before,
Evans had beaten up one of Nickerson’s brothers so badly that
he had been permanently paralyzed. Nickerson had a minor
record, a reputation as a hothead, and an impressive collection
of racist tattoos. But he wasn’t too worried, even after he was
arrested. Besides his alibi, there was the matter of his size: he
weighed 430 pounds, twice as big as any of the men fleeing from
the scene. There wasn’t a hair or thread, not a fingerprint or drop
of blood, tying him to the killings. Even if he had been able to
exert himself in the way the cops claimed, surely someone his
size would have left a trace. Nickerson was so sure the system
would see the error of its ways that, with the death penalty on
the table, he turned down an amazingly sweet deal: 12 years for
a guilty plea. Why should he admit to something he didn’t do?
The real murderers had left behind plenty of evidence of their
involvement. Over the next few months, police picked up three
more suspects, including a guy Nickerson knew named Mur-
ray Lodge, who had planned the robbery and shot the victims.
Lodge thought it was hilarious that Nickerson had been arrested,
since the two men hated each other’s guts. Still, he told his own
defense lawyer that Nickerson was innocent.
With no physical evidence tying Nickerson to the crime, the
detectives had to find witnesses who could make their case for
them. In the end, they came up with two credible enough to
convince a jury. After initially telling the deputies that he had
no idea who his attackers were, Osorio, the sole survivor—still
dazed from the beating, the shooting, and the surgery to remove
the bullet—changed his story and said Nickerson had been one
of them. Osorio’s new version was bolstered by a young man
named Brian Tripp, who lived nearby. He had originally
88 S A N f r a n c i s c o
ANALYZING CALIFORNIA’S
How does someone get sent away for decades for a crime he (or she) didn’t commit? To answer that question statistically, we
started with California’s more than 200 exonerations since 1989, narrowing our focus to 30 cases. (Twenty of those exonerees are
shown below.) Virtually all involved life or very long sentences; all concluded with a hard-eyed, frequently conservative judge releasing
THE FINDINGS IN BRIEF:
>
60% of the wrongful convictions involved at least one mistaken eyewitness.
>
63% entailed police error or
misconduct.
>
20% featured a snitch who committed perjury.
>
50% included prosecutorial error or misconduct.
>
93% of the wrongful
Ken Marsh
MURDER (OF A CHILD)
21 YEARS IN PRISON
Elmer Pratt
MURDER, KIDNAPPING
27 YEARS IN PRISON
John Tennison
MURDER
14 YEARS IN PRISON
Mark Diaz Bravo
RAPE
3 YEARS IN PRISON
Albert Johnson
RAPE OF TWO WOMEN
11 YEARS IN PRISON
“Buddy” Nickerson
DOUBLE MURDER
19 YEARS IN PRISON
Herman Atkins
RAPE
12 YEARS IN PRISON
Benny Powell
MURDER (POLICEMAN)
17 YEARS IN PRISON
Gloria Killian
MURDER
18 YEARS IN PRISON
Ronald Reno
THIRD STRIKE
6 YEARS IN PRISON
NOT GUILTY AFTER ALL
November 2004 89
described the man he’d seen running from the scene as 200
pounds and apparently wounded, with a mustache. But after
repeated discussions with investigators, he, too, identified Nick-
erson—hugely obese, uninjured, with a full, shaggy beard.
The story of how Buddy Nickerson came to be convicted of
first-degree murder illustrates the most
common problem leading to wrongful
convictions in California: eyewitness error.
In our analysis of 30 such cases (see
below), 60 percent involved at least one
key witness who identified the wrong
person. (When intentional perjury is included, the figure is 87
percent.) The reasons are familiar to anyone who’s ever watched
a TV crime show: everything from poor visibility and stress
(Osorio’s brain trauma definitely counts) to the surprising diffi-
culty humans have distinguishing faces, especially those of
another race. Witnesses don’t just get it wrong when the suspect
is a stranger and the crime occurred some distance away. A Los
Angeles janitor named Jason Kindle was sentenced to 70 years
to life for an armed robbery at the Office Depot where he
mopped floors after five of his coworkers incorrectly identified
him as the heavily disguised man who’d forced them to the floor
and fled with $22,000. In all six California rape convictions
later overturned by DNA testing, the victim’s mistaken ID was
the most important factor in sending an innocent person to prison
for a very long time. The most striking error involved Kevin
Green, a marine living in Orange County who was mistaken by
his own wife for the attacker who raped and beat her, putting
WRONGFUL CONVICTION CRISIS
convictions were upheld on direct appeal. >87% involved no relevant DNA evidence. >The exonerees spent 13 years, on average, in
prison. FOR A SYNOPSIS OF EACH OF OUR 30 CASES, GO TO WWW.SANFRANMAG.COM.
the prisoner after carefully weighing old and new evidence. We left out most of the Bakersfield sex-abuse cases from the 1980s
because they would slant the sample (nearly all involved coerced child witnesses). Nor did we include the 100-plus exonerations in
the infamous 1990s rampage by rogue cops in Los Angeles’s Ramparts district, which mostly involved shorter sentences.
Jeffrey Modahl
CHILD SEX ABUSE
15 YEARS IN PRISON
Clarence Chance
MURDER (POLICEMAN)
17 YEARS IN PRISON
Harold Hall
MURDER
19 YEARS IN PRISON
Thomas Goldstein
MURDER
24 YEARS IN PRISON
Frederick Daye
RAPE, KIDNAPPING
10 YEARS IN PRISON
Oscar Lee Morris
MURDER
16 YEARS IN PRISON
Kevin Green
MURDER (UNBORN CHILD)
16 YEARS IN PRISON
Antoine Goff
MURDER
14 YEARS IN PRISON
Jason Kindle
THIRD STRIKE
2 YEARS IN PRISON
Thomas Merrill
DOUBLE MURDER
5 YEARS IN PRISON
California has more lifers than the entire
European Union, which has a population
over 12 times bigger.
90 S A N f r a n c i s c o
her in a coma, shattering her memory, and killing their
unborn child. The real assailant, identified by a DNA
hit 16 years later, turned out to be the “Bedroom Basher,”
responsible for at least five other murders in the area.
Even after the real attacker confessed, Green’s ex-wife
insisted Green did it.
Yet to call it “eyewitness error” is a mistake in itself;
police lineups and other investigative techniques often
help steer the witness toward a suspect who later proves
blameless. Kindle’s colleagues, for example, continued
working around him for seven weeks after the robbery
without pointing the finger at him; only after police
detained him at the store, let-
ting everyone know he was a
suspect, did they pick him out
of a photographic lineup. Her-
man Atkins spent 12 years in
prison for rape in part because
the victim saw his face on a wanted poster for another
crime just before viewing him in a lineup. Even a clear-
headed guy like Brian Tripp is vulnerable. Several years
after Nickerson’s trial, Tripp—by then a deputy sheriff
in Colusa County—recanted and insisted Nickerson was
not the suspect he’d seen after all. Tripp’s explanation
for his retraction: his law enforcement experience made
him realize that the sheriff’s investigators had subtly
cajoled him to shape his story to fit their theory. “I
began to feel that they had a suspect in mind that I was
close to, um, helping them convict. I remember ques-
tions such as, ‘Couldn’t he have been larger?’ or ‘Are
you sure he wasn’t a heavier-set man?’ and I think I
began to doubt myself.”
