July 21, 2008
An El Paso man whose conviction for murder was overturned after almost 13 years in prison is suing the city of El Paso and seven current and former police detectives, claiming the officers deliberately failed to investigate evidence that would have exonerated him.
That evidence included an informant who said his neighbor came to his apartment covered in blood and admitting to details of the crime, according to the lawsuit. But police refused to fully investigate that lead, the lawsuit states. Further, the lawsuit states, they bullied another man into identifying Alejandro Hernandez as the killer. [lawsuit]
Hernandez, the man eventually convicted in the 1994 killing of Robert Cobb, is asking for unspecified actual, punitive and exemplary damages, as well as attorney fees. The lawsuit was filed in the federal district court of Judge Kathleen Cardone on June 20.
Hernandez, who now lives in El Paso, told NPT media partner ABC-7 in an interview to be broadcast tonight (July 20, 2008) that the police devastated his life.
"I lost everything. I lost everything. When I got out, I had nothing," Hernandez said.
Hernandez’s conviction was overturned by the Texas Court of Criminal Appeals on June 21, 2006, and sent back to the district court, where “with the cooperation of the El Paso County District Attorney’s office, an El Paso County judge dismissed the charges against the Plaintiff.”
Jeff Blackburn, chief counsel of the Innocence Project of Texas and one of the lawyers representing Hernandez, said the fact that the District Attorney dropped the case speaks volumes.
“This is a case of police misconduct, not prosecution misconduct. It's important for people to know,” he said. “Some of these cases … we see prosecutors behaving badly and breaking rules.
“With a lot of DAs, once it comes to light how wrong a prosecution was, the question becomes do we cover it up or allow exposure of it? We don't believe the full picture was ever presented to them in this case.”
District Attorney Jaime Esparza told ABC-7 that he could not comment on camera because of the pending lawsuit, but he told reporter Ashlie Hardaway that it was clear Hernandez did not kill Cobb.
Police Department spokesman Javier Sambrano said that he could not comment because of the pending litigation, but did confirm that three of the detectives named in the lawsuit still work with the department.
“Our detectives do have an excellent reputation, and they do a great job,” Sambrano said. “The job of an investigator is to do a thorough investigation and find probable cause. The courts and juries assess guilt or innocence.
“We're just one part of the process an individual goes through when they're accused of a crime. We're just the first step,” he said.
The lawsuit names current detectives Jesus Terrones, Arturo Ruiz Jr., and Sal Dominguez, and retired detectives Pedro Ocegueda, Antonio Tabullo, Guillermo Martinez, and Joe Zimmerly.
NPT attempted to reach the retired detectives, but was only able to contact Pedro Ocegueda, who said he had not yet been served and declined to comment.
***
The lawsuit sets out a series of facts as the basis for establishing the harm to Hernandez:
-- On May 11, 1994, a jogger in the desert near the intersection of Diana and Dyer found the body of Robert Cobb lying beside his Pontiac Trans Am. Cobb was a homeless Vietnam veteran who lived out of his car and was known in the area. A blood test showed he had been drinking heavily the night of his death, but other than that, only traces of antihistamine were found. Cobb's brother said Cobb had no history of drug use.
-- Cobb had been stabbed repeatedly with a small knife, and killed by a blow to the head from a steering wheel lock.
-- Two days after the murder, a man told police he witnessed Cobb and two men arguing over a drug transaction. The lawsuit notes that the man spoke Spanish only, yet claimed to have overheard the conversation in English. It also notes the man had legal problems, for which his testimony "would eventually gain him some leniency."
-- The witness identified one man, who was told by police they had enough evidence to convict him, the lawsuit states. Police offered the man a deal, however, if he would name his accomplice, the lawsuit states. The man then said his accomplice killed Cobb, although, the lawsuit states, his version of events differed from that of the first witness.
-- Police picked up Hernandez, who said he had been at home the night of the murder, an assertion backed up by three people in the home with Hernandez, the lawsuit states.
-- Although the second man, the alleged accomplice, did not know Hernandez, the lawsuit states that police showed him a single photo of Hernandez and told him "if he simply would identify Alejandro Hernandez as the murderer of Robert Cobb" he would be released.
-- Hernandez's arrest made the news, and that night, a man who saw the report telephoned police to report that his neighbor had come to him the night of the killing, covered with blood and confessing to details of the murder.
-- Although the neighbor's fingerprint matched two found at the scene, and the informant was able to provide details of the crime scene, police performed only a cursory interview of the new suspect, the lawsuit states. Further, the police never investigated obvious discrepancies in the previous witnesses' stories, according to the lawsuit.
Based on that sequence of events, the lawsuit raises six specific allegations that:
-- Hernandez's right to due process was violated, because of faulty photo lineup procedures, failure to fully investigate potentially exonerating information, and manipulating eyewitness identification "by the use of threats, coercion, and the revealing of key information to the witness in an effort to obtain a statement falsely accusing the Plaintiff Alejandro Hernandez."
