At first, after he was wrongfully accused of assault, Bobby Herrera believed he would find a lawyer who could prove his innocence. But in the last emotional minutes before he walked into court, attorney John Pyle was pressuring him to plead guilty.
Pyle already had collected more than $10,000 from Herrera's family. But he hadn't bothered to interview witnesses who could testify that Herrera didn't shoot a guest at his girlfriend's high school graduation party. Nor did Pyle pursue information that Herrera's primary accuser had gone back on her story to friends.
Instead, in the courthouse hallway that day in April 1998, Pyle offered this assessment: Herrera would get no more than a year in jail if he pleaded guilty. If he went to trial, he risked 25 years in prison. And a trial would mean thousands more in legal fees.
Herrera, 19, couldn't bear the thought of costing his parents -- his father was a forklift operator, his mother a home health care provider -- more money they did not have. ``I had no choice but to plead,'' he recalled recently.
But Pyle had misled him horribly. Herrera received a five-year prison sentence. And the family ultimately would pay tens of thousands more in an agonizing legal journey to free Herrera, a journey hindered by more ineffective lawyering and an unsympathetic appellate court.
Herrera's saga -- which was detailed in court records and interviews with participants -- is one of more
The review showed how attorneys' failures contribute to a system that repeatedly favors the prosecution. Often, the errors were so appalling that they would seem unthinkable even to first-year law students: failing to interview witnesses, gather crucial evidence or know basic criminal law. Experts who reviewed the Mercury News' findings emphasized that another set of problems was just as critical: Attorneys repeatedly failed to respond aggressively to prosecutorial misconduct, a breakdown of the adversarial process that invites violations of defendants' rights.
In the worst cases, as in Herrera's, the attorneys' failures were so fundamental that they left doubts about the guilt of convicted defendants.
Compounding the problem, the review found that the errors plagued defendants far beyond trial. Appellate justices routinely declined to consider allegations of misconduct by prosecutors or errors by judges when attorneys had failed to challenge the behavior at trial.
The newspaper review found the problems began at the earliest stages of a case, and continued all the way through trial and appeal:
In nearly 20 cases, defense attorneys failed to take simple steps to investigate and prepare their cases for trial. Some attorneys went to trial without ever meeting their clients outside the courtroom. Some neglected to interview obvious alibi witnesses. Some accepted without question reports from prosecutors' medical and forensic experts that were ripe for challenge.
Once in the courtroom, defense attorneys failed their clients in dozens of additional ways. Some did not introduce key evidence -- including evidence promised to jurors during opening statements. Others did not ask judges for rulings or jury instructions that were crucial to helping their clients. One defense lawyer so misunderstood the rules of evidence that he permitted his client to testify at a preliminary hearing without realizing the prosecutor could then introduce that testimony at trial.
In 60 cases, defense attorneys failed to object when prosecutors introduced inadmissible evidence, asked improper questions or made prejudicial arguments to juries. Such failures have a lasting impact. Under court rules, appellate panels need not consider errors left unchallenged at trial; instead they can deem them ``waived,'' and outside the bounds of the appeal.
Attorney errors are not easily corrected. In more than 100 cases, the 6th District Court of Appeal rejected challenges to the attorney's performance by issuing single-sentence orders that lacked explanation. Other cases saw the appellate justices repeatedly rationalize poor conduct. In one instance, they suggested that an alcoholic lawyer's repeated absences and tardiness during trial may have been a knowing tactic to permit him time to sober up before the jury saw him. Twice, justices found no problem with lawyers who could not legally represent their clients because they had been suspended by the State Bar of California.
But the review, as extensive as it was, almost certainly understates the problem: While the Mercury News focused on appellate records, the overwhelming majority of criminal cases settle without a trial or appeal, and no record of the attorneys' efforts exists.
``The level of practice is extremely low overall,'' said appellate lawyer Michael Kresser, director of the Sixth District Appellate Program, which reviews hundreds of Santa Clara County cases each year. Attorneys are trying cases who ``don't know the basic tools of trial lawyers,'' he said, from ``making proper objections and motions to doing adequate investigation to developing a coherent defense strategy at trial.''
Public and private attorneys alike have offered second-rate representation. Deputy Public Defender Victoria Burton-Burke, for example, explained in court papers in one case that she hadn't attempted to learn whether any witnesses who would be testifying against her client had juvenile criminal records -- information that comes only through seeking court approval -- because she was too busy.
But the newspaper review found a telling distinction, in that private attorneys' failings are often driven by money. The most unscrupulous behavior involved a class of private lawyers who take cases for a relatively low fee, and then boost their profits by avoiding a time-consuming trial.
Defendants with language barriers and little education found themselves at the mercy of these lawyers, who pushed them to plead guilty even when it may not have been in their best interest. In 10 cases uncovered by the review, defendants buckled; in four of those cases, including Herrera's, there was significant evidence the defendants were not guilty.
