Readers of my recent series of columns questioning the conviction of 17-year-old Arthur Carmona have smartly zeroed in on a provocative question:
What has Shawn Kaiwi, convicted as Carmona's accomplice, had to say?
To be sure, Kaiwi knows the identity of the gunman who walked into an Irvine juice bar the afternoon of Feb. 12, 1998, and robbed it of about $340.
Did Kaiwi, who pleaded guilty to driving the getaway truck in that robbery and was 33 at the time, say anything about Carmona, who was then 16 and whose only run-in with the law had been a citation for not using a bicycle helmet?
It turns out he indeed did.
But like so many other elements in this case, what I've learned only serves to muddy the waters.
By way of background: Carmona, a quiet special-education student, was convicted after he was identified by a handful of eyewitnesses. They included two key ones who made unequivocal identifications only after police placed on Carmona a cap the robber wore, even though there was no evidence linking Carmona to the cap.
Beyond that, although police recovered considerable physical evidence--including the hat, a getaway car, backpack and gun--Carmona's fingerprints were nowhere to be found. Further, after Carmona's arrest, two detectives interrogated him and he steadfastly maintained his innocence, even when the detectives suggested he'd been caught on videotape fleeing the robbery scene. Finally, despite the best efforts of detectives, they could find no evidence linking the teenager with an alleged accomplice twice his age.
Which brings us to Kaiwi.
Kaiwi had been identified as the man who waited in a getaway truck across the street during the juice bar robbery. After the robbery, the gunman ran into Kaiwi's truck, later traced to Kaiwi's home after a suspicious observer wrote down the license number. Kaiwi was arrested within the hour after the robbery. At his home, police found the gun, backpack and hat--all believed used by the robber.
Facing a possible six-year, eight-month sentence--according to his attorney, Deputy Public Defender Phil Zalewski--Kaiwi accepted a sentence of two years for the robbery and an additional count of possession of a controlled substance.
As part of that plea bargain, Kaiwi signed this statement: "On Feb. 12, 1998, I aided and abetted Arthur Paul Carmona in a robbery of the Juice Club. Carmona was armed with a firearm. . . . "
Game over for Carmona?
So it would seem, if not for a few troubling details.
For one, that statement isn't the only one Kaiwi gave.
Two months after Kaiwi was sentenced, a Tustin private investigator working for the Carmona defense interviewed Kaiwi at Wasco State Prison. That investigator, George Rowell, filed a report with Carmona's then-attorney Kenneth Reed that said, in part:
"Mr. Kaiwi started the interview by saying he did not know Arthur Carmona prior to his arrest. Kaiwi said the first time he ever saw Carmona was when he was driven by to attempt to I.D. Carmona in the field. The only other time Kaiwi said he saw Carmona was when they were both placed in the back seat of a police unit.
"Mr. Kaiwi said he wanted me to tell Mr. Carmona and his family that, 'He didn't have anything to do with it.' And, 'I know he wasn't involved in it.' "
Rowell quoted Kaiwi as saying he was innocent but took the plea bargain because he feared he would be convicted and get a stiffer sentence.
I told Rowell this week I'd received a copy of his report, and he confirmed its authenticity.
Kaiwi's purported statement to Rowell is, at best, confusing. Kaiwi originally told police Carmona had carjacked him.
Beyond those conflicting accounts, defense attorneys say statements implicating co-defendants are routine. The rationale is to prevent the person signing the statement from coming back later and testifying in behalf of the other defendant.
That doesn't mean such statements are untrue.
But the reason a person might sign such a statement is obvious: to get a reduced sentence.
Citing lawyer-client confidentiality, Zalewski, Kaiwi's deputy public defender, won't discuss his conversations with Kaiwi regarding the statement implicating Carmona. He acknowledged that, in general, district attorneys require such statements as part of a plea bargain.
How does that help us get at the truth in this case, I ask Zalewski.
"It's really hard to make any comment on that," he says. "I agree with you, if there isn't a proof of [implication], it [the statement] probably shouldn't be required. However, when you represent a client, your goal is to represent the client to the best of your ability and to get whatever his desires are, whether that's a plea or to go to trial. If that [a statement] is a requirement of a plea bargain, it's going to be necessary. Because the downside is you won't take advantage of the offer. Your client may in fact end up serving far more time."
That is a carefully worded response.
There is an interesting epilogue to all this: