SUMMARY: "Sixteen-year-old Kenji Howard, of Compton, California, falsely confessed to a murder, for which he was sentenced to life in prison in 1997. He was exonerated in 2021, after the real culprit confessed, and a re-evaluation of the forensic evidence supported his statements that he didn't fire a gun at the victims."
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PASSAGE OF THE DAY: (The confession): "Later, on May 4, Tauson filed an affidavit requesting that Howard be released from Los Padrinos on May 10 for a polygraph test. The affidavit, which was approved by a magistrate, did not mention that Howard had an attorney. Howard arrived at the sheriff’s crime lab on May 10 at about 9 a.m., and he met with Deputy Linda Quinonez, who was to administer the polygraph test. She began questioning him at 11. Quinonez quickly told Howard that the tests were extremely accurate. “You know they call it a ‘lie detector’? Okay. I want to tell you today that it's just as much a ‘truth’ validator as it is a lie detector, okay?” The test lasted nearly three hours. During that time, Quinonez would repeatedly lie to Howard. She falsely told him that polygraph tests never made mistakes and that other people who admitted being in the Cutlass contradicted his story. “The people are talking, their stories matched and their stories are different than yours,” she said. Quinonez told Howard that three other examiners had looked at Howard’s answers and concluded there were problems. There were in fact no other examiners. As the interview continued, Quinonez kept pushing Howard to admit responsibility for the shooting, telling him he was lying, and cutting off his answers. Finally, Howard buckled, and Quinonez asked him: You just shot out the window, right? Okay. And you didn't know for a fact until the next day that you hit anything or anybody? Howard answered, “Yeah. Very quickly, Howard met again with Tauson and Neumann. He told the deputies that Powell had threatened to beat him up if he didn’t fire the gun at the other car. He told the officers how he had stuck his hand out the window and fired the gun, trying to aim toward the ground and away from the vehicle As the interview ended, Howard asked Tauson and Neumann whether Quinonez could administer another lie detector test. They told him they would ask her, and Quinonez returned a few minutes later and said that decision was out of her hands. While he was alone in the interrogation room, waiting for Quinonez, Howard said: “Please, please, Jesus, please – dear God, in the name of Jesus, I want to take this fucking lie detector test. Please, Lord. Please, Jesus. Please, Lord. Help me. You know I really didn’t do it. Please. Please. Please, Lord. Please, Father God, you know I didn’t do it. Lord, please, please, Lord. Please."
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PASSAGE TWO OF THE DAY: "During his closing argument, (Prosecutor) Schreiner acknowledged the lack of eyewitness identification but said that Howard’s confession was proof of his guilt. “We recognize, and all of you do, that innocent people don’t confess to crimes they didn’t commit,” he said. “We talked about common sense, a variety of stages here, and common sense dictates that we don’t have a reason to do that. It is against our interest. It is not something that we do.” He said Quinonez needed to lie and dissemble when interviewing Howard to get at the truth. “What she does is use techniques that are designed to separate the guilty from the innocent, that will take someone who knows what he has done, who knows he has shot someone and killed them, and admit to it.” The jury convicted Howard on one count of murder, three counts of attempted murder, and firing into an occupied vehicle, on October 10, 1997. He was sentenced to 35 years to life on the murder conviction, and life plus seven years on the attempted murder convictions.
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PASSAGE THREE OF THE DAY: "Richard Leo, a law professor at the University of San Francisco and an expert on false confessions, reviewed the trial material and said in a report that Quinonez had used a wide range of tactics to break Howard. “The custodial interrogation of Kenji Howard was guilt presumptive, accusatory and theory-driven. The interrogation was not structured to find the truth but, instead, to intentionally incriminate Kenji Howard by coercively, deceptively and unlawfully breaking down his denials of guilt and eliciting a statement of guilt from him that was consistent with the deputy’s pre-existing and prematurely formed assumptions, beliefs and speculations about who must have committed the crime.” The petition said McKinney had provided ineffective representation. First, he failed to secure Brown’s testimony at the second trial. Second, he retained Carlin as his expert witness on false confessions. “She was neither a recognized nor published expert in this field,” Leo said in his report. “Her testimony at both trials failed to cover almost every important issue, if not topic, relevant to Mr. Howard’s case; and had a more knowledgeable and qualified expert … been called to testify about the extensive empirical social science research on police interrogation and disputed confessions at the time, the outcome of either of Mr. Howard’s trials may have been different
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ENTRY: Kenji Howard. Recent entry by Ken Otterbourg, entered on to the US Registry of Exonerations, on January 13, 2022. (False or misleading forensic evidence; Official misconduct; Inadequate legal defence);
GIST: "On the night of March 17, 1995, Landon Martinez and three friends left Dockweiler State Beach, which is just west of Los Angeles International Airport.
