Wrongfully Convicted: The Joseph Cua Story
I have been incarcerated for 18 years for a crime I did not commit.
The staggering statistics of wrongful convictions in the U.S., estimated at 4-6% of the incarcerated population, unveil a deeply entrenched issue in our justice system. The constitutional violations I've experienced are not unique; they reflect a nationwide crisis, with countless others enduring similar injustices in courts across the country.
THE VIEW FROM UNDER THE BUS
In the 1600's, French philosopher Rene Descartes wrote, "In order to know anything with certainty, we must first question that which we deem to know."
Unfortunately, people are generally apathetic towards issues that don't personally affect them. But in recent years, because of extensive media exposure, there's been a trend in our society to instigate thinking that won't accept the status quo, reaching a level of consciousness that's strong enough to instigate change. Even so, it took years of seeing countless acts of police brutality to enact legislation and policy changes to prevent such acts without consequences.
My purpose is to attack the criminal justice system from another angle by calling attention to systemic flaws in the judicial system, beginning with the state courts where the violation of defendants' constitutional rights have been prevalent for so long that it has become the accepted paradigm. District attorneys and police agencies are more focused on obtaining convictions than seeking the truth in the interest of justice, the onus placed upon them when appointed to their positions. It's estimated that 1% of the prison population were wrongly convicted, and it's nearly impossible to be exonerated.
My name is Joseph Cua, and I was convicted in 2008 for the murder of my friends, Fernand and Suzanne Wagner, with special circumstances for using a knife. From day one I have maintained my innocence, but have now spent 17 years without my freedom for a crime I did not commit. I now possess the perspicacity of how it happened, and feel compelled to tell my story. I will offer facts and documentation and allow the reader to make his own conclusions. I will also offer insight into who I am both before and after my incarceration and discuss people in my life who profoundly influenced me and how this story played out.
A MISCARRIAGE OF JUSTICE!
An illegal arrest
Exculpatory evidence
Prosecutorial misconduct
Court error
I was arrested based on double hearsay claims taken over the phone be a 3rd party living 1800 miles away - of my having severe bruising to my face, ribs and hands - that turned out to be false.
The DNA and forensic evidence pointing to a 3rd party was overwhelming (bloody fingerprint, bloody footprints, third party DNA, including on the bodies, in a diluted blood spot on the toilet seat cover, and on the staircase) and raised more than a reasonable doubt. The prosecutor tried and failed to use false testimony to prove I was present when the crime occurred, and failed to link me to any of the weapons used. Although Fernand's knuckles indicated he fought, I had no injuries to indicate I'd been in an altercation.
Sean Gallagher knowingly elicited false testimony from witnesses to prove I was at the scene when the crime occurred, that I left an incriminating voicemail when there was no evidence of such from records, and led a witness to negate exculpatory evidence by an expert witness. He withheld evidence so he could do so, and supported the false testimony/perjured testimony he had suborned from witnesses and argued against the evidence given during the trial in his closing arguments. All of which violated state and federal constitutional law
The court cannot lessen the prosecution's burden of proof; yet it did so by instructing the jury that (1) it wasn't necessary to know when the crime occurred; (2) gave an instruction on my fleeing the area, which the prosecutor knew to be untrue; (3) failed to give required instructions on the defense theory/evidence; (4) failed to instruct on the requirements for guilt regarding use of a knife, for which I was charged; and (5) failed to effect answers to jurors' written questions. All of the above violated constitutional law.
It's been estimated that about 4-6% of the prison population in the U.S. should not have been convicted and imprisoned. The following is just one of these stories. I will present the facts about my arrest and trial, and allow you to formulate your opinion on the case. If the constitutional violations presented happened to me, they've also happened to countless others in hundreds of courts across the country.
