A Lobby for Justice

In 1943, 13-year-old Jackie Marie Hamilton went swimming with her sister in Sutter County. After that dip in the Yuba River she was murdered. But, just before she died, she told her father the attacker was an unnamed “old red-headed liar.”

A young sheepherder saw Jackie struggling with her assailant. He identified a local boathouse worker, a well-known redhead named William Marvin Lindley, as the killer. Lindley was convicted and sentenced to death.

A few years later though, the case that convicted him appeared to be crumbling. Fourteen witnesses had seen another redheaded man near where the girls had gone swimming that day. Key testimony, including the sheepherder’s, was far less certain than implied at trial. Jackie knew Lindley as “Red” but never said that name as she was dying. A California Supreme Court ruling described the sheriff ’s investigation as incomplete and inefficient.

One such unlucky person was Ed Easley, who around 2007 was a client of Santa Clara University School of Law’s Northern California Innocence Project, and a young lawyer fresh out of law school, Paige Kaneb. Easley had been imprisoned in 1994 for allegedly molesting his girlfriend’s 8-year-old niece. Several years after his conviction, a different story emerged: The niece recanted, tearfully admitting that she’d been coerced into blaming Easley instead of a relative, the true culprit. A judge even said no reason- able jury would convict on the now-debunked evidence.

But because of the standard in Lindley, the judge said in essence that his hands were tied: He had no legal mechanism to apply to the new evidence to clear Easley, who was by then out of prison, of the wrongful charges. Under the Lindley standard, which had been upheld and honed over the intervening years, the new evidence didn’t “unerringly” prove Easley innocent. Instead, Easley was stuck with eight years of imprisonment on his record and having to register as a sex offender, crippling his ability to find work or a de- cent place to live.

To Kaneb, this was outrageous.

“It was this insanely high burden, where you had to con- vince a court not just that the person was innocent, but that everybody who ever saw the case would be 100 percent convinced the person was innocent,” says Kaneb.

The judge said in essence that his hands were tied: He had no legal mechanism to apply to the new evidence …

“I really was deeply shocked and devastated by the decision,” she says. “I guess in my mind I always thought if everyone worked hard enough and everyone did their job right, then it would work out.”

She even thought about quitting, but “I also realized the absurdity of that, that I only have a job because the system doesn’t work all the time.”

So instead Kaneb and NCIP set out on a years-long crusade to change the standard in California. They wanted another mechanism by which someone could present newly discovered evidence after having been convicted. Kaneb co-authored an Albany Law Review article criticizing the unusually steep California standard and asserting it violated the constitutional right to due process. Such efforts would eventually help Easley and five other NCIP clients— and counting—get the exonerations they deserved.

But first they had to become, in essence, lobbyists for justice.

THE LONG SLOG FOR JUSTICE

For a time, Kaneb and NCIP thought they might be able to get rid of the onerous standard of proving innocence by getting a new ruling from an appeals-level judge, essen- tially replacing the Lindley standard with new language. A brief for Jack Sagin, a longtime NCIP client represented by Melissa O’Connell and Kelley Fleming, invited as much

by including the argument from Kaneb’s law review article: California’s onerous standard was an unfair and unconstitutional violation of a person’s right to due process.

The judge did not take the bait. What they were asking “would have been such a big game changer,” notes Kaneb. “We were asking them to change it for the whole system, not just for Mr. Sagin.”

So Kaneb and the NCIP team set their sights on Sacramento. Their goal: Find a lawmaker to sponsor a new state law specifying that those who are already convicted can prevail in a habeas petition based on new evidence if the evidence “more likely than not” would have made a difference at their original trial.

It was a big dream, but NCIP had been part of coali- tions in the past that had gotten state laws changed. At the turn of the millennium, for example, NCIP founders Linda Starr and Kathleen “Cookie” Ridolfi supported a milestone law allowing already-convicted people to access new DNA evidence, the type of evidence that might point unerringly to innocence. That law actually was what jump-started NCIP to become an official clinic at Santa Clara Law, partly to help handle an expected increase in DNA innocence claims.

Around 2013, NCIP joined another coalition that would secure a legislative change giving convicted people a chance to seek a new hearing for their release—or habeas relief—after expert testimony in court later turned out to be false.

But at the time, no one was fighting to change the standard that was keeping so many wrongfully convicted people behind bars—the language that started with Lindleyrequiring new evidence to point “unerringly to innocence.”

Led by Kaneb, Starr, and others at NCIP, a team trekked to San Francisco and met with the American Civil Liberties Union. They learned they’d likely find a champion for their cause in state Sen. Mark Leno, a San Francisco liberal who had sponsored legislation on a range of issues, many of which ultimately became law in California: same-sex marriage, civil rights, privacy, public records, and more.

They were right. Leno was immediately on board with the need to fix the standard. He was especially galled by “how far California was from the rest of the country in assessing these kinds of cases,” recalls Starr. “For a senator like Leno, progressive and forward-thinking, the notion that we are behind Alabama, Mississippi, Georgia, or Texas was outrageous.”

