WRONGLY CONVICTED, MAN MAY BE FREED

Judge Overturns Jury's Verdict Because of Error

Five years ago, Paul Magnan was sentenced to 25 years to life for
dealing methamphetamine after a case built on two pieces of
circumstantial evidence.

Police found a Camel cigarette box full of drugs in a pickup truck
that Magnan, a Camel smoker, was leaning against. In Magnan's pocket
was $300, a large amount of money for a homeless man.

But Magnan may soon be freed amid indications that courtroom errors
left the jury with a distorted view of this evidence. A judge threw
out the conviction -- which had been Magnan's third strike -- earlier
this month, finding that Magnan's attorney ignored his innocent
explanation for the money: His mother had wired him several hundred
dollars a week before his arrest, so he could fly to visit her.

On Thursday, after receiving questions about the case from the Mercury
News, the district attorney's office said it would not seek to try
Magnan again.

The Magnan case is another powerful illustration of the findings of a
three-year Mercury News examination of the Santa Clara County court
system, published last week: Questionable conduct on the part of
defense attorneys, prosecutors and judges has infected many jury
trials. In the worst cases, the conduct has led to wrongful
convictions. And even when the problems are identified, it may take
years to correct the injustice -- if it ever is corrected.

In addition to his attorney's failings, Magnan's case contained a
second significant issue. Prosecutors failed to disclose that the
woman sitting in the pickup truck, talking with Magnan at the time of
his arrest, was someone police suspected in a separate incident of
selling methamphetamine.

Chief Assistant District Attorney Karyn Sinunu said her office had no
legal duty to turn over an unsubstantiated allegation in a police
report. "That's nothing," she said of the information.

Defense attorney David Epps said he could not talk about the Magnan
case because it is pending. Epps is now the county's chief alternate
public defender, overseeing the 18-attorney office that represents
poor defendants when the public defender cannot.

But Magnan's appellate attorney took a dim view of how his case was
handled.

"What happened in the case of Mr. Magnan is appalling," said Dallas
Sacher, the assistant director of the Sixth District Appellate
Program, which handles appeals for indigent defendants. "The
prosecutor never revealed what should have been revealed about the
logical suspect. And the defense attorney never investigated critical
evidence about his client. Those errors helped create a result that
made no sense -- that Mr. Magnan was guilty of possessing for sale
methamphetamine that was found literally at the feet of the logical
suspect."

Magnan, now 53, was a Minnesota resident who was staying at the time
of the 1999 incident at a homeless camp in San Jose. He had two 1981
convictions for robbery and was a known drug user.

The case against Magnan began on a June evening, when a police officer
and his rookie partner investigated a lone pickup truck at a shopping
center lot after the stores had closed. They came upon Magnan leaning
against the vehicle, talking to Shirley Mhoon, who was sitting in the
driver seat. The truck belonged to a former boyfriend of Mhoon who
also turned out to be a convicted meth user.

The police found methamphetamine and drug paraphernalia in Mhoon's
purse, and the $300 along with a small amount of heroin in Magnan's
pocket. But when they searched the truck, which was littered with
trash, they made a more significant find under the driver's seat: a
crumpled Camel cigarette box containing just under 22 grams of
methamphetamine -- an amount so large it suggested the drugs were being sold.

For reasons never explained, Mhoon was not even charged with
possession. But charges were brought against Magnan both for the
heroin in his pocket and for the methamphetamine under Mhoon's seat.
The rookie officer said he heard Magnan say the meth was his, not
Mhoon's, but the officer's story was so confused that this alleged
confession was never presented at trial.

That left the Camel box and the $300 as the key evidence. Prosecutor
Mel Anderson was certain it was enough.

At trial, Mhoon testified that she did not know about the drugs found
under her seat. She said that neither she nor the truck's owner smoked
Camels, but that Magnan did.

Anderson also contended that the $300 in Magnan's pocket was clear
evidence of guilt. A homeless man had no other reason to have that
much money. Plus, the amount of meth in the cigarette pack was two
"eight-balls" short of an ounce. Eight-balls are small quantities of
meth that, when sold, could have netted the dealer exactly $300,
Anderson said.

"There's meth on the floorboard of the car packaged in a Camel
cigarette pack just like he's got in his pocket," Anderson told the
jury. "He's got $300. Bingo, Bingo."

Magnan did not testify. Epps argued that the money proved nothing, and
suggested the meth more logically belonged to Mhoon. But the jury
found Magnan guilty.

As Magnan's appellate attorney prepared to challenge the conviction,
he discovered in police files on Mhoon an intriguing fact: In 2000,
while Magnan was awaiting trial, police received information that
Mhoon was using, and possibly dealing, methamphetamine out of a
storage locker.

The Sixth District Court of Appeals ordered a hearing on whether the
district attorney had improperly withheld that information. But the
judge at the hearing rejected the claim, ruling that Magnan's attorney
had done too little to demonstrate the new evidence would have changed
the verdict.

At that point Sacher took over Magnan's case. He attacked anew the
prosecution's withholding of evidence, and made a new claim: that
trial attorney Epps failed to develop or tell the jury of Magnan's
explanation for the cash. Sacher cited a Western Union receipt that
showed Magnan's mother had wired him $400 the week before the arrest,
just as Magnan had told Epps.

The Sixth District Court rebuffed the claim, but the state Supreme
Court stepped in last year and ordered another new hearing.

In a Santa Clara County courtroom in December, Epps testified that he
did not recall whether Magnan had -- as he claimed -- informed his
attorneys before trial about the source of the money. But Epps said
that Magnan did tell him about the money in the midst of the trial.
The attorney acknowledged he did not call Magnan's mother, nor did he
seek to obtain any record of the money from Western Union.

The prosecutor in the hearing argued that the Western Union receipt
proved nothing. But Judge Gilbert Brown disagreed. In a court order
earlier this month, even as he commended Epps for some of his work in
the case, Brown said Epps' failure to pursue the Western Union
transfer "fell below the standard of professional norms."

Magnan has been transferred to the San Jose jail. His sentence of
25-to-life remains intact, but is now based only on the heroin
possession charge -- something that Sinunu said is likely to be dealt
with through resentencing.

His new attorney, Allan Schwartz, expects Magnan to be released and is
frustrated that procedural hurdles remain. "Even though everybody
agrees that Mr. Magnan should be cut loose, that isn't happening
yet," he said.