Another key factor in Nickerson’s conviction, a fed-
eral court later concluded, was questionable police
work—sloppy at best, misconduct at worst. Indeed,
police errors and ethical lapses seem to be a particular
problem in California, occurring in 63 percent of false
convictions in our analysis, versus 38 percent in a nation-
wide study by the Innocence Project. (The figure zooms
when you include the scores of exonerations in the Kern
County sex-abuse cases and the LAPD’s Ramparts scan-
dal, in which a band of rogue cops did everything from
plant drugs and guns on innocent people to beat up wit-
nesses.) On TV, police investigators are dispassionate
sleuths who examine the evidence and adjust their
theories to fit it. In real life, cops often get invested in
theories that, for various reasons—sympathy for the vic-
tim, pressure to wrap up a case, a gut feeling that the
suspect is a bad person who should be off the streets—
they are unwilling to abandon. “Where improprieties
tend to happen most is when they really think the sus-
pect is the culprit but they have a weak case, so they
think they’re justified if they stretch,” says Janice Brick-
ley, an attorney with the Innocence Project at Golden
Gate University. In Nickerson’s case, the friends he’d
been partying with on the night of the murders said the
sheriff’s investigators threatened them in an attempt to
shake his alibi (it didn’t work); the detectives had also
been caught hiding evidence. Later, in the death penalty
trial of Nickerson’s codefendant Murray Lodge, the
same cops were discovered to have lied on the witness
stand (they claimed they hadn’t taped a confession; then
the tape was found), leading the judge to declare they’d
committed perjury.
In fact, police have been accused of improprieties in
83 percent of the Bay Area wrongful conviction cases
in our analysis. But Los Angeles County’s record of
police mistakes and misconduct trumps all, often going
hand in hand with the use of informants. For years a
virtual snitch industry has existed in L.A. jails, with
inmates routinely making up incriminating stories
about their cell mates in exchange for favorable treat-
ment. The Long Beach murder case against Thomas
Lee Goldstein hints at how it worked. Police had little
evidence against the ex-marine until they found a
heroin-addicted informant with the unlikely name of
Edward F. Fink who claimed Goldstein had confessed
to him; Fink made the same claim about ten other cell
mates. Prosecutors also hid a leniency deal that might
have helped discredit Fink. Goldstein served 24 years in
prison until a series of courts ordered him freed this year.
Prosecutors can fall prey to the same emotions that
lure a cop over the line. They sometimes get cynical and
wrapped up in cases in ways that make it difficult to
see new evidence and information in an objective light.
They genuinely believe the suspect is guilty; they want
to help victims find closure with a conviction. They suc-
cumb to the adversarial mind-set and the competitive
pressure to win. Indeed, misconduct or serious errors in
judgment by prosecutors have been an issue in 50 per-
cent of the false convictions in our analysis (nationally,
the average is 34 percent)—most commonly, concealing
deals with snitches and codefendants, turning a blind
eye when witnesses lie and cops cross the line, and mak-
ing improper arguments to the jury.
Contributing to official misconduct is the unlikeliness
of punishment. A Los Angeles Times investigation in 2000
found that the Los Angeles D.A.’s office declined to pros-
ecute even when an officer had been caught in the act on
tape or had confessed, or when the officer’s lie had led to
an innocent person’s arrest. One L.A. cop involved in a
wrongful conviction case was allowed to retire with a full
pension after he’d been caught using police computers to
spy on celebrities. The sheriff’s investigators in Nicker-
son’s case—whose misconduct led to two mistrials that
cost Santa Clara County millions of dollars and con-
victed an innocent man—suffered no setbacks to their
careers as a result of their actions; one went on to
oversee all the department’s investigations, including
homicides. Meanwhile, none of the D.A.s accused of
An innocent Californian convicted of murder
is almost better off being sentenced to
death than to life in prison.
“Anyone who knew me knew I was innocent.”
ANTOINE GOFF, 35
SENTENCE: 27 YEARS TO LIFE, FOR MURDER EXONERATED: AUGUST 2003
JAILED: 14 YEARS CURRENTLY: UNEMPLOYED
improprieties in any of the false convictions in this analysis has
been disciplined by the state bar, the agency that acts as a watch-
dog over the 195,100 lawyers licensed to practice here.
Bad defense lawyering is another big problem. Around the
state, innocent people have been sent away for long prison terms
at least in part because their attorneys were inexperienced, lazy,
incompetent, or just plain conflicted about representing someone
they believed to be guilty. Court-appointed lawyers, particularly
public defenders, tend to be overworked and underfunded and
hence are more likely to cut corners. One East Bay lawyer failed
to order DNA testing that might have cleared her client of
two rapes. Another, whose client was eventually convicted of
attempted murder, didn’t get a translation of a taped confession
by another man. Sometimes the lawyer’s biggest error is a naive
belief that a jury will not convict because the evidence is so weak.
In fact, many jurors expect defendants to prove they are innocent,
not just poke holes in the prosecution’s case. Even in a liberal
place like the Bay Area, plenty of jurors assume that defendants
wouldn’t be on trial if they hadn’t done something bad.
The simple truth: even the most dedicated lawyer may not be
good enough to save an innocent person from prison when the
rest of the system is intent on conviction. That’s what happened
in the late 1980s, when San Francisco was convulsed by a mur-
derous gang war hauntingly similar to the one it faces today.
Then, as now, many of the victims were young African Ameri-
can men; the police, like the police today, had little help from
the community in bringing killers to justice. Antoine “Soda
Pop” Goff, a 20-year-old vocational student “running with the
wrong folks” at the time, sees his 1990 wrongful conviction for
the murder of a young man named Roderick Shannon as part
of the city’s rush to crack down on the violence: “My opinion is
that [police] had it out for me. I had a friend that was shot when
I was in the car. They came around in their investigation and I
never wanted to talk to them. So when they had an opportunity
to link me to a case, they did.”
The Shannon murder was one of the rare times when wit-
nesses did come forward and a conviction seemed possible—
which may be why police worked so hard to protect their case
when it started falling apart. The two young girls who named
Goff also fingered John Tennison, a 17-year-old from a close-
knit family who knew Goff slightly. The girls’ stories contra-
dicted each other, the physical evidence, and other people who
had seen the crime go down, but that didn’t deter the investi-
gating officers, Napoleon Hendrix and future police chief Earl
Sanders. When one of the girls recanted, saying she didn’t wit-
ness any murder, Hendrix and Sanders pressured her to go back
to her original version of events, the girl later said in a sworn
statement. When another witness came forward to say that Goff
and Tennison hadn’t been at the crime scene—and named the
gangbanger who was the real killer—the cops didn’t turn over
her name or information to the defense. When the young man
she implicated, Lovinsky Ricard, volunteered in a taped con-
fession to other police officers after the trial that he was, indeed,
the shooter, police still didn’t turn the tape over to the defense
for another several months. By then, it was too late.
“I know I’ll never make up for that time,” says Goff, who got
27 years to life. “I lost the best years of my life.”
Tennison lost more than that. “My father passed away, my
grandfather passed away, my two uncles passed away, my
brother was murdered. I didn’t get to see my dad before he died.
I wasn’t released for any of the funerals.” His only contact with
any of these events was when one of his relatives called or visited.
“It was always good to see one another,” he says. “But when it was
time to leave, the tears would not stop. It was terrible, really.”
■ ■ ■ ■
“THEY DON’T EVEN READ YOUR CASE, MAN.
THEY’RE JUST LIKE, ‘DENIED, DENIED, DENIED.’”
—RICK WALKER
THE APPEAL
>
Not many people
get sent to prison to practice
their chosen profession. Gloria
Killian used to joke that she was
one of the “lucky” ones. Convincing
herself that she’d been dispatched to
Frontera prison, aka the California Insti-
tutionfor Women, on a divine mission—
to use her legal training to fight for the rights of forgotten and
neglected women—made what happened to her easier to bear.
Not that she actually understood what had happened to her. “It
was like being wrapped in fog,” she says, still sounding dumb-
founded 20-plus years later. “I couldn’t get my hands around it. I
kept pulling at it and pulling at it, but I couldn’t figure it out.
I literally did not know how I had gotten there.”
