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Janitor Won't Be Retried in Heist

The state appellate court that reversed his conviction says errors by the trial judge and public defender obscured key evidence.

January 31, 2003|Steve Berry | Times Staff Writer

A 33-year-old janitor who has been serving a prison sentence of 70 years to life for allegedly committing a brutal robbery and assault in 1999 will soon go free.

Jason Kindle, whose conviction before Los Angeles Superior Court Judge Lance Ito was reversed by a state appellate panel last year, will return to court today, where the district attorney's office will say that it will not seek to retry him.

"We're going to announce that we have insufficient evidence to go forward on this trial," Deputy Dist. Atty. Michael J. O'Gara said Thursday afternoon. "I will tell the court that, in the interest of justice, we move that the case be dismissed."

Kindle's conviction was reversed several months ago by the 2nd Appellate Court of Appeals, which said errors by Ito and Kindle's former attorney had prevented jurors from hearing crucial evidence that probably would have persuaded them to find Kindle not guilty.

For The Record
Los Angeles Times Tuesday February 04, 2003 Home Edition Main News Part A Page 2 National Desk 6 inches; 236 words Type of Material: Correction
Lawyer's identification -- An article in Friday's California section about a decision by the Los Angeles County district attorney's office not to retry janitor Jason Kindle, whose robbery conviction was overturned on appeal last year, incorrectly identified attorney Barry O. Bernstein as his appellate lawyer. Bernstein initiated the legal challenge at the Superior Court level that led to the state appellate court decision, and resumed representing Kindle after the case was sent back to Superior Court. Santa Barbara attorney Jerry D. Whatley handled the case at the appellate level.

One key piece of evidence that led to Kindle's conviction was a "things to do" list that Kindle says he compiled during a training session on working as a janitor. At trial, prosecutors depicted it as a "recipe for robbery."

In its 2-1 ruling, the appellate panel said Ito's court "abused its discretion" by refusing to order a retrial after learning of evidence that the items on the to-do list were janitorial tips.

The ruling -- written by Justice Earl Johnson with concurrence from the late Justice Mildred Lillie and a dissent by Justice Fred Woods -- also said Deputy Public Defender Haydeh Takasugi had erred in failing to call an expert on witnesses to challenge what the justices said were weak identifications by Office Depot employees.

The court found that Takasugi had "rendered ineffective assistance" to Kindle at trial, and reported that finding to the State Bar for possible disciplinary action. As of Thursday, no disciplinary action had been taken against her, according to State Bar records.

The ruling also raised questions about the LAPD's conduct in interviewing store employees. It noted the department's failure to check the alibi of another suspect closely associated with the leader of a trio who committed a series of Office Depot robberies in Los Angeles, Ventura County and Bakersfield.

Kindle also faults the LAPD, saying a detective focused unfairly on him and failed to investigate the other suspect.

"I'm convenient. I was locked up and they just stuck on me," he said in a telephone interview from Men's Central Jail. "The court works for those who have got everything and fails those who don't."

His appellate lawyer, Barry Bernstein, said: "It's an imperfect system at best. The flaws that create the imperfections can cause some very unjust results, and Mr. Kindle's case is an example of that."

Deputy Dist. Atty. Debra Archuleta, the prosecutor during the trial, recently defended her description of Kindle's notes as a recipe for robbery.

"Twelve jurors sat through a grueling trial and emotional testimony and then found Kindle guilty," she said. "And now, two justices have overturned their verdict."

Takasugi is on leave and did not return messages asking for comment. Ito is prohibited from discussing the case because it is back in his courtroom. An LAPD spokesman said detectives would not discuss the case because it is pending.

Kindle was convicted in October 2000 of eight counts of robbery and two counts of assault. He was sentenced to extra time because the conviction was his third strike. Jurors found him guilty of taking $15,000 in cash and $7,000 in checks at gunpoint from the Office Depot store at 2020 S. Figueroa Ave. on Nov. 22, 1999. The cash and checks were never recovered.

Witnesses said a tall, heavily disguised African American man had barged in with a handgun. He pistol-whipped the store manager, saying the manager wasn't stuffing money into a bag fast enough. He also struck the customer service manager twice with his gun, kicked her and slammed her against a door several times. She suffered a broken ankle, two herniated disks and other injuries.

Investigators turned their attention to Kindle when an Office Depot employee reported a conversation she had with him about the robbery. She told police that Kindle, who cleaned the store twice a week, had made a vague comment about what he would have done if he had been robbing it. She also was suspicious, she said, because Kindle knew that she hadn't been there at the time of the robbery.

On the basis of that employee's statements, police arrested Kindle, who had a prior criminal record, in January 2000.

When Kindle went to trial two years later, the prosecution's strongest evidence, the ruling said, was the to-do list. A detective found it on a nightstand next to Kindle's bed, records say.

The list reminded Kindle to keep track of time and check the log books at Office Depot. It also said: "Communication with manager is very important," "Get the [money] no free rides," and "Keep a game plan."

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