Article Of Interest: Jan Stiglitz’s View From the Trenches: The Struggle to Free William Richards

A popular game among lawyers (and law professors) while watching legal TV shows is “spot the legal error.” And as readers of this blog with their law degrees know, such shows are replete with inaccuracies. Some of these errors are innocuous. As an Evidence professor, I often see evidence wrongfully admitted or excluded, but I don’t worry that such errors give laypersons a dangerous misimpression of how trials are conducted. Of course, one of the more obvious errors in legal TV shows is the rapidity with which disputes are resolved. In the classic “client of the week” format, we often see a client in complex litigation retain a firm, complete discovery, and achieve a settlement or verdict in a matter of days when in reality the entire process would likely drag on for years.

But I still don’t know that this “fast forward justice” misleads the public in a way that is all that troubling. But what about when the lawyer at one of these fictional firms is given the pro bono project of the wrongfully incarcerated inmate? If you’ve watched one of these episodes, you know the score. The firm gets the case, and it throws its full resources into finding the flaws in the prosecution’s case. Often, the inmate is on death row, and the firm has only a few days or hours to stop the execution. The firm gets a lab to expedite testing of forensic evidence. It gets a judge to hear an emergency motion. The inmate’s innocence is proven. The episode ends with the prison gates opening and the inmate being reunited with his family. Tears are shed. Justice has been served.

In reality, though, these types of wrongful conviction cases are much more often of the “justice delayed is justice denied” variety than the “fast forward justice” we see on TV. And I think that the real value of the recent article, View From the Trenches: The Struggle to Free William Richards, 73 Albany L. Rev. 1357 (2010), by Jan Stiglitz, a professor and the director of the California Innocence Project at the California Western School of Law, is that it exposes the realities of the situation.

Professor Stiglitz‘s article deals with the California Innocence Project‘s ongoing representation of Williams Richards. As Professor Stiglitz notes, our story starts on August 10, 1993, with Pamela Richards being fatally strangled and beaten with a large paving stone and a cinder block. The San Bernardino County Sheriff’s Department soon settled upon a suspect, Pamela’s husband, William Richards, who claimed that he called 911 after arriving home from work and discovering his wife’s dead body. The prosecution twice charged William with murder, and both trials ended with hung juries. The prosecution did have some evidence of William’s guilt, such as blue fibers allegedly found under Pamela’s fingernail that were consistent with material from the shirt that William had worn. But there were significant problems with the prosecution’s case, not the least of which was the fact that “[t]he crime scene indicated a violent bloody struggle had taken place and [William] had almost no blood on his shirt and no blood spatter on his pants.”  

At a third trial, the prosecution delivered what turned out to be its smoking gun: testimony from a forensic odontologist regarding a crescent shaped injury which had been found on Pamela’s right hand. According to the prosecution’s expert, (1) the injury was consistent with a human bite mark; (2) whoever had left that bite mark had an abnormality which would only occur in “one or two or less” out of one hundred people; and (3) William could be one of those people. After three days of deliberation, the jury convicted William. The prosecution finally got its man. But was the smoking gun a misfire?

That was William’s claim when he contacted the California Innocence Project in 2001. And, after some research, the Project determined (1) that there was a hair under Pamela’s fingernail that was never tested; (2) that the paving stone and cinder block could contain testable genetic material left by the person who wielded them; and (3) that at least two alternate suspects existed, including Pamela’s ex-boyfriend, who called Pamela on the night of the murder.

The Project quickly followed these leads. Under newly enacted California Penal Code Section 1405(f), they could get genetic testing of the murder weapons and the hair if the identity of the perpetrator was at issue, the evidence sought to be tested was material to issue of identity, and the test results would have raised a probability of a more favorable result if the testing had been available at the time of trial. The Project contacted the Deputy District Attorney (DDA) to see if the District Attorney’s Office could expedite the testing. The response? The DDA knew that William was guilty and would vigorously oppose testing.

It was now December 2002, and the Project filed its motion for testing. In February 2003, the District Attorney’s Office filed its opposition. In July 2003, a judge granted the Project‘s motion. Who should do the testing? The Project‘s DNA consultant said it should be the California Department of Justice (DOJ) to preclude claims of biased or untrustworthy results. The evidence was sent to the California DOJ in mid-2003, and…it sat there. 2003 turned into 2004. 2004 gave way to 2005. The Project sent letters to the California DOJ. Another year passed. The Project made calls to the California DOJ. Another year behind bars for William Richards. Finally, in February 2007, the Project got its results: DNA recovered from the paving stone was not a match for either WIlliam or Pamela, and mitochondrial DNA testing on the hair revealed that it belonged to neither spouse.

Unlike the evidence sent to the California DOJ, the Project did not remain idle over these four years. Instead, it set about to diffuse the prosecution’s smoking gun. The odontologist at the third trial based his testimony on a photograph of Pamela’s right hand. It turned out that the camera taking that photo was not on the same plane as her hand, creating an “angular distortion.” The photo was corrected through Adobe Photoshop, and one expert was able to exclude Richard’s teeth as the source of the injury to Pamela’s hand. Another expert opined that the injury might not even be a bite mark. The prosecution’s odontologist recanted his testimony.

And what about the blue fibers found under Pamela’s fingernails? A student compared autopsy photos with the later photos showing the blue fibers, and the “examination suggested that the fibers were not present in the nail at the time of the autopsy and therefore could not have been there as a result of any struggle between Pamela and her killer.” Moreover, the student uncovered the fact that the criminalist finding the fibers “had been accused of providing false and misleading evidence in another high profile murder case in San Bernardino County.”

It was now November 2007. The Project filed a petition for writ of habeas corpus. The DA filed a long, rambling response. The Project successfully moved to strike it. Delay. The DA filed a second, equally flawed response. The Project again successfully moved to strike. Delay. It was possible that the prosecution failed to turn over photos and a report. The Deputy District Attorney recused himself. Delay. Finally, William got his day in court, and the Project convinced the judge to grant the petition on August 10, 2009.

But where were the opening prison gates? Where was the crying family? Not yet. The judge stayed the granting of the writ so that the prosecution could appeal. Professor Stiglitz‘s article closes by noting that “[a]s this is being written, the prosecution has appealed and it looks like another year will pass before we have the possibility of a final resolution of the case.”

In fact, more than a year passed. Then, on November 19, 2010, the Court of Appeal, Fourth District, Division 2, Calfornia reversed in In re Richards, 2010 WL 4681260 (Cal.App. 4 Dist. 2010) (Download Richards opinion). According to the court,

While Defendant’s petition suggested that certain evidence against him was weak, the fact remains those weaknesses were brought out during the trial. Even with the weaknesses, there was sufficient circumstantial evidence to establish Defendant’s guilt. The new evidence offered by Defendant in support of his petition failed to undermine the prosecution’s entire case and point unerringly to his innocence.

Was the court right? I don’t think so, but I will leave it up to readers to decide. So, where does William stand? I contacted Professor Stiglitz, and he responded that the Supreme Court of California is set to hear William’s appeal in late summer or early fall. Will William finally be set free? I don’t know, but if he is, it will certainly not be the “fast forward justice” seen on TV. Ten years have passed since William contacted the California Innocence Project. Eight and a half years have passed since the evidence which I think proves his innocence was sent off for testing. Three and a half years have passed since the test results came back. William remains in prison. Things are not always as seen on TV.

-CM