What she did know had all the hallmarks of a paranoid delu-
sion. Once upon a time, Killian had been the kind of feisty, con-
fident woman who would just pick up and move to Alaska for
the adventure of it, or talk her way into law school even though
she had only one semester of college under her belt. But as she
was approaching her mid-30s, her life came unglued. She got
mixed up with a guy she describes as bad news, quit McGeorge
School of Law in Sacramento, and supported herself with a
variety of jobs, including doing freelance detective work for her
landlord, the co-owner of a coin shop.
The real nightmare started in 1981. One day, an elderly coin
collector was robbed, hog-tied, and shot to death in his home;
his 76-year-old wife was gravely wounded. Someone called the
Sacramento police and accused a law student named Gloria of
being involved, so they picked her up. Killian couldn’t believe
it, and a judge didn’t either; the charges against her were soon
dropped. “But I had a really terrible, terrible feeling,” Killian
says. “I should have left town, but I didn’t.” Her premonitions
came true a year later, when a repeat felon named Gary Masse
was convicted of the shootings and sentenced to life without
parole. Before going off to prison, he offered to help prosecu-
tors nail his two accomplices. One, he said, was his cousin, a guy
named Stephen DeSantis. The other, he claimed, was Gloria
Killian—allegedly the brains behind the scheme. Masse had met
Killian, though they weren’t friends. She and her lawyers fig-
ured that he was trying to deflect police attention from his wife,
who had helped him in a robbery attempt a few months before
92 S A N f r a n c i s c o
and was a potential suspect in this case. This time, the accusa-
tion stuck. In 1986, Killian was convicted of conspiracy and mur-
der and sentenced to 32 years to life. “All I could think was, this
is insane, this is insane, this is insane.”
In prison, Killian’s main goal was to keep from going crazy
herself. Her salvation turned out to be a job at the law library.
Sometimes she helped 50 women a day—with appeals, child cus-
tody and medical issues, parole board hearings; over her entire
prison career, her “clientele” numbered in the thousands. She
took a special interest in battered women who had killed their
abusive spouses, then been convicted of felony murder, writing
law review articles and thousands of letters to raise awareness
about their plight. She even helped win clemency for one such
battered woman—a California first. Yet when it came to her
own case, Killian did almost nothing. Her court-appointed trial
lawyer had been followed by a court-appointed appellate lawyer.
After the state appeals court upheld her conviction, she didn’t
have enough grounds—no new evidence, no convincing proof
that her constitutional rights had been violated—to begin another
round of appeals. Nearly a decade after her conviction, she
hardly even talked about her case. “Who would care?” she says.
Killian—58 now, with a warm, disarmingly direct manner
November 2004 93
Patrick O. Dunn
CONVICTED OF the 1992 Bakers-
field murder of his wife, allegedly
committed to get her multimillion
dollar estate. Her body was
discovered in the desert,
mutilated and half-buried
in a ritualistic pose.
SENTENCE Life without parole;
he has served 11 years.
EVIDENCE OF INNOCENCE Extremely
strong. Defense lawyers point
out that on its face, the prose-
cution’s theory—that Dunn, 56
at the time, with no criminal
record, would kill his wife to
get her money when he stood
to gain more financially if she
lived—seems preposterous.
No physical evidence linked
the retired high school principal
to the murder. Furthermore, the
prosecution knew that its key
witness, a heroin-addicted infor-
mant who lied about seeing
Dunn put a body in his truck
the night of the murder, gave
false testimony. The snitch also
got a leniency deal that was
not disclosed to the defense.
CHANCE OF FREEDOM It’s up to
the federal courts now. Dunn’s
direct appeal and five state
court habeas petitions have
all been denied, including by
the California Supreme Court
in June.
Jerry Killedjian
CONVICTED OF the 1992 Los Angeles
murder of black-marketer Jesse
Khorrami, who’d just been sen-
tenced in an illicit-fuel case and
had been cooperating with the
feds. The D.A. convinced a jury
that Killedjian,
who worked as
a bagman for
another black-
marketer, and
a cohort killed
Khorrami for
$26,130 in his
possession. The
D.A. contended that the two
men lured Khorrami to drive to
the murder scene by lying that
Killedjian’s car brakes were bad.
SENTENCE Life without parole.
He has served 12 years.
EVIDENCE OF INNOCENCE Compelling.
In 2003, another man convicted in
the fuel scheme (whom Khorrami
had apparently fingered) admitted
to a jail mate that he’d arranged
the killing. (This snitch passed a
polygraph test.) What’s more, the
new suspect had sued Khorrami,
claiming he owed him money.
CHANCE OF FREEDOM Long shot. A
federal appeals court has denied
a habeas petition that claimed
Killedjian’s trial lawyer dropped
the ball by not testing the brakes
(they were damaged) and not
interviewing two alibi witnesses.
Habeas counsel is working on a
new petition based on the latest
evidence but concedes that
getting the courts to take another
look will be very difficult.
Peter J. Rose
CONVICTED OF kidnapping and
raping a 13-year-old girl in
Lodi as she walked to school
in 1994.
SENTENCE 27 years. He has
served 9 years.
EVIDENCE OF INNOCENCE
Extremely strong. For three
weeks, the victim maintained
that she did not know who
her assailant was; Rose was a
neighbor and acquaintance.
Then, police interview tapes
show, she identified Rose after
a three-hour interrogation in
which police told her she was
lying and threatened to dis-
miss the case if she didn’t
identify her attacker; she was
also pressured by family mem-
bers who disliked Rose. Rose’s
blood type didn’t match
semen on the victim’s under-
wear, but the semen sample
was deemed too small to con-
clusively rule him out.
CHANCE OF FREEDOM All but cer-
tain. As this issue was going
to press, Innocence Project
lawyers received great news:
state-of-the-art DNA tests
have excluded Rose as the
rapist. If prosecutors agree, he
could be out by the time you
read this.
•
SUSAN R. KELLEY
Innocent?
THREE CASES TO WATCH
94 S A N f r a n c i s c o
that belies her sad eyes—is not a particularly religious woman.
But in the early nineties, a series of things happened that might
convince the most cynical person that God exists. First she was
befriended by an elderly Pasadena prison volunteer named Joyce
Ride (the mother of Sally Ride, America’s first female astro-
naut). Next, Killian got a call from appellate lawyers represent-
ing her codefendant, DeSantis. Because he had been sentenced
to death for his part in the robbery-murder, the lawyers had
state funds and other resources that a lifer like Killian could
only dream about. In the course of discovery, they had forced
Sacramento prosecutors to turn over piles of documents, includ-
ing several that pertained to her case. One was a secret letter,
written by Masse to the prosecutor, in which he emphasized that
he had “lied [his] ass off on the stand” to help convict Killian;
another was a letter from prosecutors supporting a sentence
reduction for Masse because of his cooperation on the case. It
was what Killian had been waiting for all these years—not just
an explanation of what had happened to her, but rock-solid
grounds for appeal. After paying a private detective to dig
around in the case, Ride dipped into her savings again to hire a
Santa Monica appellate specialist named William Genego to get
Killian out of prison. Nearly $100,000 later, Ride had run out of
money, but Genego kept going.
It took the former USClaw professor more than six years of
battling with state and federal courts before he could convince
one to throw out her conviction. Genego says he has run into
The Voters: Ready for Change?
