Three strikes -- because you're out 

Martinez jail erroneously frees inmate, accuses him of escaping.

One afternoon in the summer of 1998, 18-year-old Christopher Barfield accosted two other teenagers outside a restaurant in Pinole. In separate incidents about a half hour apart, he punched one in the face and told the other he had a gun, stealing eight dollars in cash and a twenty-five dollar watch, according to police reports. In exchange for pleading guilty to two counts of second-degree robbery -- "two strikes" under California's three-strikes law -- Barfield was offered three years' probation plus seven months in jail.

Deputy Public Defender Christopher Bowen thought it was a bad deal and urged Barfield not to accept it. Yet, the young client didn't heed his lawyer's advice. On the plea form in which Barfield accepted the county's deal, Bowen scrawled the following warning, trying to make sure Barfield understood the gravity of the situation: "I understand that conviction of these charges will result in increased penalties should I be convicted of any felony in the future and will subject me to sentencing under the 'Three Strikes' Law."

Even Bowen couldn't have predicted the strange turn of events that three years later would make his warning seem prescient.

With his probation period almost up, Barfield missed three recent appointments with his probation officer, and on September 7 he was returned to the Martinez Detention Facility. Four days into his stay there, jail officials mistook Christopher for his brother Desmond, who was briefly in jail at the same time. Although Christopher initially told a deputy that he wasn't Desmond, he eventually went along with the mix-up, and was released one week early by mistake. The next day, a police officer drove to his house and returned him to jail. Now the 21-year-old black man is being prosecuted for "escape," a third-strike felony. If convicted, he faces 25 years in state prison.

Contra Costa County Deputy District Attorney Brian Haynes said Barfield can avoid that harsh penalty by pleading guilty to "escape." Because district attorneys and judges are allowed to waive previous charges in three-strikes cases, Barfield could have one or both of his previous strikes removed from his record and would then be sentenced to 16 to 32 months in prison, the normal punishment for the felony with which he is charged. "That's not so bad, is it?" Haynes asked. "After all, he did commit the escape."

But that's not how Barfield's court-appointed attorney sees it. Deputy Public Defender Ellen Leonida sees her client as perhaps naively willing to go along with an error in his favor. But to avoid the threat of an automatic 25-year sentence, Barfield would have to plead guilty to a crime she doesn't think he's guilty of.

The use of possible third strikes as a prosecutorial bargaining tool has become the norm in Contra Costa and Alameda Counties, a trend first described by reporter John Hill in the Contra Costa Times. Although very few accused third-strikers are getting the lifetime to 25-year sentences the law was meant to dole out, defendants are giving up their right to trial as part of the process. "The three-strikes law is a huge disincentive to exercise their right to trial," said Bowen, Barfield's original public defender. And in the odd case of Christopher Barfield, both his former and current attorneys believe that such a trade subjects their client to undeserved risk. "For his prior convictions to ratchet up his exposure to the point where it could conceivably result in a life sentence for this conduct is insane," Bowen said.

It is anything but clear how to distribute the guilt in this particular fiasco. The circumstances of Barfield's tragicomic release are mired in a stew of complexities, among them the admitted negligence of jail personnel, but also the clear certainty that Christopher Barfield ultimately realized he was hoodwinking his jailers.

Three days after Christopher went to jail, Desmond Barfield, his younger, heavier, and much taller brother, was accused of being in a stolen vehicle. He was booked and put in jail, but authorities initially couldn't find enough evidence to charge him with any crime and had to release him.

When Deputy Sheriff Arturo Camacho went to get Desmond for release, a computer search produced information for Christopher instead. It indicated that his location was inmate housing module A, not module B, where Desmond actually was incarcerated. Unaware of the mix-up, Camacho went to module A and asked for "inmate Barfield," and Christopher was brought out. Both Camacho and the officer on release duty, Sergeant Sean Fawell, failed to compare Christopher with a description and photo of his brother.

Christopher went along for the ride. At 10:30 a.m. on September 11, seven days before his legitimate release, with Desmond Barfield's clothing on his back and a BART ticket to Pinole in his pocket, Christopher Barfield walked out of the jail, free man for a day.

Forty-five minutes later, according to Fawell's statement in the police report, an escort brought the real Desmond to the release window. Fawell immediately realized his error and put out an all-points bulletin. The next day, an officer picked up Christopher and uneventfully ferried him back to jail.

The prosecution's case rests on the claim that Christopher actively impersonated his brother. "The defendant's conduct, I think, was rather intentful and deceptive," Deputy District Attorney Lucinda Simpson said at the preliminary hearing. "He was certainly on notice what was going on, and he made a calculated and specific attempt to get out of jail once he realized what was going on, and he seized the opportunity to do that."

According to Camacho's testimony, Christopher at first gave the officer his correct name, but then obliged Camacho by saying that he "went by Desmond also." Sergeant Fawell said he held a brief conversation with Christopher about Desmond's alleged offense, and that Christopher answered all of his questions correctly in an apparent attempt to convince the officer that he was his brother. Christopher then put on Desmond's clothing, signed his brother's name, and put his thumbprint on the release form.

But Leonida, Barfield's lawyer, argued in court that the jail is to blame for the botched release. "It would be a gross injustice to hold Mr. Barfield to answer at a felony level for this offense when he, I think, at most sort of went along with what was a mistake on the part of the detention facility officers," she said.

Leonida pointed out that Christopher gave his name correctly, even after Camacho reiterated a second time that he was looking for "Desmond, not Christopher, Barfield." He also provided his correct date of birth. And Leonida noted that although the officers had all the information in front of them regarding Desmond's date of birth and physical description, they failed to notice the discrepancies. Fawell conceded as much in court about his scrutiny of Barfield's paperwork: "If the inference is, should I have looked at it closer, I probably should have. ... I neglected to do so." And in a tape of Fawell's all-points bulletin provided by Leonida, a female dispatcher is heard asking, "Okay, so he was released by accident?" and Fawell answers, "Yeah, it was sort of an error release."

Leonida said she doesn't believe Fawell's story about the conversation between him and Christopher about the brother's crime. "I think the sergeant is fabricating this entire conversation in an effort to justify his own error," she said in an interview. "If you look at the records, it's absolutely impossible that Christopher could have known the information that the sergeant claims Christopher told him. The two housing modules are completely separate; to get from one to the other you have to go through a series of up and down staircases. You can't shout or see from one to the other." Christopher couldn't even have known that his brother was in jail, because he already was incarcerated, she said. They couldn't communicate with each other because inmates can't receive calls, and they couldn't communicate with their mother because her phone blocks collect calls, the only kind inmates can make.

"They're presuming a level of sophistication on his part that's just absurd," Leonida said. "He's being led from room to room, doing what he thinks they want. The jail is as liable as he is, if not more so; they have a responsibility to know who they're letting out. There are murderers and rapists in there."

"Prison is a horrible place, and I'm not going to be a party to sending this kid to prison," she said. Barfield rejected the D.A.'s offer, and his case is scheduled to go to trial some time this week.

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