By Erin Sherbert
By Howard Cole
By Erin Sherbert
By Erin Sherbert
By Leif Haven
By Erin Sherbert
By Chris Roberts
By Kate Conger
On the afternoon of Aug. 28, 1997, an African-American man wearing a black windbreaker and dark jeans robbed a Bank of America in east San Jose. Brandishing a black semiautomatic gun, the thief jumped over the counter, ordered the tellers to open their drawers, and said, "Everybody get down! Anybody moves and I'll blow you away!"
Within minutes, he had grabbed $2,661.75 from three teller drawers and stuffed the money into his jacket. Then he jumped back over the counter, ran out of the bank, and drove off in an old car as bank employees and customers lay on the ground.
Belen Ortiz, an 18-year-old teller, pushed the silent alarm about two minutes after the robber ran out. When the police arrived, she told them that the perpetrator looked like an acquaintance of her boyfriend, a guy who lived in the neighborhood named Chris.
Christopher Taylor, who had lived a few blocks from the bank and who'd spent a few hours with Ortiz in the past, became the San Jose Police Department's prime suspect in the case. After a two-week trial, a jury found him guilty in 1998 and sentenced him to 11 years and eight months in a state prison. Taylor, who had turned 20 the day before the robbery, says he was at home with family on the afternoon of Aug. 28.
After five years of incarceration at a prison in Solano County, Taylor continues to argue that he is innocent. (Taylor and I spoke by phone, and he wrote to me from jail.) There are some compelling reasons to believe him, including two cited by organizations such as the Innocence Project Network as frequent causes of wrongful convictions: bad defense lawyering and problematic eyewitness identifications.
Taylor's trial attorney -- who was suspended from practicing law during Taylor's trial, but didn't tell his client -- did little investigation and failed to obtain readily accessible evidence that could have bolstered Taylor's defense. Questionable eyewitness ID testimony also helped convict Taylor: Six witnesses described a thief who is shorter than Taylor. And fingerprints lifted from the cash drawers did not match Taylor's.
Extensive psychological research illustrates that eyewitness error is both common and preventable. Santa Clara County, where Taylor was arrested, tried, and convicted, is the only jurisdiction in California that has officially adopted basic but crucial reforms to improve the way police lineups are conducted, to help prevent eyewitness mistakes. But the new regulations were adopted in 2002, four years after Taylor was convicted. Even so, an improved lineup procedure might not have helped Taylor, since two witnesses who pointed him out during trial never saw a lineup -- the only impartial test of an eyewitness -- before testifying.
Taylor's appellate attorney, Mary Lou Hillberg, has been working on his case for five years and is rarely paid for her hours; in 2001, she asked the Northern California Innocence Project for assistance, and the organization has provided her with resources and student volunteers. Over the years, Hillberg has filed a cavalcade of paperwork in both state and federal courts asking for a hearing and for them to reconsider the case. She has not yet been successful.
The day after the Bank of America robbery, San Jose police officers went looking for Christopher Taylor when he wasn't home, and left a business card with a relative. A few hours later, Taylor agreed to meet the police -- with his grandfather, James Carter -- at a nearby Jack in the Box for questioning.
During the police interview, Taylor told them that he had not taken anybody's money and proclaimed his innocence. A couple of days after the conversation, Taylor, a frequent methamphetamine user who'd previously been arrested on drug charges, was arrested again at a Santa Clara motel room, where police found a baggie with meth residue and a piece of paper that listed various Bank of America branches.
Taylor insisted that he was innocent of the crime, explaining that he was at his grandparents' house with his friend Gilbert Benavides and his family during the robbery: They were planning to hold a joint birthday dinner for him and his grandfather that evening. (When detectives talked to Benavides, he confirmed that he had been with Taylor most of the day, but that Taylor had left for about an hour in the afternoon. Later, he said he was mistaken about Taylor leaving.) Taylor also said he had a list of bank branches because he had opened an account recently, which court documents confirm. When the district attorney offered him a plea bargain, Taylor refused; he said he felt the truth would come out during trial.