AN EXCLUSIVE SAN FRANCISCO MAGAZINE/DAVID BINDER RESEARCH POLL
Californians have never met an anticrime measure they didn’t like. Even after two decades in which the state has elected four straight
hard-line governors, built the largest jail system in the nation, and put 30,492 convicts in prison for life, 36 percent of those polled say
the state is “too soft on crime.” But this poll of 676 California voters found that a passion for punishment doesn’t make us jaded about
locking up innocent people for life. “Californians want to punish the guilty but also to believe in the system,” says Will Gudelunas of
David Binder Research. “They want to be tough on crime but to be fair at the same time.”
believe lifers should have the same rights as people facing execution. California has a
long history of inflammatory rhetoric about criminals getting off on technicalities and “frivolous” delays in executions. So it’s
surprising that over two-thirds said that prisoners facing life in prison should have about the same access to free attorneys
and multiple appeals as prisoners on death row. Twenty-two percent felt that lifers should have fewer rights, as they do now.
support adding safeguards to prevent wrongful life sentences. Nearly as many Californians
would back the same protections to prevent an innocent person from getting a life term as to prevent an innocent person
from getting executed (66 percent). Even among those who think California is “too soft on crime,” 57 percent would back more
safeguards. On the other hand, nearly one-third—including 45 percent of self-identified conservatives—believe the state is careful enough.
favor firing police or prosecutors who break the rules to get a conviction. Most Californians have
high levels of trust for both cops and prosecutors. But when one of them lies or suppresses evidence, more than three-fourths
would want that person dismissed, and another 17 percent would favor suspension. Today, misconduct is rarely disciplined.
have bought the fanfare about DNA testing. TV shows and exoneration headlines have apparently
convinced Californians that nearly every violent crime involves biological evidence; three in four said that widespread DNA
testing would “mostly correct” the problem of false convictions. In fact, only 10 percent of cases involve any biological evidence.
of African Americans believe California is tougher on the innocent than other states.
While only 13 percent of all respondents said California sends a higher proportion of innocent people to prison than other
states, African Americans disagree. In fact, blacks express deep skepticism about the state’s entire criminal justice system.
Half of African Americans distrust cops, while only 15 percent of other respondents do; 44 percent distrust prosecutors, versus 15 percent
of others. African Americans are also three times more likely to say the state is “too tough” on crime, and half as likely to believe that DNA
testing is a panacea or that the state has enough safeguards to protect innocent people.
say false convictions are more common than law enforcement wants to admit. That’s
the percentage of voters who accept the claims of criminal justice organizations that the wrong person is convicted in
California up to 5 percent of the time. But another 27 percent sided with prosecutors’ estimates (1 percent or fewer of
convictions are false), while a third said they don’t know what to believe.
MARGIN OF ERROR +/- 3.8%. POLL CONDUCTED SEPTEMBER 18–24. FOR COMPLETE POLL RESULTS, GO TO WWW.SANFRANMAG.COM.
69%
59%
42%
61%
78%
76%
the same set of difficulties in every other case he’s handled on
behalf of innocent clients sent to prison for very long terms—
not just mistakes and misdeeds that can take years to uncover,
but a profound unwillingness on the part of appeals courts to
correct miscarriages of justice that do come to light. “The insti-
tutional mind-set [of the appeals courts] is that they are going
to secure a conviction that they already got,” Genego says.
“Instead of admitting its mistakes, the system throws up road-
blocks that make them harder to correct.” UC Irvine criminol-
ogist Ron Huff calls this phenomenon—which he, too, has seen
repeatedly in 20 years of research into wrongful convictions—
“ratification of error.” “The further a case progresses in the sys-
tem,” he says, “the less chance there is that an error will be dis-
covered and corrected.”
On the face of it, California’s legal system should be well
equipped to right its occasional wrongs. Not only are there two
layers of appeals courts—state and federal—but there are two
kinds of review: a “direct” appeal of the verdict itself, and a habeas
corpus petition to raise issues that come up after the trial. Cali-
fornia’s appeals court system is thought to work pretty well com-
pared with that of some other states: it’s reasonably efficient, well
funded and staffed, and (in general) intellectually respected. At
the federal level, the Ninth Circuit, which governs California and
nine other western states, is still the most liberal in the nation.
Yet this system of safeguards is swamped by all the factors
that work against an innocent defendant. The most basic prob-
lem: judges in a direct appeal can consider only the record of a
trial. But the things that are mostly likely to lead to a reversal—
like the secret letters in Killian’s case, or the taped confession by
another man in the Tennison and Goff case, or the psycholo-
gist’s report in John Stoll’s case—aren’t in the record. Appellate
courts cannot retry cases or second-guess juries; they’re only sup-
posed to make sure that the trial was legally fair (free of proce-
dural or constitutional errors big enough to have affected the
jury’s decision) and that the verdict was “reasonable” based on
the evidence (a verdict doesn’t have to be correct to be “reason-
able”). Given the narrow scope, the chances of getting a convic-
tion overturned on direct appeal are very low. In the 30 cases in
our analysis, it happened just three times.
The inherent conservatism of the appeals process has been
magnified by the political transformation of the state’s courts
since the 1980s. The California Supreme Court, once considered
the most liberal and activist high court in the country, has swung
to the opposite extreme on law-and-order issues. The state’s six
Courts of Appeal have followed suit, even in the Bay Area,
largely reflecting the politics of recent governors. The appeals
court based in San Jose has the highest proportion of Republi-
can appointees in the state (71 percent); the San Francisco–based
court is 65 percent GOP. Twenty years ago, the Court of Appeal
threw out 9 percent of convictions; last year, the reversal rate
was 5 percent.
The decrease in reversals reflects another big change over the
past two decades—the courts’ growing tolerance of constitu-
tional and legal errors in criminal cases, everything from coerced
confessions to squelched evidence. These kinds of problems used
to get convictions automatically overturned; now they are apt to
be dismissed as “harmless” if—in the view of the appeals court—
the other evidence of guilt is overwhelming. Many appeals
judges used to be prosecutors, which makes them even more
inclined to see defendants as guilty and errors as harmless, says
Dennis Riordan, a respected San Francisco appellate lawyer.
Riordan takes the provocative position that the current crop of
appellate judges is actually toughest on defendants who might
be innocent. “It is often in the cases where the error is most bla-
tant and the evidence is weakest that judges work the hardest
to avoid reversal,” he says, “because those cases are the most
embarrassing to our judicial system and the ones in which it’s
going to be most difficult to ever get a conviction again.”
■ ■ ■ ■
“IF YOU DON’T HAVE THE BEST AND THE BRIGHTEST
FIGHTING FOR YOU, WITH LOTS OF MONEY AND
SUPPORT, YOU’RE NOT GOING TO MAKE IT OUT. AND IF
YOU’D HAD THAT KIND OF MONEY, YOU PROBABLY
WOULDN’T BE IN PRISON IN THE FIRST PLACE.”
—GLORIA KILLIAN
THE HABEAS
>
Defendants whose
direct appeals have been denied
do have another recourse. Known
as the “Great Writ of Liberty,” habeas
corpus allows inmates like Killian to
challenge their convictions by raising
new evidence of innocence or showing a violation of their
constitutional rights. But once again, innocent prisoners face
enormous hardships.
The biggest is lack of money. At this stage, only people on
death row are entitled to court-appointed lawyers. While state
appeals courts may OK some funds for habeas lawyers and
investigators in noncapital cases, the amounts are a pittance
compared to the true costs—often in the hundreds of thousands
of dollars—of digging up new evidence and putting together a
writ strong enough to convince a skeptical court inundated with
such claims.
And California courts—where habeas petitions are first
filed—can be skeptical indeed. Take the case of Harold Cole-
man Hall, who spent 19 years in prison for the 1985 murder of
a Los Angeles woman named Nola Duncan. Hall, who had
been picked up for another crime, had admitted killing Dun-
can, but he recanted, saying police had badgered him during a
17-hour interrogation. (Indeed, many of the facts of the murder
flatly contradicted the confession.) But prosecutors had another
damning piece of evidence: two pages of notes, in Hall’s own
writing, in which he had seemed to answer another inmate’s
questions about the case, in the process admitting his guilt. After
Hall was sentenced to life without parole, his lawyers made a
startling discovery: the written “confession” was a forgery. The
snitch who had provided the notes to police admitted he had
tricked Hall into answering innocuous questions, then erased
them and substituted incriminating ones. The prosecution’s own
expert found signs of tampering; the exasperated trial judge said
he had “no legal or moral choice” but to give Hall a new trial.
