Late last month, the National Registry of Exonerations reported that the United States had 125 exonerations in 2014, a record high. One of the report’s findings was that 67 of those exonerations – or 54 percent – “were obtained at the initiative or with the cooperation of law enforcement.” The Marshall Project asked a prosecutor to walk us through a case where his office was presented with evidence suggesting an innocent man had been convicted. The following was written by Mark Larson, the chief criminal deputy of the King County Prosecuting Attorney’s Office in Seattle, Wash. Larson reviews all innocence claims for the office.
In 2004, 21-year-old Brandon Olebar was found guilty of participating in a violent home invasion robbery in Seattle. He was sentenced to more than 15 years in prison and ended up serving over ten years of that sentence before the case was dismissed and he was released.
The crime was brutal, but not particularly newsworthy. The victim had an acrimonious breakup with his girlfriend (and Olebar's sister), Nacoel Olebar. She enlisted her friends and some family members to exact revenge. The group went to the victim's home, broke in, and beat the ex-boyfriend severely.
The police investigation quickly focused on Nacoel Olebar. Identifying the other suspects proved more difficult. Police prepared several photo arrays — a montage of six photos with five “fillers” and one possible suspect — to see if the victim could make an identification; he selected several people as being involved, and one was Brandon Olebar. There was no other direct evidence against him.
At the time of the robbery, Brandon Olebar was fresh out of prison for a drug offense and car theft, on parole, and living with his grandparents. Because of his history and the fact that the victim identified him, Olebar seemed a likely suspect.
The Innocence Project Northwest first approached The King County Prosecuting Attorney’s Office about the Olebar case in 2013. I was not the original prosecutor in his case, but as chief criminal deputy, I was initially skeptical about the innocence claim. After all, this was not a case where DNA evidence would either implicate or clear the defendant. And with nothing definitive, how could we justify undoing a verdict in a case where the jury, having heard the evidence, found that the defendant was guilty — beyond a reasonable doubt? But I promised to keep an open mind and agreed to do a thorough review.
The Innocence Project’s primary basis for overturning the conviction was “newly discovered evidence,” which consisted of affidavits from others who claimed to have participated in the home invasion robbery. Each asserted or implied that Olebar had not been involved. But these affidavits were suspect since they had only been provided after the statute of limitations had run: No one could now be charged with the crime, and there was no consequence for anyone who might take responsibility. In short, it was a free pass, a circumstance that called for a healthy dose of skepticism.
There was also the matter of the victim’s eyewitness identification. The Innocence Project presented an analysis of that evidence by a well-respected social scientist who focused on two issues that could have affected the case and led to an erroneous identification. First, the expert examined the trauma suffered by the victim — who sustained a serious head injury and was rendered unconscious during the crime — and discussed how memory of an event can be impacted if a witness is injured and/or traumatized. Second, because of the distinct possibility that the victim had seen Olebar before, the expert suspected that when the victim identified Olebar, he was simply finding a familiar face, his ex-girlfriend’s brother.
But these were theories, far from anything definitive that would cause a cautious prosecutor to undo a jury’s verdict.
To complete my review, I asked to meet with the one person who could answer my most probing questions: Olebar himself. In an unusual move, and as a result of the mutual trust between the parties, the Innocence Project agreed. For the interview, our office was represented by myself, serving as the chief criminal deputy, and the original trial prosecutor. We explored Brandon's activities at the time of the crime, his alibi, and his reactions to every aspect of the proceeding — being arrested, charged, and convicted of a crime he insisted he did not commit.
Olebar's steadfast insistence on his innocence, consistently expressed over the years, was compelling. At the time of arrest — in his meetings with his own lawyers (prosecutors reviewing the conviction were given access to his trial attorney) and throughout the appeal process — Olebar was unwavering. He had even refused a pretrial plea offer that would have netted a very short sentence.
All these years later, Brandon was given another opportunity to, in effect, plea bargain. Because it would be very difficult to truly determine guilt or innocence on such an old case, with sketchy witnesses and no DNA or other forensics to test, there seemed to be sufficient basis to allow the case to be renegotiated with the goal of getting Olebar out of prison sooner — having already served over 10 years. But he refused, again, to enter a plea to a lesser charge.
After the interview and after reviewing the new evidence, the elected prosecutor, Dan Satterberg, agreed that the case should be dismissed. Although the law requires great deference to jury verdicts and must support finality in cases that have been fully adjudicated (courts would be unworkable without such presumptions), the evidence supporting this conviction was simply too thin. In December 2013, the King County Prosecuting Attorney’s Office sought to have Brandon Olebar's conviction vacated and the case dismissed.
A month after his release, I invited Olebar to meet with me. He accepted the invitation and was gracious as he came to our office and mostly listened. He learned that the decision to vacate had been greatly influenced by his account of the case — told years later to the same prosecutors who worked to convict him.
And he received an apology.
The decision to apologize was intentional and reflected our view that good institutions, like people, need to be compassionate, discerning, and possess humility. In this case, that meant undoing a decision that we did not believe was sound. It also just felt like the right thing to do.
Too often, good prosecutors have watched professional colleagues contort themselves to deny and discount compelling evidence that seems to undermine a conviction from the past. This defensiveness does not serve our cause as quasi-judicial officers, nor does it serve the interest of those who may be wrongfully convicted.
Moving forward, prosecutors need not be defensive. Possessed of the knowledge that our system is not fail-safe, we must arm ourselves with all of the tools that will help us get it right from the outset of a case. The last decade has seen a decrease in exonerations, and that is due in part to the increasing number of powerful forensic sciences and new forms of evidence available at the outset. DNA is routinely employed in many types of cases (and was largely absent in those cases from the ‘80s and early ‘90s). And, we now routinely use cell-phone tracking and GPS, computer and cell phone data, and video evidence to identify suspects and make stronger cases. This is good news for those seeking the truth.
But even with powerful evidence and tools, prosecutors are not solely advocates for conviction. Our core function is to determine the weight and the reliability of the evidence in the cases presented to us and to judge when it is sufficient. Good prosecutors will always be willing to try tough cases, but we must also be willing to admit when the evidence is insufficient and to make the choice not to charge, to dismiss, or to vacate convictions won years ago. It is when we are engaged in this crucial function that we are closest to the guiding principle that our goal is not simply to win cases, but to do justice.
People are often surprised to learn that the King County Prosecuting Attorney’s office does not make any attempt to measure our individual or collective “conviction rate.” Such a measure would be foolish since prosecutors have such wide discretion to decide which cases get tried and which are the subject of plea negotiations. But more importantly, such a metric flies in the face of the very culture that we want to foster in a prosecutor’s office. From top to bottom of this organization, we seek to cultivate a culture where success is measured by doing the right thing. Sometimes that means refusing to charge, dismissing a case where the evidence has shifted, or trying a case that is difficult, but righteous, even though success is unlikely.
When Prosecutor Satterberg met Olebar at an event at the University of Washington Law School, the two men embraced. And that is as it should be in a prosecutor’s office that cares deeply about justice and is willing to include “humility” in its mission statement1.
