Obstinate District Attorney II: Investigating how District Attorneys reprosecute vacated convictions

Prosecutors are pleased with convictions.  Defendants appeal. Sometimes defendants win. Then the prosecution re-prosecutes. Double jeopardy? Nope. Welcome to San Bernardino’s halls of justice.

The world of innocence litigation is unknown territory regarding possible outcomes after a criminal defendant’s conviction has been vacated by a higher court. Since a “vacate” is NOT an exoneration (the legal status of confirmed innocence), the legal journey toward permanent  freedom or further incarceration continues unabated. The uncertainty lies predominantly on the fact that the newly un-convicted but un-exonerated are subject to retrial by the same prosecutor and trial judge that originally sent them to prison in previous proceedings.

To be really clear, legal statutes allow an unrepentant DA to start criminal proceedings all over again minus using what ever the appellate court decided to exclude be it erroneous forensic evidence (rare), false eyewitness testimony (frequent), prosecutorial misbehaving conduct (rare) or exculpatory DNA evidence (343 cases so far in the US).


This dynamic is playing out in California’s San Bernardino county, where its running-for- state-Attorney-General DA Mike Ramos (above) has a 60 day time-frame to take Bill Richards back to court on murder charges without any physical evidence linking him to the murder of his wife Pamela in 1993. Richards would be facing his fifth trial from San Bernardino prosecutors, a event which recently been described as “absolutely stupid” by Jan Stiglitz who this year successfully represented Richards’ before the CA Supreme Court.

I have previously listed (See the “Obstinate Prosecutor” ) the obvious legal mine-field Ramos, whose spoke-person reveals is “undecided” on re-charging for murder. Ramos could rebuff the remarkable and unsolicited opinion statements from California’s Supreme Court regarding his “weak” case. They also demolished Richards’ fourth trial inculpatory bitemark opinions as being”false” testimony. Here is a recap:

In addition to the Supreme Court’s doubts of a successful prosecution, a new jury would have to consider some of the following:

  1. DNA from an unknown male has been recovered from the murder weapon.
  2. DNA from an unknown male was found under the victim’s fingernails.
  3. The Supreme Court court noted that the bite mark evidence had been “clearly repudiated” and that “new technological advances undermined” the bite mark evidence presented at trial.
  4. The crime scene evidence collection was faulty from the very beginning which resulted in significant evidence being abandoned or lost at the outset by the San Bernardino Sheriff’s Office.
  5. With the bitemark evidence quashed, there is no direct (physical) or circumstantial evidence connecting Richards to the crime.

What is the threshold of legal proofs necessary to re-try or not file charges after a conviction is overturned? Legally speaking, what’s insufficient evidence to proceed?

Lets say the rules and attitudes are “fluid” regarding prosecutors’ POV in pursuing a new conviction due to their powerful amount of allowed “discretion.” “Anything goes” rules the playing field regardless of ethical concepts of “values and justice” claimed on most DA websites. Ramos’ states that… “New witnesses or evidence may be discovered, years after a conviction, that could call into question a defendant’s guilt.”

Since the vacate process completely reboots prosecutorial activity, it is possible for the DA to convene the county’s Grand Jury (GJ) to review what’s left of Ramos’ case. He could color it as “a transparency move” to exemplify fairness and due diligence. It could also garner significant public support for his on-going AG campaign.

GJs were originally set-up as the “people’s panel” in order to inject the community’s “voice” into government action and decision-making. In practice, because the DA is solely in charge of the proceedings since any defense counsel is barred, GJs have become a target of criticism in numerous cases of their supporting inaction in reviewing police activities such as in Ferguson, Missouri.  On the other hand, GJs have offered “no bill” (decline to indict) decisions to quash DA’s requests to prosecute persons for serious crimes. In this case, the Tarrant County DA immediately ignored and nullified the GJ and re-charged the suspect anyway.  So Ramos would be taking a slight risk in using his San Bernarino GJ, but a “no bill” decision would take the heat off of him. Or maybe spur him to “tarrantize” (sic) the case.


California Innocence Project’s Staff Attorney Alissa Bjerkhoel

The current tone of Ramos’ office recently was revealed during Richards’ hearing last week for release from county jail.  It speaks ill of Ramos letting Richards off the hook. Richards sat un-indicted in the courtroom while Ramos’ Deputy DA Michael Risley demanded more jail time while Ramos made up his mind on refiling charges. Risley’s agenda was clear due to his having originally been the convicting prosecutor in Richards’ 4th trial.  The judge sided with California Innocence Project’s Aliss Bjerkhoel’s argument that Richards had been in custody for 23 years on a wrongful conviction based on false evidence. Nothing, she said, was on the record to say Richards was a threat to society or arguably was guilty of anything.

What have other district attorney’s done in this scenario of confusion over vacated convictions?

Some stick to their guns.

DENVER — Prosecutors will retry a Denver man who spent more than a quarter-century in prison for a rape he denies committing.

Some are confused like Ramos. 

NEW YORK – Darcel D. Clark, Bronx district attorney, had moved to vacate the conviction. The prosecution conceded that Mr. Rosario had been denied his right to effective counsel because his lawyer had failed to interview potential alibi witnesses who could have proved his main claim: that he was in Florida at the time of the killing. The prosecution has not decided whether to retry Mr. Rosario. (Rosario spent 20 years in prison. The new DA saw media postings on this old case where he had 13 un-interviewed alibi witnesses and is using his “integrity unit” to decide “sufficiency.” )

Others do not retry. Their reasoning for not going forward is rather enlightening. They state “doubts, new evidence, and time since conviction”.

LOS ANGELES –  DA Jackie Lacy has had a recent spate of declining to retry in a number of cases. ……, the Los Angeles County district attorney’s office announced it was asking that Jennings be released from  state prison  after new evidence was uncovered that raises doubts about his guilt. (after multiple hung juries like Richards).

“My office has been presented with credible new evidence that brings this conviction into question,” Los Angeles County Dist. Atty. Jackie Lacey said in a statement.  “Attorneys assigned to the newly created Conviction Review Unit have examined the evidence and are working with law enforcement personnel to investigate further.  In the interest of justice, I am asking the court to release Raymond Jennings on his own recognizance while this investigation continues.”

Lacey also has refused to indict law enforcement in the commonly seen police-use-of-force challenges. “Activists seeks D.A. resignation after she fails to charge former CHP officer. “


Let’s reflect on the “new evidence” available in San Bernardino. A DNA profile of an unknown male from under the victim’s fingernails, etc.  Refer back to the list. All developed by the California Innocence Project.

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About csidds

Dr. Michael Bowers is a long time forensic consultant in the US and international court systems.
This entry was posted in criminal justice reform, wrongful convictions. Bookmark the permalink.

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