United for No Injustice, Oppression or Neglect
Three Strike Articles
February 1 2003
A Los Angeles janitor who was serving a prison sentence of 70 years to life for a robbery that he denied committing won his freedom Friday in Los Angeles Superior Court.
Jason Kindle, 34, whose conviction was reversed by an appeals court last year, has been behind bars for three years.
Wishing Kindle "good luck" and telling him to "stay out of trouble," Judge Lance Ito granted a motion by the district attorney's office to dismiss the case because it has grown weaker as new evidence has become available.
Defense attorney Barry O. Bernstein's office said Los Angeles County jail officials were processing Kindle's release Friday.
Kindle was convicted in October 2000 of eight counts of robbery and two counts of assault. Jurors found him guilty of taking $15,000 in cash and $7,000 in checks at gunpoint from Office Depot on South Figueroa Avenue on Nov. 22, 1999. The cash and checks were never recovered.
Kindle was sentenced to extra time because the conviction was his third strike; the first two arose from a single incident in 1988 in which he was convicted of assaulting a police officer and shooting into an occupied vehicle.
The 2nd District Court of Appeal reversed the Office Depot robbery conviction because it said errors by Ito and Kindle's former attorney had prevented jurors from hearing crucial evidence that probably would have persuaded them to find him not guilty.
One of the key pieces 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. It also said Kindle's lawyer at the time, Haydeh Takasugi, "rendered ineffective assistance" to Kindle during his trial by failing to call an expert witness to challenge testimony by five employees that Kindle resembled the robber, who was heavily disguised.
On Friday, Ito questioned why Deputy Dist. Atty. Michael J. O'Gara was asking for a dismissal after the district attorney's office fought strenuously during a post-trial hearing two years ago against Bernstein's motion for a new trial.
"Your office vehemently objected to the grant of a new trial," Ito reminded O'Gara. "The facts were the same."
At that time, defense attorneys and the prosecution knew that Kindle's supervisor had given a statement explaining that he knew firsthand that Kindle's to-do list consisted of notes from a meeting about the janitorial service and not a robbery plan. But, after the witness moved from Los Angeles to New York, Kindle's lawyer was unable to find him to have him testify at Kindle's trial.
The witness has since been located, and the defense was prepared to bring him to trial.
O'Gara told Ito on Friday that he didn't think the prosecution could
win another guilty verdict because "additional facts will come forward"
that would weaken the prosecution's case to the point where he felt it
could not win a conviction.