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A Murder In Vacaville

Youth Who Confessed Gets Off On Probation

In a small town in northern California, a kid was stabbed to death during a 1997 street fight. The kid who did the stabbing confessed and was let off with probation on a weapon charge. The victim's friends were charged with murder.

As Bob Simon reports for 60 Minutes II, the handling of this case may be connected to the fact that the kids charged with murder are Hispanic, while the confessed killer, who got off, is not.
Chad O'Connell stabbed Jerry Alvarez English to death, using an 11-inch knife with his name engraved on the blade. Chad admitted it to police and on the witness stand.

David Moreno and Justin Pacheco, who happen to be Hispanic, never hurt their friend Jerry English. They rushed him to the hospital after he was stabbed. David and Justin spent the last two and a half years in jail pondering the chain of events that got them tried for Jerry's murder.

"That was my friend," says Justin. "I didn't understand how my friend passed away. And now I'm sitting in jail for something another man did."

The crime occurred in Vacaville, Calif., a town 50 miles north of San Francisco that Norman Rockwell could have painted - a place where kids look both ways before crossing and cops watch for jaywalkers.

In a Vacaville park, two groups of teen-agers staged a confrontation one Saturday night in November 1997. No one was hurt, but windows on David's car were broken.

The next evening, David, Justin and Jerry drove through the same neighborhood in David's brown Honda. They passed a group of kids they recognized from the night before. They shouted and cursed at each other. Boys on both sides had weapons.

Jerry jumped out the back door while the car was still rolling. Justin and David followed, carrying metal pipes. Nine teen-agers started fighting. Chad pulled out his hunting knife, stabbed Jerry in the back twice and ran away. David, Justin and a wounded Jerry stumbled back to the car.

"I asked him, you know, 'Who stabbed you?'" says David. "He says he didn't know."

"His whole back was soaked," says David, recalling the blood. "My back seat, too."

David and Justin rushed their friend to a nearby hospital, dropped him at the emergency room and left.

"I was just stunned by everything," says David, explaining why he didn't linger at the hospital. "I was scared. I wasn't thinking straight."

A little more than an hour later, Jerry was dead.

Police investigated, questioned the stabber Chad and prepared to charge him with homicide.

But Chad claimed that he stabbed Jerry to defend one of his friends. The prosecutor believed him. Chad pleaded guilty to a weapons charge and got off with probation.

David and Justin were also arrested.

"I asked the detective, and he said 'assault,'" recalls David of the charge. "That's it....Whe I heard that, I was, like, I knew they were going to charge me with something."

In court they were indeed charged with assault as well as with the murder of their friend.

"I kind of yelled out in the courtroom," says Justin. "I said, 'No, you guys got me mixed up with someone else.' I said, 'My name's Justin Pacheco. I'm not here for that.' He said, 'Yeah, yeah, you are.'"

According to an obscure legal doctrine in California, called the provocative act rule, someone doesn't actually have to commit a crime to get charged with it.

Say, for example, you rob a gas station. The owner pulls out a gun and accidentally shoots and kills a customer. You can be charged with the murder of the customer, even though you didn't pull the trigger.

The doctrine was designed for a case in which a serious crime starts a chain of events that leads to a homicide. But the Solano County district attorney used it to charge David and Justin in a street fight.

And the district attorney further claimed the street fight was really a gang fight. He insisted David and Justin were members of a dangerous Hispanic gang known as the Nortenos and were out to avenge the damage done to David's car the night before.

"They make that allegation that this is a gang member, and it puts fear in the jurors' hearts," says lawyer Barry Newman, who along with Dan Healy, is defending David and Justin. "It makes them more inclined to buy into the story."

They say the gang label is not only unfair but untrue.

Attorney Healy, who insists the altercation was not a gang war, argues that probably everyone except for the police would interpret the event as being caused by teen-agers with a little too much testosterone floating around. "What you're talking about are mostly suburban kids who are to a large extent being enticed by the culture they're seeing on MTV," Healy says.

