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In the past seven months, three men have been exonerated by DNA evidence after being charged with sex crimes by the Santa Clara district attorney’s office. Critics, including defense lawyers involved in the cases, see the dismissals as evidence that DA George Kennedy plays fast and loose to try to move cases quickly, even if it means occasionally jailing the innocent. While defending what he describes as an aggressive approach to charging sex crimes, Kennedy acknowledges that his office moved too quickly in two of the cases. He says he’s launched an internal investigation to determine what went wrong. Along with defense attorneys, the Northern California Innocence Project at Santa Clara University School of Law is weighing in on the mishaps. “Had there not been DNA, what would have happened to these defendants?” said Linda Starr, legal director of the Innocence Project. “It’s our view they would have been convicted of these horrible offenses and spent the rest of their lives in prisons.” But Kennedy denies a Wild West style. “It’s not like we are a bunch of cowboys filing everything the police are bringing over here. I cut loose a lot of cases. We are trying to call it right and be aggressive,” the district attorney said, adding that charging innocent people is “something we try desperately not to do.” Kennedy also notes that it was his office that pushed forward with the DNA testing that cleared the three suspects. “We are the one doing the innocence work,” Kennedy said during an interview last week, taking a swipe at the defense attorneys criticizing his office. “What do they do other than sit around throwing rocks?” Kennedy and his deputies say there was reason to believe the evidence supported filing charges in each of the three dismissed cases: � In July, Kennedy’s office charged 18-year-old Jorge Hernandez with the alleged rape of a 94-year-old woman living in a Palo Alto retirement home. In August, after Hernandez had spent three weeks in jail, the charges were dropped because his DNA didn’t match evidence at the crime scene. � In May, the DA charged An Vinh Nguyen, 31, with assaulting and raping his mother and leaving her for dead in a Dumpster. He was released Aug. 22 after DNA tests on semen at the crime scene failed to provide a match. � In February, the office charged Palo Alto preschool teacher David Carlson, 35, with child molestation after a 4-year-old boy told his mother he had been molested. While preliminary tests indicated the presence of seminal fluid, a later test came up negative, and the case was dismissed. Kennedy says the cases point to a need for the office to examine its procedures. “This is really extraordinary,” the DA said. “We’ve done some interim steps to make sure we don’t screw things up while we are making our analysis.” He said his chief assistant is conducting an inquiry, and promised to make public a version of the results when they are available. But Kennedy makes no apologies for his aggressive approach, saying that’s exactly what Santa Clara voters wanted when they reelected him for his fourth term in March. “We’re aggressive, and I regret that on average once a year we get too aggressive and we are going to fix that,” he said. “The majority of this community wants us to be aggressive. Sex cases are the toughest to draw the line between aggressive and overly aggressive and going after the wrong person.” THE INTERNAL INVESTIGATION The focus of Chief Assistant DA Paula Kuty’s inquiry is the events that led to the arrest, charging and four-month detainment of Nguyen. Kuty said her investigation is not complete, but preliminary findings point to an incoherent victim and a series of miscommunications. The case began when a passerby saw a partially clad, 71-year-old woman in a Dumpster and summoned paramedics. Kuty said that a number of facts pointed to the victim’s son as the perpetrator: He lied to police when questioned, he’d been hostile toward her in the past, and he’d been evicted from her apartment complex yet still had a key to her place. Kuty said that after the son’s arrest, the victim, who was barely coherent, gave conflicting accounts to police when asked whether her son had attacked her. Assistant DA David Davies decided to charge the case. “At that time they had the inconsistent statement, blood in the apartment and his violent disposition toward her,” said Kuty. Kuty blamed the delay in obtaining the DNA test that proved Nguyen’s innocence to miscommunication between police units. “It would just appear that one side thought the other was taking things to the lab,” Kuty said. It wasn’t until August, she said, that a crime scene investigator noticed that the evidence was still at the police station. Kuty said her report to Kennedy would recommend that the DA’s office ensure that key parts of investigations, such as lab evidence, are processed quickly. “We can work on having checks to make sure that things we believe are happening are happening on the investigative side,” Kuty said. Kuty also said she’d like to see the office assign its paralegals to “bird dog” items, like Nguyen’s DNA test, that are crucial in particular cases. Though he’s still waiting for the full report, Kennedy said one lesson is already clear. “We should not have bought into the detective’s theory so quickly.” Deputy Public Defender Malorie Street, who represented Nguyen, remains critical of the way it was handled and says she is relieved that the DA has started an internal inquiry into the case. “I do think there is something to be learned from this process,” she said. Street said she initially agreed with the DA’s request to waive the requirement for a trial within 60 days, despite her client’s repeated denials of any involvement. She also struggled to get police reports, she said, and had to fight to find the victim’s location so defense investigators could interview her. Street said she did not even know about the police department’s May 11 interview with the victim, where she both confirmed and denied her son’s involvement, until she read a newspaper account last month. “I did not know the interview occurred,” Street said, saying it was missing from her copy of the police report. “I was also missing photographs. There were so many things I was not sure about,” Street said. “What’s the conceivable reason not to give that information?” Prosecutors say the entire police report was sent to Street. THE RAPE CASE As for charging Hernandez with raping an elderly woman, Kennedy says, “I think we did the right thing.” Police arrested Hernandez after an interrogation in which they misled him into thinking they had his fingerprints and other evidence linking him to the rape of the 94-year-old woman. At the time, all police had was a ring they found at the crime scene that belonged to his brother. According to the Innocence Project, Hernandez told police he’d been drinking that night, and though he couldn’t remember, said it was possible he’d been at the crime scene. At one point, he asked aloud how he could have done something so terrible. Based on that, Supervising Deputy DA Victoria Brown charged him with rape. Hernandez’s private defense attorney, Maria Fonseca, has described the prosecution’s best evidence — the interrogation — as a “classic case study of psychological coercion.” “It’s not really a confession but someone being convinced to go along with something,” said Starr of Santa Clara’s Innocence Project. Starr reserves most of the blame for police. “Our aim is not to pick on the local prosecutor,” Starr said, whom she said took the DNA evidence at face value. “But [prosecutors] say this is an example of the system working. Everybody is forgetting the cases that chug along where there is no DNA. It’s hard to have confidence when there is no DNA when the DNA cases show errors in kind of high numbers.” In the third case, Kennedy says his office acted too quickly in charging the preschool teacher with child molestation. But the former suspect’s lawyer, San Jose solo Kenneth Robinson, doesn’t see it that way. “They handled the case appropriately. My client was a preschool teacher involved with children. They had to take immediate steps,” Robinson said. “Unfortunately, they were lied to by the victim and his mother. When I met with my client, I honestly believed he was innocent so let’s move as quickly as we can. The right thing was done and he was very happy. He was out very quickly. He could understand why the police and the DA did what he did.” But Kennedy said his office should have held off. “We should not have filed on the daycare worker until we had the laboratory results,” Kennedy said. Although there have been three high-profile missteps, Assistant DA Karyn Sinunu says the system is operating as it should. After a criminal investigation, the DA is presented with evidence. “At the time, based on the evidence we have, we make a judgment call,” Sinunu said. “We would like to be perfect, but the system knows human beings aren’t perfect and it has checks and balances. We did everything properly and justice was done. The problem was there was a delay in justice, and for that we are sorry.”

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