But the Court of Appeal reversed that habeas ruling and upheld
96 S A N f r a n c i s c o
98 S A N f r a n c i s c o
Hall’s conviction, saying the judge hadn’t expressly called the
faked confession “false.”
Luckily for people like Hall (and Killian, and Tennison,
whose habeas writs were also rejected by state courts), they have
the right to pursue their claims in federal court. But here again,
there’s no money for lawyers or investigators, unless an inmate can
convince a court that his claims have merit
(talk about a Catch-22). By the time Killian
reached this stage, she had Genego working
for her pro bono—a very rare situation
indeed. Hall, on the other hand, found him-
self in the same boat as the vast majority of
California prisoners. His attorneys had to drop out, leaving him
to fend for himself for the next ten years.
Inmates who attempt do-it-yourself (“pro se”) habeas writs
are hampered by all the disadvantages you would expect, plus
a few more. Hall had to overcome both his lack of education
(he was a tenth-grade dropout) and constant lockdowns at the
gang-infested Lancaster State Prison in the Mojave Desert,
which sometimes shut down the law library for months at a time.
“You’re constantly threatened with missing deadlines in your
case,” says Hall, who taught himself about the appeals process by
reading legal newspapers and books. “I would have to type my
papers three or four times because I couldn’t xerox them in the
library.” Even when there wasn’t a lockdown, Lancaster inmates
were entitled to just two hours in the law library per week. The
only way to get around these barriers, Hall eventually concluded,
was to get a job in the law library. “That way, if I saw a lock-
down coming, I could make sure I had copies of everything I
needed in my cell.” In prison, he adds, “they’re always trying to
defeat your purpose. If you’re not strong enough to endure it,
and figure out how to help yourself, eventually you give up.”
The lack of legal help has become even more of a problem
since a sweeping law, enacted in 1996, made it much more dif-
ficult get a habeas claim into federal court, period. Habeas
“reform,” a longtime goal of conservatives who complained that
death row inmates were delaying their executions with frivo-
lous appeals, was passed as part of an antiterrorism bill in the
wake of the Oklahoma City bombing. Like so many statutes
that try to speed up the execution process, it actually had a far
greater impact on non–death penalty cases, with new deadlines,
a higher burden of proof, and other daunting procedural hur-
dles. The law also requires federal courts to almost always defer
to the state courts’ previous ruling. Says Justice Alex Kozinski
of the Ninth Circuit, “This essentially gives state courts the final
say in most criminal habeas cases.”
The 1996 law slams the door shut on all but a very few inno-
cent prisoners. Killian’s case shows how it can go in federal court
even when you have a great lawyer and a strong case. After
spending a couple of years jumping through procedural hoops,
she and Genego scored a key victory: an evidentiary hearing
before a federal magistrate. Besides the secret letters to and from
the prosecutor, they had DeSantis’s testimony that he had never
heard of Killian—they even got Masse to admit on the stand that
Killian hadn’t planned the crime. The magistrate still ruled against
them. Only after Genego appealed to the Ninth Circuit did Kil-
lian win her freedom—two years later.
Indeed, the Ninth Circuit is the last, and sometimes best, hope
of innocent prisoners in California. “It’s like I used to tell the
other inmates—‘When you get to the Ninth Circuit, you’ll get
someone to pay attention,’” Hall says. That faith was borne out
in his own case—after lower federal courts ignored him, the
Ninth Circuit took a hard look, decided his claims had merit,
and appointed Genego to take over the appeal. “It is absolutely
amazing that Harold was able to keep his case alive that far,”
Genego says. But he still needed one last stroke of luck—a panel
of judges who would be receptive to his claims. Despite its lib-
eral reputation, the Ninth Circuit has been transformed by the
same revolution that’s hit the state courts. While it continues to
be relatively progressive, it’s far more conservative than it used
to be, not only in its politics but in how it views the role of
judges. In the end, the court ruled 2 to 1 to overturn Hall’s con-
viction. But the dissenting judge argued that he and his col-
leagues were bound to respect the state court’s decision. “If one
more judge who thought like that had been assigned to Harold’s
case,” says Genego, “he spends the rest of his life in prison.”
■ ■ ■ ■
“THEY MASK IT BY CALLING IT 25 YEARS TO LIFE, BUT
THEY’RE NOT LETTING THOSE PEOPLE OUT OF PRISON.
THOSE ARE DEATH SENTENCES.” —RICK WALKER
PAROLE
>
It used to be that inno-
cent inmates in California who
had exhausted all their appeals
had one small comfort: even if
they were never exonerated, they
might well be paroled. That was one of
the few rays of hope for Rick Walker
and his family after he was wrongfully convicted for the 1991
murder of his drug-addicted ex-girlfriend. Given the horror of
the crime—the killers suffocated the victim by wrapping her
head in duct tape like a mummy—he could easily have been
sentenced to death or life without parole. Instead, he got 25 to
life. In theory, this made him eligible for parole at the end of
2009. But once he was in prison, it didn’t take long for the more
experienced guys to set him straight. “There were guys that had
7 years to life and they were still in there after 32 years. In reality,
I was doing life without.”
Walker is 48 years old now, a big bear of a man with the
charisma of a natural-born preacher and a voice both com-
manding and gentle. His story echoes those of many innocent
people accused of heinous crimes: bad choices magnified by
worse luck. One of four sons, he came from a solid family—his
mother was an East Palo Alto school trustee and later mayor,
his father a powerful, strong-willed truck driver with a passion
“One parole commissioner looked me in the
face—I’ll never forget this—and said, ‘If you
don’t admit you did it, you’ll never get out.’”
100 S A N f r a n c i s c o
for old cars. He grew up in San Francisco, moved to the Penin-
sula with his family after graduating from high school, and
found steady work as a car mechanic. But in his early 30s, he
got caught up in the drug-and-violence epidemic that earned
East Palo Alto the title of murder capital of the United States.
Another casualty was his ex-girlfriend, a Princeton grad
turned junkie who owed money to a lot of people,
including a drug dealer. One evening, the dealer
and another man accompanied the woman to a
Cupertino condo and killed her. Confronted with
the evidence against him—his fingerprints were all
over the duct tape—the dealer eventually claimed he
had been put up to it by Walker, whose tempestuous relation-
ship with the victim was well known. Unfortunately, Walker had
a terrible alibi: he’d been shacked up in a motel for three or four
days, smoking crack with a married lover who was afraid her
husband would find out. Doubly unfortunate, his lawyer failed
to do the obvious, like use room service records at the motel to
confirm his story. The prosecutor, meanwhile, cut a testimony
deal with Walker’s codefendant that he hid from the judge and
Walker’s attorney, the codefendant’s lawyer later admitted. The
prosecutor also made a leniency agreement with another of
Walker’s ex-girlfriends, who testified—falsely—that Walker was
a violent man (he kept this deal secret, too).
Other guys would have burned with rage at the injustice of
it all. Walker’s parents certainly did as they worked to free him,
only to have every state and federal court reject his appeals.
Walker was shocked when his father came to visit him, 50
pounds lighter and no longer the man he knew. “My mother
told me that he would just lay there in his bed and cry,” he says.
“In essence, this killed my father. His son was in prison and he
couldn’t get him out.” Shipped off to San Quentin and three
other prisons, Walker was determined to use his conviction as
an opportunity to turn his life around. He kicked his drug prob-
lem and became a lay preacher and counselor. He struggled to
forgive. “There is nothing positive that can come out of me
holding on to a grudge against a prosecutor or a judge,” he says.
“Anger just hurts me.”
In other words, Walker was a model inmate—the ideal can-
didate for parole. The first step was a documentation hearing,
at which a prisoner’s activities and conduct are evaluated for
possible credit for time served. But when he went to the hear-
ing, he found that the warnings he’d heard were true. One parole
commissioner put it bluntly: “It’s unlikely that a person convicted
of a capital crime like yours will ever get out of prison.”
