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The California Innocence Project And The Freedom Of Reggie Cole

Audio

Aired 4/8/10

A California prisoner's family waited for hours Tuesday at a bus station in El Centro, but never got a chance to celebrate Reggie Cole's release from custody. Cole was convicted of murder in 1994, but the California Innocence Project helped overturn the conviction last year. However, he killed a man while in serving time at Calipatria State Prison and that's holding up his release. We discuss the case with attorneys from the California Innocence Project.

MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. After serving 16 years in state prison, inmate Reggie Cole was just hours away from freedom on Tuesday. A team of lawyers with the California Innocence Project based at San Diego's California Western School of Law succeeded last year in getting Cole's life sentence overturned. But as Cole's family waited outside the prison to celebrate his release this week no release happened. Here to talk about the delay and the very complicated case of inmate Reggie Cole are my guests. Justin Brooks, he’s director of the California Innocence Project, California Western School of Law. Justin, welcome back to These Days.

JUSTIN BROOKS (Director, California Innocence Project, California Western School of Law, San Diego): Good morning, Maureen.

CAVANAUGH: And Alissa Bjerkhoel is staff attorney for the California Innocence Project. And, Alissa, welcome.

ALISSA BJERKHOEL (Staff Attorney, California Innocence Project): Good morning.

CAVANAUGH: Now for those who are not familiar with the Reggie Cole case, why don’t you tell us who he is and how his case was introduced to the California Innocence Project.

BROOKS: Well, I first heard of the case when an outstanding local attorney, Chris Plourd, came to me. Chris was actually assigned to represent Reggie in a death penalty case because Reggie had been accused of stabbing an inmate in prison and he was already serving time for murder so they pulled him out of prison and put him on trial to go for the death penalty. And Chris came to me and said he had serious doubts whether Reggie had committed the original crime that he was in prison for. And so we started working together investigating that original crime.

CAVANAUGH: And tell me what evidence actually was uncovered that eventually led to his sentence being overturned for the original crime.

BROOKS: Well, this is a crazy case. There was actually a book written by an LA Times reporter where the reporter had been sort of embedded with the homicide division in LA for a summer and there were things in the book, and Chris Plourd read through the book and found things that he didn’t know about the case and things that were not disclosed to the original defense attorney, and they were important things that really cast doubt as to the witness statements, the only witnesses to the crime.

CAVANAUGH: Now, tell – give us a little timeline. This big reversal happened, if I recall correctly, last summer, that the sentence was overturned. So why wasn’t he released immediately?

BROOKS: Because what happened was he was on trial for the prison stabbing and the district attorney agreed to a plea bargain on that charge. He pled to a manslaughter but he’d already served so many years in prison that he almost had time served for a manslaughter so it actually didn’t make sense to go forward with that trial. Now I believe that Reggie had a legitimate self-defense claim. The guy that he stabbed in prison had already come after him and Reggie, in defending himself, killed the guy.

CAVANAUGH: Now, Alissa, how long had Reggie thought he was going to be released on April 6th? I mean, when – how long was that date really sort of his – going to be his release date?

BJERKHOEL: The – We had battled the release date for several months. I’d say about six months. But as of February this year, it became established that he was going to be released on April 6th. And for the following months, February, March and even up until last Friday, we had been making phone calls into the prison to make sure that, in fact, the date – release date, was April 6th and – which was understandable because we were trying to get, you know, the family down there and all of Reggie’s supporters.

CAVANAUGH: And when did you find out that he was not going to be released?

BJERKHOEL: We found out the day that he was supposed to be released, actually hours after he was supposed to be released.

CAVANAUGH: And what was – how did that actually occur, Justin?

BROOKS: Well, we’d had many, many communications with the Department of Corrections, and this was a date certain that he was getting out and it was to the point of we had talked about where we were going to stand and wait for Reggie because sometimes, you know, an inmate comes out and they’ve got to take them to the bus station and get them home. And we said, no, we’ll be there to pick him up and told – said who’s going to be there. And they said, well, we don’t want you out by the prison because we don’t want a commotion. So we said, okay, we’ll wait at the local bus station, just drop him off there. So all these attorneys, all my students, his family members were all out there in the hot sun and Reggie never shows up. And they come back later, hours later, when we try to follow-up, where is he? Why hasn’t he been dropped off? We were told, oh, he was brought to Los Angeles directly. So Alissa here had the unfortunate task of then driving from out in El Centro to Los Angeles and then I had to call her when I found out he actually was never released at all because at the last minute apparently somebody said, oh, no, we think we recalculated – we think we calculated the days incorrectly. He’s going to be held until June 17th. And from what I understand, he was actually put in the van, he was driving out of the prison, and then they turned the van back and put him in prison. And the reason that I bring this up is because it’s just another indication of the level of incompetence that goes in these cases, that they can’t calculate days correctly or the days were calculated correctly and at the last minute they have this power just to not release him. And I’m very concerned because I don’t know what might happen with Reggie over the next two months. He’s probably despondent at this point.

