MJEOL - Attorneys want judge to reject Cruz civil case

Friday, September 5, 2008

Attorneys want judge to reject Cruz civil case

Written by Administrator
Tuesday, 02 November 2004
[b]Attorneys want judge to reject Cruz civil case[/b] City, county facing $11 million lawsuit over prosecution in 1997 slaying 11/2/04 By DAWN HOBBS NEWS-PRESS STAFF WRITER Santa Barbara city and county attorneys hope to persuade a federal judge this week to toss out an $11million lawsuit alleging that the District Attorney's Office and city police conspired to maliciously prosecute a man whose murder conviction was set aside after he spent four years in state prison. The lawsuit, filed in 2001, accuses authorities of shopping around for expert witnesses to testify the way the prosecution wanted, of presenting false evidence, using a substandard witness identification procedure and withholding material that could have cleared Efren Cruz. The federal civil rights suit marks the third phase of the high-profile case that brought national coverage of the trial and the hearing that resulted in a judge setting aside the murder conviction. The cases created a rift between Ventura and Santa Barbara authorities, and a civil trial could deepen the animosity. Assistant City Attorney Janet McGinnis said she will file motions to have the suit dismissed later this week. "A person can file a lawsuit that alleges anything -- it doesn't make it truthful," she said. Mr. Cruz's lawyer, Philip Dunn, said he will prove authorities ignored witness statements, a Ventura County district attorney's report and a taped confession showing that Mr. Cruz did not kill Michael Torres or wound James Miranda in the city's Lot 10 parking structure on Jan. 26, 1997. [b]"There's a mountain of evidence, which has already been used to prove Efren Cruz's innocence at the habeas corpus hearing," Mr. Dunn said, referring to the hearing where Mr. Cruz's conviction was challenged. "At that hearing it was discovered that material evidence of his innocence -- which pointed to Gerardo Reyes as the real killer -- was never turned over to the defense. "Beyond that, the Ventura County District Attorney's Office and Oxnard police Detective (Dennis) McMasters acquired a complete confession from Gerardo Reyes, and Santa Barbara still refused to accept Mr. Cruz's innocence. All of this will be proven in the civil case now set for trial in federal court on January 18, 2005."[/b] The judge is expected to tentatively rule on the city and county's motions to dismiss the suit on Nov. 29. No matter the outcome of the court wrangling, someone has gotten away with killing Mr. Torres, a Santa Barbara High School graduate who was attending City College and working at Danica House as a craftsman. "In general, the judge's decision (to set Mr. Cruz free) had made the case unprosecutable," said Assistant District Attorney Pat McKinley. "Nothing active is going on with the criminal case now. In theory, it can linger forever." Prosecutors do not plan to retry Mr. Cruz, nor do they plan to file charges against Mr. Reyes, who is scheduled for release in three years from Pelican Bay State Prison, where he's serving time on an unrelated attempted-murder conviction. Police and prosecutors have insisted they got the right guy the first time around, and Ms. McGinnis plans to prove they did so without any misconduct. However, Mr. Dunn will point to a 400-page investigation by Ventura authorities and a 65-page ruling by Superior Court Judge Frank Ochoa to prove otherwise. In that ruling, Judge Ochoa presents a detailed account from witness statements of what happened the night of the murder and of the tactics used by police and prosecutors. What began as a confrontation in a downtown bar between members of Oxnard's Colonia Chiques and the Santa Barbara's Eastsiders erupted into fatal violence in the nearby parking garage where the two groups had parked. Judge Ochoa noted that the majority of witnesses identified Mr. Reyes as the shooter. A tourist from San Diego provided the only positive identification of Mr. Cruz. "And yet, many of the details he provided in relating what occurred were clearly wrong ... His description of the gun was clearly wrong and he didn't see anyone who had been shot." Police showed the tourist a video of Mr. Cruz in the bar earlier that night, rather than using an in-person or photographic lineup. Judge Ochoa then cited numerous witnesses who say Mr. Reyes was the killer. Rudy Ramos, a cousin of Mr. Cruz and Mr. Reyes, testified that before the group left Oxnard that night, Mr. Reyes showed him a .38-caliber revolver that matched the description of the gun recovered at the scene of the Lot 10 shooting. The next day, according to Judge Ochoa's ruling, Mr. Reyes told Mr. Ramos that he had gotten into an argument with some men from Santa Barbara the night before and that "Cruz tried to get both sides to calm down. The argument continued and Reyes told Ramos that he and his wife left early. Reyes said he went to his car, opened the trunk and put on gloves and a knit cap. He got the gun, went to the scene and 'shot one guy in the head and shot a couple more times.' Reyes said that he had shot the individual in the head and that blood went everywhere. He said he shot one other individual." Mr. Ramos said he didn't come forward because he feared retribution from Mr. Reyes. Valerie Ortiz testified she was with Mr. Cruz in the parking structure and that he did not fire the shots. She later submitted a declaration in support of the motion for the new trial, saying that she saw Mr. Reyes fire the shots. Judge Ochoa also mentioned that Mr. Ramos' wife, Veronica, testified that Mr. Reyes' wife, Beronica, "told her that Gerardo had shot someone that night. She told her that Gerardo had grabbed the keys from her, had popped the trunk open, and had retrieved the gun. She said he was 'shooting like aiming to kill.' " Mrs. Ramos also testified that she heard Mr. Reyes tell her husband he had shot two guys in Santa Barbara. Judge Ochoa then described how Mr. Reyes provided a similar version to an informant who was secretly taping their conversation in a holding cell at the Ventura County Courthouse: "Reyes states he was upstairs getting into the car and decided he couldn't leave his cousin. He grabbed his gun and went downstairs." He saw the group of about 15 Eastsiders moving in toward his comrades and shot at Mr. Torres and Mr. Miranda, the judge's ruling said. "Another homie grabbed the gun from him and fled. He notes that others from the group began kicking the victims, and Cruz continued to refuse to leave," the ruling said. Mr. Cruz's lawyers had claimed he was so drunk, he didn't even leave the area like everyone else after the shots were fired. Judge Ochoa's ruling states that Mr. Reyes told the informant that his wife had seen everything that happened: "She had seen the Ôhead blow, pow.' " Following that confession, the judge noted in his ruling that the follow-up questioning of Mr. Reyes by police was "highly leading in nature. ... and clearly intended to elicit responses supportive of law enforcement's theoretical contention that Reyes knew he was being taped and was admitting to the shootings simply to help his cousin." Judge Ochoa also detailed the changing prosecution theories of why Mr. Reyes confessed and said none withstands scrutiny. In the end, the judge praises Detective McMasters and William Haney for shedding light on "what otherwise would have remained a miscarriage of justice" and for "rooting out the truth, irrespective of the consequences." Source: http://news.newspress.com/toplocal/110204cruz.htm

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