George Gage, a 77-year-old former electrician with no prior criminal record, is sitting in San Quentin State Prison in California serving a 70-year sentence for sex abuse crimes, even though his trial judge concluded the evidence against him was unreliable. He is serving hard time, suffering from glaucoma that has blinded him, with no apparent chance of release, even though prosecutors in his case-- including one who is now a California judge-- have hidden and misrepresented the import of evidence that might help exonerate him.
The story starts in Texas in 1990 when Gage married a woman named Wanda, who had two children, one of whom, Marian, was nine years old at the time. In 1993, the family moved to California. Two years later, Wanda learned that Gage had had an affair which resulted in a child and that he had been stealing money from family funds to pay for the child’s support. Wanda and George then split up and Wanda and her children moved back to Texas. Three years later, in 1998, Marian told Wanda that Gage had sexually abused her while they had lived together.
At first, Marian told Texas authorities that Gage had “inappropriately” touched her but that he had “never had intercourse with her and never tried to have penetration of any kind and never any kind of oral sex.” Then she told authorities that Gage had raped her. It was “a tumultuous time in Marian’s life,” a federal appeals court would later say, an understatement. “Around the time she reported the abuse, Marian apparently attempted suicide on several occasions and spent a significant amount of time hospitalized for mental illness.”
Texas officials reported the accusations to their counterparts in California, who promptly charged Gage with rape, sexual abuse, and lewd acts. There was no physical evidence linking Gage to any crimes. There were, of course, no witnesses to the alleged rapes. Prosecutors offered Gage a deal-- six years. He rejected it, telling them: “I am not a sexual offender.” The case went to trial and the question of the relevance and admissibility of Marian’s medical records was a big part of the pretrial discussions between the judge and the lawyers.
Prosecutors sought to ensure that those medical records were not introduced into the trial. Gage’s trial lawyer, incredibly, did not object to this tactic even though he was not shown the contents of those records. When the judge pressed the prosecutor about the records, asking if they contained any statements that were inconsistent, Christopher Estes, the deputy district attorney, told the court that there were no inconsistencies in the records and that Marian’s therapist had indicated that her patient “had always been consistent that the molestation had taken place.”
Gage was tried. Marian did not testify but her account was shared with jurors through a redacted version of the statement that she had made under oath during a preliminary hearing. The jury could not reach a verdict, so prosecutors tried Gage again. Again there were plea negotiations. This time prosecutors offered Gage a three-year deal. Again he turned them down, not wanting to plead guilty to a crime he insisted he did not commit.
During the second trial, Marian testified. There was no discussion this time of Marian’s medical records, She told jurors that Gage routinely abused her. Wanda, her mother, also testified against her ex-husband, telling jurors that while she had seen him demean Marian, and hit her once, she, Wanda, had seen no evidence that Gage had raped her daughter while they all lived together.
Gage took the stand to defend himself, denying that he had raped his ex-stepdaughter and claiming that Marian, or Wanda, or both, had made up the allegations to get back at him for his affair and love child. A defense expert told jurors that Gage did not fit the profile of a child sex offender. But based on the testimony of Marian and Wanda Gage was convicted by that second jury. And so it was left to the trial judge to determine Gage’s sentence.
To do so, Los Angeles County Superior Court Judge Carol Koppel asked Estes for a copy of Marian’s medical records-- the ones that had not been introduced at either trial-- to evaluate the prosecution’s request for a longer sentence. Prosecutors refused to give the records to the judge, even for a private review, arguing that Marian did not want the records shared because of their sensitive nature. The judge, underwhelmed by Marian’s testimony on the witness stand, then threatened to set aside the conviction unless she was allowed to view the records. Prosecutors relented. The judge saw the records and at the same time Gage’s lawyers filed a motion for a new trial.
The records have never been made public; Gage’s lawyers, even today, have never seen them1. When Judge Koppel finally read the records she reacted swiftly, vacating Gage’s convictions and granting him a new trial, concluding that the inconsistencies in the testimony of Marian and Wanda deprived Gage of his constitutional right to a fair trial. Marian and Wanda were not credible witnesses, Koppel concluded, based on what they had told the mental health professionals who saw them. Her written order is brief but scathing in its criticism of the testimony of the mother and the daughter.
