A Long, Bitter Wait for Freedom Ends : Courts: Man is released after serving 16 years for murder he and others say he did not commit. Witness recanted 7 years ago.

Growing up in this farm belt town in the 1960s, Charles Tomlin had no patience for the Bible verses his mother laid out for him each day or the flagrant racism that she and other blacks of the Dust Bowl generation abided with a certain turn of the cheek.

He liked easy money, an impulse that earned him the nickname “Treetop” when his mother scolded him for thinking money grew on trees. And he liked white women, which led to a new name on the streets, “Sweet Daddy,” and a never-forgotten threat from Bakersfield police.

“They didn’t approve of me messing with white girls,” he said. “One detective told me: ‘I’m going to break you.’ I said, ‘To break me, you’re going to have to kill me.’ ”

They might as well have killed him, he said, for he has lived a kind of death ever since. For 16 years, Tomlin, 42, has been locked up for a drug killing he and others insist he did not commit--a first-degree murder conviction contrived, they say, by Bakersfield officers making good on their threat.

The last seven years have been especially bitter, for they have come after the state’s one eyewitness--whose testimony was the only evidence against Tomlin--confessed to the court that she sent the wrong man to prison.

If he lost faith watching the best years of his life swallowed up by San Quentin and Soledad, his mother went about her thrice-weekly church routine in Bakersfield confident that the truth would emerge. “The devil is just busy,” Quinolia Wells said. “So I talked to the Lord every day, all day.”

On Thursday, a Beverly Hills attorney who took her son’s appeal on a hunch called her to say the long wait was over. A federal district judge in Fresno had reversed the conviction on orders from the appeals court, which found that the case against Tomlin had been prejudiced at his 1979 trial by his first attorney’s failure to challenge the eyewitness’s testimony.

At 4:45 p.m. Friday, Tomlin walked out of Soledad State Prison, a free man.

“It’s windy and sunny--and it’s free,” said Tomlin as he stood outside the prison looking at the mountains. He could not stop laughing. “My mom, my wife, my sister, my auntie . . . all here. I had to hold back the tears. You know, it’s a man thing--my lawyer cried for me.”

He won’t be coming home to Bakersfield to stay, at least not if his mother can help it. Although there are no plans to retry him, “the detective who set him up still works here,” she said. “It’s not safe for Charles.”

Detective Les Vincent, who headed the Tomlin investigation, would not return repeated phone calls seeking comment. His superior, Sgt. Ed Bowen, praised the homicide investigator’s ability to “enforce the law without prejudice.” The prosecutor who evaluated the evidence and argued the case also declined to comment, citing his new job as a Superior Court judge. “I see no useful purpose in answering questions about a case long ago when I had a different role,” said Judge Len McGillivray.

But from the first days of the police investigation--when the eyewitness seemed to describe two different killers--to a pretrial lineup that was later deemed illegal, the Tomlin case seemed a rush to judgment. Black leaders believe it stands as a glaring example of what they have been decrying for years, that Kern County condones a two-tier system of justice--one for them and one for whites.

Racism still runs deep here, they say, a vestige of the Dust Bowl and the South. “This is a pretty hopeless place for black people,” said the Rev. Ishmael Kimbrough of the People’s Missionary Baptist Church, which Tomlin’s mother attends. “We are isolated and insulated geographically, socially and politically. You do us in, there’s not going to be any repercussions.”

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Wells was one of the forgotten Okies, a black sharecropper’s daughter lost in the tide of rural whites who migrated to the area in the 1930s and ‘40s. The Bakersfield that greeted her was no promised land but rather a new land crueler for the dreams it mocked.

A single mother, she heeded the old racial divide. When she graduated from the cotton fields, it was to work as a housekeeper for a well-to-do white family. She lived on the black side of town, worshiped at a black church and warned her four children--Charles the oldest and only son--not to cross the line.

