NEWS: Missing Notes, New Tests Call Murder Verdict Into Question
by FREDRIC N. TULSKY
Dec 19, 2006

BAY AREA (Mercury News) - For years, Dung Pham has contended that he was denied access to evidence that could help prove another young man committed the 1996 murder that sent Pham to prison for 29 years to life.

Now, after the federal courts finally granted Pham access to the forensic evidence, his attorneys have gone back to court with a startling discovery: Contrary to what jurors at Pham's trial were told, the other man had gunshot residue on his hands hours after the fatal shooting.

Armed with that evidence, Pham, now 30, is asking a federal judge to overturn his first-degree conviction for the murder of Tong Nguyen outside a Vietnamese cafe in southeast San Jose. The 9th Circuit U.S. Court of Appeals said last year that the evidence "would significantly bolster" Pham's defense.

Authorities are not persuaded. Lane Liroff, the veteran deputy district attorney who prosecuted the case, said Pham was given all the evidence that existed before his trial. And in a recent interview, Liroff said the existence of gunshot residue on the other man's hand proves To him, the federal case is nothing more than a desperate effort by a guilty man to overturn his murder conviction.

While much about the case remains in dispute, this much is clear: At his trial, Pham was unable to contradict forensic analyst Mario Soto when Soto told jurors that gunshot residue evidence was inconclusive. Today, both sides agree that Soto did not test a complete sample. And a new round of tests has provided a starkly different result.

Latest twist

But the belated re-examination of the physical evidence is only the latest twist in a case that has been both a murder mystery and a drawn-out legal dispute over whether Pham was prevented from developing his defense.

At his trial, Dung Pham's attorneys told jurors that another person - Tuan Hoang - was the real gunman.

Eyewitness accounts, after all, had led police to arrest Hoang hours after the murder. Witnesses said two teenagers chased the victim and shot him outside the Thuy Huong Cafe. The gunmen ran behind the cafe, where they apparently handed off their weapons to a third teenager before fleeing in a waiting car.

The victim's brother, John Nguyen, saw Tong Nguyen being chased and heard the shots that killed him. He told police one of the gunmen was a youth nicknamed "Mole," for the mark on his lip. "Mole" has never been found.

The mystery surrounds the identity of the other gunman and any accomplices who may have helped plan the crime and dispose of the guns. John Nguyen told police he did not get a good look at the second shooter, but believed he recognized him as the driver of a green Acura he had seen the day before.

Bystanders said the second shooter was wearing a blue shirt and dark pants. One witness told police he watched the gunmen jump into a waiting black car and flee after the shooting. He gave police the car's license plate, which was traced to Tuan Hoang. Hoang was arrested hours later outside his home with a second youth, Nhue Giang. Hoang was wearing a blue shirt and khakis.

Original charges

Police took Hoang and Giang into custody, tested their palms for gunshot residue and created photographic lineups to show witnesses. One eyewitness chose Hoang's photo as the one that looked like the second gunman. On May 23, 1996, Hoang was charged with the murder; no charges were brought against Giang, who Liroff said "was not a suspect."

Hoang's attorney, Evans Prieston, approached Liroff, concerned that his client was innocent. Liroff said he re-examined the case and became concerned about relying on an uncertain eyewitness identification. Mistaken identification is a frequent cause of wrongful convictions.

Soon, other teenagers at the cafe who were friends of Hoang's came forward to say he was innocent. They told police Dung Pham was the second shooter; "Mole" was the first gunman and a third youth, Son Nguyen, helped plan the murder and dispose of the weapons. Pham drives a green Acura, the car the victim's brother had connected to the second shooter.

Liroff arranged for Hoang to take a lie detector test, which he passed. The case took a dramatic turn: Hoang was released, and Pham was arrested and charged with Tong Nguyen's murder. Liroff said his concern over prosecuting the right suspect should have made him a "hero."

The arrest and release of Hoang posed an additional prosecution hurdle, offering a ready-made defense to anyone who might later stand trial for the killing. Attorneys for Pham and Son Nguyen - who separately was charged with helping plan and carry out the murder - did just that, building their defense around the theory that police had been right all along and that Hoang was the killer.

The prosecution's case became even more difficult by the November 1997 trial because the three teenagers who initially implicated Pham and Son Nguyen, and helped clear Hoang, backed away from their statements to police. As Deputy Attorney General Glenn Pruden would later write: "That there were a number of different and conflicting stories told by many of the witnesses goes without saying."

On top of all that was the issue of the gunshot residue evidence.

Prosecutors are required before a trial to turn over any relevant evidence requested by the defense. Additionally, under the U.S. Supreme Court decision in Brady vs. Maryland, prosecutors must turn over any material evidence that may be helpful to the defense - regardless of whether it is requested.

In preparation for the trial, Allen Schwartz, Pham's attorney, in September 1997 filed a request for a list of 14 items of evidence gathered by the prosecution, including "results of physical or mental examinations, scientific tests ..." and copies of all "criminalists and/or crime lab personnel notes."