Laurie Levenson, a former federal prosecutor who now is a professor of criminal law and ethics at Los Angeles' Loyola Law School, calls the phenomenon of innocent people pleading guilty to crimes ``one of my biggest concerns. Unfortunately, it happens all the time,'' she added, because guilty pleas ``take a lot less work.''
A little work from his attorney might have produced a compelling defense for Herrera.
The evidence against him was thin: After gang members crashed the graduation party, a gunshot hit an uninvited guest in the arm, and two witnesses told police the shooter was Herrera. But others at the party would have said Herrera did not fire the gun. Character witnesses -- including two college instructors and his boss at an auto shop -- would have described Herrera as a model student and employee who had no criminal record. And Herrera's family had information that one of his two accusers was saying she had been coerced by gang members into falsely implicating Herrera.
Pyle never produced a single clue that he had pursued those leads. Instead, the post-verdict evidence indicates, he had insisted that it ``was the job of the police and the prosecutor'' to interview the witnesses.
Reached in Greece, where he now lives, Pyle conceded that he did little investigative work on the case. But he said he does not recall making some statements the Herreras attribute to him.
His conduct was only one part of the Herreras' defense nightmare.
Zenaida Herrera was set on hiring a private attorney for her son because she was convinced he would get better representation. ``I believed the public defender, they can only do so much, not as much as a private lawyer,'' she said recently, expressing regret that she was wrong. She hired Pyle -- the husband of a woman she had once worked for -- for $10,000 after other lawyers demanded as much as $30,000 to take her son's case.
She had no idea that Pyle was suspended from practicing law for failing to pay his bar association dues. That meant he could not legally represent Bobby Herrera. Nor was she aware that the bar had previously disciplined Pyle for failing his clients, and was in the midst of an investigation that would lead to Pyle's disbarment.
Zenaida Herrera began to learn the truth as she found Pyle's office closed one day, with a deadline for her son's appeal approaching. She went to the police department, where an officer offered an unnerving comment: He hoped she had not hired Pyle for legal work.
Pyle recalls telling Zenaida Herrera he had ``a problem'' with the state bar but ``I didn't tell her what the problem was totally.''
After dumping Pyle, Zenaida Herrera hastily settled a lawsuit over injuries she suffered in a car accident and then used the proceeds to hire two other private lawyers. Each did little to help Bobby Herrera challenge his conviction. But finally, a capable court-appointed lawyer -- the family's fourth attorney -- mounted a strong effort in the appellate courts.
The 6th District did not even bother to ask prosecutors for input before rejecting the appeal. But the state Supreme Court did, and prosecutors did not contest that Herrera's claim had merit. After the court ordered a new hearing, the district attorney's office dropped the case rather than pursue it again.
Finally free, Herrera had spent more than 11 months in prison and more than $30,000 of his family's money. Among other problems, he had defaulted on his student loans while locked up. But he since has married his girlfriend, and they have a daughter.
``I try to go on with my life, to handle it,'' Herrera said of the experience. ``It is behind me now.''
Only a small percentage of defendants suffer the sort of injustice that plagued Herrera. But his case illustrates much about how the normal workings of the justice system can go awry.
Overwhelmingly, defendants charged with felonies plead guilty rather than stand trial -- more than 95 percent of convictions statewide occur before trial. Most often that is because the evidence of their guilt is overwhelming, and their best chance at a reduced sentence is a plea deal. But judges, prosecutors and defense attorneys have another powerful incentive to bargain: The system would quickly break down if a significant number of defendants demanded jury trials, which are enormously time-consuming.
This pressure can become dangerous when amplified by private attorneys who also have a strong financial incentive to avoid trial.
In such instances, the Mercury News found, some attorneys may give clients erroneous legal advice, deny them the benefits of an investigation, demand more money -- anything to get the case over with.
Said appellate lawyer Kresser: ``There are lawyers who will do everything they can to keep from having to go into a courtroom and try a case.''
S.J. lawyer sanctioned for forsaking clients
One attorney with a history of dodging the courtroom -- to the detriment of his clients -- is San Jose lawyer Rudy Guzzetta. Court records from the 1998 appeal of a San Jose sexual assault case describe a pattern of pressure to plead.
In 1992, Guzzetta persuaded Maria Soto to plead guilty to second-degree murder in the beating death of her 3-year-old daughter, telling her she might get out in less than 15 years if she did, but risked life in prison if she didn't. She got the maximum sentence for the crime, 15 years to life, even after taking his advice.
But Soto won a new trial in 1997, after an appellate panel concluded that Guzzetta had failed to develop evidence implicating Soto's boyfriend, who had a history of beating the child and had been a witness against her. The court also saw a possible explanation for Guzzetta's failure: He was paid by the boyfriend's family to represent Soto, a blatant conflict of interest.