California’s parole system started its hard right turn in the
early 1980s, when a series of notorious criminals were released
after serving stunningly short sentences for truly horrific crimes.
First Governor George Deukmejian remade the Board of
Prison Terms, replacing its bleeding heart with a skeptical core;
the board—which reviews indeterminate sentences that carry a
maximum of life—has recommended parole in just 2.5 percent
of the cases that have come before it in the past six years. Then,
in 1988, Deukmejian pushed through Proposition 89, giving the
governor veto power over parole recommendations in homicide
cases. By handing the ultimate authority to an elected official,
voters ensured that very few convicted murderers would ever
be freed. Again, an ax aimed at the worst criminals has fallen
hardest on innocent prisoners. Says Cliff Gardner, a San Fran-
cisco appellate lawyer, “Whereas a wrongful conviction in a
murder case used to be a 10-year or 12-year mistake, now it’s
a 30- or 40-year mistake.”
Parole vetoes peaked during Gray Davis’s five-year term; he
rejected 97 percent of his board’s recommendations. Likewise,
Arnold Schwarzenegger, who vowed to accept most of his
board’s decisions, has so far overruled 61 percent of them. One
inmate Schwarzenegger agreed to parole was Adam Riojas, an
Oceanside man who had served 13 years of a 15-to-life sentence
for a 1989 drug slaying. After numerous witnesses came for-
ward to say that Riojas’s father had admitted shortly before his
death that he was the actual killer, prosecutors told the parole
board they believed Riojas might have been wrongfully con-
victed, and the board voted unanimously to release him. A year
earlier, Davis—with exactly the same facts before him and the
same recommendation for parole—had refused to set Riojas free.
In representing Riojas, Innocence Project lawyers from Cal-
ifornia Western School of Law in San Diego had to grapple
with a dilemma so obvious and perverse that it was almost
laughable. The board, by its nature, will always require inmates
to take responsibility for their crimes and profess remorse.
“They expect you to say what they want you to say, exactly the
way they want to hear it, whether it happened that way or not,”
says Gloria Killian, who helped hundreds of women prepare for
their hearings. “I was never going to say I was guilty, so they
were never going to let me go.”
A spokesman for the Board of Prison Terms denies this is the
policy. But Walker heard the same thing. “One parole commis-
sioner looked me in the face—I’ll never forget this—and said, ‘If
you don’t admit that you did this crime, you’ll never get out.’”
Walker felt the same way Killian did. He would never tell such
a lie to win his freedom. He would have to find another way out.
■ ■ ■ ■
“I BELIEVE GOD INTERVENED IN MY CASE.”
—RICK WALKER
EXONERATION
>
In the end, the
only thing that could get Walker
out of prison—the only thing that
ever frees an innocent prisoner locked
up for life—was the efforts of some
amazing people and a freakish align-
ment of the stars. Walker was more
fortunatethan most.
For one thing, he had a mother who never lost faith in him.
Soon after his trial, Myrtle Walker asked a school board colleague
of hers to ask her daughter—a law student named Alison Tucher,
“Whereas a wrongful conviction in a
murder case used to be a 10-year mistake,
now it’s a 30- or 40-year mistake.”
November 2004 101
who was at the top of her class at Stan-
ford—to take a look at the case,
including new evidence she and her
husband had dug up. Tucher quickly
concluded Walker was innocent. After
a stint clerking at the U.S. Supreme
Court, she returned to the Bay Area,
taking a job at—of all places—the Santa
Clara County D.A.’s office, the same
office that had prosecuted Walker.
(She tried to prod her colleagues to
reexamine the case: “I didn’t get very
far.”) She moved to Morrison & Foer-
ster and became Walker’s pro bono
lawyer in 1999, tracking down new wit-
nesses while breast-feeding two babies,
litigating complex commercial cases,
and making partner in record time.
In early 2003, Tucher wrangled an
appointment with Karyn Sinunu, then
chief of the D.A.’s homicide unit. Tuch-
er’s PowerPoint presentation raised
red flags for Sinunu; during her years
as a prosecutor she had run into many
of the characters in the Walker case
and knew in her gut that something
was amiss. Her office spent the next
four months doing its own investiga-
tion, eventually discovering that DNA
on cigarette butts left at the crime
scene belonged to someone Tucher
had identified as the second killer. But
in some ways, the clincher came when
Sinunu’s investigators actually met
Walker and discovered what so many
people already knew. “My vision of
someone who’s been wrongly convicted
is a very bitter, angry person,” Sinunu
says. “But Rick took probably the worst
possible thing that can happen to a
person, and he turned it positive. He
just doesn’t have that blind, bitter rage.
Once you meet him, you can see what
a nonviolent person he is. He was not
a killer.”
The outcome for Walker—tears from
the D.A., a concession of innocence,
quick compensation by the state—is
society’s warm-and-fuzzy fantasy of
how the system ought to respond to a
miscarriage of justice. Two other Bay
Area cases are more typical of the way
things usually happen.
One of these involves Buddy Nick-
erson, the 430-pound biker mistaken
for a 200-pound killer who was also
prosecuted by Sinunu’s office. Sen-
tenced to life without parole, Nickerson
102 S A N f r a n c i s c o
was no more the model prisoner than he had been the model
citizen. For the most part, he refused to work. “My job was
making sure the TV antenna worked so that I could watch my
TV programs.” He figures he wasted a good 16 years on prison
moonshine, brewed in a plastic bucket out of catsup, Kool-Aid,
sugar, and rotten fruit. He got sick and nearly died, and shed
100 pounds. He made no effort to file a habeas writ—there didn’t
seem to be any point. “My case was shut down.
Basically, I was going to live my life in there.
I took the outside world and put it up on a
shelf, in a box.”
If it seems that most exonerated prisoners
are resilient, remarkable people, it’s also prob-
ably true that the ones who will never be freed are more like
Buddy Nickerson: beaten down and hopeless, the opposite of
saintly, so angry and distrustful that they make it easy—for
potential defense lawyers as well as prosecutors—not to care.
Attorney M. Gerald Schwartzbach, who looks and sounds like
Woody Allen channeling Perry Mason, was more empathetic
than most, but even he was taken aback by Nickerson’s surliness
when he showed up in Tehachapi one day in 1992 and offered—
free of charge—to try to prove his innocence. Schwartzbach had
an ulterior motive: he was representing Nickerson’s old neme-
sis Murray Lodge, who was facing the death penalty for the
shootings. Schwartzbach figured that if he could cast doubt on
the reliability of the sole survivor, Mike Osario (who had named
Lodge as the gunman), jurors might let his client live. What
better way to do this than to prove Osario’s ID of Nickerson
had been wrong? Nickerson had no idea how lucky he was—
Schwartzbach was famous, with a string of landmark cases on
his résumé, and he had state money to spend, since Lodge’s was
a capital trial. Nor did he much care. Nickerson had a swastika
tattoed on his arm; Schwartzbach was Jewish. “Buddy told me
he didn’t want to talk to me,” Schwartzbach recalls. “So I told
him that if I left, his last chance of ever getting out of there other
than in a box was going with me. And then he started to think—
‘Well, you know, maybe these Jews aren’t so bad!”
Over the next decade, Schwartzbach and his team scored some
notable victories (including keeping Lodge off death row). But
getting Nickerson out of prison proved much tougher. In 2002,
after considerable back and forth, a federal judge gave them their
best shot: a hearing on Nickerson’s habeas claim. Schwartzbach
and his team were feeling hopeful; in addition to the retraction
of a key eyewitness and proof that the cops in his case were liars,
6 THINGS THAT NEED TO BE DONE NOW
Change police
procedure
A 1999 National Institute of Jus-
tice report outlined a series of
reforms to reduce eyewitness
errors, including relatively sim-
ple changes in how police line-
ups are conducted. Meanwhile,
a blue-ribbon panel studying
Illinois’s error-ridden capital
system offered 19 proposals to
improve investigations, includ-
ing taping interviews with wit-
nesses and suspects and peri-
odic training on issues like false
confessions and use of infor-
mants. WHAT’S BEEN DONE Just
one county, Santa Clara, has
adopted any of the NIJ reforms.
