Blog Archive

Monday, April 24, 2017

The Accuser’s Mom Called Her a ‘Pathological Liar.’ Nobody Told the Defense: So George Gage sits in prison. And guess what happened to the prosecutor, Christopher Estes, the deputy district attorney. By Andrew Cohen - 13-73438 George Gage v. Kevin Chappell

Case in Point

The Accuser’s Mom Called Her a ‘Pathological Liar.’ Nobody Told the Defense.

So George Gage sits in prison. And guess what happened to the prosecutor.

All of this information was, in some fashion, “exculpatory,” in that it would have helped Gage’s defense. Marian’s credibility, undermined by her own mother, surely was a vital part of the prosecution’s he said/she said rape case. Moreover, giving jurors another explanation for the deterioration of Marian’s mental health-- her mother’s intercession with the boyfriend-- also supported Gage’s defense. All of it was known to Estes, the prosecutor, when he told the court, before Gage’s first trial, that there were no “inconsistencies” in the records. What the trial judge found instead was that the medical records were riddled with inconsistencies undermining the prosecution’s theory of the case. Here the story gets even worse. Estes did not seek to try Gage again, this time with jurors allowed to see the medical records. He did not back away from a case that had been exposed as staggeringly weak. He did not offer Gage another plea deal or share the records with defense attorneys to allow them to press additional claims. Instead, Estes appealed the judge’s ruling-- and won. The California Court of Appeal promptly reinstated the conviction, holding that the trial court improperly relied on evidence-- Marian’s medical records-- that had not been introduced to jurors.
The Court of Appeal went even further. Offended that Judge Koppel had obtained and relied on the records to overturn Gage’s conviction, prosecutors asked that she be removed from the case because her ”independent investigation” amounted to evidence of judicial “animus” inconsistent with objectivity. In other words, the judge who relied on what was arguably the single most important document in the case to protect Gage’s right to a fair trial could not continue to preside over it because she, the judge, was acting unfairly. .
The appeals court removed Judge Koppel even though the panel never claimed that the information she cited was inaccurate. The court reassigned the case to another judge and then to a third judge who promptly gave Gage a 70-year sentence. When Gage’s attorneys pressed the appeals court about the medical records, asking that they be disclosed, the court concluded, without elaborating, that there was “nothing in [the] records which could be of assistance to defendant.” At no time did this intermediate appellate court ever explain why Estes’ conduct did not violate his obligations under Brady v. Maryland, the Supreme Court ruling which requires prosecutors to turn over to the defense evidence that could help exonerate a defendant.
The California Supreme Court affirmed these decisions by the California Court of Appeal without issuing a substantive ruling. And when Gage took his claims to federal courts the judges there rejected him, too, arguing that he had waited too long before raising the issues and that they were barred by federal habeas rules from helping him. (Part of the delay resulted from the fact that Gage had no attorney following his conviction and had to rely on a prison lawyer, a fellow inmate, who simply made the wrong arguments.)
No appellate court reviewing this case, in other words, has ever squarely addressed the issue of prosecutorial misconduct or has demanded that Gage be tried with this vital evidence included in the record. No court has even demanded a hearing to evaluate the contents of the medical records and how they might play into a retrial-- for a while, even, the records appeared to have gone missing. Estes, who was elected to the Los Angeles County Superior Court five days after the jury convicted Gage, did not respond to a request for comment for this story.
To give you a sense of how extraordinary are the circumstances here, and how procedural rules serve to block even well-meaning judges from administering justice, spend a few minutes watching the oral argument in this case before the 9th U.S. Circuit Court of Appeal. The argument, which took place April 2015, features a memorable exchange between the 9th Circuit panel and David Cook, a deputy attorney general for the state. The three judges seem to agree, as one puts it, that the defendant has “a strong case on the merits” but confronts “a procedural obstacle.”
“None of this gives me any more confidence that the conviction was valid,” the appellate judge admonished. “And the prosecutor’s job is to do more than secure convictions...You’re ultimately trying to do justice.”

In spite of the appellate judges’ skepticism about whether justice was being served, Gage is likely to die in prison, with the one piece of evidence that could set him free unseen by a jury or even his own lawyers. The video should be available on soon under "George Gage v Kevin Chappell" of the 9th CA Circuit Appellate Court
Supported by the Louis Lowenstein Award for Criminal Justice Commentary.
An earlier version of this article incorrectly referred to an argument as occurring "last April." The argument occurred in April 2015.

13-73438 George Gage v. Kevin Chappell

United States Court of Appeals for the Ninth Circuit