The San Mateo County District Attorney's Office retried Soto, but the jury deadlocked. Soto pleaded no contest to child endangerment and was deported to Mexico.
``She lost everything,'' said John Halley, her attorney in the second trial. ``She lost her home, her family, her ability to stay in this country. She wasn't guilty, but nobody would hear her, including her attorney,'' referring to Guzzetta.
A few years later, Guzzetta made what a judge later called ``a minimal effort'' to develop a defense for Raul Horta Pena, who pleaded guilty to child molestation and was sentenced to 21 years in prison. Pena was allowed to withdraw his plea in 2000 because of Guzzetta's incompetence and struck a deal for eight years.
The state bar placed Guzzetta on two years' probation in 2002 for his conduct in those and other cases, the latest in a series of sanctions for the attorney. But other clients have suffered from Guzzetta's behavior without recourse, among them Jose Reyes Flores.
In 1996, Santa Clara County authorities charged Flores with repeatedly sexually assaulting his stepdaughter. There were reasons to question the accusation: The stepdaughter did not report the abuse until four years after it allegedly occurred, and by then Flores had separated bitterly from the girl's mother. One potential witness said the mother had threatened to make false accusations against Flores.
Nevertheless, Flores pleaded guilty in the midst of a trial in which key defense witnesses did not show up -- after Guzzetta neglected to subpoena them. Flores later said Guzzetta encouraged his plea with a promise to challenge his 18-year sentence, telling him that ``on appeal I could finally present my side of the story.'' That is untrue. It is extremely difficult to present new witnesses after trial, especially when the defendant has pleaded guilty.
Guzzetta never even filed a notice of appeal. Court-appointed attorneys later sought to reopen Flores' case, offering evidence from the Soto case, but were rebuffed by the appellate court.
Flores recently completed his sentence, after time off for good behavior, and was deported to Mexico.
In an interview, Guzzetta defended his actions in each of the cases: ``I never browbeat or told them to take a plea. It's their decision.''
He denied telling Flores that he could present his side of the story on appeal, and denied having a conflict of interest in the Soto case. Further, he said, he does not feel sorry for Soto because he is certain she killed her daughter.
``I don't have anybody plead guilty who isn't guilty,'' Guzzetta said.
The little things
Simple steps neglected at every stage of trial
When attorneys take cases to trial, the opportunities for shoddy legal work only increase. The Mercury News review found case after case in which defense lawyers failed at the most elementary tasks. The errors came at every stage:
Pretrial investigation: In a gang murder case, the trial counsel never tried to analyze a tape recording of a confession that included, according to the police transcript, portions that were ``unintelligible.'' After the defendant was convicted, an appellate attorney hired an audio expert who determined that among the unintelligible sections was the defendant's attempt to ask for a lawyer -- which was ignored, in violation of his constitutional rights.
Opening statements: The defense attorney in a murder case said the evidence would show there were no identifiable fingerprints on the barrel of the revolver that was used in the crime. In fact, as he clearly should have known, the evidence showed his client's fingerprints on the barrel -- and the prosecutor exploited that misstatement along with several others to brand the entire defense case ``wishful thinking.''
Witnesses: In an aggravated-assault case, one witness had told police at the scene that it was another man -- not the defendant -- who had used a blunt instrument to strike the victim. But the defense attorney made no effort to call that witness to testify, explaining later that she had hoped the judge would allow the police report as evidence.
Closing arguments: One attorney ended a trial by telling the jury he would not review the evidence because ``I want you to rely on your notes and rely on what is part of the record, the official transcript.'' A legal expert cited in the appeal called the closing argument a ``total abdication by counsel.''
Failing to challenge prosecutors costly
The Mercury News found that one class of trial errors was particularly damaging for defendants -- errors that involved defense attorneys' failures to act as a check on prosecutors.
When the prosecution reveals forbidden evidence or makes an improper argument, such an action can prejudice the jury's view of the case. But if the defense lawyer fails to object to the improper behavior, the impact may resonate even after the trial. Under the rules of court, issues left unchallenged in the courtroom may be deemed ``waived,'' meaning they are not open to appeal.
The Mercury News found 60 cases in which the 6th District Court of Appeal declined to consider possible errors, saying the acquiescence of the trial attorney served to ``waive'' the issue.
Often these waivers involved evidence so obviously prejudicial that it is difficult to imagine any defense attorney could pass it by. Court cases have long made clear, for example, that a defendant's withdrawn guilty plea should not be mentioned at trial.
Nevertheless, in Daniel Nieblas' trial for possession of heroin, the prosecutor described at length Nieblas' original plea of guilty. He went on to characterize the defendant's decision to withdraw the plea as a ``tantrum.''
