Bhakta David Nollmeyer

Jason Kindle, who worked for Cover All Cleaning which serviced Office Depot in Los Angeles. On Monday, November 22, 1999, the Office Depot store was robbed. Kindle was accused of the armed robbery which was committed by a 6 foot 6 inch disguised robber (California Innocence Project). Kindle is only 6 feet tall, six inches shorter than the person seen on videotape. He was mainly convicted because of a laundry list of store cleaning instructions found in his home which were part of his training. The district attorney argued it was a robbery to do list.

This list and inaccurate voice recognition testimony lead to Kindle's conviction. Kindle was eligible for three strikes law and sentenced to 70 years to life (California Innocence Project).

The California Innocence Project with a local Los Angeles attorney, presented evidence to the trial court of a videotape of the robbery. Kindle's conviction was reversed due to the failure of the defense to call an expert on identifications. This evidence definitively proved that the actual perpetrator was 6 feet 6 inches tall (Western Law School 2011).

The California Innocence Project at California Western School of Law in San Diego, along with some of it's students helped reverse his conviction (Western Law School 2011).

Friday, January 31, 2011 Judge Lance Ito dismissed charges against Kindle and ordered his release from prison. Kindle was released from the Los Angeles County Jail after serving two years of his sentence (Western Law School 2011).

Justin Brooks, founder and executive director of the California Innocence Project, stated "This was definitively the correct outcome for Kindle. He's been innocent all along" (Western Law School 2011).

Second year law student Tiffany Norman was assigned to the case, was with Kindle at the time of his release on Monday.

Norman stated, "It was absolutely amazing to see an innocent man return home to his family. If it wasn't for all the hard work everyone put into this case, Jason wouldn't have been eligible for parole until 2067. But now he gets his life back" (Western Law School 2011).

California Western Law students have been investigating Kindle's case since last fall.

Here is the basic summary of People v. Kindle. As seen Kindle did not receive compensation for his victimization (California Innocence Project)

County: Los Angeles

Convicted of: Armed Robbery

Year of Conviction: 2000

Sentence: 70 years to life

Year Released: 2003

Years Served: 2 years

Wrongful Conviction Factors: Junk science, ineffective assistance of counsel

§ 4900 Compensation: Denied

Case Brief

People v. Kindle Cal. App. 2 Dist., 2002 (not published)

Facts: Jason Kindle worked as a janitor for a Cover All Cleaning. The company sent him to clean businesses each week. One was an Office Depot store in Los Angeles. At Office Depot Kindle worked one weekday and one weekend day per week. He and a coworker cleaned the store before it opened.

I. THE ROBBERY

On Monday, November 22, 1999, the Office Depot store was robbed. At 7:30 a.m., a man entered the store and walked to the customer service desk. Dan Freund manager, and a customer service cashier, Marisol Guzman, were on duty. Michelle Jackson customer service manager, was standing just outside the desk.

The robber was a tall African American man, between 6 feet 2 inches and 6 feet 6 inches tall, who was wearing a heavy disguise. He wore a dark, oversized jacket below his waist and black gloves. He also had on large, dark sunglasses with a fisherman's hat. He had a wig, a fake mustache and a fake beard.

The man proclaimed this is a robbery. He brandished a gun from his coat over the customer service desk. He ordered everybody up front. Including Freund, there were eight employees in the store. Freund instructed the employees to get back up front. Three employees came. The robber said he knew there were more workers in the store. Freund picked up the telephone. He paged two more employees.

The robber ordered Freund to lead him to the safe. Freund escorted him and employees to the cash office. He unlocked the door. The employees and the robber entered the office. Ana Huerta was preparing the deposits. The safe was already open. The office is 8 feet by 10 feet.

The robber instructed employees wearing red shirts to lie on the ground. Cashiers, stockers and non management employees at Office Depot wear red shirts. Management wears gray shirts. Freund and Jackson wore gray shirts.

The robber left the office for about 20 seconds. The door automatically closed and locked behind the robber. Employee Eduvey Del Real was on the phone when Freund paged the employees. The robber called Del Real over to him. He placed a gun up against his head. The gun cut his ear.

Then the robber brandished the gun through the open window of the office. He ordered that someone open the door or he would start shooting. Freund complied.

The robber instructed management to fill the bag he had with money. He told Freund no coins.

The robber believed Freund was adding coins. Freund was pushed to the ground and struck twice with the gun. Freund was then punched two or three times.

Employee Jackson began filling the bag with cash. He grabbed the bag and pushed her to the ground. The robber took money and checks from the safe and put them in his bag. He obtained approximately $15,000 in cash and $7,000 in checks.

Jackson and was struck twice in the head with the gun. She blocked the third attempt. The robbery was on a Monday. This is the only day the store deposits Saturday and Sunday receipts.

The robber instructed employees to stay in the cash office. He threatened to kill them if the police were called.

Jackson was on the ground when the robber left. He kicked her several times, and hit her with the door several times. Jackson suffered a broken ankle, two herniated disks in her back and a bruised rotator cuff on her shoulder. She did not return to work after the robbery.

II. THE INVESTIGATION

Office Depot has five security cameras and films the areas around the front doors, customer desk, and outside the cash office. The cameras take video stills. There are several photos of the robbery, and a shot of the robber on a bicycle. Freund gave the videotapes to the police, Detective Code.