“I remember one Sunday Charles had his tie on and he told his mama he wasn’t going to church,” said Rodney Warren, a childhood friend. “She grabbed ahold of his tie and tore off all the buttons on his shirt. He put on a new one and went to church.”

By his own account, Tomlin started selling marijuana at 14. He got kicked out of Bakersfield High School for beating up a white student who called him “the ‘N’ word.” He was sent to West High, where he was one of a handful of blacks--and the only one bold enough to date attractive white girls.

“I was dating Jeanette or Judy, one of them or maybe both at the same time,” Tomlin recalled. “Lot of dudes didn’t like it.”

He said he was expelled for good when he fought a white athlete who was picking on the class nerd. Tomlin graduated to heroin sales and grand theft and spent more than two years behind bars in separate convictions. Paroled at 25, he married Jeanette Pellerin, his old girlfriend at West High, and they moved in with her mother in a quiet neighborhood. Tomlin took a job stocking liquor.

“Charles wasn’t a coldblooded person,” Kimbrough said. “His thing was money, sweet talk, con, smooth. He’s what I call a debonair hustler. Murder is not his MO.”

The murder at the heart of the Tomlin case was a back-alley killing the night of Dec. 7, 1978, and the take was nine pounds of marijuana then worth an estimated $5,200. The victim was Daniel Stewart, 25, a white drug dealer from nearby Oildale. The eyewitness was Stewart’s girlfriend, Leticia Mendez, 24, who was sitting next to Stewart in a truck when the gunman shot him between the eyes and ran off with the dope.

Mendez told Detective Vincent that she got a decent look at the gunman even though it was dark and she was scared. He was a stocky black man, 5-foot-6 or 5-foot-8, with a mustache and medium Afro. That description came nowhere near matching Tomlin. He was 6 feet tall and slim and his hair was the farthest thing from an Afro--tumbling to his shoulders in a straight style.

What eventually set investigators on Tomlin’s trail was the account of a black teen-ager who arranged the meeting between the gunman and Stewart that night. According to police, the youth was too frightened to name the killer but he wrote “Treetop” (Tomlin’s nickname) on a piece of paper.

Distraught and under the influence of tranquilizers, Mendez then picked out Tomlin’s photo from a series Vincent showed her. The next day, she identified Tomlin at a live lineup, which was later deemed unconstitutional because Tomlin’s attorney, Thomas P. Daly, was not present. Vincent apparently neglected to inform Daly of the proceeding.

Tomlin was charged with first-degree murder even though the gun and the drugs were never found. None of the fingerprints lifted from Stewart’s truck matched Tomlin’s. He was not carrying a large amount of money at the time of his arrest and the killer’s clothing failed to turn up in his wardrobe.

At first, Tomlin said, he did not believe the charge would stick, chalking it up to ill feelings between him and Vincent. When he was 16, he said, the detective had hauled him off to headquarters to ask about the car he was driving. Another time, Vincent warned him about dating white girls. “He told me to knock it off or else. A few years later, he tried to pin a robbery on me, but I happened to be in the joint at the time.”

Because Vincent has refused to comment on the case, there is no way to check Tomlin’s allegation of a police vendetta. Kimbrough, for one, believes it to be so.

“Charles dating white women was very definitely a factor in his arrest,” he said. “For many years now, Detective Vincent has had an averse relationship to the black community. . . . On the streets it was said that Vincent was going to get ‘smart-assed Charles,’ and he got him.”

Bowen, Vincent’s superior officer, said he could find a number of black citizens who would vouch for Vincent as a fair and honest cop. But when asked to give a name or two, Bowen declined: “I wouldn’t be interested in doing that. That would put us in a defensive mode. But his reputation in the black community would stand the test. Rest assured.”

This much is clear. The day police came to arrest Tomlin, word was all over the streets that another black man named Tindle--shorter and stockier, with a medium Afro and violent past--was the real killer. McGillivray, the prosecutor at the time, said he checked out the tip but would not say what he found.