Defense attorney Adrienne Dell failed to object to any of the repeated mentions of the plea, although at one point she asked the judge to declare a mistrial, which was denied. The appellate court agreed that the prosecutor's conduct was ``troubling.'' But it said Dell had waived the issue through her failures, so it was not a subject for appeal.
Dell recently said she chose not to object so the jury would not think she was trying to hide something.
The court's use of waiver findings raised another question: whether appellate justices might overuse waiver to avoid declaring error and overturning convictions.
In some cases, the Mercury News review found, the appellate opinions even misstated the facts of a case to justify the waiver -- claiming, for instance, that an attorney hadn't objected to improper evidence when the record showed clearly that he had. Presiding Justice Conrad Rushing said he is especially concerned that waiver may be overused.
In an interview, Rushing said he does not consider it the ``noble thing we signed on for'' to find technical reasons to avoid deciding error. He labeled that technique ``gotcha'' jurisprudence.
Court stretches to excuse bad counsel
The court's handling of waiver rulings is only a small piece of a larger phenomenon, the Mercury News found: Defendants who blame their convictions on incompetent attorneys rarely find sympathy from the 6th District Court of Appeal.
In part, the court's resistance reflects the mandates of law. A long line of California court rulings has set a high standard to challenge an attorney's representation. The defendant must demonstrate the errors were so severe that a jury probably would have reached a different verdict without them. Even then, a court will not grant relief if it determines the attorney had a tactical reason for the conduct -- perhaps, for instance, the attorney did not object to a prosecutor's fleeting mention of a defendant's criminal history so as not to call attention to it.
In just a handful of cases in the Mercury News review did the court find an attorney's representation so poor that it met this threshhold. Monty Lopez's experience with his lawyer was one. Lopez had been convicted of a felony for resisting officers who came to his house to quiet a disturbance. In the trial, Lopez's attorney sat by while the prosecutor undermined the credibility of defense witnesses with questions about their own past arrests and convictions. Deputy Public Defender Alfred Spielmann, a relatively inexperienced attorney, also failed to object to the introduction of statements that Lopez uttered after he invoked his right to an attorney.
The court said no reasonable attorney would have made those errors. Assistant Public Defender Nancy Brewer said the case spurred her office to provide additional training for its attorneys in countering prosecutors' tactics.
Defendants who fail to overturn their convictions on direct appeal have a second avenue of attack -- the habeas corpus petition, which allows the introduction of evidence not heard at trial. Often these petitions are used to present evidence of an attorney's behavior, such as failure to meet with a client or failure to investigate the case.
The 6th District typically is hostile to these challenges. For every petition it grants, the 6th District rejects more than five others in two words -- petition denied -- without offering an explanation or even asking prosecutors for feedback, the newspaper review found. Even in cases in which the court responds favorably, the defendant generally ends up no better off.
The court orders a new trial in just one in every four of the small pool of cases in which it grants relief. In the remainder, appellate justices send the case back to the Superior Court for a hearing on the new evidence; a sampling of those hearings shows the defendant won relief less than one-third of the time.
``The courts have a bias toward finality,'' said David Sklansky, a former federal prosecutor and a faculty member at the University of California-Berkeley's Boalt Hall School of Law, who reviewed the Mercury News' findings. ``They are not eager to reopen cases and overturn convictions because of attacks on the work of defense counsel.''
The Mercury News review bore this out. Often, the court goes to significant and even surprising lengths to avoid finding fault.
Justices rejected Christopher Taylor's appeal, even though his attorney, Robert Mitchell, was suspended from practicing law throughout Taylor's bank robbery trial for failure to pay child support.
Just because Mitchell could not legally represent Taylor did not mean that his representation was inadequate, the court said.
Nor was the 6th District concerned by the performance of Herman Cowan, who represented Barry Parham during his trial and conviction for possessing cocaine for sale.
From the start of jury selection -- when Cowan said he had a family emergency -- through the verdict, Cowan was late one day after another. Cowan was even tardy for a hearing on whether he should be held in contempt for his repeated tardiness. On several occasions, a frustrated Judge Gregory Ward told the jury that Cowan was the reason for delays to the trial.
Finally Cowan offered Ward an explanation for his repeated failures to appear: The attorney, who already had a history of discipline for misconduct, said he was battling alcoholism. On appeal, Parham contended these absences, and Ward's courtroom expressions of impatience, unfairly turned the jury against him.
But the 6th District Court of Appeal found Cowan's representation to be sufficient -- and said his irregular schedule may have been tactical. Perhaps, the appellate panel said, Cowan had waited to sober up before coming to court ``in order that he could function at the level of a reasonably competent advocate when he did appear.''
Both Mitchell and Cowan eventually were disbarred for a pattern of misconduct -- and the disbarment order for Cowan even cited the Parham case. Nevertheless, Parham served his full sentence, and Taylor remains in prison.