Detective Code arrived at Office Depot on November 22 at around 8:00 a.m. He met with manager Freund and they reviewed videotapes of the robbery. Code did not interview any employees in depth this day. Code prepared a Crime Alert which provides two of the video stills and information about the robbery. The Crime Alert states the robber's height as 6 feet 4 inches to 6 feet 6 inches. Code believed the robber was an experienced criminal.

Code did not believe it was an inside job.

Dan Freund

Freund saw Kindle work at Office Depot on a regular basis. He stated he saw him cleaning the store about 30 times. Freund and Kindle were friendly when they met.

Freund did not obtain a clear view of the robber's face. His best look was at the customer service desk looking directly at the robber.

Freund testified at trial he had a doubt if Kindle was the robber of the store.

The trial jury found Kindle guilty of eight counts of second degree robbery. They held as true allegations he used a firearm during commission of the robbery and that he also inflicted great bodily injury upon Jackson. Kindle was guilty of two counts of assault with a firearm on Jackson and Freund.

Kindle was subject to Three Strikes Legislation and had felony convictions for assault on a peace officer and shooting an occupied motor vehicle Kindle was convicted on November 23, 1988.

Kindle waived right to a trial by jury on the priors. Penal Code sections 667 and 1170.12 Penal Code sections 245, subdivision (c) and 246.

On Counts 1 and 2, the trial court sentenced Kindle to two consecutive terms of 25 years to life plus 10 years for the firearm enhancement for 50 years to life plus 20. For Counts 3 through 8, the trial sentenced Kindle to 25 years to life on each count to run concurrently with the sentence on Counts 1 and 2.

Main issue: Was defense counsel inefficient by failing to introduce expert testimony regarding eyewitness identification? Yes.

Court's decision: Reversed. Kindle was convicted by trial by jury in the Superior Court, Los Angeles County, No. BA195400, of multiple counts of robbery and assault. Kindle was denied a new trial motion and appealed. The Court of Appeal ruled: (1) trial counsel rendered ineffective assistance in failing to call an eyewitness identification expert (2) innocent explanation or defendant's handwritten things to do list was newly discovered evidence warranting a new trial.

A defendant must demonstrate that (1) counsel's representation was deficient below an objective standard of reasonableness under prevailing professional norms (2) counsel's deficient representation resulted in prejudice, that a reasonable probability the result would be more favorable to the defendant.

Kindle argues his counsel, Haydeh Takasugi, was ineffective by failing to call an eyewitness identification expert.

The majority of the direct eyewitnesses had interacted with Kindle at Office Depot before and after the robbery. Kindle worked seven weeks at Office Depot after the robbery. He did not invoke memory of the robber in any of the eyewitnesses.

The weak evidence against Kindle, states that there is a reasonable probability the result would be different if Takasugi had presented an eyewitness identification expert. The record does not indicate why Takasugi did not do this. We cannot give a satisfactory explanation for this. We find Takasugi was ineffective assistance at trial.

II. THE TRIAL COURT ABUSED DISCRETION BY DENYING KINDLE'S MOTION FOR NEW TRIAL.

Kindle retained new counsel. He moved for a new trial based on several grounds, ineffective assistance of counsel and newly discovered evidence. Kindle argues the court should have granted his motion for a new trial based on newly discovered evidence. An evidentiary hearing was held. Kindle called Stephen Fisher, who testified People's exhibit 25 Things to do list was a copy of some notes Kindle took when he went to a meeting at Cover All Cleaning.

This was not a recipe for a robbery as the People presented to the jury. The People respond, arguing Fisher's testimony does not constitute newly discovered evidence.

The notes state:

Things to do!!

1) Check all (Log Book) office depots!

2) "Communication" with manager is very important!

3) Get the (money) no free rides!

4) Keep track of time you spend!

5) Keep a game plan!

6)

A. What Constitutes Newly Discovered Evidence

An appellate court will not disturb a trial court's ruling for new trial without a clear showing of abuse of discretion. In this determination whether there was improper exercise of discretion the case must be judged from it's own factual background.

For a motion for new trial, a defendant must demonstrate that the evidence, and not solely it's materiality be newly discovered. 2. The evidence not be cumulative. 3. That it will provide a different result on a retrial. 4. The party could not have discovered and produced such at trial. 5. That facts are shown to be the best evidence.

The trial court abused it's discretion on newly discovered evidence. Fisher's testimony comports within the California Supreme Court's holding on what constitutes newly discovered evidence.

Takasugi failed in attempts to locate Fisher before trial. The record does not provide if Takasugi could have done more to locate him.

The trial court should have granted the motion as the Things to do list was the strongest evidence against Kindle. It is likely an innocent explanation for the memo would have led to a different conclusion on retrial.

Holding: Newly Discovered Evidence is a basis for a motion for retrial.

My Thoughts: I believe ad hominem and cognitive bias were factors here. Kindle has a serious felony record. However, by an impartial perspective he is clearly not over 6 foot 4 inches to 6 foot 6 inches. I believe the Innocence Project is doing excellent work by having law students review cases as Kindle.

The innocent explanation for the Things to do list is prima facie if taken in the correct context.

These decisions reflect collusion in degree from my perspective. One has to avail oneself to the strongest counsel available and this will favor the rich over the indigent.