Last october, Superior Court Judge William Pounders opened the door to José Luis Frutis, convicted in 1982 of a murder he swears he did not commit, to argue his innocence one more time.
On Monday, Pounders slammed that door shut. After hearing three days of testimony from prison guards, inmates, family members and Frutis himself, Pounders ruled there were insufficient grounds to erase the conviction.
Frutis attorney Antonio Rodriguez said he will appeal, but the decision appears to mark the final chapter in an odyssey for Frutis and his family. Their journey began amid the aimless violence and hard consequences of la vida loca in the barrios of L.A.s Eastside, and ends in the cellblocks and exercise yards of the state prison system. It was there that a fellow inmate first voiced, in 1996, a purported confession to the killing for which Frutis was convicted, and it is there Frutis will return to serve out the sentence for that crime.
The confession, offered by Joey Garcia, himself serving a life sentence for another murder, was the basis of Pounders interest in the case. Garcia recanted his confession when interviewed by a deputy district attorney in December, but he reasserted his confession in court in March; the judge restricted subsequent testimony to the question of Garcias veracity.
That proved a broad question, however, as elements of the original crime, and of the police investigation that followed, found their way into the record. What emerged was the picture of a family striving to pull itself out of the gang culture that engulfed it. By and large they succeeded, leaving the barrio for the suburbs, and immigrant poverty for middle-class careers. But José Luis never made it, doomed either by his own hand, in the commission of a heinous fatal beating, or by hard luck and a vengeful cop.
Hanging over the case, and referenced several times by Judge Pounders, was the fact that during the initial investigation, when Frutis was handcuffed in an LAPD interview room, he was shot in the chest by an officer. The defense at the time argued that the investigation was biased by dint of the shooting that the officers had framed Frutis to cover up their own misconduct but testimony regarding the incident was barred at trial. Pounders likewise expressed concern over the shooting, but declined to review the police investigation.
Pounders did, however, take testimony on the substance of Garcias confession. Garcia was, like Frutis, a member of the Third Street gang. He explained that he was Christmas shopping in November 1980, days after a fellow gang member had been shot and killed by rivals from Primera Flats, when he saw Jesse Porras, then 15, a member of that gang, strolling through neutral territory. By chance, he said, two other Third Streeters drove by. He flagged them down, left his girlfriend standing on the sidewalk and took off to exact revenge. Porras was beaten to death in broad daylight, across the street from a grade school with scores of children looking on.
Garcia did not elaborate in court, but in statements to prison officials and elsewhere, he identified his accomplices as fellow gangbangers Salvador Moran and Juan Morales. Moran, in fact, was identified during the initial trial as the owner of the car used in the murder, and Garcias fingerprints were lifted from the car at the time.
In testimony before Pounders, members of the Frutis family said that even before José Luis was arrested, they had learned that the trio of Garcia, Moran and Morales Morales was known as Tamal, and with the other two comprised a clique inside the gang known as Los Tamales had commited the crime. They learned it from Hector Gonzalez, the younger brother of José Luis wife.
Hector was 10 at the time, and on the school playground when the killing took place. He knew Los Tamales from the neighborhood Morales lived just a block away.
When Hector recounted what he had seen to his mother, she warned him to keep quiet she knew Los Tamales reputation and relayed it to Frutis mother as neighborhood gossip. It wasnt until two weeks later, after Frutis had been arrested, shot by the police and then charged, that his family realized their own stake in the Porras slaying.
Hector Gonzalez took the stand to describe the scene to Judge Pounders, as well as his decision to keep silent out of fear of retaliation. Frutis sister, Susana Preciado, testified as well. She knew Morales personally he used to drop by for the meals she fixed for her brothers and she decided to confront him. She went to find him at the All Nations Neighborhood Center on Soto Street, where she knew the Third Street gang hung out.
Preciado said she found him there with several other gang members. She called him out. I told him I knew he was one of the persons who committed the crime, she said, that I had witnesses, and he had to come forward. Morales reacted sharply, grabbing her by the arm and shoving her back out the door. He said, You better get out or youre gonna get hurt, Preciado testified.