The killing received substantial news coverage. Mejia was in the United States Air Force, in town for a few days to visit her parents on their anniversary. The day after the shooting, police shut down a section of the 105 Freeway to search for shell casings and other evidence. They found none.
Also on March 18, deputies with the Los Angeles Sheriff’s Department stopped 16-year-old Kenji Howard during a sweep of his neighborhood in nearby Compton, and found him to be in possession of a gun. Howard, who was a member of the Limehood Piru gang, was arrested and released.
On March 27, the sheriff’s department tip line received a call that 24-year-old Edward Powell was the man who shot Mejia and Johnson, and that Howard was also involved.
Howard was brought in for questioning, and he was interviewed by Deputy Daniel Raimo, a gang specialist with the sheriff’s department who had known Howard for several years. Raimo would later testify that while Powell was a “hard-core” member of Limehood Piru, Howard was mainly just a likeable kid trying to get along in a tough neighborhood. Howard said he had gotten the gun from a drug addict, and Raimo asked him to look at some photos.
Raimo then took Howard to an interrogation room, where Deputies Robert Tauson and William Neumann interviewed him. They asked him about the shooting on the highway. Howard denied any knowledge. When the deputies told him that the gun he had possessed had been used in the shooting, Howard admitted that he had been at Dockweiler with Powell, another man, and two women. Howard said that when they left the beach, he sat in the right rear passenger seat of Powell’s Cutlass and had dozed off as they drove away, only to be awakened by the sound of gunshots. He said Powell fired seven or eight shots and then turned off the highway. After they got home, Powell sold him the gun. At the time, he had no idea anyone had been shot.
Ballistics tests later determined that the gun deputies had seized from Howard was the weapon used in the shooting.
Raimo released Howard from custody after Howard said he would try to find the other people in the car with him and Powell. Later that day, Raimo arrested Powell and seized his Cutlass. During questioning, Powell denied any involvement in the shooting. “Why you trying to blame me,” he said, according to Raimo, “Kenji got caught with the gun.”
Howard would later testify that because he had been released while Powell remained in custody, he believed his life was in danger because people would realize he had talked to the police. He quickly left town, flying to Seattle, Washington, to stay with a friend. When his whereabouts were discovered, he flew back to Los Angeles. He stayed with his girlfriend until he was arrested on May 2, 1995, and placed in the Los Padrinos Juvenile Hall. The court appointed an attorney to represent him on May 4.
Later, on May 4, Tauson filed an affidavit requesting that Howard be released from Los Padrinos on May 10 for a polygraph test. The affidavit, which was approved by a magistrate, did not mention that Howard had an attorney. Howard arrived at the sheriff’s crime lab on May 10 at about 9 a.m., and he met with Deputy Linda Quinonez, who was to administer the polygraph test. She began questioning him at 11. Quinonez quickly told Howard that the tests were extremely accurate. “You know they call it a ‘lie detector’? Okay. I want to tell you today that it's just as much a ‘truth’ validator as it is a lie detector, okay?”
The test lasted nearly three hours. During that time, Quinonez would repeatedly lie to Howard. She falsely told him that polygraph tests never made mistakes and that other people who admitted being in the Cutlass contradicted his story. “The people are talking, their stories matched and their stories are different than yours,” she said.
Quinonez told Howard that three other examiners had looked at Howard’s answers and concluded there were problems. There were in fact no other examiners.
As the interview continued, Quinonez kept pushing Howard to admit responsibility for the shooting, telling him he was lying, and cutting off his answers. Finally, Howard buckled, and Quinonez asked him: You just shot out the window, right? Okay. And you didn't know for a fact until the next day that you hit anything or anybody?
Howard answered, “Yeah.”
Very quickly, Howard met again with Tauson and Neumann. He told the deputies that Powell had threatened to beat him up if he didn’t fire the gun at the other car. He told the officers how he had stuck his hand out the window and fired the gun, trying to aim toward the ground and away from the vehicle.
As the interview ended, Howard asked Tauson and Neumann whether Quinonez could administer another lie detector test. They told him they would ask her, and Quinonez returned a few minutes later and said that decision was out of her hands.
While he was alone in the interrogation room, waiting for Quinonez, Howard said: “Please, please, Jesus, please – dear God, in the name of Jesus, I want to take this fucking lie detector test. Please, Lord. Please, Jesus. Please, Lord. Help me. You know I really didn’t do it. Please. Please. Please, Lord. Please, Father God, you know I didn’t do it. Lord, please, please, Lord. Please.”