So how do you distinguish a real gang member from an MTV kid? Hispanic kids are automatically under suspicion, especially if they happen to be wearing anything red, the Nortenos' color. And, if a Hispanic kid with a red shirt is seen in the company of a known gang member, police can consider that positive identification.

The mothers of Dan and Justin argue that's guilt by association. And Joanne Pacheco says that's exactly how her son Justin first came to the attention of Vacaville police.

"He was at a friend's house playing when the police went in," says Joanne Pacheco. "He was playing Nintendo with the kids. And they made what they call a file card on him and labeled him a gang member from that point on."

This was because he was at the home of someone "the police believed to be a gang member," she notes.

David Moreno had a rap sheet before the stabbing that consists of having been seen with "known gang member" Justin Pacheco. That got Daid labelled a gang member, too. But in court, police admitted their initial branding of Justin as a gang member had been a mistake.

"All of a sudden, they're trying to say, you know, that I'm this big gangster, a menace to society," says David. "Everybody who knows me knows that's not true."

David insists he is not a member of that gang and has never thought of becoming one. "I had a few friends in the gang," he admits, though.

Then the case took another twist: Chad, the kid who said he stabbed Jerry to protect a friend, was believed by police - until they checked with the friend. And that's when the prosecution's case began to crumble, says the defense.

"Chad O'Connell, the kid with the knife, was set free based upon his explanation that he used the knife to defend someone else," says attorney Healy.

"The police set him free before they even interviewed that someone else," he adds. "By the time they got around to it, two weeks later, to interviewing that person, and he tells them, 'No, the killer wasn't defending me,' things aren't looking too good for the police."

The collapse of Chad's alibi didn't stop the DA's prosecution of Justin and David. Their trial began in September 1998 in Judge Luis Villarreal's courtroom. The jury returned a guilty verdict.

"I was in shock," says mother Carmen Moreno. "I didn't know what to think. I didn't know how to react....Then it really hit me: This was actually happening."

But a day later - in yet another twist - five jurors complained they'd been bullied into voting guilty by other jurors.

Judge Villarreal said that was misconduct and ordered a new trial.

The district attorney didn't like that. He wrote a memo to his staff, outlining plans to get Judge Villarreal, the county's only Hispanic judge, disqualified from hearing future felony cases.

"We call it 'blanket disqualification'; we call it 'making his department go dark,' says James McEntee, who served as a prosecutor in the DA's office for more than 11 years. He wasn't involved in the case, but was so outraged by that memo blackballing the judge that he leaked it to the press. The DA fired him for that.

"There's no doubt in my mind" that displeasure with the way the judge had thrown out the convictions was the main reason the district attorney sent that memo, McEntee says.

But Judge Villarreal was still on the bench when the second trial began in January.

And Dan and Justin were still in jail more than two years after their arrest. The prosecution still said they were murderers and gang members; the defense still argued that they were on trial not because of what they did but because of their ethnic background.

"They free the killer and arrest the only two living Hispanics in the group," says lawyer Healy. "I don't think you have to be a Ph.D. to start asking uestions about whether or not there's some racial component to all this."

After a three-week trial, the jury, whose faces CBS News wasn't allowed to photograph, apparently agreed.

The jury acquitted Dan and Justin not only of murder but of assault as well. Less than two and a half hours later, they were free and walked out of jail for the first time in nearly two and a half years.

"I'm never letting go," says mother Joanne Pacheco.

Even before the release, District Attorney David Paulson issued a written statement saying he believed there was ample evidence to convict and he was disappointed the jury chose otherwise.

His statement didn't address why he prosecuted two kids for a murder someone else committed, whether the prosecution was racially motivated, and why he seemed to be conducting a vendetta against the Hispanic judge.

But if Paulson had answers for these questions, he clearly had no intention of sharing them with CBS News.

Mothers Carmen Moreno and Joanne Pacheco say they're going to get their boys out of town by the end of winter.

And District Attorney Paulson may be out before long as well. He's up for re-election in two years.

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