The Anatomy of a Wrongful Conviction
Prosecutor's case theory
ADA Sean Gallagher theorized that I committed the murders soon after I spoke on the Wagners' house phone with Edith Edmonds, a mutual friend of the Wagners and mine around 9:30 a.m. on 6/13/06. He speculated that I set up the scene to look like a sex crime (since Suzanne was found nude in the den), then fled the Bay Area to Southern CA driving down Hi 101 instead of I-5 (the quicker route) in order to get rid of the evidence - after canceling a scheduled flight from Oakland to Ontario.
An illegal arrest
My Kafkaesque nightmare began on the evening of June 18, 2006, when I was arrested in Oxnard, CA after dropping off the registration for a sailboat I'd sold on eBay. The affidavits for warrants for my arrest and search and seizure stated that I had extensive bruising to my chin, ribs, and hands. That information was double hearsay, given over the phone by a party in Iowa who had no firsthand knowledge of the situation, and was not corroborated by authorities prior to issuing the warrants. My ex, Joy Desomber, the alleged source of the information, wasn't interviewed until six hours after the warrants were issued. Most importantly, the claims of the bruising on my person were false. Det. Taylor, who interviewed me five days after the murders, testified during the trial that he saw no bruising on my face, torso, or hands, as the affidavits for warrants indicated. In this case, the bruising WAS the basis for issuing the warrant. I should have been released immediately.
When any part of an affidavit is false, the warrant is void and a subsequent arrest is illegal. My attorney, Ed Pomeroy, had sufficient cause to attack the validity of the warrants under Penal Code 995 (which I urged him to do so on numerous occasions), but he failed to do so. He also should have filed a P.C. 1538.5 motion to suppress any illegally obtained evidence. Had he filed such motions, the case would have likely been dismissed, and the police would have explored all avenues of investigation, instead of playing build-a-case against me.
I discovered that my ex-mother-in-law, Linda Desomber, suspected my involvement in the crime when she read a few days after the incident that the Wagners had been severely beaten, not shot as I had told her daughter, Joy - the question being: Why did I lie about how the Wagners were killed? Lost in their hysteria, Joy and Linda forgot that initial newspaper accounts stated that someone had heard a shot, and Marc, the Wagners' nephew, who called to tell me about the shooting according to information given to him by Barbara Chagniot, whose husband Philippe was at the crime scene, testified to that sequence of events during the trial.
The trial
The axiom of criminal law is that the defendant must be proven guilty beyond a reasonable doubt. The prosecutor has the burden of proving not only that a crime has occurred; he must prove that the defendant was the one who committed the crime. The court must test the prosecutor's narrative against alternate hypotheses. If it's not possible to rule out other explanations there exists reasonable doubt and the court must acquit. The minimal requirement for a guilty verdict are that the defendant was at the crime scene when it occurred (opportunity), had the means to do so, and all other perpetrators can be ruled out.
During the trial the following exculpatory evidence was given by forensic experts: (a) A bloody fingerprint on Suzanne's belt was attributed to an unknown 3rd party - the onsite coroner stated in his report that the bruising on Suzanne's neck matched the belt found next to her on the floor; (b) bloody crime scene footprints did not match any of my shoes; (c) unknown 3rd party DNA was found on Suzanne's breast, under fingernails on both her hands, in a diluted blood spot on the toilet seat cover, in blood on the staircase, in blood on Fernand's shoulder, and in blood on the front and back of Fernand's pants. All of the above forensic and DNA evidence had to have been left during or after the crime was committed, and raised reasonable doubt.
The prosecutor tried to use perjured testimony from a detective to support his claim as to when the crime occurred and that I was present at the time. His timeline was disproved countless times, yet he still used it in his closing argument. There was no other evidence given as to time of death, so the element of opportunity went unproven. Without establishing the time of death intent to kill and premeditation, necessary for a guilty conviction for murder, went unproven.
When a weapon is used during the commission of a crime, a causal link must be established between the defendant and the weapon(s) used. No evidence was given linking me to either a knife or a blunt force instrument like a bat or candlestick. Fernand was found lying face down with a pool of blood to the left of his head, with a cut from his Adam's apple to below his left ear. The pathologist testified that the cut was made while he was still alive, so cause and effect dictates that the cut was made from behind by a left-hander. The only evidence given regarding a knife was that a steak knife was missing from a boxed knife set that was in a drawer - which was irrelevant since Fernand, being a chef, had a plethora of knives on the kitchen counter. There would be no reason for someone to go into a drawer to grab a knife from a matched set of steak knives. There is distinctive bruising to the hands after punching someone. I had no bruising on my hands. Fernand and Suzanne had numerous lacerations to their head and upper torso areas which the pathologist stated were caused by a blunt force object. Fernand had numerous bruising/scrapes on his knuckles, which means he fought back and made contact. I had no bruising anywhere on my body, as Detective Taylor testified to.
The jury was instructed: "Before you can rely on circumstantial evidence to conclude that every fact necessary to find the defendant's guilt has been proven, you must be convinced that the people have proven every fact essential to that conclusion beyond a reasonable doubt... if you can draw two or more conclusions... you must accept the one that points to innocence." It is obvious that the jury misapplied that instruction since the prosecution failed to meet the requirements for a guilty verdict. Any verisimilitude of guilt in the minds of the jurors wouldn't have existed were it not for the egregious amount of constitutional violations during the trial as follows.
Prosecutorial misconduct
The prosecutor is an officer of the court whose duty is to present a forceful case to the jury; but not to win at any cost. Sean Gallagher lost sight of that directive - violating constitutional law and even the penal code to obtain a conviction. A prosecutor cannot support false evidence, offer speculation or go outside the evidence given during the trial during his closing argument; and cannot withhold impeaching or exculpatory evidence from the defense.
PERJURY is a violation of the CA penal code and is punishable by imprisonment for 2-4 years. Under P.C. 127 every person who willfully procures another person to commit perjury is guilty of suborning perjury, which is punishable in the same manner as he would be if personally guilty of the perjury procured.
To support his theory that I committed the crime around 9:30 a.m. on 6/13/06 Sean Gallagher knowingly elicited perjury from Det. John Aronis, who testified that he studied the Wagner's caller ID and deduced since he had the same machine at home, that only missed calls were listed on the caller ID. He and Gallagher went over each call listed and he confirmed each call as being a missed call - the inference being that they were missed because the Wagners had already been killed by me at around 9:30. Near the end of the trial stipulations were entered that Norbert Wagner, Fernand's brother, spoke with Fernand about the world cup match they were both watching about 10:30 a.m.; and that Lorraine Peterson spoke with both Wagners for about 15 minutes, wishing Suzanne a happy birthday and discussed Fernand's health with him. Both of those calls were confirmed by Det. Aronis as being missed calls. Donald Kent, who lived two doors away from the Wagners, testified that he saw Fernand as he drove by and they both waved to each other around noon per the police report. The prosecution's case should have been destroyed by this evidence since the Wagners were alive way past the time Gallagher wanted the jury to believe I committed the crime. But during his closing statement he stated that the call from Lorraine had not been answered by the Wagners and I was known to have been at the house earlier - which went against the stipulations he had agreed to an hour before about the Peterson and Wagner calls and the testimony of Donald Kent. Since there had been no other evidence about the time of death the jury had to believe that I committed the murders when he said I did.
Gallagher also knowingly suborned perjury from Phillipe Chagniot, the Wagner's nephew, who testified that I left a message on his voicemail on the morning of 6/16/06 that, "I was in charge and would sell the buildings," which was prejudicial since it gave a motive of my getting a large commission for the sale of the properties. Chagniot's testimony lacked foundation since the voicemail wasn't put into evidence, rendering his testimony as hearsay, which should not have been allowed by the court, had my attorney objected for lack of foundation. Gallagher referred all other witnesses who had phone contact with me to a large poster of my call activity next to the witness stand, and asked," Is this your number?' - but didn't do so with Phillipe because the number wasn't there. Gallagher supported Phillipe's perjury during his summation.
