San Diego — In early 1999, over a dozen similar assault-and-robbery crimes took place against elderly pedestrians in the Mid-City area. In all of them, the victims were knocked over from behind, held face down, and robbed. Many of the assaults were in broad daylight in front of bystanders. All of the witnesses' accounts said the perpetrator was a black man, but more specific descriptions of his appearance varied. He was described as anywhere from 5´10´´ to 6´4´´, 200 to 230 pounds, thin to large. Some witnesses said he was medium-complexioned, others said very dark.

San Diego Police arrested a man in February of 1999 in connection with the crimes, but prosecutors released him when the crimes continued, and they realized they had the wrong man. In April of that year, police arrested Kevin Orlando Gunn, a then-37-year-old ex-convict and Mid-City resident, and charged him with committing three of the robberies. Gunn, a light-complexioned African-American who stands 6´9´´ and weighs over 300 pounds, had a criminal history of assault and robbery, most notably a 1985 attempted robbery near an automatic teller machine. The victim turned out to be an off-duty Carlsbad police officer, Jimmy Byler. In response, Byler shot Gunn in the calf and back. Gunn pleaded guilty to that crime, which was similar in method to the Mid-City robberies of 1999 he was charged with.

Gunn pleaded not guilty to those charges. In trial, his attorney, Steven Wadler, stressed the 5-inch to 11-inch gap between Gunn and the tallest height given by witnesses, the 70-pound weight difference, and the shade in skin complexion. He also pointed out that no witnesses had picked Gunn out of photo lineups and that one man had excluded Gunn at the scene of one crime. Prosecutor Kate Bush countered that all of the witnesses had described Gunn as tall and that people don't think in terms of 6´9´´. She put witnesses on the stand who made courtroom identifications of Gunn as the perpetrator.

Despite the discrepancy between eye-witness descriptions and Gunn's size and skin color, he was found guilty on two of three counts by a jury September 17, 1999. When the verdict was read, Wadler told Judge Kevin Enright that the jury erred when it found his client guilty. "The jury ignored the presumption of innocence," he said. "The jury did not act intelligently or justly."

Support for Wadler's claim came the very next day in the form of a letter jury foreman Robert Morse sent to District Attorney Paul Pfingst. "To begin with," Morse wrote, "after the prosecutions [sic] opening statement, I barely had an idea of what she intended to prove. There was no framework on which to hang the scattered bits of evidence. I was not alone in this perception."

Morse went on to characterize the prosecution as "sloppy," to criticize prosecutor Kate Bush's use of a self-professed clairvoyant as a witness, and to criticize her for not using an expert to support her claim about the way people perceive height. He concluded the letter by stating, "Based on the prosecutor's performance, had the jury been less proactive or less intelligent, there would not have been a conviction, and a dangerous criminal would be back on the streets."

Justin Brooks directs the Innocence Project, a student-staffed workshop at California Western School of Law that reviews criminal convictions and works on behalf of inmates convicted unjustly or under questionable circumstances. He says a letter such as Morse's is not that unusual. "I've seen quite a few jurors come forward," Brooks says, "and say the proceedings were inappropriate. But you can't get a case reversed due to the fact that a juror had buyer's remorse. A juror coming forward and saying, 'I shouldn't have gone along with everybody else,' that's not really grounds for a reversal. For a lot of them, it's hard to live with the fact that they put someone in prison possibly for the rest of their life."

Yet Brooks says Morse's letter has a twist to it that may point to jury misconduct. "The word 'proactive' is very dangerous," he explains. "Being proactive is not the role of the juror. The role of the juror is to be reactive to the evidence. They're supposed to consider what is put in front of them and nothing else and make their decision based on that. What [Morse] is saying is the prosecutor didn't prove the case, but we went ahead and convicted anyway."