On the Illinois recommendations,
California is batting 0.
Fund legal help to
prove innocence
Without lawyers and investiga-
tors to track down new evidence
and overcome procedural obsta-
cles in the courts, few wrongfully
“What prosecutors did to keep Buddy in
jail was outrageous,” his lawyer says.
“They should be ashamed of themselves.”
convicted lifers can ever hope to
get out. WHAT’S BEEN DONE The
state’s DNA testing law provided
funding for two years to help
inmates find old blood or semen
samples and put together
habeas petitions. But the money
(most of which went to Inno-
cence Projects) ran out this year,
and budget-minded politicos
think there are more important
priorities. The U.S. Justice
Department, meanwhile, has
just awarded the state more
than $11 million for DNA and
forensic services to solve crimes
and free the innocent. Los
Angeles County stands to get
around $2.4 million; Bay Area
counties will receive almost $1.5
million. But most felonies don’t
involve DNA evidence, and
much more money is needed to
help with non-DNA cases. NEXT
STEP Innocence Projects around
the state are looking for dona-
tions; if you want to help, go
to www.sanfranmag.com.
Let the media in
A 1996 law made it much more
difficult for the media, especially
radio and TV, to get access to
prisoners. SB 1164, passed by
the Legislature this year, would
have lifted some of the restric-
tions. WHAT’S BEEN DONE Despite
his marriage to a TV journalist
(and promises to make state
government more open), Gover-
nor Schwarzenegger vetoed the
bill in September. (Three earlier
bills were also vetoed.)
Help exonerees
reenter society
The wrongfully convicted get,
at most, $200 when they leave
prison—and no mental health,
housing, or other services to
adjust to life outside. WHAT’S
BEEN DONE Senator Don Perata
(D-Oakland), the new state Sen-
ate leader, has promised to
reintroduce a bill providing
such services in 2005.
Compensate them
for time lost
In 2001, California enacted the
most generous compensation
law in the country, allowing
exonerees to claim $100 for
each day of false imprisonment.
WHAT’S BEEN DONE The attorney
general’s office has blocked pay-
ment in all but six cases.
Convene a blue-
ribbon commission
Such a panel led to major
reforms in Illinois, including stiffer
punishment for cops and D.A.s
whose misconduct leads to
wrongful convictions. WHAT’S BEEN
DONE As one of his last acts as
Senate leader pro tem, John
Burton of San Francisco pushed
through a measure creating such
a commission, with a report due
by 2007. NEXT STEP Finding pri-
vate funding to proceed—then
coming up with meaningful
reforms that powerful police
and D.A. groups will support.
November 2004 103
they had Lodge’s testimony and exon-
erating statements from all his accom-
plices. They even had a statement from
a respected Santa Clara D.A. who, be-
fore joining that office, had been
Lodge’s first lawyer, saying that he was
sure Nickerson was innocent. Then
came a bombshell: an informant had
come forward, claiming that Nickerson
had confessed to him back in 1984,
while the two were in county jail.
No one could fault prosecutors for
fighting to keep Nickerson in prison.
It’s their job to vigorously defend a
verdict. “We believed [the informant]
was credible,” says Gregory Ott, of the
attorney general’s office, which takes
over for the local D.A. after a trial, han-
dling most state and federal appeals.
“What he was telling us was consistent
with what we knew. He knew things
he could not have made up.”
But like so many informants prose-
cutors have relied on in wrongful con-
victions in California, this one had a
shady pedigree and a motive to lie, the
defense soon discovered. In addition to
being a convicted murderer who had
tried to pin his crimes on his own sis-
ter, he was a member of the violent
Nuestra Familia inmate gang with a
drug habit, an abysmal prison record,
and so many enemies (for ratting out
his fellow gang members) that he
needed to be moved frequently—some-
thing prosecutors could help arrange.
He had already helped convict another
Santa Clara County murder defendant
in a mostly circumstantial case. (That
guy insists he’s innocent, too.) The
judge didn’t believe a word the snitch
said and ordered the state to set Nick-
erson free. Prosecutors had the option
of retrying him but decided enough was
enough. Schwartzbach is still furious
about the last-ditch effort to nail his
client. “What the D.A.’s office and the
A.G.’s office did to keep Buddy in jail
was outrageous,” he says. “They should
be ashamed of themselves.” But noting
that Osorio still says Nickerson was in-
volved and that Lodge and the others
may have lied to free their accomplice,
Sinunu is adamant: “The district attor-
ney is not conceding innocence.”
That’s the way it often goes in Cal-
ifornia exoneration fights. In the 30
cases we looked at, local and state
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104 S A N f r a n c i s c o
prosecutors have fought exoneration
the majority of times, refusing to give
in even after an appeals court has
looked at new evidence of innocence
and ruled the conviction was wrong.
Prosecutors have kept innocent pris-
oners in jail well after the release date
ordered by judges, threatened to retry
them after every scrap of major evi-
dence has been discredited, fought
DNA testing that might strengthen
appeals—even forced them to agree not
to file suit before letting them go.
Then there’s what’s happened in the
third Bay Area case, which some fear
signals a new chapter in the state’s bat-
tle with exonerees. Tennison and Goff
finally won their release last year,
thanks to the pro bono efforts of Keker
& Van Nest, one of the finest law firms
in the country. (Tennison’s brother
used to work in the San Francisco lot
where many of the firm’s lawyers park
their cars.) Those efforts didn’t stop
when a federal magistrate issued her
ruling letting them go; the lawyers also
put together declarations of factual
innocence, which Terence Hallinan,
then San Francisco’s district attorney,
went along with. The declarations—
quickly OKed by a judge—were a crit-
ical step in winning compensation
under a state law that allows $100 for
every day an innocent person is
wrongfully imprisoned. This was the
process Rick Walker went through to
win speedy payment of $421,000 last
year. Together, Tennison and Goff
were owed at least $800,000.
State compensation exists in part
because it’s so difficult to get any
money from the cities and counties
whose actions led to wrongful convic-
tion. “Our legal system has developed
so many immunities and protections
for law enforcement and prosecutors
that there is no one held accountable
for these great tragedies,” says San
Diego attorney Dwight Ritter, who
sued local authorities on behalf of an
innocent man named Frederick Daye
who spent ten years in prison before
a DNA test cleared him of rape. The
court ruled that Daye was only enti-
tled to damages for three days in jail;
the jury gave him nothing, while the
state awarded him almost $400,000.
But if, after everything else that had
November 2004 105
happened to Tennison and Goff, they
expected the resolution of their story
to be happy, they were sorely disap-
pointed. Since the Legislature raised
the compensation rate three years ago
(before, California exonerees were en-
titled to a flat $10,000 no matter how
long they’d been jailed), 25 people have
filed claims, and only six have been
approved, mainly in cases with DNA
evidence. The state is grappling with a
budget crisis; just as important, it’s
grappling with the elusive and often
unprovable concept of innocence itself.
In language that has not changed in 60
years, the law requires not only that a
claimant be innocent, but that “he did
not, by any act or omission on his part,
either intentionally or negligently con-
tribute to the arrest or conviction.” “It’s
a very tough standard,” says Nathan
Barankin, a spokesman for the A.G.’s
office—which, despite its role fighting
exonerations on appeal, acts as legal
advisor to the board that decides ex-
onerees’ compensation, a relationship
frustrated defense lawyers call a con-
flict of interest.
