Eyewitness Testimony Condemned Our Client to 34 Years in Prison. How Could We Show It Was False?

The law, lawyers, and the court.
Dec. 17 2013 7:27 AM

“A Mistake Has Been Made Here, and No One Wants to Correct It”

Without DNA evidence, how could we challenge the eyewitness testimony that sent our client to prison for 34 years?

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Vanderkam actually worked as a detective’s assistant at the West Los Angeles Police Station. When she went to work and learned from Detective Richard Zolkowski, who was in charge of investigating the Sasson shooting, that Brenda Anderson had been named as an eyewitness, Vanderkam went back to talk to Anderson, who said once more that she’d seen only the back of the shooter’s head. Vanderkam knew her sister to be unreliable and a drug user. Vanderkam later said in a sworn statement that at the time of Sasson’s murder, Anderson could be so addled by smoking PCP that she became “unable to remember day-to-day conversations, and can barely tie her shoes.” (Anderson denies that she used drugs during this time.)

Shortly after speaking with Anderson, Vanderkam approached Zolkowski at the stationhouse and, she says, told him that her sister was lying. She says he responded by placing his finger over his lips and saying “ssshhh.” (Zolkowski denies this.) Vanderkam was working full-time while trying to raise her 8-year-old daughter alone; her husband had been shot to death by his mentally ill brother. She wanted to become a police officer—a long climb from her assistant post, particularly for a black woman. Going over Zolkowski’s head would have been career suicide. Reluctantly, Vanderkam decided to keep quiet. She lost track of the case, eventually moving to Texas with her third husband, a wealthy lawyer, and falling somewhat out of touch with many of her 11 siblings, especially Anderson, who remained addicted to drugs and had been convicted of a string of assaults, thefts, and narcotics crimes over the years. As a result, Anderson lost all seven of her children to the foster care system—children whom Vanderkam had rescued and helped raise.

Beginning in 2011, when she realized Register was still in prison, Vanderkam went on a mission to re-open his case. She found Steve Sanders, an attorney assigned to represent Register in one of his many parole board hearing appeals. And here, Register finally caught a break: Sanders had employed as his legal assistant an ex-convict named Keith Chandler who’d done time with Register and become friends with him in prison. Chandler had left Sanders’ office, but the receptionist remembered his connection to Register, and passed Vanderkam’s message along to him.

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Register had made a powerful impression on Chandler, who had trained himself to be a kind of jailhouse lawyer and tried to help thousands of inmates over the years with their legal problems. Chandler says he can “count on one hand the number of inmates who told me they were innocent.” Register was one of them. Armed with Vanderkam’s account of why she thought Anderson was lying, and how Detective Zolkowski had shushed her, Chandler contacted Register and got the trial transcripts and the police file. He mailed the box of documents to Vanderkam.

When Vanderkam read the initial police report, she was surprised to find her sister Sharon and their mother Christine listed as witnesses along with Anderson. Vanderkam had never heard that Sharon had seen Sasson’s shooter, or that her mother, who had since died, had observed anything at all. The report said cryptically that each had “observed same as Witness #2,” meaning Anderson. There was no other mention of Sharon or Christine in the records, and neither had testified at the trial.

When Vanderkam talked to Sharon about the police report, Sharon told her something new—something crucial. Sharon did not simply suspect that Anderson was lying. She knew it.

Like Anderson, Sharon knew Kash Register by sight. She’d seen him around the neighborhood, taking note because she had an eye for good-looking men, and, of course, because of his unusual name. Now she told Vanderkam, for the first time, that she had seen the suspect who fled the scene standing over Sasson’s car and made eye contact with him. Sharon was positive that the man was not Register. Vanderkam described her reaction like this, “I had been putting together this pile of sticks trying to light a fire, and now I had match.”

And there was more. Sharon also told Vanderkam that when the police took Anderson to the West Los Angeles Police Station to identify the shooter three days later, they took Sharon, too. At the stationhouse, the sisters were separated, and Sharon, then 17, was left in a room with two white detectives, They asked her about the Avon theft, which had been reported to the police by a neighbor. She admitted to stealing the Avon products with her sister. When the detectives also asked her about the shooting and showed her the six-picture photo array, Register’s picture was already circled. Pointing to it, the detectives asked Sharon if Register was the shooter. She told them no. They told her Anderson had identified Register as the shooter; Sharon insisted he wasn’t the man she’d seen. The detectives responded by telling Sharon that she was going to juvenile hall for a long time over the Avon theft.