Taylor's trial lasted two weeks. The prosecution presented a string of witnesses, including Kelli Lang, Gilbert Benavides' girlfriend. Lang was with Benavides and Taylor on the day of the robbery -- though she admitted during trial that she disliked Taylor and was high on drugs the day of the incident -- and she gave police a black windbreaker that she said Taylor had worn the afternoon the money was stolen. (He says he has worn a black windbreaker before, which he borrowed from his brother.) Lang also said that Taylor owned a chrome gun (not a black one, as was used in the robbery), that he blew a lot of money on food and clothes the day after the bank was robbed, and that he seemed desperate for cash because he owed a drug dealer.
Taylor did, in fact, have a regular source of income: He received $626 a month in SSI payments because of diagnosed psychological problems. Though his lawyer, Robert E. Mitchell -- who has since been disbarred for five acts of moral turpitude and 29 acts of misconduct -- could easily have produced a canceled check to prove it, he didn't. The prosecutor used this lack of corroboration to discredit Taylor's testimony. (Mitchell could not be reached for comment.)
According to the Innocence Project Network, poor defense lawyering, a common cause of wrongful conviction, can be countered with more resources and better articulation of standards for defense attorneys -- tough, expensive reforms, but ones that have been pursued in other states.
An ineffective advocate for Taylor, Mitchell also failed to scrutinize the eyewitness testimony that ultimately convinced the jury. Two identifications, in particular, were problematic. These witnesses -- a bank teller and a customer -- were not asked to view a live or photo lineup before the trial, and yet when they took the witness stand they were each asked to identify the robber. Both pointed to Taylor.
If in-court identifications are not combined with a traditional lineup beforehand, they can easily lead to eyewitness error. "It's especially problematic for a witness to take the stand who has never been subjected to a lineup, which is the only fair test," says Iowa State University's Gary Wells, an expert on eyewitness identification. "The problem with the in-court ID is that it's obvious to everyone who the defendant is: Sometimes it's the only black guy at the defense table." Mitchell should have done a better job of raising questions about the in-court identifications.
The lawyer built an alibi defense that consisted of Taylor, his family members, and his friend Gilbert Benavides, who all testified that Taylor was at his grandparents' home at about the time of the robbery. (Benavides also testified that Taylor had a gun at his grandparents' house.) It is likely that the jury didn't believe Taylor's alibi; research by Gary Wells shows that alibis involving friends and family carry little weight in court.
The jury members spent five of their seven hours of deliberation rereading the testimony of the eyewitnesses. When they returned from the jury room, they found Taylor guilty on all counts.
Mary Lou Hillberg has been Christopher Taylor's most diligent attorney, and she continues to search for an overlooked detail that could help her client win his freedom. During her reinvestigation of the case, she has obtained FBI records showing that six eyewitnesses to the crime thought the robber was 5 feet 7 inches to 5 feet 9 inches tall (Taylor is 5 feet 11 inches). She petitioned to have the fingerprints lifted from the teller drawers run through a criminal database to see if another perpetrator could be identified, but criminologists weren't able to match the partial prints. A cooperative district attorney helped Hillberg acquire clearance to look at all the police files on the case -- including the original security video footage. She plans to review the files and use computer technology to get clearer pictures of the robber from the video.
Though the Santa Clara District Attorney's Office has aided Hillberg in her investigation, it believes a "mountain of evidence" points to Taylor. "Justice dictates that we do our best to ensure that only the guilty are convicted, so groups like the Innocence Project are necessary," says Dan Okonkwo, the deputy district attorney who tried the case. "But that doesn't mean that every case they have an interest in, that that person is, in fact, innocent." Hillberg's current hope is that the 9th Circuit Court of Appeals will agree to look at Taylor's case, and allow a hearing where she can present the evidence never introduced during his trial. But if the 9th Circuit declines, she will have to file a petition with the U.S. Supreme Court, almost certainly a losing proposition. "The chance of [the U.S. Supreme Court] taking the case is less than a snowball's chance in hell," she says. Hillberg is deeply frustrated by this case: Taylor is one of the few clients she's seen in her 24-year career who she feels is "honest-to-God factually innocent."