The A.G.’s office showed Tennison
and Goff just how tough that standard
may be. Deputy Attorney General
Michael Farrell learned that the judge
had spent “approximately” a minute
glancing through the two men’s doc-
uments before declaring them inno-
cent. Hallinan’s concession didn’t carry
much weight, either, since the actual
prosecutor in the case still believes
Goff and Tennison are guilty. Mainly,
though, Farrell concluded that Tenni-
son and Goff had failed to meet their
burden of proof. The prosecution’s key
witness had never wavered in her claim
that Tennison and Goff were the kil-
lers—never mind that the argument
that had freed the two men was that
this witness was a liar.
Farrell recommended that the claim
be denied outright; instead, the board
referred the case to an administrative
law judge for a hearing. Late this sum-
mer, lawyers for Tennison and Goff
faced off in Sacramento against Far-
rell—essentially a weeklong retrial of
the murder case. The process was
maddening and painful. “On the drive
back, I would have tears in my eyes,”
Goff says. “It made me think about all
WHAT DNA CAN’T FIX
IN THE 15 YEARS SINCE RELIABLE DNA TESTING BECAME POSSIBLE, more than 150 prisoners
around the country—at least 6 of them in California—have been scientifically proven to be inno-
cent of the crimes of which they were convicted, and untold numbers of “cold cases” have been
solved. That’s led many people to see DNA as the criminal justice system’s knight on a white horse
(a notion promoted by Proposition 69, the DNA database initiative on the November ballot, which
proclaims that “DNA identifies criminals and protects the innocent”). But the idea that preventing
or correcting an erroneous conviction is as easy as drawing a vial of blood is a fallacy. For one
thing, only about 10 percent of criminal cases have any biological evidence—blood, semen, skin—
to test. And the state has no money to hire anyone to help inmates track down old evidence.
Even when biological evidence exists, not everything goes according to script. When Albert
Johnson, a father of two young children with no record of sex crimes, was arrested in 1992 and
charged with two Richmond-area rapes, he insisted he was innocent and demanded a DNA test,
but none was ever done. He was convicted on the basis of eyewitness testimony and sentenced to
39 years. Johnson couldn’t get anyone to pay attention to his case until 2001, when a state law
granted prisoners the right to postconviction DNA testing if it would have led to an acquittal at trial.
The semen from one of the rapes exonerated him of that assault, but the rape kit in the other case
was gone, despite a new requirement that all biological evidence be saved. Johnson was freed
anyway, but because he hasn’t been cleared in one of the attacks, he remains a registered sex
offender. “It’s hard going to prison,” he lamented in a recent documentary about his case. “Being
accused and charged with rape when you got a little girl. I don’t know how she’s thinking and
looking at me. People saying things to her—your daddy’s a rapist.”
106 S A N f r a n c i s c o
THE “THREE-STRIKES” EFFECT
WITH THE NOVEMBER 2 VOTE ON PROPOSITION 66—which would drop non-
violent crimes from the list of “third strikes” punishable by life in prison—Califor-
nians are being asked to reappraise the radical anticrime measure they passed ten
years ago. Before voting, consider this: among its other effects, the law has pushed
people to plead guilty to crimes they didn’t commit.
Most people think only guilty defendants plead guilty. That just isn’t true, writes
conservative columnist Paul Craig Roberts, formerly of Stanford’s Hoover Institution:
“Many innocent people cop a plea just to end their ordeal.” In the Central Park jog-
ger rape case, five black defendants pleaded guilty to viciously assaulting a white
woman to avoid the wrath of a jury, only to be exonerated 13 years later by DNA tests.
Around the nation, at least 15 people have been exonerated after pleading guilty to
murder, mainly to avoid the death penalty.
In California, where pleas account for 95 percent of felony convictions, the law has
only added to a D.A.’s huge bargaining leverage. In exchange for a plea, D.A.s often drop
a felony strike or ignore a prior conviction as a strike. Facing life in prison if a jury con-
victs, many people who have two strikes already but are innocent of the third charge
have taken deals—including most of those busted by the Ramparts cops. In another
case, Ronald Reno had three priors dating from the 1980s when he was picked up on
gun and other charges. Though Reno was innocent, his lawyer got him to plead to a
single three-strikes charge for 25 to life rather than the 50 to 100 he’d get if a jury found
him guilty. He was exonerated 6 years later.
the things we’ve been through and all the
suffering we still have to go through.”
Yet the hearing did give Goff a chance
to do something he had never done,
something many murder defendants
are prevented by their lawyers from
ever doing—tell his story in court.
“I couldn’t wait to give my side,” says
Goff. “I’ve been waiting 13 and a half
years just to be able to give my side.”
A decision is expected any day.
■ ■ ■ ■
Buddy Nickerson,
meanwhile, is like
most exonerees; he’s
getting nothing. With-
out a finding of factual
innocence, he has little
chance of persuading the
state to pay him for 19 lost years. His
lawyers are considering suing Santa
Clara County, but they would face
another fight against overwhelming
odds. He could use the money. Unlike
parolees, exonerees receive no state
services—no mental health counseling,
no job training, no help finding work
or a place to live. Parolees get 200 bucks
on their way out of jail; exonerees aren’t
in the parole system, so they may not
get even that paltry sum. Just the sim-
ple process of claiming disability bene-
fits or obtaining a driver’s license is
enormously difficult: How do you ex-
plain where you’ve been all this time?
Why should you have to?
The first few nights Nickerson spent
at home, he found his bed too soft and
his room too big for comfort, so he slept
on the floor of his father’s garage,
between two cars. He’s spent the last 18
months trying to get adjusted to life on
the outside—staying sober, reconnecting
with his family, riding the motorcycle
his brother gave him, figuring out how
to live on almost no money. In and out
of hospitals for a variety of health con-
ditions that went more or less untreated
in prison, he’s lost another 100-plus
pounds and is now less than half the
size he was when he was arrested.
He has struggled to control his rage,
not just at what Santa Clara County did
to him, but at the inability of most peo-
ple to understand what he went through
November 2004 107
in prison and what he’s going through
now. His previous girlfriend was a lit-
tle afraid of him. “She’d say, ‘You’re
not in the prison yard any more. You
don’t need that look.’ My buddy calls
it the survival look—you’re letting peo-
ple know not to piss with you.” Per-
haps his greatest source of comfort is
other ex-cons. “They are there for me.
I can call them anytime, night or day.”
The woman he’s currently dating is
one, too. “She understands where my
head is.”
Two things Nickerson has been
very clear about. The first is staying
out of trouble. Life is precious now.
He wants to experience as much of it
as he can. He also doesn’t want to give
any police officer a pretext for arrest-
ing him. “I’ve had cops tell me—‘Hey,
Buddy, you’d be a big feather in some-
body’s cap if they busted you.’” This
fear has made him a little paranoid
sometimes: “If my car is out of my
sight, OK, I search it. I put little mark-
ings on it that if somebody gets in my
car, I know it.”
His other primary mission is some-
thing a lot of people—the sheriffs who
busted him, the prosecutors and jurors
who convicted him, maybe even the
man he used to be—wouldn’t believe
he was capable of achieving. He wants
to be a good person.
One of his first priorities after his
release was having that swastika erased
from his arm, out of respect for
Schwartzbach, a man he never would
have believed he could have trusted,
much less called a friend. The other
racist tattoos are gone, too. He’s not
that guy anymore.
Some people might hear his story and
think those 19 years weren’t lost after
all, if this is what he’s learned and the
person he’s become. But that’s just
another delusion, something we tell
ourselves to ease our guilt and make
sense of a terrible injustice.
Here’s the truth. It wasn’t prison that
changed Buddy Nickerson. It was get-
ting out.
•
San Francisco’s executive editor, Nina
Martin, has covered California’s criminal
justice system for 16 years. Additional
reporting by Susan R. Kelley, Susan
Kostal, Justine Sharrock, Jaimal Yogis,
and Michelle Kaylor.
Wayne Thiebaud Four Sandwiches 13 x 21
1
/4” oil on paper, 1965
Bay Area Figurative,
20
th
Century and
Contemporary Art
exhibition previews at www.hackettfreedmangallery.com