Almost 14 years after Campbell, CA burglary, woman's conviction overturned By Fredric N. Tulsky Mercury News 11/29/2008 Two years ago, authorities realized that Mashelle Bullington was not the gun-toting burglar they thought when they locked her away for more than three years in prison. But it was not until last week, during a brief hearing in a Sunnyvale, CA courtroom, that her name was finally cleared. Victimized initially by a wrongful conviction, Bullington then watched helplessly as her case stayed stuck for months in a complicated legal morass until Judge Douglas Southard finally overturned the felony conviction. The court action resulted from the combined efforts of the Northern California Innocence Project and Deputy District Attorney David Angel, who wrote in court papers that Bullington had been the victim of "perjured testimony and false evidence" at trial. Authorities knew that much since Thanksgiving week two years ago, when they arranged the release of Kenneth Foley in connection with the same incident. But Bullington's case ended up posing bigger legal challenges than Foley's. On Wednesday, Angel called Bullington a "heroine," saying of the overturned conviction, ''I am so glad we were able to accomplish this." The case dates back to 1995, when a man tried to break into a truck in the parking lot of a Campbell business while a woman waited in a car. The business owner, who went outside and chased them away, said the woman had pointed a gun at him. He copied down the license number, and police traced the car to Bullington. The business owner identified Foley and Bullington as the two burglars. The jury heard another man, Luke Gaumond, take the stand and say he was the burglar, not Foley. But the jury discarded his testimony and convicted Foley, who, as a third-striker, received 25 years to life in prison; Bullington, who had no prior record, was sentenced to four years and four months for the felony, a stiff sentence that reflected the gun use. Bullington, 41, still recalls the "hell" of prison, and of being taken away from her two young children, ?7 and 3. While she admitted she used drugs in those days, Bullington said she had never held a gun or even contemplated a violent crime. She served her time, was reunited with her children, and straightened herself out. She long ago stopped using drugs, and today is a project manager for a South Bay audiovisual equipment supplier. "It is inspirational how she turned her life around," Angel said. The unfairness of the conviction stayed with her. To her good fortune, the case was reopened following the MediaNews series on wrongful convictions in 2006, "Tainted Trials, Stolen Justice." Gaumond read the series and called Foley's attorney, Steven Nakano, urging him to act. Nakano then contacted the Santa Clara County District Attorney's Office. After reinvestigation, prosecutor Angel concluded that Foley had nothing to do with the crime, and that Bullington's conduct was falsely portrayed by the business owner who fingered her. Bullington describes what really happened this way: The night of the crime, Gaumond had offered Bullington money to borrow her car; because she did not trust him, she insisted on going along. As he drove around for hours, looking for recycling materials he could trade for cash for drugs, Bullington went to sleep. She woke up as Gaumond was trying to break into a truck he saw parked in a business lot — an effort that was aborted as the business owner showed up and ordered them to leave. But even as officials realized the crime was nothing like the jury heard, there were several factors that Angel said worked against Bullington. For one thing, her trial attorney did not take steps, as Nakano did, to correct the injustice. For another, Foley was still locked up in 2006. That made the legal remedy clear — the ancient writ of habeas corpus, which allows authorities to reopen the case when they "have the body" of the accused. But Bullington was another matter, because she was no longer in custody. Angel and Linda Starr, legal director at the Innocence Project, traded a series of legal theories before concluding that Southard could rely upon habeas corpus. Angel wrote the court: "Ms. Bullington is innocent of the arming allegation. There is no harm in recognizing this truth. She deserves to have her name cleared. Our criminal justice system deserves the opportunity to correct this wrong." In an interview last week, a tearful Bullington said she was grateful to have the conviction overturned. But her pain lingers. "It did not create the miracle I had long expected," she said of the resolution of her case. "I still feel it inside."

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