Preciado made a similar, equally hopeless appeal after her brother was convicted on the strength of two witnesses who picked his photo from police gang-books.
According to Frutis and his family, not only was Frutis convicted of a crime he did not commit, but he knew the people who did it, and their paths and his continued to cross.
In 1983, three years into his own jail term, Frutis referred to Los Tamales in a letter to his mother that was entered into evidence. Garcia had already been convicted of a separate murder, and Moran, whose street moniker was Crow, had just gone through a trial himself. God is just and gives everybody his punishment, Frutis wrote. Look, the other Crow, the owner of the car where they say I was riding when they killed the young man for which I am doing time, they found him guilty of a murder that he committed. The only one left is Tamales. God has his punishment for him also, you will see . . .
Eleven years later, Frutis was transferred to Soledad state prison, where Moran and Garcia were already doing time. Frutis arrival jarred Garcias conscience, according to Garcia. He told a fellow inmate that Frutis was doing time for a crime he hadnt committed, and was then persuaded to speak with Wayne Garnett, a corrections officer with strong religious beliefs.
Garnett testified to Pounders that, in 17 years as a corrections officer, Its the first time anybody ever came to me with a statement like that.
Pounders heard as well from Soledad counselor Jolee Selvidge. She said Garcias confession prompted her to review Frutis file, and when she found that he had indeed been shot while in LAPD custody, as Garcia had recounted, she interviewed him a second time. At that point, When he gave me the names of the other people involved and told me one of them was doing time and the other had gotten away completely, thats when I started to believe him. Selvidge then referred Garcia to the Investigative Services Department at the prison, where he recorded a videotaped confession to the Porras killing.
Selvidge said that once Frutis made Garcias confession the basis for an appeal, Garcia began receiving threats from Moran. He came to me and said he had an enemy situation developing, Selvidge testified. We did have to lock him up [in a high-security cellblock] after that.
Around the same time, Moran threatened Frutis as well, in a kite, slang for a prison letter. Whats up, José Luis, I already found out that you are talking shit about me, the letter begins. If someone snitches on Tamal or me, I am going to tell the district attorney that you told us to ride the beef and with the lawsuit that you will file against the state you would give us some money for doing you the favor. I can also tell him that I lent you the car that was used for that hit! You understand me, crazy guy?
The letter was signed Crow, and included a postscript: Tamal sends you his regards, and he sent me your mothers address so that I can write to her and tell her what I think. He is also going to talk to her. The reference to Tamal, a.k.a. Juan Morales, the one member of Los Tamales not in prison, suggested that the threat of gang retaliation remained a real prospect.
While he allowed Frutis attorney Rod- riguez to call witnesses and heard their statements in full, Judge Pounders made it clear during the course of proceedings that he regarded the case with skepticism.
At the close of proceedings, on April 28, Pounders said he found Garcias recanting of his confession very persuasive.
Most of what Ive tried over the past 10 years are murder cases, and most of them involving gangs, the judge said. Garcia, he suspected, was simply seeking to get a fellow gang member off.
Deputy district attorney Tim Browne was quick to agree. The gang culture is very strong, he said. Its almost as if the individual has no identity.
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Rodriguez responded that In gang culture, you dont name names, and said that Garcia would not benefit by his confession, but would have to live with the jacket of a snitch worse than death if one lives in the prison system.
But Pounders was not swayed. In his order Monday, the judge emphasized that Garcia is a member of the same Third Street gang as Frutis, is an admitted liar on this subject and is serving a life term . . .
The videotape of Mr. Garcias interview. . . provides little insight as to the credibility of the confession, but the audiotape of his interview by the district attorney, during which he recants his confession, is compelling, Pounders wrote. He is not credible.
The order sends Frutis back to state prison, the home of Garcia and Moran, as well as prison staffers Selvidge and Garnett. Few there will be surprised at his return. As Garnett observed upon his departure from court, regardless of the circumstances, its exceedingly rare that longtime prisoners get their cases heard, let alone overturned. Said Garnett, That only happens in the movies.