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At the trial, police could not produce the “Treetop” note scribbled by the teen-ager--the note that alerted police to Tomlin. Vincent said he had lost it.

The state’s case hinged on Mendez identifying Tomlin in court, and she did not disappoint. Daly tried to poke holes in her testimony by pointing out that she saw the gunman in the dark for no more than five minutes and that Tomlin looked nothing like the description she first gave police.

But just when he seemed to raise doubts about her identification, Daly made a grievous error by asking Mendez about her selection of Tomlin at the live lineup. Prosecutors were precluded from broaching the subject because the lineup was unconstitutional. But as soon as Daly raised it, they hammered away, confirming that Mendez had, in fact, selected Tomlin. Daly compounded his error by never eliciting information that the lineup was illegal.

Tomlin had plenty of alibis for that night. His wife testified that he drove her to work at the time the gunman reportedly called the victim to set up the drug buy. His mother-in-law testified that he was asleep in his bedroom at the time of the murder. This was confirmed by Jackie Smith, the self-described neighborhood busybody who lived next door.

“The car was in the driveway and Charles was asleep,” Smith said. “I know because I went over there that night to sell Avon (products).”

The seven-man, five-woman jury, all white, found Tomlin guilty of first-degree murder and he was sentenced to 25 years to life.

Smith and her husband, both white, would spend the next five years writing letters to the governor, newspapers, “60 Minutes” and “20/20.” It nearly drove her mad, she said, that no one would believe her.

*

The more Mendez pondered her identification, the more it seemed she had made a terrible mistake. She sought the help of a psychologist and then an attorney friend, who told her she was suffering normal doubt. She moved twice, hoping to start a new life, but the gnawing images would not go away.

The detectives, she recalled, had flinched the first time she considered the photo of Tomlin, a tiny movement that she said intimated this was the killer. At the live lineup she expressed some doubt about Tomlin, and they responded that any doubt would kill the investigation right there.

“When you witness a murder, there is pressure to identify,” she said. “Pressure from your family. Pressure from the police. And your own body puts you under a pressure to get it over quickly because you can’t deal with it emotionally.”

It is likely that Mendez never would have acted on her doubt if not for Gerson Horn, a Beverly Hills attorney with a weak spot for underdogs and ostrich-skin cowboy boots.

In 1986, a year after taking over Tomlin’s appeal, Horn tracked down Mendez in the Bay Area with the help of a private eye. He had barely introduced himself, he said, when Mendez burst into tears and shouted, “I convicted an innocent man.”

“It was unbelievable,” Horn said. “Like out of some movie.”

At a hearing in Kern County, Mendez recanted her identification and Daly admitted that he was derelict in his defense of Tomlin. But Superior Court Judge Robert Baca was not moved. He found Mendez to be emotionally distraught and not believable and denied a new trial.

Horn refused to give up. He spent eight years exhausting state and federal appeals. Then two weeks ago he learned that a decision this summer by the U.S. 9th Circuit Court of Appeals--that Tomlin’s rights had been compromised by the illegal lineup and incompetent defense--was final.

“This is the realization of a dream,” Horn said, his voice breaking.

*

On a late September afternoon, Charles Tomlin waited inside a 9-by-12-foot cell at Soledad for the paperwork that would set him free. It was clear that he had made his mark on this world. As he walked across the yard, past the weightlifters and joggers and handball players, even the Aryan Brothers with swastikas tattooed on their chests greeted him by the name “Tree.” A prison guard attributed the respect to the time Tomlin had spent in prison and his ability to hold onto his pride and spirit. “He’s about as high as one can climb on the prison ladder,” the guard said.

Tomlin, the father of seven, said he did not want it this way, to be freed on a technicality. He swore that he had swallowed any anger long ago. “I generated the injustice into something positive. Into studies and computer classes and words in the dictionary.”

His mother is not so sure.

“It’s a lot of time,” she said. “A lot of time.”