Gallagher led criminalist, Mona Ten, to conclude that 3rd party DNA had been left by a guest on the guest bath toilet seat. She wasn't part of the crime scene crew, and didn't know that the DNA she tested had come from a diluted spot on the toilet seat cover (not toilet seat) which meant that someone splashed onto the toilet seat while washing up. While her testimony wasn't perjurious, it was intentionally used to negate exculpatory evidence that had been given three weeks earlier. He stated in his closing argument that a guest left the DNA on the toilet seat. Suzanne would never have let blood go uncleaned in the guest bath which was next to the den on the first floor and used by her daily to shower in the mornings.
Brady violation
The prosecution's suppression of the Aronis caller ID investigation and the Chagniot voicemail (if it existed) violated my rights to due process. I have tried ardently to obtain both pieces of evidence, but have been unsuccessful in doing so, even though I obtained a discovery order from the superior court for my counsel and the district attorney to provide me with post-conviction discovery. Had these items supported Aronis' and Chagniot's testimony, they would have been entered into evidence with alacrity. Gallagher also suppressed two other pieces of evidence that were crucial to my defense. Det. Aronis testified that he noticed a hair on Fernand's left hand. I discovered in the police reports that the hair was actually under his fingernail, making it much more relevant to the case since it probably got there during a struggle. After being told that none of the crime scene hair had enough material for DNA analysis, I asked my attorney to conduct a comparative analysis between the crime scene hair and samples taken from me and the Wagners as to length, width, color, grain, bend and ethnicity; but was ignored. In the police reports I discovered unidentified microscopic photos of hair. It's highly unlikely that these specialized photos would be taken and a comparative analysis not be done. If the test results had incriminated me they would have been turned over to the defense at the first opportunity. The police reports also indicated that internal/external vaginal swabs were taken, but no results were released to the defense or during the trial . The only reason to withhold such evidence would be i f they pointed to another party, destroying the prosecution's speculation that I had set up the crime scene as a sex crime.
Misconduct during summation
The prosecutor's closing arguments are the last words the jury hears about the case; therefore he cannot argue against or outside the evidence given during the trial. Sean Gallagher violated this rule with impunity during his summation. He stated that I made a mistake by leaving the bloody footprints. He said that Det. Taylor saw and photographed the bruising to my hand - when Taylor actually stated that he saw no bruising to my hand. Furthermore, the pathologist stated that the Wagners' injuries were caused by a blunt force instrument - making the claim of bruising to my hand moot; but saying os influenced the jury since they were inundated over four weeks with forensic and DNA data that was much too recondite for the average person to assimilate and understand. He also claimed that I had set up the scene to look like a sex crime and claimed that "We know she wasn't sexually assaulted"- when the pathologist was asked if Suzanne had been sexually assaulted, he replied, "I have no opinion on that." Furthermore, there was unknown third party DNA on Suzanne's breast and under multiple nails.
The DA released to the media upon my arrest that a "confidential informant" had pointed me out as the perpetrator, and "there was a mountain of evidence," inferring that it had already been tested and incriminated me. People who knew me and potential witnesses assumed my guilt from these words. Phillipe Chagniot was even willing to commit a felony to secure my conviction.
Ineffective assistance of counsel
Ed Pomeroy, my trial attorney, possessed the knowledge to destroy the prosecution's case; but chose to allow Gallagher to violate constitutional law and even the penal code at will. He could easily have exposed the perjury of Det. Aronis and Phillipe Chagniot and objected to the lack of foundation for their testimonies relative to the caller ID information and the purported voicemail I left; but remained silent. He was aware that there was no way for a guest to have left the diluted blood spot on the toilet and not have it cleaned by Suzanne. Had Pomeroy impeached these testimonies the dynamic of the trial would have changed dramatically in my favor since the jury would have seen that the prosecution was willing to break the law to obtain a conviction and a detective testified against what he had reported in the police report to his sergeant. He could have easily objected to the prosecutor's arguments that backed false testimony and contradicted the evidence he had in hand. He should have noticed when reviewing the police reports as I did that the prosecution withheld key evidence from him. It's apparent that he was content to offer a mere modicum of representation; not the effective assistance of counsel guaranteed by the constitution. A defendant in the county court system is confronted by a conundrum fraught with irony: being represented by someone who in effect is paid by the system trying to convict him. My attorneys seemed unwilling to make the prosecutor and his investigators look bad when they had the ability to do so - and that failure seriously compromised my case.