The district attorney's office turned the letter over to Judge Kevin Enright and to Wadler who on May 17, 2000, filed a motion for a new trial with the judge. In his motion, he summarized the evidence that had been offered at trial. Wadler pointed out that one pivotal witness, Duane Loper, identified Gunn "in court at the preliminary hearing and at the trial" after having "excluded him in a photo lineup." And Loper's identification of Gunn in the courtroom was, Wadler said, "despite providing descriptive information dramatically different than the actual appearance of Mr. Gunn."

Wadler pointed out that one police officer, Detective Pete Griffin, denied knowing that Loper had been shown a photo lineup; then another officer stated that he had shown Loper the lineup and reported the results to Griffin.

The jury hung, 10-2 for guilt, on that count. Regarding the other two counts, Wadler, in the motion for a new trial, noted that one victim/witness -- the clairvoyant -- who identified Gunn during the trial, had excluded him in a photo lineup and at the preliminary hearing. He also indicated that another victim/witness had identified Gunn at the preliminary hearing and trial after having been unable to identify him in a photo lineup. He mentioned two other witnesses who could not identify Gunn in photo lineups, the preliminary hearing, or the trial. And Wadler cited convenience-store surveillance-camera footage, which put Gunn in the store at the time of one of the crimes.

Wadler closed his written motion with a reference to Morse's letter. "The jury chose to ignore these realities and convict an innocent man as a favor to Paul Pfingst, who should be grateful for their 'proactive (pro-prosecution/law enforcement?)' stance."

On May 26, 2000, Judge Enright denied Gunn's motion for a new trial and sentenced him to 17 years in prison. A brief was filed by Gunn's appellate attorney, Nancy King, in late April of this year. "The main issue," King says, "is that we just don't think the evidence was sufficient."

Arguing insufficient evidence is a tack usually not taken by appellate attorneys because in appeals, King explains, "The presumption switches. In a trial, the presumption is that he's innocent and the prosecution has to prove him guilty. In appeals court, there's a very strong presumption of guilt because a jury found him guilty."

For that reason, appeals briefs usually try to point out some error in process during the trial that may have affected the outcome. "A common example," King says, "is judge's instructions: instructions that weren't properly given, instructions that should have been given but weren't, or instructions that should not have been given and were."

But in this case, King believes a strong insufficiency argument can be made. "First," she explains, "there is some circumstantial evidence which really influenced the jury. But I think it's pretty easily explained by the fact that he lives in the area where the last robbery occurred. The fact that he was in the area when it happened is not all that meaningful. And it's really striking how huge this man is. I mean, he is just a giant. And nobody, not a single witness described him that way. I don't think anybody who looked at Kevin Gunn would say, 'He was tall.' But that's what witnesses described, a tall African-American. Several people described him as 'over six feet.' 6´4´´ was the highest. Mr. Gunn is 6´9´´. For an African-American, he's way on the light side of the complexion scale. Yet the suspect was described from very dark-skinned to medium complexion. Nobody described him as very light-skinned. And he's very distinctive looking; he's heavyset and has a distinctive face. Yet not a single person positively identified him from photographs."

The letter from Morse to Pfingst is being addressed in King's appeal as well. "It sounds to me," King says of the letter, "like the jury foreman was saying, 'Gee, the evidence in this case just stunk, and it's a good thing we were here to cover for you.' "

The three-judge panel at the Fourth District Court of Appeals could take one of three courses of action regarding the Gunn case: uphold the original verdict, grant a new trial because of errors or questions about evidence, or decide that evidence was not sufficient to convict. The final option, King explains, "acts like an acquittal, and there would be no retrial."

Though she says she is as optimistic about the Gunn case as she ever is about an appeal, King points out that the rate for cases being overturned is, by her own estimate, only 3 to 5 percent. And even if the case were overturned, it wouldn't be soon. "Once I've filed my brief, the attorney general's office -- they take over for the district attorney at this level -- will take two or three months to file a response. Then I get the last word; I get to file a reply brief within 20 days after they file. So we're talking about four months from now, realistically, before all the briefing is done. Then it's just in the hands of the Court of Appeals. That usually takes a few months. So it will be a year, maybe a little less, from today before Kevin knows."