Sometimes a Stacked Deck Is Really a House of Cards

People have asked why I’ve gone out on a limb in recent columns for Arthur Carmona, a 17-year-old convicted armed robber. Why argue that Carmona deserves a new trial, they’ve asked, when the deck seems so stacked against Carmona with multiple eyewitnesses?

More on that later. For now, consider:

In late 1996, things looked bleak for young carjacking defendant Frank Allen Fincher. He was on trial for allegedly pressing a gun against the passenger-side window of a woman’s BMW as she sat at a light at the Irvine Spectrum. Frightened, she drove off but phoned police from her car.

Shortly thereafter, Fincher was arrested while eating with two friends at the Spectrum food court and after being identified by the woman. His and his friends’ denials, plus the inability of police to find a gun in the area, couldn’t keep Fincher, who had no previous record, from going to jail, where he stayed until trial three months later on $100,000 bail.

His predicament was due in no small part to veteran Irvine Det. Gary Cain. Assigned to investigate the case, Cain offered testimony that would propel the case beyond the “he said/she said” mode.

Noticing a small circular impression on the passenger window of the alleged victim’s car, Cain took a gun and pressed the muzzle against the windows of several cars in the parking lot. He testified that he was able to replicate the circular impression left on the victim’s car.

The jury might have bought it--and Fincher might now be in jail--had the defense not found during the trial a BMW mechanic trainee named Virgil Chis. He testified that the woman’s BMW model had a ring-shaped support inside the door. When the window was rolled down, Chis testified, the grommet inside the door left the impression on the car’s window.

Fincher was acquitted.

The case was brought to my attention this week by Fincher’s attorney, Kevin Barry McDermott. The link between Fincher and the Carmona case, McDermott said, is Det. Gary Cain.

“There was no gun, no physical evidence tying [Fincher] to having a gun that evening,” he said, “and two other witnesses [Fincher’s dinner companions] both denied seeing him with a gun. Cain realized he didn’t have a lot of evidence to tie my kid to a crime.”

I asked what he thinks Cain did wrong.

“To me, more than anything else,” McDermott said, “it was either a professional or intellectual indifference or arrogance to looking to other possibilities.”

McDermott said a team of officers couldn’t find a gun anywhere around the Spectrum where Fincher walked, nor in the car he and his friends came in. Nor did forensic tests establish that he’d fired or even held a gun. (A deputy district attorney confirmed that for me but said such tests aren’t always automatic proof that someone hasn’t held a gun.)

The ultimate problem, McDermott said, is that jurors tend to believe police when they advance a theory. “They say, ‘How could police be so wrong about how this impression [on the window] took place,?’ ” McDermott said.

That, in sum, is what the Carmona defense team has complained about. They say Cain, who headed the investigation that led to Carmona’s conviction, relied too heavily on eyewitness accounts and overlooked what they call the “illogic” of the case against Carmona.

They cite, among other things, the inability to establish a link between Carmona, who had no record, and a convicted accomplice twice his age; the failure to find the robbery money on either suspect; and the circumstances under which Carmona was identified wearing the robber’s baseball cap--specifically, that he was hatless when arrested and the hat was brought from the alleged accomplice’s truck and placed on Carmona’s head.

As he had earlier with my questions regarding the Carmona case, Cain answered all my questions about the Fincher investigation.

He said Fincher didn’t tell him initially--as Fincher later testified at trial--that he’d made a somewhat menacing move toward the woman’s car. Fincher testified that he did that because, as a young black man, he and his dark-skinned friends were offended by the woman in the BMW staring at them and rolling up her windows. McDermott said Fincher made the move as a mocking gesture and never touched the car.

Cain also suspects that the Fincher defense withheld its hunch about BMW grommets. Had the defense attorneys mentioned that theory to him, Cain said, he would have explored it. And had that convinced him that a gun didn’t leave the window mark, he might have recommended to the district attorney that the case not go forward.

Cain said his investigations are thorough. “We’re only as good as the information we’re given,” he said. “I will work just as hard to show someone didn’t do a crime as to show they did. I try to gather facts and present them to the district attorney, and they go from there.”

Justifying the arrest in the Fincher case, he said: “A woman says XYZ happened; a mark on the window appeared to be from the barrel of a revolver; she describes the guy; he’s still there. Based on what she says and the mark, it appears what she says did happen.”

Deputy Dist. Atty. Bryan Kazarian, who prosecuted the case, defended Cain’s investigation, saying he still thinks Fincher tapped the BMW window with something.

Cain was loath to repeat what he’d already told me about the Carmona case, other than to say he thinks the eyewitnesses made solid identifications of Carmona, based on both his appearance and his clothing.

Cain said he walked the route he believes Carmona walked before being arrested, trying to rule it either in or out, given the known timeline. “I spent more time on the Carmona case than most officers would,” he said. “I could have just walked over to the D.A. [with the eyewitness accounts] and not done the follow-up to see if the route was possible, that the timing was down right. . . .”

The fact that investigators couldn’t link Carmona with the physical evidence they recovered at the alleged accomplice’s residence--a hat, backpack and gun, all used by the robber--or establish a link to the accomplice doesn’t undercut the eyewitness accounts, Cain said.

I’ve already written that I think the circumstances under which Carmona was identified demand a new trial. However, I think Cain believes Carmona was the robber, just as he believed Fincher put a gun against the window of the woman’s BMW.

Am I saying that because Cain had one misguided theory in a former case, he’s wrong about Carmona?

No.

Am I saying that I know Carmona to be innocent?

No.

Each case represents a situation in which police and prosecutors relied on questionable details.

Everybody makes mistakes, but defendants pay.

Fincher may have been one BMW mechanic away from facing several years in prison.

Arthur Carmona faces up to 30-plus years in prison. He may find out his fate as early as Friday, when his motion for a new trial is scheduled to be heard.

Fincher got lucky. Norman Walker, his stepfather, told me this week that Fincher, now 21, is working at a furniture store and going to college.

And, Walker said, “he’s dealing with the emotional process of being wrongly accused.”

Dana Parsons’ column appears Wednesday, Friday and Sunday. Readers may reach Parsons by calling (714) 966-7821, by writing to him at The Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or by e-mail at dana.parsons@latimes.com.