Court error
The court's instructional errors contributed to my wrongful conviction and lessened the prosecution's burden of proof.
I was entitled to, but didn't receive defense theory instructions that would have reminded the jury of: (1) the plethora of exculpatory evidence pointing to a 3rd party precluded a finding of guilty beyond a reasonable doubt; (2) the prosecutor tried and failed, using perjured testimony, to establish that I was present when the crime occurred, and the time of death had not been established; (3) there was no way to prove intent to kill and premeditation since the TOD was not established; (4) there was no causal relationship between me and any weapons used in the crime.
The jury should have been instructed as to the requirements for establishing guilt on the weapons enhancement. If this enhancement wasn't proved, there could not be a guilty verdict since "means" is crucial to the determination of guilt. (P.C. 12022 special circumstance for use of a weapon).
The court lessened the prosecution's burden of proof by instructing that it wasn't necessary to know when the crime happened, even though the prosecution had already tried and failed to prove that I was present when the crime occurred. The court wrongly gave an instruction of flight based on the prosecution's theory that I didn't take a scheduled flight from Oakland to Ontario (to get to my house
in Hemet in Riverside County), instead driving down Hi 101 instead of I-5 in order to get rid of evidence along the way. The prosecution knew that an EBAY auction for a sailboat I had berthed in Oxnard sold on 6/14/06, and I had received two emails on the previous day that bids were coming. The market was soft and the auction had no action to that point. Expecting the sale, I no-showed the flight and I went down 101 to clean the boat and install some woodwork I had refinished, and I left the pink slip on the boat for the new owner. since I was doing that, I brought down my hand and power tools:needed for remodeling I was doing on my father's house in San Diego and another boat I was working on in Long Beach. I told Det. Taylor about the EBAY sale and the close of auction page was readily available online, and he testified that I had my tools in the truck. I also took six large cane chairs that Suzanne had given me to the house in Hemet, as testified to by Joy during the preliminary hearing.
Two jurors submitted written questions at the end of the trial. The jury was told that the ten raised issues would be addressed during summations; but that never happened. Instead, the prosecutor gave false information about my shoes, fleeing the area, bruising to my hand, etc. One of the questions that was interesting was, "Why didn't Joy Cua testify?" This was pertinent because Joy had been touted as the star witness, but didn't show for the trial. She had lied extensively during the preliminary hearing and in the police interviews. The answer was one that would have been influential to the verdict.
Ineffective assistance of counsel
My trial counsel failed miserably by allowing these errors. He had the responsibility to ensure that the defense theory instructions were given - which would have negated the damage done by the prosecutor’s misconduct. He should have insisted that the jury was instructed as to the requirements to convict for the weapons charge. He should have reminded the court that prosecution had already tried to prove the time of death and my involvement with perjured testimony. He could have prevented the flight instruction by putting the EBAY close of auction page into evidence and having a witness testify that the tools and chairs I brought to So Cal couldn’t be taken on a flight. He had the responsibility to ensure that the jurors’ written questions were answered. His failures led to an unfair trial, violations of due process, and a questionable verdict.
Motion for a new trial
My trial counsel had good cause to move for a new trial under P.C. 1181(5) if (a) the prosecutor is guilty of prosecutorial misconduct; and or (b) if the court failed in a matter of law. Under P.C. 1181(6) the motion is warranted if the verdict was contrary to the evidence. In this case, it was "all of the above". Clearly, an attorney who files this motion would be exposing his own inadequacies which could result in civil litigation. However, his inaction in this regard was prejudicial in light of the exculpatory evidence, failure to prove guilt beyond a reasonable doubt, the prosecutor's misconduct, and court error. No trier of fact could conclude that I received a fair trial , and more likely than not the verdict would have been reversed. In that scenario, the prosecution would have opted to not retry the case since there was insufficient evidence to do so, and the nefarious acts committed by Sean Gallagher would have been made very public.