For example, Judge Koppel (since retired) noted that that Wanda, the mother, had told a therapist that Marian, her daughter, was “a pathological liar [who] lives her lies.” The records cited by the judge also revealed that Marian’s accusations against Gage occurred right after Marian had fought intensely with her mother over Marian’s boyfriend, a heroin dealer, whom Wanda had reported to the authorities (and who was subsequently sent back to prison). Marian, meanwhile, barely talked about her purported abuse at Gage’s hand during her mental health treatment. The gist of the report, the judge concluded, was that Marian’s suicidal tendencies had very little to do with George Gage and much more to do with her boyfriend and her mother.
All of this information was, in some fashion, “exculpatory,” in that it would have helped Gage’s defense. Marian’s credibility, undermined by her own mother, surely was a vital part of the prosecution’s he said/she said rape case. Moreover, giving jurors another explanation for the deterioration of Marian’s mental health-- her mother’s intercession with the boyfriend-- also supported Gage’s defense. All of it was known to Estes, the prosecutor, when he told the court, before Gage’s first trial, that there were no “inconsistencies” in the records. What the trial judge found instead was that the medical records were riddled with inconsistencies undermining the prosecution’s theory of the case.
Here the story gets even worse. Estes did not seek to try Gage again, this time with jurors allowed to see the medical records. He did not back away from a case that had been exposed as staggeringly weak. He did not offer Gage another plea deal or share the records with defense attorneys to allow them to press additional claims. Instead, Estes appealed the judge’s ruling-- and won. The California Court of Appeal promptly reinstated the conviction, holding that the trial court improperly relied on evidence-- Marian’s medical records-- that had not been introduced to jurors.
The Court of Appeal went even further. Offended that Judge Koppel had obtained and relied on the records to overturn Gage’s conviction, prosecutors asked that she be removed from the case because her ”independent investigation” amounted to evidence of judicial “animus” inconsistent with objectivity. In other words, the judge who relied on what was arguably the single most important document in the case to protect Gage’s right to a fair trial could not continue to preside over it because she, the judge, was acting unfairly. .
The appeals court removed Judge Koppel even though the panel never claimed that the information she cited was inaccurate. The court reassigned the case to another judge and then to a third judge who promptly gave Gage a 70-year sentence. When Gage’s attorneys pressed the appeals court about the medical records, asking that they be disclosed, the court concluded, without elaborating, that there was “nothing in [the] records which could be of assistance to defendant.” At no time did this intermediate appellate court ever explain why Estes’ conduct did not violate his obligations under Brady v. Maryland, the Supreme Court ruling which requires prosecutors to turn over to the defense evidence that could help exonerate a defendant.
The California Supreme Court affirmed these decisions by the California Court of Appeal without issuing a substantive ruling. And when Gage took his claims to federal courts the judges there rejected him, too, arguing that he had waited too long before raising the issues and that they were barred by federal habeas rules from helping him. (Part of the delay resulted from the fact that Gage had no attorney following his conviction and had to rely on a prison lawyer, a fellow inmate, who simply made the wrong arguments.)
No appellate court reviewing this case, in other words, has ever squarely addressed the issue of prosecutorial misconduct or has demanded that Gage be tried with this vital evidence included in the record. No court has even demanded a hearing to evaluate the contents of the medical records and how they might play into a retrial-- for a while, even, the records appeared to have gone missing. Estes, who was elected to the Los Angeles County Superior Court five days after the jury convicted Gage, did not respond to a request for comment for this story.
To give you a sense of how extraordinary are the circumstances here, and how procedural rules serve to block even well-meaning judges from administering justice, spend a few minutes watching the oral argument in this case before the 9th U.S. Circuit Court of Appeal. The argument, which took place April 2015, features a memorable exchange between the 9th Circuit panel and David Cook, a deputy attorney general for the state. The three judges seem to agree, as one puts it, that the defendant has “a strong case on the merits” but confronts “a procedural obstacle.”
“None of this gives me any more confidence that the conviction was valid,” the appellate judge admonished. “And the prosecutor’s job is to do more than secure convictions...You’re ultimately trying to do justice.”
Here is the argument in its entirety — jump ahead 13 minutes or so for the grilling of a state attorney:
In spite of the appellate judges’ skepticism about whether justice was being served, Gage is likely to die in prison, with the one piece of evidence that could set him free unseen by a jury or even his own lawyers.
Supported by the Louis Lowenstein Award for Criminal Justice Commentary.
An earlier version of this article incorrectly referred to an argument as occurring "last April." The argument occurred in April 2015.