Instead, though, Sharon and Anderson were driven back to their apartment. Theft charges were never filed. Sharon, who had a criminal record for prostitution at the time, told no one about seeing the suspect or what had happened at the police station. “I was just happy I was going home,” she later testified.

After Chandler got Sharon and Vanderkam to give sworn statements, he asked the court to overturn Register’s conviction, based in large part on the new evidence the sisters had provided. Because Register’s final direct appeal had been denied in the mid-1980s, Chandler had to file a habeas petition, a kind of Hail Mary pass that allows long-convicted prisoners to argue that their convictions violate the Constitution.

The case was assigned to Los Angeles Judge Katherine Mader. In October 2012, she asked the state to respond, and appointed attorney Herb Barish to represent Register. He brought the case to the Loyola Project for the Innocent and asked us to serve as co-counsel. Chandler had done a remarkable job: singlehandedly, and without any formal legal training, he had convinced Judge Mader that Register’s case needed a second look. But now it was up to my colleagues and me and our students, working with Barish, to prove that Sharon Anderson, Sheila Vanderkam, and Kash Register were for real—and that Brenda Anderson and Elliott Singleton had lied.

We started by going to meet Register in prison in Tracy, Calif., an hour east of Oakland. Register sat across from three of us at a desk: a short, soft-spoken middle-aged man in prison blues. “I didn’t do it,” he told us. He spoke calmly, his eyes fixed on ours.

Register was reserved, and it took us several more visits to learn much about him. When we did, the details were excruciating. His girlfriend, Cheryl, had given birth to their daughter the month after he was convicted. But after a few years, they’d broken up. She’d had to move on with her own life, he explained to us, and he’d lost the visits with his daughter, too. Now she had two children of her own—grandchildren he had never met. Register stayed in touch with his mother over the phone and through letters, but he hadn’t seen her since 1993, when he asked her to stop coming to the prison because the visits were too hard on her and too painful for him.

On some level, all criminal defense attorneys are forced to metabolize the agony of their clients. In order to keep fighting for them, we have to. When I became a federal public defender in 2001, a senior lawyer described the job this way, “It’s like your client is tied to the railroad tracks and you are the only thing standing between him and the train. Sometimes, the best you can do is hold his hand when he gets run down.” The trick is to convince yourself that it will never come to that, by working single-mindedly to untie the knots, and blocking out the sound of the train’s whistle screaming. The thrill is addictive, but the pressure is nauseating.

But once I started working on Register’s case, I never stopped hearing the train.

As we interviewed witnesses and built up our side of the case, the prosecutor’s office refused to back down. Deputy district attorney Juan Mejia and his investigator asked Anderson to sign a declaration affirming the truth of her trial testimony. Anderson refused. She told Mejia, “I’m not gonna do that, you know, unless I see some compensation which I well deserved a long time ago.” In a March 2013 interview with her brother Robert, Mejia said of Anderson, “You can’t trust her farther than you can throw her.” Nonetheless, he insisted that Anderson’s account should be credited over Sharon’s, telling the incredulous Robert, “You know, there’s—there’s an old saying that a broken clock is right twice a day.” Mejia and his investigators also showed Sharon’s rap sheet to Robert, suggesting that she should not be believed because she had been a prostitute. When Sharon found out, she felt humiliated about this dredging up of her past. She had not been in trouble in years and was devoted to raising her 11-year-old daughter. She told Vanderkam, “I can’t take this,” and did not speak to my colleagues or me for six months.

We continued to investigate, turning our attention to Elliott Singleton. Mejia turned over part of the prosecution’s old trial file from 1979 (although he also held part of it back). Digging through the file, my colleague Adam Grant, the clinic’s deputy director, found something strange, a document that listed Singleton’s wife, Patty, as an eyewitness who “could ID dft [defendant].” There was no mention of Patty Singleton anywhere in the police reports, and like Sharon and Chambers, she had not testified at trial.