The trials and tribulations of post-conviction relief
In the first century B.C. Juvenal posed the question, "Who will watch the watchers?" Prior to this experience I'd always believed that our country's justice system was the best in the world, designed to prevent wrongful convictions and providing the wrongly convicted avenues to correct those convictions, when warranted. However, personal agendas and aspirations can get in the way of justice, and there's a tendency by some to protect their own.
It's my contention that a system of appeal that was created to overturn wrongful convictions has metamorphosed into a series of steps to frustrate petitioners - to the point of giving up the fight. I also believe that petitioners who aren't represented by counsel aren't given the same standard of review of their claims as those filed by attorneys. It's easier for judges and clerks to deem a petition procedurally barred than to carefully consider if a petitioner's claims are valid. In my case, it's apparent that some courts did not look past the face page of my filings. In one case the judge was predisposed to issue a denial without even looking at my arguments.
The standard for review is if a petition on its face shows that the stated claims may be true, it must be granted. I have actually offered up documentation of all my claims; but have been wrongfully denied due to time and procedural bars. State and federal laws dictate that if there is a claim of actual innocence or ineffective assistance of counsel, those claims must be reviewed on their merits. In 2015 the U.s. District court denied my petition for writ of habeas corpus based on untimeliness. Not being an attorney, I didn't know and couldn't argue that the following were exceptions to procedural bars: (1) The CA Supreme Court ruled on my petition to that court, rendering it ripe for federal review; (2) I was actively pursuing my claims, even filing a motion for discovery with my petition; (3) my trial attorney took over 31⁄2 years to deliver court ordered discovery to me (without such I could not know the degree of his ineffective assistance of counsel as well as other violations of my due process rights); (4) claims of actual innocence and IAC are not time or procedurally barred; (5) the denial of my motion for discovery filed with my habeas petition was wrongfully denied since I am entitled by federal law to that discovery to support my contentions.
I filed a Rule 60(d) motion in June of 2021 to contest the 2015 denial for untimeliness because the ruling that precluded a merits determination was in error, and to submit newly found evidence which also supersedes procedural bars; and to request leave to file a new habeas petition. The attorney general filed an opposition to my motion, and I filed an immediate response to the opposition a week before it was due, destroying the AG's arguments which were weak and full of errors. I was shocked to receive a denial from the court which was issued eight days before my response was due and before the court received my response to the AG's opposition, which was a serious breach of due process. I later found out that the court had given the AG a date to file its opposition, and a date for me to file my response. This order was not served on me. It was only because I was prepared that I filed my response on time. So, the court was predisposed to deny, believing that I would not file a timely response, an egregious act of enormous magnitude.
I filed in the Court of Appeal and everything was in order and my contentions were solid and according to case law. The court took 14 months to issue a cookie cutter denial. I believe that the judge didn't look past the first page of my filing.
On another note, I filed complaints against Det. John Aronis of the Millbrae DP for perjury, and against ADA Sean Gallagher for prosecutorial misconduct, including suborning of false testimony (3 counts), suppression of evidence, and going outside/ against the evidence; but the entities involved chose to protect their own and ignore the claims, even though that law and their own internal policies required investigation.
My conviction was obtained through:violations of constitutional law and-even the penal code that can only be deemed unconscionable. Steps need to be taken to rectify a seriously flawed system that maintains a policy of "the ends justifies the means" and a system of public defense that falls far short of the effective counsel guaranteed by the U.S. Constitution. One of the citations I've used in my filings is: "History has shown that nothing can destroy a government more quickly than a failure to observe its own laws; or worse, its disregard for the charter of its own existence." This is just one of many such stories. Perhaps others can tell theirs to raise public awareness of this miscarriage of justice.
Joseph Cua
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