-- Police failed to maintain an adequate written policy regarding permissible witness identification procedures, determination of probably cause in an investigation, recovery of physical evidence from a crime scene and procedures related to obtaining eyewitness statements.
-- The defendant officers conspired to either perjure or suborn perjury, failed to develop exculpatory evidence, and deprived the plaintiff of his rights through the "impermissibly suggestive witness identification procedure."
-- The conduct of the defendants was reckless or intentional.
-- There was no probable cause for the criminal proceedings against Hernandez, and that the proceedings were "instituted and continued maliciously."
-- Two or more of the officers agreed to the course of action that led to Hernandez's prosecution, constituting a "civil conspiracy."
ABC-7's report notes that although no damages are specified, the state's wrongful conviction statute allows $50,000 for each year spent in prison.
***
Clay Graham, Hernandez's lead counsel, said Hernandez also was seeking a pardon.
Blackburn said although Hernandez's innocence was clear, the state courts would not exonerate him of the crime. Rather, the murder conviction was overturned procedural grounds that included Hernandez's assertion that he received poor representation.
"This is a recurring problem with the current Court of Criminal Appeals," Blackburn said. "They are dead set on not overturning convictions based on someone's actual innocence. They will find other grounds to do that.
"They want to avoid looking bad. Like the Texas system could look any worse, frankly," he said.
Blackburn said one interesting aspect of the case is that "this is one of those cases where you really have to file a civil suit to get at the facts of what happened. The criminal system is not really good at revealing truth."
He said that "as a general rule, in my view, and I've been practicing criminal law for 25 years, for the discovery of facts and the revealing of truth the civil side is a whole lot better than the criminal side of cases."
Blackburn said such cases as Hernandez's go beyond the individual case at hand.
"This is why the civil cases are really important to the Innocence Project, because they enable us to get a truthful picture of what really happened, and by getting a detailed truthful picture we can then get enough information to draw some conclusions and hopefully prevent these kind of cases from happening in the future."
Blackburn said too often police invest in a case, and "as the case unravels ... then the police have a choice to make. They can admit they made a mistake or they can desperately try to convict. … Doctors bury their mistakes. Police put theirs in prison."
But Esparza said in an interview with NPT that "the criticism can go both ways. Maybe the rules need to be tougher, maybe they need to manage or look over prosecutors. But in my opinion when a case goes bad I always think, 'Where was the defense lawyer and why wasn’t he standing up and making the argument that needs to be made?' "
"The system isn’t perfect but I can tell you when I speak to victims of crime they clearly think the rules are slanted to the accused, that they don’t have a voice in the courtroom and everything seems to be headed to the right of the defendant," he said.
Blackburn said there is no way to tell for sure, but based on his experience, the cases the project has worked, and the "fundamental deep problems … that incidentally can be fixed" with the Texas court system that mitigates against the accused, up to 5 percent of criminal convictions are against innocent people.
"Problem No. 1, if you're poor you have virtually no chance of getting a good lawyer. Problem No. 2 is we have no real way to ensure accountability of police and prosecutors although the problem is much more prevalent with police," Blackburn said. "That gets to the merit of civil suit. It makes them more accountable. Right now there is no effective way to discipline departments.
"Lawsuits are effective on a case-by-case basis, but overall, there is no systemwide solution to police misconduct."
Esparza said Blackburn does have a fair point in raising the issue of wrongful convictions, which is Blackburn's job as a criminal defense attorney.
"I have a lot of respect for Jeff. We did go to law school together. He was a very bright law student. As long as I've been a prosecutor, except for the time I spent as a defense lawyer, he was a criminal defense lawyer," Esparza said. "I've heard that 5 percent number. I also don’t know what the percentage would be.
"But clearly if we look at the results of what the innocence projects around the country have accomplished clearly we have some people in prison who did not commit the crime. … The criminal justice system, it's a human system and as a result we're going to get a few of these results. But none of us, I can tell you on behalf of prosecutors, none of us want to send someone to prison if they did not commit the crime."
Esparza disputed the idea that defendants do not have access to good representation.
"I was a public defender for about three years and I always thought I was a competent lawyer. I thought my clients got good representation. In every organization there are really good lawyers and there are probably lawyers that need to be better," Esparza said. "So I'm not sure that's necessarily true. In capital murder cases that we try here there is a qualifying process to get on the list and we see very qualified lawyers.
"I always think prosecutors are very accountable because of the appellate process and the judge and jury and they make sure we do it right," he said. "Prosecutors are the only ones in the system charged to do justice. Criminal defense lawyers don’t have that obligation. We do."
Blackburn said that Hernandez's case is rare because most police misconduct is not as egregious or does not involve as dramatic an outcome.
"In a case as severe as Alex's it makes sense to use the civil system to get justice, but in the average daily grind of criminal cases it doesn’t make sense. So you see a handful of powerful, big and symbolic cases being filed," he said.
Blackburn said that it's not a money-maker.
"They may say that but the financial imperative is limited. These cases are risky, difficult, and expensive. There is only a handful of lawyers in Texas that handle civil rights cases and I absolutely guarantee none of them are getting rich doing it."