District Attorney Gil Garcetti is scrambling to clear dozens of defendants wrongly accused by the LAPD‘s Rampart Division, but his office continues to take a hard line against Jose Luis Frutis, convicted of murder in 1982 after being shot in the chest during a station-house interrogation.
Frutis, then a member of the Third Street Gang in East Los Angeles, contends that he was framed for the 1980 slaying of Jesse Porras, a member of a rival gang. His appeal, on grounds that the trial court wrongly excluded evidence of his in-custody shooting by the officers who investigated his case, was dismissed in 1986.
The case was resurrected when Joey Garcia, a fellow gang member doing a life term himself for a separate murder, confessed to the crime. Garcia has now recanted that confession, further clouding an already murky picture.
Frutis has been imprisoned ever since his December 1980 arrest for the slaying of Porras, a gang member who had the bad fortune of being cornered alone and unarmed. Porras was accosted on November 18, 1980, by members of the Third Street Gang in broad daylight near First Street School in East Los Angeles. Two assailants beat Porras to death with a bat and a steel pipe, then fled the scene in a car driven by a third gang member after several passers-by intervened. Frutis was the only person arrested for the murder, and was convicted on the strength of two witnesses placing him at the scene. He has always maintained his innocence.
After reviewing Garcia’s confession last October, Superior Court Judge William Pounders ordered the district attorney to reopen the case. In December, Deputy District Attorney J. Timothy Browne answered in court papers that Garcia fabricated his confession when Frutis promised to pay him $10,000, and that no further inquiry into the case is warranted.
Frutis‘ attorney, Antonio Rodriguez, is preparing a rebuttal asserting that Frutis never made any offer to Garcia. Rodriguez contends that Garcia told the truth in his confession, and changed his mind only after prosecutors warned him that he could face the death penalty if he stuck by his new story.
Whatever the circumstances of his confession and withdrawal, Garcia’s conflicting statements now present a daunting ethical riddle: Which of the two statements issued by this gangbanger and convicted killer is to be believed? At stake is the freedom of a man already injured by police and incarcerated two decades for a crime he says he never committed. Judge Pounders will ponder the question at a hearing scheduled for February 22.
Addressing the Rampart scandal this week, District Attorney Garcetti stated that his office is “equally concerned with the rights of the innocent” as with prosecuting offenders. Yet to Deputy D.A. Timothy Browne, the Frutis appeal remains an open-and-shut question. “The star witness recanted,” Browne said in a brief telephone interview with the Weekly. “That‘s pretty fatal to the case.”
In court papers, Browne explained that Garcia now says he made his confession after Frutis promised to pay him $10,000. “This declaration is fraudulent and was solicited . . . with a promise of payment . . . which renders it worthless,” Browne wrote.
Garcia did not produce just one confession but several. He spoke first, in February of 1996, to prison counselor Jolee Selvidge, videotaped a two-hour interview with corrections Lieutenant Paul A. Gulley the following April, and then recorded still another statement for guard Wayne Garnett. Garcia reiterated his confession once more in March of 1998 in a signed statement he provided to Frutis’ attorney. That statement, along with a signed statement by Garnett, formed the basis for Judge Pounders‘ decision to review the case.
Browne addresses these collectively in his court filing, dismissing them as “the confession binge Mr. Garcia went on after being promised $10,000.” He writes that Frutis never paid Garcia, and says that Garcia “indicated that he is having second thoughts about this scheme because of his fear of the death penalty.”
Browne goes on to attack Frutis’ case because it omits the fact that Frutis and Garcia were confined to the same prison, and that Garcia told a D.A.‘s investigator, and told Gulley in the taped confession, that he’d reviewed the transcripts and other documents from Frutis‘ 1981 trial. “The petition is silent on how this information came to light,” Browne writes of the confession. “One logical suspicion is that it came from [Frutis], who would have some idea what was in Garcia’s statement since he helped manufacture it.”
Browne‘s partisan tone is matched by his presentation of only some of the facts. So persuasive did he find Garcia’s recanting that Browne did not bother to interview prison officials Gulley or Garnett, as both were on vacation when Browne and his investigator visited Soledad last November. Nor did Browne obtain the videotape of Garcia‘s confession to Gulley.
A review of the available documents, and of the videotaped confession, shows that Browne also omitted important elements of the case in the papers he filed with the court. For example, he fails to present Garcia’s initial explanation for making his confession. In her interview with Browne and his investigator, Soledad counselor Selvidge said Garcia told her, “He had gotten into religion and it was bothering him. And he seemed to be, you know, like he had given it a lot of thought.”
Garcia reiterated his religious conviction two years later, in a letter accompanying the typed declaration he sent to Frutis‘ attorney. Writing in longhand on his decision to come forward, Garcia explained, “To me Justice crys for Justice, when Cain killed Abel God said his Blood cryed unto him, well I really do believe that.”
