Tuesday, 10 April 2007

Conviction vacated for man wrongly imprisoned for 10 years

Conviction vacated for man wrongly imprisoned for 10 years

By Rodney Foo
Mercury News
San Jose Mercury News Article
Launched:04/05/2007 11:39:40 AM PDT

In less than a minute in court this morning, a case that once unjustly kept Kenneth Wayne Foley in prison for 10 years was overturned, wiped clean from the books.

Foley, 38, had been wrongly convicted of breaking into a truck and received a 25 years to life sentence on a third strike. He was released from prison last year after new evidence - a confession by the actual burglar - coupled with the help of his defense attorney, Steve Nakano, the Northern California Innocence Project, and a decision by the District Attorney's Office to re-investigate the case led prosecutors to believe Foley was really innocent.

The final episode in the saga was played out today before Superior Court Judge Ray Cunningham who granted a writ of habeas corpus, filed by the Northern California Innocence Projects, that vacated the conviction.

"Mr. Foley, you are discharged of this matter," Cunningham said. "Good luck to you."

With that, Foley walked out the court doors, no longer haunted by the decade-old conviction.

Asked what he thought as the judge overturned the case, Foley replied: "That it's finally over ... I got my fresh start and now I'll be OK."

The re-examination of his case came in the aftermath of the Mercury News series, "Tainted Trials, Stolen Justice," which examined questionable conduct by prosecutors, defense attorneys, and judges which led to wrongful convictions.

In 1995, Foley was accused of burglarizing a truck parked at a Campbell lot. Robert Buck, the owner of the truck, came out with a gun to stop the crime, confronting the burglar, who was also accompanied by a woman.

Buck identified Foley as the burglar. But at trial, Luke Gaumond testified he was the actual burglar. Jurors convicted Foley after prosecutor Charles Slone told them he was physically sickened" by the lies told by the defense and that a "fraud is being perpetrated" on the jury to save Foley from a long sentence.

The judge found Slone had crossed the line into misconduct at times during final arguments but the Foley was subsequently convicted.

As years passed, a persistent Gaumond contacted Nakano asking what could be done to free Foley. After the publication of the Mercury News series, Nakano called then-Chief Assistant District Attorney Karyn Sinunu, who then assigned Deputy District Attorney David Angel to re-examine the case. Angel's work cast doubt on the conviction, leading then-District Attorney George Kennedy and Judge James Emerson to write the state Department of Corrections, recommending that Foley be resentenced.

Foley, who by then had been in four state prisons, was released last year and today had the burglary conviction overturned.

"Mr. Foley spent a long time in prison," Angel said, "but there is hope and satisfaction in that the system eventually was able to bring the truth to light."

Contact Rodney Foo at rfoo@mercurynews.com or (408) 920-5258.

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