Two weeks before the trial, Son Nguyen's attorney, Alfredo Morales, subpoenaed Soto to show up in court with any notes he took as he examined the residue samples from Hoang and Giang.

Evidence dispute

Exactly what was turned over - and when - is in dispute.

Both sides agree that Liroff provided the defense with a one-page report from Soto, who said he found "particles consistent with but not unique to gunshot residue" on both Hoang and Giang.

Soto was called as a defense witness by Nguyen's attorney, Morales. He asked Soto detailed questions about his findings, which went beyond information in the one-page report. When Pham's attorney, Schwartz, asked additional questions, trial transcripts show that Soto stopped to refer to his notes.

Soto testified that his examination did not establish that Hoang had gunshot residue on his hands. Neither defense attorney produced evidence to contradict that conclusion; Liroff told jurors that was because Soto was correct.

The jury spent 14 hours deliberating before convicting both Pham and Nguyen of first degree murder in January 1998.

Four years later, after the appellate courts had upheld the jury's verdict, Pham's family hired Oakland attorney Clifford Gardner. Gardner obtained Schwartz's file, which he said was well-organized. But he said he found no evidence that Schwartz had been given Soto's notes.

Such notes, said Gardner, are key to challenging prosecution experts. At the time, Gardner was representing another Santa Clara defendant, Damon Auguste, in a dispute involving the belated discovery of lab notes. The convictions of Auguste and co-defendant Kamani Hendricks were overturned in 2003 after a protracted battle over withheld notes that experts said contradicted the finding that the two men had sodomized a 15-year-old.

Gardner contacted Schwartz, who said he could not recall whether he ever got the notes. But if he had, he said, they would have been in his file.

In June 2002, Gardner turned to the state Supreme Court contending that the combination of Liroff's failing to turn over Soto's notes and Schwartz's failing to press the matter had denied Pham a fair trial. Gardner wanted an order requiring the state to turn over the notes so he could determine if information useful to the defense had been withheld.

In a recent interview, Liroff expressed outrage at the notion that he withheld evidence, intentionally or not. In fact, in response to problems of withheld evidence raised in the Mercury News series "Tainted Trials, Stolen Justice," Liroff helped organize a Santa Clara County Bar Association seminar devoted to the issue this fall.

Liroff says the defense's detailed questioning of Soto at trial and the fact that Soto referred to his notes as he testified are proof that the notes must have been turned over.

Gardner is convinced the evidence shows otherwise. There is no cover letter from Liroff to document whether he did provide the notes. And Morales' subpoena shows that weeks before the trial, he was still seeking the notes.

Gardner thinks it is plausible that Liroff only had the report, without the notes, in his file, and sent the defense what he had. And even if Soto, in response to a subpoena, sent the notes to Morales, they may not have been passed along to Schwartz.

But under the Brady rule of disclosure, Liroff had a duty to track down any potentially helpful and material notes, whether they were in his file or the files of police, laboratories or other experts working for the prosecution. Liroff is confident he did so.

Even if the notes had made their way to Schwartz, Gardner said it is clear that Schwartz did not develop the evidence. If the prosecutor did not fail in his obligation, argues Gardner, then Pham's own attorney did.

Shift to federal court

The state Supreme Court rejected Gardner's petition in February 2003. Gardner then turned to the federal courts, where the legal battle stretched on for years.

The state, represented by deputy attorney general Pruden, fought against turning over the notes. While conceding that the notes had been withheld from Pham before trial, Pruden maintained that because Gardner had not proven they contained material information that might help the defense, there was no duty to turn the notes over. Gardner, he argued, was on a fishing expedition.

Gardner argued that he was in a legal Catch-22: He was expected to show that material he had never seen would help his case.

After more than two years, the 9th Circuit U.S. Court of Appeals in March 2005 reversed U.S. District Judge Phyllis Hamilton and sent the case back for her to order that the notes be turned over to Gardner.

Once he got them, Gardner turned to a forensic scientist, who discovered that Soto had only tested 59 percent of the samples taken from Hoang and Giang. Gardner wanted to retest the complete sample and bolstered his request with the results of a lie detector test, which Pham had taken and passed.

Over Pruden's objections, Judge Hamilton last July ordered the state to turn over the remaining sample. The re-testing produced a dramatic result: More than 10 years after the murder of Tong Nguyen, Gardner learned that - contrary to what jurors were told at Pham's trial - gunshot residue was present on both Hoang and his companion.

This month, the state notified Gardner that its own testing confirmed the new result. Still, in his upcoming response to Gardner's motion to overturn Pham's conviction, state attorney Pruden has no intention of conceding that Pham was wrongly convicted.

In an interview, Pruden said he recently reread Soto's testimony and now shares Liroff's view that the defense had the notes before trial. Furthermore, both Pruden and Liroff contend that scientific studies now cast doubt on the significance of gunshot residue testing.

Liroff said that the fact that Hoang's hand was not sampled until he arrived at the police station, hours after the murder, raises concerns that the sample could have been contaminated while Hoang was sitting in a police car or at the station. It is, he said, "a very imprecise science."



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