Elsewhere Browne mentions that the killers’ getaway car was dusted for fingerprints, but he fails to mention that the only prints obtained from the car belonged to Garcia.
Asked by the Weekly why he never addressed the fingerprints in his brief, Browne said tersely, “He [Garcia] had access to the car. He was from the same gang,” and then terminated the interview.
Browne also seems to downplay in his papers Garcia‘s new found fear of the death penalty. When Garcia himself was interviewed by Browne on December 1, Garcia was clear that it was an important factor in his decision to recant, and implied that someone had recently impressed on him the risk he was running by confessing to the Porras murder.
According to a transcript of the interview, Browne asked Garcia, “Did somebody make you make this statement?” Garcia gave a rambling but emphatic answer.
“You see, that’s what I was — you see, when this thing all happened and all that, you know, I . . . you know now, you know, I wasn‘t aware that I could get charged with this — and I know I can get charged . . .”
“Sure,” Browne interjected.
“You know what I mean?” Garcia continued. “But I — it’s like I‘m not, you know, I don’t think I‘m gonna get out anyways, you know what I mean? So being charged with this, it doesn’t mean nothing to me, you know what I mean? ‘Cause I feel like I’m not going to get out anyway.”
Garcia: “But now I‘m hearing that, you know, that I could get the death penalty — hell no, I didn’t do this shit.”
Browne answered, “Okay. Well, we‘re not trying to lean on you. We’re just trying to find out what happened.”
Browne‘s questioning then took a peculiar and potentially unsettling turn. “You know,” Browne said, “I looked at your prison card real quickly, and it looks like you’ve been assaulted about something, right?”
Garcia answered, “Yeah.”
Browne continued, “Now I‘m not saying that it has anything related to this, but when you’re in prison sometimes things happen to people, correct?”
Garcia answered, “Uh-huh.”
If Garcia did in fact fabricate his confession, he did a masterful job of it. In his initial interview with Selvidge, Garcia stated his motive in the killing — Porras was from a rival gang that had just killed a close friend in a drive-by shooting — and provided a close description of the circumstances, including the names of his two accomplices, both known to police at the time as members of the Third Street Gang.
Selvidge also said that Garcia asked her to keep the interview confidential. “Garcia didn‘t want me to say anything to Frutis — and I was somewhat apprehensive because, you know . . . conceivably somebody could get killed over this.”
In his subsequent, two-hour interview with Lieutenant Gulley, Garcia seemed thoughtful and deliberate, but at ease in telling the story. He described the scene, the weather and the facts of the crime — that he spotted Porras wearing the rival gang’s colors, flagged down a pair of fellow gangbangers, and chased Porras into a front yard on Savannah Street in East Los Angeles and proceeded to beat him to death.
Garcia seemed less open with Gulley than with Selvidge, but his story seemed consistent. Asked why he was coming forward, Garcia said, “To get it off my chest.” Gulley pressed him. “Did you ever think of coming forward before?”
“Yeah.” After a pause, Garcia added, “I just changed my mind.”
“What made you change your mind?” Gulley asked.
“Time,” Garcia answered.
Garcia also said he was familiar with Frutis‘ predicament at the time he was tried for the Porras murder. Both were in county jail in 1981, Garcia for a drive-by shooting for which he was later convicted. The pair met again in the middle 1990s when both found themselves sharing the prison yard at Soledad.
“Why do you think they would charge Frutis?” Gulley asked.
“Because they shot him,” Garcia answered, chuckling. “In an interrogation room. Downtown Central CRASH.”
“How did they get Frutis?” Gulley asked.
“They had a witness or something like that,” Garcia answered. Then he added, “But they didn’t have no witness.”
Frutis‘ attorney said that in argument before Judge Pounders he plans to focus on details in Garcia’s statements that could have been known only to the actual killer. He said that Garcia names witnesses and circumstances that did not appear in the record of Frutis‘ conviction.
That may not sway the judge, however, as Browne argues that Frutis coached Garcia during long days in the Soledad yard. Judge Pounders also indicated in his order that he would not consider such factors as the compromised role of the investigating officers, who remained on the case even after the in-custody shooting of Frutis. The judge also may exclude any argument over the presence of Garcia’s fingerprints in the getaway car, or the declaration by a key prosecution witness, obtained by Rodriguez, expressing long-standing doubt over his testimony placing Frutis at the scene of the crime.
But even if he keeps a tight frame around the evidence and argument he will hear, Judge Pounders must still tackle the central dilemma posed by Garcia. Granted, Garcia is a liar. But when was he lying? When he confessed, or when he backed down?
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