CAVANAUGH: Our producer, Megan Burke, talked with Terry Thornton, she’s a spokesperson for the California Department of Corrections and Rehabilitation, and asked her why Reggie Cole was not released on Tuesday. This is what she had to say.

TERRY THORNTON (Spokesperson, California Department of Corrections and Rehabilitation): We recalculated the date. It was recalculated several times. It was very difficult to calculate, so it was done again at the direction of our administrators here at headquarters as well, working with the staff at the prison and they determined that his release date is not today, it’s for later this year.

CAVANAUGH: We al – And we also asked Thornton what goes into the process of determining sentence length, and here’s her answer.

THORNTON: It involves looking at many documents, you know, any kind of appeal, any kind of holds, any kind of, you know, behavior that would cause an inmate to lose credits. Any kind of credits he may have earned. It’s very complicated and if it’s – involves years that it changed over the course of a few years. This offender has been incarcerated for a lengthy period of time. There’ve been appeals. There’ve been many different rulings. So it can become very complicated.

CAVANAUGH: So it was complicated calculating the time that he had left and they didn’t calculate it correctly apparently, so says the California Department of Corrections and Rehabilitation. Justin, has anything like this ever happened before in a case you were involved with, with this calculation problem?

BROOKS: Oh, well, yeah, sure. I mean, there’s so many issues with parole. His, though, however, was not that complicated. You know, it’s easy to give a laundry list of potential issues that could come up but it was calculated, the judge reviewed it, we reviewed it, the AG reviewed it, we came up with the date. And it’s not really an answer to say it’s very complicated so at the last minute we decided to go back and do it again.

CAVANAUGH: Do you – I know that you’re in a delicate position here but do either of you suspect any ulterior motives or is this just simply, you know, the left hand not knowing what the right hand’s doing?

BROOKS: Obviously, as an attorney, you know, I’m on the radio, I don’t want to make any allegations that might lead to lawsuits. But this is very bizarre that a guy is in a van going out of prison. Who was motivated to do this recalculation at the last second? Why did it happen? It doesn’t make any sense to me. Who made that phone call?

CAVANAUGH: Alissa, tell me a little bit more about the family’s reaction to the fact that Reggie is now – Reggie Cole is now back in prison for, I guess, another two months.

BJERKHOEL: I think that’s probably the saddest part of this entire case. When Reggie was to be released, I had been in contact with the family, obviously, for several months, letting them know the date and the time that he was going to get out, even up to the last second. And he had his mother fly out from Mississippi, who came a week ahead of time because she was really excited about his release. His sister, who had driven down from Las Vegas the night before and stayed at a hotel and brought her five-year-old daughter who had recently been diagnosed with leukemia, and it’s so tragic because she’s there, you know, in her little Sunday dress. She’s missing all of her hair and she’s as sick as can be and she wanted nothing more than to see her uncle walk out of prison. We had his great-aunt who was there, who had to get leave from a hospital just to come out and see his release, as well as about a dozen family members who drove through the night, starting at midnight and driving all the way out to El Centro to make it to the bus station by 6:45 in the morning just in case he was actually released at 7:00. And when we got news that he had been actually put on a bus to Los Angeles and he would not be released at the bus station, not only me and several other attorneys started driving out to Los Angeles but so did everyone in his family, which was about 20 family members, immediately headed out there. And that was one of the most horrific phone calls that I had to make to the family to let them know that, in fact, Reggie was not going to be in Los Angeles, and that he was still at the prison. They were absolutely devastated.

CAVANAUGH: Tell us a little bit more, Justin, about the fact that you’re worried about him now because you say he’s despondent. What’s going on there?

BROOKS: Well, we had a case in our office once where this guy was on his way being released and allegedly got in an altercation with these officers about his release. He claims that they were being very abusive with him. He ended up getting beaten so badly that he was hospitalized. The officers claim that he attacked them with a pencil where he was signing for his release document – release, you know, things that he had. And what ended up happening is he got life without parole. He was walking out of the prison and he ended up this altercation led to him being LWOPed. And, you know, it’s just – it’s hard for any of us to appreciate when you’re getting out of prison, those, you know, last few days and holding yourself together for it. And I know a lot of listeners might be thinking, okay, well, Reggie Cole did stab this guy in prison, you know, he deserves to be in prison, but he would’ve never been in prison if he hadn’t been wrongfully convicted of this murder back in 1994. And then he’s in this position in prison of having to defend himself. The guy that he killed was called the Devil and he was the shot caller on the yard where Reggie was. And he came to stab Reggie, and there’s multiple witnesses to that. So he’s in this horror of being in prison, wrongfully convicted, he’s in this horror of having to defend himself, he gets it all settled, he gets this, you know, manslaughter conviction, he’s served his time on it, he’s getting out of prison, he’s sitting on a van, he knows his family’s waiting for him, and this nightmare going back to 1994 is finally over and now all of a sudden it’s not. And so I don’t know if he believes he’s ever getting out right now. I don’t know where his head is at right now.