Howard’s case was transferred from juvenile court to superior court, and he was charged with one count of murder, three counts of attempted murder, and one count of firing at an occupied vehicle.
Powell went to trial first. He was convicted on October 24, 1995, of one count of murder and three counts of attempted murder.
At Howard’s first trial, in early 1997, a woman named Tameka Brown testified for the defense. She had also been at the beach on March 17, and had left at the same time as Powell. Brown said she was in a car behind Powell and could see a woman in Powell’s car bend forward as Powell reached across and fired shots into Martinez’s vehicle. Brown was a reluctant witness; she said Powell threatened her and her family. The jury deadlocked and a mistrial was declared.
Howard’s second trial in Los Angeles County Superior Court began on September 27, 1997. Howard’s attorney, William McKinney, moved to suppress Howard’s confession. Judge Stephen O’Neill denied the motion, stating that Howard made his confession freely and that he was not your “average 16-year-old” when it came to dealing with authority figures such as the police.
Martinez again testified. He said that just before the shooting started, he looked over at the other car and the driver had both hands on the wheel. He did not mention this in his testimony at the first trial. While Martinez could not identify Howard as either the shooter or a passenger in the car, he said that he saw a man with pig tails in the middle back of the car. (When Howard was arrested in May 1995, his hair was this style, but he told officers his hair was different two months earlier.) Under questioning from Deputy Assistant Attorney Steven Schreiner, Martinez amended his testimony to say the man with pig tails was in the back right of the car.
Lewis also testified, and her testimony had changed between Howard’s first and second trial. At the first trial, she did not mention a passenger with pig tails, but now she did, although Lewis said she didn’t know whether he was in the front or back.
Richard Catalani, a firearms examiner with the sheriff’s department, testified about the ballistics evidence. He said that bullet fragments recovered from Martinez’s car “had retained more of their individual characteristics and I was able to make an identification, a positive identification that those fragments had been fired from this [9 mm] pistol.”
Catalani also said he found gunshot residue on the inside of the front door but nowhere else in the vehicle. This discharge, from the gun’s nozzle, is in the form of vaporous lead and is chemically different from the residue left on a shooter’s hand. The rear windows on the Cutlass did not roll down.
Prior to Howard’s testimony, McKinney called Dr. Jean Carlin, a forensic psychiatrist, to testify about the prevalence of false confessions and the situations in which they are most likely to arise.
Howard testified, and he described the events prior to the shooting. He said that he, Powell, and others had been at the beach, and that Powell had been shooting at planes as they made their final approach to the airport. There was some sort of confrontation on the beach, and the police arrived and ordered everyone to leave. On the drive home, Powell was in the front with LaKenya Martin. Howard was in the back with Anthony Munoz and Sheletha Taylor, dozing off when he awoke to gunshots and saw Powell hold the gun sideways – “Gangster style” – as he fired away. The gun was facing the passenger window but still inside the car. Howard said that the manner in which the other car left the highway led him to believe it had not been hit.
Under cross-examination, Howard denied ever shooting the weapon, but the prosecutor used his confession and inconsistent parts of his statements made to Quinonez, Tauson and Neumann to undermine his credibility.
Brown did not testify at the second trial.
The state called Tauson as a rebuttal witness. He told jurors that he had created a reconstruction of the shooting. He said he had sat in another Cutlass, not Powell’s, and then used a ball attached to a string to approximate possible paths of the bullets coming from the driver’s seat of Powell’s car toward Martinez’s car.
“It’s possible to hit the car,” he said, “but there is an element of danger to the people that are in the car with you, and there’s also a danger that he’s going to strike his own car around the window frame.”
He was asked if the trajectory cleared the window frame. Tauson said “It clears it, but barely,” and that the shot would have to be on a downward trajectory.
During his closing argument, Schreiner acknowledged the lack of eyewitness identification but said that Howard’s confession was proof of his guilt.
“We recognize, and all of you do, that innocent people don’t confess to crimes they didn’t commit,” he said. “We talked about common sense, a variety of stages here, and common sense dictates that we don’t have a reason to do that. It is against our interest. It is not something that we do.”
He said Quinonez needed to lie and dissemble when interviewing Howard to get at the truth. “What she does is use techniques that are designed to separate the guilty from the innocent, that will take someone who knows what he has done, who knows he has shot someone and killed them, and admit to it.”
The jury convicted Howard on one count of murder, three counts of attempted murder, and firing into an occupied vehicle, on October 10, 1997. He was sentenced to 35 years to life on the murder conviction, and life plus seven years on the attempted murder convictions.
