Every now and then comes a story about our criminal justice system so mind boggling that it's hard to believe it could have happened. But sadly it did.
When I first heard about a Delano man whose death row sentence may be overturned and, conceivably, his conviction overturned, my interest was piqued. Bear with me through this convoluted case, first reported by my TV colleague, Olivia LaVoice.
In 1991, 21-month old Consuelo Verdugo was rushed to Delano Regional Medical Center with severe injuries to her abdomen.
The child, along with her 9-year old sister, had been left in the care of Vicente Figueroa Benavides, the then-42-year-old common-law husband of the children's mother, who was at work. Consuelo was found to have multiple injuries on her head and ribs as well.
She died a week later. Two years later, Benavides was convicted and sentenced for the child's murder.
The Kern County District Attorney's office also claimed the murder happened in the course of a rape or sodomy and he was given the death penalty. On appeal, attorneys for Benavides argued he is developmentally disabled, presenting evidence he has the mental ability of a 7-year-old. In 2005, the California Supreme Court affirmed the conviction and death sentence.
But new evidence uncovered by the state-funded Habeas Corpus Resource Center in San Francisco has thrown this case in a whole new direction. Turns out some key medical records and photographs of the victim were never provided to an expert witness who testified for the prosecution. Without seeing that key evidence, Dr. Jess Diamond testified at trial that Consuelo Verdugo was sodomized.
"I have been very troubled by this case," wrote Dr. Diamond in a 2012 declaration.
The 21-month old baby's autopsy was performed by pathologist Dr. James Dibdin. He testified her cause of death was a result of penile penetration that directly caused injury to the anus, bowel and pancreas. And the graphic gruesome pictures of her genitalia were shown to the jury. In his declaration, Diamond now says Dibdin got it all wrong.
And just to be sure, Diamond said he consulted with another doctor, Astrid Happenstall Heger, considered the pre-eminent expert in the field of child sexual abuse and sexual assault. Diamond now concludes the child was not raped or sodomized and that the child's anal tears and swelling were caused by her medical condition rather than by trauma.
The Habeas Corpus petition contends the girl's injuries were inadvertently inflicted during medical procedures at at least two different hospitals, a point supported by Diamond.
In his declaration, Diamond tears into what he called an injustice. He wrote, "I am convinced that this case presents a tremendous failing of the criminal justice system. The jury in this case based its decision to convict and sentence Mr. Benavides to death on substantial and significant inaccurate medical information ... I do not believe Mr. Benavides received a fair trial and I provide this declaration in the hope that the current legal proceedings will correct this injustice."
Wow! There's something you don't hear every day from a respected expert for the prosecution.
Indeed, Diamond is admitting he too made a mistake when he took the stand during the trial and said Consuelo had been sexually assaulted. How many other professionals would publicly admit their mistake, especially in such a high stakes trial as this one? And after reviewing medical reports and photographs of the case, Dr. Hager also concludes the child was not sexually assaulted and minces no words. She calls Dr. Dibdin's autopsy conclusion, "So unlikely to the point of being absurd."
LaVoice also found Gordon Jones, one of the jurors who served on the case in 1993. He was blown away when she presented him with the new findings. "This is, like, unbelievable," said Jones. He was the lone holdout against giving Benavides the death penalty, he said. Then the jury foreman asked him to view the graphic pictures of Consuelo's genitalia one more time.
"He said, 'If that doesn't call for the death penalty, what does?'" Jones gave in and voted to execute Benavides. He said he would often dream about the case.
Deputy Attorney General Kenneth Sokolar, representing the prosecution, now concedes the death sentence should be vacated because the evidence presented at trial claiming sexual abuse was false. But even so, Sokolar claims there is still plenty of other evidence that shows Benavides is guilty of Consuelo's murder. He cites what he called inconsistent statements given by Benavides to police.
During the trial, Benavides' lawyer, Donnalee Huffman, argued it was possible the child's injuries could have been caused after being hit by a car outside of the family's apartment complex. But no neighbors could collaborate that claim. Benavides told police he was making dinner that evening, the child must have wandered outside and he found her lying on the pavement. Benavides worked as a farm laborer and had no prior criminal record.
The case was finally argued before the California Supreme Court on Jan. 3. "The false evidence permeated the entire trial proceedings," said Paula Fog, a Habeus Corpus attorney representing Benavides. "The prosecution relied on prejudicial and inflammatory photographs of Consuelo's genetalia to allegedly show to the jury how Consuelo had been sexually assaulted."
Sokolar countered that the false evidence amounted to "harmless error."
Two of the justices appeared appalled at the new evidence. "This is among the most hair-raising false evidence that I've encountered in all the time that I've been looking at criminal cases," said Associate Justice Carol Corrigan. Fellow Chief Justice Tani Cantil-Sakauye said the allegations of sexual assault were "like a bomb dropped on the jury" and precluded the jurors from considering that Consuelo's death may have been caused by something else.
Back to Dr. Atrid Hager. Not only does she believe Consuelo was not sexaully assaulted, but she's convinced "to a high degree of medical cetainty that Consuelo's abdominal and rib injuries were most likely caused by a vehicular accident rather than physical abuse."
Sokalar is asking the court to reduce Benavides' conviction to second degree murder and allow the Kern County District Attorney's office to either accept that judgement or retry the case. Attorneys for Benavides are asking the court to reverse the conviction and remand the case for a new trial.
Should the latter happen, Kern County District Attorney Lisa Green told LaVoice, it's unlikely her office would retry the case, which means Benavides would walk free after nearly 25 years on death row. A decision by the state Supreme Court is expected by April 3 or so.
Both sides now agree that one thing definitely happened to Consuelo: Her death was caused by blunt force trauma to her stomach. A trial has been held and a man was convicted. Wrongfully convicted? Given the way this case was presented, neither Vicente Benavides nor that 2-year-old girl received justice.
Contributing columnist Jose Gaspar is a news anchor/reporter for Telemundo Bakersfield and KGET. Email him at firstname.lastname@example.org. The views expressed are his own.