The bill got pretty far on its first attempt, winding its way through five committees over several months without sparking opposition from important law enforcement groups like police unions or district attorneys.

But then the team was hit with an unexpected foe: judges.

The Judicial Council, the body that represents the interests of judges, registered concerns that the bill would spur so many people to demand their convictions be reviewed or overturned that it would cost the courts up to an additional $22 million to handle the increased workload. The Council would later tell NCIP they were most concerned that inmates defending themselves would file legally unsound petitions that would nonetheless need review. They also feared that those on death row would unleash a flurry of petitions.

The bill was tabled by the Assembly Appropriations Committee—the keepers of state coffers.

“The votes had been going well, but in appropriations… it just never got called, never got voted on, and it just died,” Kaneb recalls. “It was pretty devastating … like a big wind out of our sails.”

BACK TO THE DRAWING BOARD

In 2015 they again tried to change the law. This time, the Judicial Council was on board, after NCIP’s newly hired policy expert, Lucy Salcido Carter, helped systematically show that the anticipated flood of petitions, and the millions required to review them, was highly unlikely. Carter also worked with the judges’ group to fine-tune the language of the bill so that it didn’t seem to invite willy-nilly petitions. For example, the judges wanted language to make clear that newly discovered evidence would need to be presented “without substantial delay” and that the new evidence “could not have been discovered prior to trial by the exercise of due diligence”—in essence, only evidence that truly came to light after the trial could be presented.

The changes did the trick. By the time Leno brought up the bill again, there was no opposition. He described the bill to his colleagues on the Senate Public Safety Commit- tee by saying it would help ease “the great pain and hardship that the state imposes … when they victimize people by wrongfully incarcerating them.” He called the standard set in Lindley “so high it is almost impossible to reach.”

The committee heard from a number of witnesses in support of the bill, including NCIP client Maurice Caldwell, who was wrongfully convicted of murder based on the testimony of a single mistaken witness in 1991. “I lost my mother, my aunt, my grandmother, and my brother while I was in prison,” testified Caldwell. “I missed their funerals. I couldn’t take care of my mother when she got sick. I missed out on 20 years of relationships.”

Caldwell says even after the true killer confessed, “my attorneys told me it might not be enough because the standard for new evidence was so high.” Sure enough, he was not granted release based on the new confession evidence, but on grounds of “ineffective assistance of counsel.”

“I support this bill because it will help the innocent people who are still in prison,” said Caldwell. “It will let courts truly consider their new evidence in a meaningful way.”

One by one, members of the panel praised the bill as “thoughtful,” and offered to sign on as co-authors. The bill sailed through Assembly and Senate with 78 and 39 yes votes, respectively, and zero no votes. It was signed by Gov. Jerry Brown ’59 in September 2016, going into effect January 2017.

Kaneb and NCIP found out about the final votes in their offices at Santa Clara, where their whoops and shouts echoed loudly through their then-offices on 900 Lafayette Street. Gov. Brown had also signed two other bills NCIP had fought for, including one allowing those already released from prison to have “standing” to bring evidence to clear their names.

But the victory celebration was short-lived. The team had a backlog of cases they had been saving up for appeal if the bill passed. Even before it went into effect, they started filing new motions for a half-dozen clients who had been denied their shot at exoneration, some for years. One of them was Ed Easley, the man wrongfully accused of molesting his girlfriend’s young niece. She was now an adult fighting to clear his name. Because a judge had earlier indicated that a different standard would have enabled him to rule in favor of Easley, it took less than a year to get his case dismissed, his name cleared, and his requirement to file as a sex offender each year extinguished.

After the final hearing for Easley’s case—which he didn’t attend because he’d had his hopes dashed too many times— Kaneb and Starr celebrated by joining him at a bar to show him the paperwork ending his nightmare. His next birth- day would be the first one in which he would not have to spend the day at the police station registering wrongfully as a sex offender, says Kaneb. “I think that was the moment it came really real for him.”

THE NEWEST FACE OF THE NEW LAW

Fast forward to May 15, 2019: A small courtroom in San Jose erupts in loud cheers and equally loud tears of relief as the Hon. Eric Geffon J.D. ’95 dismisses charges against Lionel Rubalcava, setting him free after 17 years in prison.

It was the final step in a legal battle that started when then 22-year-old Rubalcava went to prison for an attempted murder for which—everyone would later agree—he should not have been charged. Six years of legwork by NCIP, with help from the Santa Clara County District Attorney’s Office Conviction Integrity Unit, devoted to correcting mistakes, unearthed evidence—including the victim’s admission that he’d hardly seen the shooter despite having positively identified Rubalcava in court.

With the new law in mind, a Santa Clara County assistant district attorney apologized to Rubalcava in open court, saying the evidence was “too thin a reed upon which to base a conviction.”

Rubalcava was the sixth NCIP client exonerated with help from the law that Kaneb had spent the past half-dozen years fighting for.

“The new evidence law has changed things for so many people in such a concrete way,” Kaneb says. “I’m still coming to grips with the enormity of it.”