State and federal courts denied Howard’s initial appeals. Separately, Powell appealed his conviction, arguing there was insufficient evidence to convict. At his trial, prosecutors argued Powell was guilty under a theory of aiding and abetting the murder and attempted murders; Howard was the likely shooter, they argued.
California’s Second District Court of Appeal denied Powell’s appeal on April 11, 1997. Importantly, however, the court said the state’s theory seemed at odds with the evidence.
“In our view, the evidence is sufficient to show that Powell was the shooter," the court said. "He was the one who acquired the murder weapon. He was the one who brought the murder weapon along on the gang’s outing. He was the one who demonstrated the gun to his buddies by firing at a passing airplane. He was the one who pursued the victims (he was driving). The lead vapor on the front passenger door is consistent with this view of the evidence because the victims’ car was on the right-hand side of Powell’s car at the time of the shooting and Powell would have had to reach across the passenger’s seat to fire the gun. It is reasonably probable that, after the shooting, Powell gave the gun to Howard, a fellow gang member so that he would not be caught with it (an inference supported by Powell’s knowledge that Howard had the gun at the time of his arrest.)”
In 2007, after the appellate ruling in his case, Powell made a declaration that he alone had fired the shots into the other car. In the statement, he explained where he had gotten the weapon, and the other events leading up to the shooting. Powell said that Howard was asleep in the back when he began firing, and that later, when he gave the gun to Howard, neither of them knew that anyone had been hit.
After his arrest, Powell said, he was surprised his charges were based on aiding and abetting. That was when he learned that Howard had confessed to firing the weapon, and he was angry at Howard, because the confession also made it easier for Powell to be convicted.
“Now more than 10 years have gone by. My feelings have changed. Acceptance comes. I realize that Kenji was a kid when he made that false confession. Kenji does not deserve to be in prison for this. I am responsible for this whole situation. Kenji is only responsible for confessing to something he did not do.”
Powell’s declaration formed the basis of a petition for a writ of habeas corpus that Howard filed in Los Angeles County Superior Court in late 2007.
Prosecutors said Powell’s statements were not to be believed and were contradicted by other evidence, including Howard’s own confession. The state’s response also noted that Howard had fled Los Angeles for Seattle in the days after the shooting. “A better example of ‘consciousness of guilt’ could hardly be found,” the response said.
A judge denied the petition on November 8, 2007.
Howard sought assistance from several innocence organizations, but they were unable to help him. One of the organizations, Innocence Matters, turned Howard’s case over to Carol Watson, who came out of retirement to represent him. Along with Timothy Midgley, Watson filed a new petition for a writ of habeas corpus on September 14, 2018.
The petition said that Quinonez had coerced a false confession out of Howard, and that Howard’s trial attorney had failed to adequately challenge this evidence.
Richard Leo, a law professor at the University of San Francisco and an expert on false confessions, reviewed the trial material and said in a report that Quinonez had used a wide range of tactics to break Howard.
“The custodial interrogation of Kenji Howard was guilt presumptive, accusatory and theory-driven. The interrogation was not structured to find the truth but, instead, to intentionally incriminate Kenji Howard by coercively, deceptively and unlawfully breaking down his denials of guilt and eliciting a statement of guilt from him that was consistent with the deputy’s pre-existing and prematurely formed assumptions, beliefs and speculations about who must have committed the crime.”
The petition said McKinney had provided ineffective representation. First, he failed to secure Brown’s testimony at the second trial. Second, he retained Carlin as his expert witness on false confessions. “She was neither a recognized nor published expert in this field,” Leo said in his report. “Her testimony at both trials failed to cover almost every important issue, if not topic, relevant to Mr. Howard’s case; and had a more knowledgeable and qualified expert … been called to testify about the extensive empirical social science research on police interrogation and disputed confessions at the time, the outcome of either of Mr. Howard’s trials may have been different.”
The petition also said that Howard’s first appellate attorney was ineffective, because he didn’t provide sufficient evidence of how McKinney’s failure to secure Brown’s testimony damaged Howard’s chances at the retrial.
The habeas petition also included a declaration from Martin, who said the shooting happened the way Howard initially told police.
“Kenji Howard did not fire the gun,” she said. “Edward Powell is the only person who fired the gun. Kenji was not involved in the shooting in any way and none of us had any way to predict that it would happen.”
Her declaration was consistent with statements she made during a polygraph test in 1997, after Powell, whose nickname was Wolf, and Howard were arrested. During that session, deputies kept trying to get Martin to say Howard also fired some of the shots into Martinez’s car. About halfway through the interview, Martin said Howard fired three shots. But later, she took it back and said she had only made that statement because the deputies kept insisting the polygraph indicated she was lying.
