Bad Rap, Vol. III

More than two years after sending him to prison, the Orange County District Attorney's office now admits Joshua Moore is innocent of an Aug. 29, 1998, robbery of a Fullerton video store.

You'd think they'd apologize. Instead, it seems district attorney officials are more interested in saving face—taking credit for belatedly clearing Moore's name and threatening to re-file charges against him in a separate, less serious case.

Moore—a.k.a. Big J-Mo—was convicted in late 1999 largely on the basis of his love of gangster rap. He is serving 12 years at Wasco State Prison near Bakersfield. Now it seems likely Moore will go free within weeks.

On June 18, the DA's office announced that it had discovered evidence proving Moore was working as a cashier at the Huntington Beach branch of Las Vegas Golf & Tennis when the Fullerton robbery occurred. The evidence: Moore's fingerprint on a golf-store receipt stamped about the time of the robbery.

Speaking about Moore's conviction in the Fullerton robbery, Brian Gurwitz, the DA attorney handling the case, said, “We don't have any confidence in the reliability of that verdict.”

It was Gurwitz who suggested testing the work receipts for fingerprints after the OC Weekly pointed out that his office had never interviewed Moore's co-worker, store manager Sean Barbosa, about Moore's whereabouts the day of the crime (“DA: Please Call This Guy!” April 6).

But instead of immediately releasing Moore, the DA went into damage control. Prosecutors now plan to offer Moore a deal at a July 6 hearing: plead guilty to a separate felony—acting as the getaway driver in a November 1998 ATM robbery in Orange—and receive a sentence of time already served.

Moore has never denied being the getaway driver in that case, but he told police he had no idea his passenger, Dron Botts, intended to rob anyone. The victim's own testimony seemed to support Moore's claim: testifying at Moore's trial, Brandon Nakamura said he never even saw Moore. David L. Tucker, Moore's defense attorney, refused to say whether his client will seek a new trial or simply plead guilty to the ATM robbery charge.

In her 1999 prosecution of Moore, DA attorney Cheri Pham linked the ATM and video-store robberies to persuade jurors they were dealing with a career criminal. Lacking any physical evidence tying him to the video-store robbery, however, Pham cited Big J-Mo's rap lyrics to fill in the blanks.

“Mr. Moore is a man who likes to make his life reflect reality,” Pham told the jury during closing arguments. “He likes rap music because it reflects real life because real life is full of crimes. Well, on Aug. 29, 1998, and Nov. 24, 1998, that's exactly what he did. He wanted to make his life real, and he committed those two robberies.”

Gurwitz asserted that “re-filing” the ATM robbery charge makes sense. “We don't think it's fair to judge [Moore] on the ATM robbery case in the context of the [Fullerton] case,” he said. “But what we are going to do is pursue a conviction in the case in which he was the getaway driver. . . . He has the right to either plead guilty to that offense or go to trial.”

That would be an odd stretch even for a notoriously conviction-happy DA's office. In the same ATM robbery, prosecutors dropped all charges against another passenger in Moore's car, despite evidence that he was standing next to Botts when the robbery took place (“Bad Rap,” March 2). Moore was sitting in his parked car 100 yards away.

Nevertheless, it's now clear that the DA will attempt to use Moore's thin connection to the ATM robbery as justification for its own errors—and for its refusal to release Moore immediately.

“Moore was sentenced to 12 years in custody for the Fullerton robbery, and as to the ATM robbery, he got four years concurrent,” Gurwitz explained. “Even if he had never been convicted of the Fullerton robbery, assuming he was convicted of the ATM robbery, that time has not yet elapsed; he has a couple of months left on his sentence. Fortunately, the defendant hasn't served any time in custody as a result of a verdict that we don't believe is supported by the evidence.”

Gurwitz's claim is directly refuted by Orange County Probation Department officials. In signing off on Moore's prison sentence, they noted that Moore had no prior record and would have been a prime candidate for probation—if he had not been convicted of using a gun in the Fullerton robbery. In a point of irony, the same officials noted that they were uncomfortable with Moore's failure to “accept responsibility” for the video-store heist.

Moore's family members say they're offended by the DA's attempt to downplay their mishandling of Big J-Mo's case.

“The DA took the time to prove to himself that my son was telling the truth in the Fullerton matter,” Cynthia Moore said. “What makes them think he's telling a lie in the Orange incident? Now they're giving him the choice between a new trial and having a felony on his record.”

Moore said the least the DA should do to atone for unjustly prosecuting her son would be to drop all the charges against him—or at least reduce the ATM robbery charge to a misdemeanor. “We're jubilant about the Fullerton case and happy to know the DA's office has mud on its face over it, but we are very dissatisfied that they want to take a kid and keep slamming him for the rest of his life for something he didn't do,” she said.

“By making the offer, Mr. Gurwitz wants to take the easy way out for the district attorney's office,” said Jim Dinwiddie, Moore's uncle and a former OC grand jury member. “He is also attempting to coerce a person thirsting for freedom into pleading guilty to a charge that he knows he is not guilty of—by offering an immediate resolution to a very bad and unnecessary experience. It is a very tempting offer but one that most likely will have lifelong adverse consequences for Joshua.”