CAVANAUGH: You make a good point, Justin, because a lot of people, a lot of prosecutors, are quick to point out when they talk about the Innocence Projects that although we’re not – they say very strongly, we’re not talking about innocent people here, we’re talking about people who are maybe career criminals…

BROOKS: Umm-hmm.

CAVANAUGH: …people who have done bad things. So, indeed, in the larger instance, why is it that we should care about the release of Reggie Cole?

BROOKS: Well, because it can happen to anyone, first of all. I mean, many of our clients haven’t been people who are career criminals. You look at a guy like Kenneth Marsh, a San Diego case, you know, this guy’s not a career criminal. John Stoll is another one of our clients, had no priors. It’s true that sometimes people have minor priors and that they end up in the, you know, identification books because of that and then they get wrongfully IDed.

CAVANAUGH: Umm-hmm.

BROOKS: So that does happen but why should we care? Well, hopefully, our sense of fairness and altruism dictates that, you know, we don’t believe people should go to prison for something they haven’t done. But we all need to be mindful that it can be anybody. I mean, there was a Connecticut state trooper who was wrongfully convicted of a crime. Now, if it can happen to a police officer in America, it can happen to you.

CAVANAUGH: Let me ask you, when Reggie Cole, Alissa, when Reggie Cole is ultimately released in June, is there going to – you told us about all the family members who are meet – want to meet him and want to embrace him again, but is there a safety net? Do we know how he’s going to be able to get by? How he’s going to be able to make a living? I mean, sixteen – after sixteen years or so in prison?

BJERKHOEL: We actually have established a pretty good plan for when Reggie gets out. His sister and her husband actually run a plumbing business out of Los Angeles and so he already has a job lined up there. His sister, Tawanda, who is really, you know, a big force behind Reggie’s release, is moving out to Los Angeles from Las Vegas as well so that she can be there for at least the emotional support of him as well.

CAVANAUGH: I’m wondering, Justin, when Reggie does actually get out, are you going to be immediately moving on to other cases? What other cases are you working on that have some sort of, you know, imminent decision one way or another?

BROOKS: Well, first of all, when he does get out, that is the difficulty about moving on. You know, we spend years on these cases, we get a guy out of prison, and now do we just leave them there? There isn’t much of a safety net in society for these people. In fact, they get less than people who are paroled because they don’t get the couple hundred bucks for parole, they don’t have the support of any employment or halfway houses. That’s the irony of this, is when you’re innocent in prison and we pull them out of the system, the system doesn’t know what to do with them. But we have – you know, we review over 1000 cases a year, and we’re not social workers. We’re lawyers, so we have to move on. William Richards is, hopefully, a guy we’re going to walk out of prison soon. We got a reversal of his conviction this past summer. The District Attorney’s office has decided to appeal that. He’s sitting in prison on a million dollar bail. If any listener has a million dollars they want to put to a good purpose, he’s sitting in prison with cancer after having served more than a decade in prison for a crime he didn’t commit. We have many, many cases. We will never run out of cases.

CAVANAUGH: Now, just to be clear, when people are released when their convictions are overturned and they get out, no financial compensation whatsoever?

BROOKS: The state passed a compensation statute six, seven years ago where you’re entitled to $100 a day for every day you’ve been wrongfully incarcerated. When the law first was passed, we had a couple of those cases and it seemed pretty straightforward to get compensation. That is now not the case. First of all, there’s no deadline on the Attorney General’s office in responding to those claims so now they’re taking two to three years to do responses. And I just have litigated one for the Timothy Atkins case and he was factually innocent, the judge found him innocent, and the board still denied and said, umm, we don’t think he’s innocent.

CAVANAUGH: Uh-huh.

BROOKS: So I don’t know if it’s the economy or what is driving these compensation claims but we are not having the success we were having with them.

CAVANAUGH: Well, I want to thank you both for updating us on this case and we will stay tuned to find out what happened. Thank you so much.

BROOKS: My pleasure.

BJERKHOEL: Thank you.

CAVANAUGH: I’ve been speaking with Justin Brooks. He’s Director of the California Innocence Project from the California Western School of Law. And Alissa Bjerkhoel is staff attorney for the California Innocence Project. If you’d like to comment, go online, KPBS.org/thesedays. Coming up, an East County update, as These Days continues here on KPBS.

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