Finally, the deputies asked her one last time about Howard’s involvement. Martin said: “I don’t know. That’s just it. I don’t remember Kenji firing those shots. The only person I remember was Wolf. Because that’s the only person who had the gun in front of my face. I mean, you know. He was just shooting directly across from me.”
Along with Martin’s declaration, the petition included a declaration from Badia Hill. She grew up in the same neighborhood as Powell and Howard. She said that she and Powell began communicating in 2006, and that he told her he was the only person who fired at the other car on the highway.
The petition also included a declaration from Catalani, who had been one of the state’s witnesses but had left the sheriff’s department and gone on to work for the television show CSI.
He said that he was unaware of the details of Howard’s confession when he testified, but that they were inconsistent with the gunshot residue evidence. “He (Howard) stated that he put the gun out the window and rested his wrist on the edge of the open window and fired in a downward direction. The GSR could not have been deposited on the inside of the door under that set of facts. In reaching my opinion, I am assuming that he was seated in the right rear passenger seat. The shooter’s position anywhere inside of the vehicle, not limited to the right rear passenger seat, with his hand holding the gun outside of the vehicle would make it impossible to deposit the gunshot residues I found.”
Catalani also examined Tauson’s testimony on his reconstruction of the bullet trajectories. He said there was no indication that Tauson had any training in this area, and that his report didn’t include a list of assumptions, such as the speed of the cars and their distance from each other, that might impact his findings. “Basing a trajectory determination solely on notoriously inaccurate witness statements must be at the very least noted in a report,” Catalani said. “They are the same reasons why Tauson’s purported test has no merit.”
On August 8, 2019, Judge Alan Honeycutt denied the petition, saying that it was “successive,” meaning that previous courts already denied the claims it raised. The California’s Second District Court of Appeal affirmed that denial on November 26, 2019.
Howard appealed to the California Supreme Court. His attorneys were now joined by Paul Hoffman of the Civil Rights Litigation Clinic at the University of California Irvine School of Law. The appeal said the trial court and appellate court had erred in their conclusions that Howard’s 2018 habeas petition was successive. The declarations of Martin and Hill, along with Catalani’s new forensics report, were all new evidence, and needed to be properly weighed by a court, the motion said.
The appeal to the supreme court did not raise the issue of whether Howard falsely confessed; Howard’s attorneys said that question had been already litigated and rejected by courts. But the appeal said Howard had not been given proper Miranda warnings during the interviews with Quinonez and the other sheriff’s deputies on May 10. Howard only gave a non-verbal assent when Quinonez asked him whether he wanted an attorney present; the appeal said the United States Supreme Court had found such a silent waiver to be impermissible. Howard also should have been given a separate Miranda warning when Tauson and Neumann interviewed him after the polygraph test, the appeal said.
On February 26, 2020, the California Supreme Court, in a single-page ruling, reversed the appellate ruling and sent the case back to Los Angeles County Superior Court for a hearing on whether Howard’s habeas petition should be granted based on “newly discovered evidence casting fundamental doubt on the prosecution’s case.”
Three days of evidentiary hearings were held before Judge William Ryan of Los Angeles County Superior Court. On July 16, 2021, Ryan granted Howard’s petition and vacated his convictions.
Judge Ryan based his decision on two key factors: Powell’s confession, which he found to be credible, and Catalani’s review of the forensic evidence, which Judge Ryan said did not align with significant details of Howard’s confession.
At the heart of the ruling was the fact that the rear windows in Powell’s Cutlass did not roll down. “This particular fact was persuasive to this court: in order for Petitioner’s confession to be true, Petitioner would have had to lean toward Martin in the front passenger seat, rotate his seat clockwise to a 45-degree angle while jammed in by two other rear passenger, then cock his wrist awkwardly, place his arm outstretched with his wrist at a right angle resting on the window, and fire a 9 mm pistol out the window.”
Howard was released from prison on September 9, 2021. Los Angeles County District Attorney George Gascon dismissed the charges on December 2, 2021. Because Howard was 16 at the time he was arrested, his case would again have to start in juvenile court, and Gascon’s policy was to not pursue transfers to superior court. In a statement, his office said, “In weighing the evidentiary challenges of proceeding to an adjudication [juvenile court trial] and the reality that no additional penalties can be imposed, the District Attorney’s Office has concluded that its current resource constraints and overarching policy considerations and broad discretion favor dismissal of this matter.”
The entire story can be read at:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6091
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
