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— In early 1999, over a dozen similar assault-and-robbery crimes took place against elderly pedestrians in the Mid-City area. In all of them, the victims were knocked over from behind, held face down, and robbed. Many of the assaults were in broad daylight in front of bystanders. All of the witnesses' accounts said the perpetrator was a black man, but more specific descriptions of his appearance varied. He was described as anywhere from 5´10´´ to 6´4´´, 200 to 230 pounds, thin to large. Some witnesses said he was medium-complexioned, others said very dark.

San Diego Police arrested a man in February of 1999 in connection with the crimes, but prosecutors released him when the crimes continued, and they realized they had the wrong man. In April of that year, police arrested Kevin Orlando Gunn, a then-37-year-old ex-convict and Mid-City resident, and charged him with committing three of the robberies. Gunn, a light-complexioned African-American who stands 6´9´´ and weighs over 300 pounds, had a criminal history of assault and robbery, most notably a 1985 attempted robbery near an automatic teller machine. The victim turned out to be an off-duty Carlsbad police officer, Jimmy Byler. In response, Byler shot Gunn in the calf and back. Gunn pleaded guilty to that crime, which was similar in method to the Mid-City robberies of 1999 he was charged with.

Gunn pleaded not guilty to those charges. In trial, his attorney, Steven Wadler, stressed the 5-inch to 11-inch gap between Gunn and the tallest height given by witnesses, the 70-pound weight difference, and the shade in skin complexion. He also pointed out that no witnesses had picked Gunn out of photo lineups and that one man had excluded Gunn at the scene of one crime. Prosecutor Kate Bush countered that all of the witnesses had described Gunn as tall and that people don't think in terms of 6´9´´. She put witnesses on the stand who made courtroom identifications of Gunn as the perpetrator.

Despite the discrepancy between eye-witness descriptions and Gunn's size and skin color, he was found guilty on two of three counts by a jury September 17, 1999. When the verdict was read, Wadler told Judge Kevin Enright that the jury erred when it found his client guilty. "The jury ignored the presumption of innocence," he said. "The jury did not act intelligently or justly."

Support for Wadler's claim came the very next day in the form of a letter jury foreman Robert Morse sent to District Attorney Paul Pfingst. "To begin with," Morse wrote, "after the prosecutions [sic] opening statement, I barely had an idea of what she intended to prove. There was no framework on which to hang the scattered bits of evidence. I was not alone in this perception."

Morse went on to characterize the prosecution as "sloppy," to criticize prosecutor Kate Bush's use of a self-professed clairvoyant as a witness, and to criticize her for not using an expert to support her claim about the way people perceive height. He concluded the letter by stating, "Based on the prosecutor's performance, had the jury been less proactive or less intelligent, there would not have been a conviction, and a dangerous criminal would be back on the streets."

Justin Brooks directs the Innocence Project, a student-staffed workshop at California Western School of Law that reviews criminal convictions and works on behalf of inmates convicted unjustly or under questionable circumstances. He says a letter such as Morse's is not that unusual. "I've seen quite a few jurors come forward," Brooks says, "and say the proceedings were inappropriate. But you can't get a case reversed due to the fact that a juror had buyer's remorse. A juror coming forward and saying, 'I shouldn't have gone along with everybody else,' that's not really grounds for a reversal. For a lot of them, it's hard to live with the fact that they put someone in prison possibly for the rest of their life."

Yet Brooks says Morse's letter has a twist to it that may point to jury misconduct. "The word 'proactive' is very dangerous," he explains. "Being proactive is not the role of the juror. The role of the juror is to be reactive to the evidence. They're supposed to consider what is put in front of them and nothing else and make their decision based on that. What [Morse] is saying is the prosecutor didn't prove the case, but we went ahead and convicted anyway."

The district attorney's office turned the letter over to Judge Kevin Enright and to Wadler who on May 17, 2000, filed a motion for a new trial with the judge. In his motion, he summarized the evidence that had been offered at trial. Wadler pointed out that one pivotal witness, Duane Loper, identified Gunn "in court at the preliminary hearing and at the trial" after having "excluded him in a photo lineup." And Loper's identification of Gunn in the courtroom was, Wadler said, "despite providing descriptive information dramatically different than the actual appearance of Mr. Gunn."

Wadler pointed out that one police officer, Detective Pete Griffin, denied knowing that Loper had been shown a photo lineup; then another officer stated that he had shown Loper the lineup and reported the results to Griffin.

The jury hung, 10-2 for guilt, on that count. Regarding the other two counts, Wadler, in the motion for a new trial, noted that one victim/witness -- the clairvoyant -- who identified Gunn during the trial, had excluded him in a photo lineup and at the preliminary hearing. He also indicated that another victim/witness had identified Gunn at the preliminary hearing and trial after having been unable to identify him in a photo lineup. He mentioned two other witnesses who could not identify Gunn in photo lineups, the preliminary hearing, or the trial. And Wadler cited convenience-store surveillance-camera footage, which put Gunn in the store at the time of one of the crimes.

Wadler closed his written motion with a reference to Morse's letter. "The jury chose to ignore these realities and convict an innocent man as a favor to Paul Pfingst, who should be grateful for their 'proactive (pro-prosecution/law enforcement?)' stance."

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