Destiny Willeen Jacobo (hereinafter “Destiny”; born March 29, 1994; died December 6, 1995, aged 21 months and 8 days) was the victim of medical malpractice and professional negligence on at least four occasions: (1) Dr. Boggs used too much force in administering cardiopulmonary resuscitation (hereinafter “CPR”) to Destiny, causing pneumothorax which precipitated Destiny’s death (see, e.g., Reporter’s Trial Transcript for People v. Vildosola & Jacobo, Superior Court No. GA026525 (hereinafter “RT”) (Exhibit P1), page 1313 line 13-14 (hereinafter notated as, e.g., RT 1313 L. 13-14); RT 1344 L. 11-17; RT 1839 L. 17-24); (2) Dr. Thomas Hse-Tun Lin, Destiny’s pediatrician, misread an X-ray of Destiny’s lungs on May 12, 1995, finding Destiny’s chest to be “normal” (RT 748 L. 10-11), when in actuality the film revealed congestion associated with bronchitis or pneumonia (RT 1812 L. 2-14); (3) Dr. James Kemp Ribe conveniently misplaced critically important brain material, but he was allowed to argue that said material, despite never being admitted into evidence, was proof that Destiny was a Shaken Baby Syndrome (hereinafter “SBS”) victim (cf. RT 2213 L. 24-2214 L. 7); and (4) Ribe misinterpreted or falsified Destiny’s autopsy findings, spuriously claiming that Destiny died of SBS.
Destiny was being treated at
medical license was suspended for a five-year period, beginning on
physician, hospital, or clinic that induces, fails to adequately diagnose, or
mistreats pneumothorax is liable for, inter alia, wrongful death, malpractice,
and negligence. Bunting v.
The negligence of Boggs was compounded when pathologist Ribe ignored overpowering evidence that Destiny did not die of SBS, but instead succumbed to pneumothorax (see § II, infra), pneumonia (see § V, infra), blood dyscrasia (see § IV, infra), negligent CPR (see § III, infra), immunological deficiency (see, e.g., RT 1810 L. 24-25 (“jeopardized immune system”)), and other possible causes, such as SIDS. Destiny had many of the signs of SIDS, the initial official cause of death for her half-sister Carissa Arlene Neria (hereinafter “Carissa”). Because there was a risk that Destiny might also die of SIDS, she received apnea monitoring during her first six months. Although Destiny continued to have sleeping and breathing problems throughout her life, apnea monitoring was discontinued because her foster parents, the Garzas, were no longer willing to pay the bill (RT 1859 L. 10-13; RT 2220 L. 12-13).
Destiny would be alive today if her
lungs had not been destroyed at Santa Marta Hospital. Destiny was the victim of
iatrogenic injury. Specifically, her
lungs were “popped” by excessively forceful cardiopulmonary resuscitation
administered by Joseph Dodridge Boggs, Jr. while she was a patient at
properly and promptly treated, pneumothorax (i.e., collapsed lungs) causes
hypoxia and anoxia, and is invariably fatal.
Many physicians are unqualified to handle all of the complications of
pneumothorax, and depend upon pulmonary specialists. Bunting, supra, at 1147-1148
(general practitioner allegedly treated pneumothorax inadequately; patient
died). No pulmonary specialist was
consulted while Destiny was at
can occur spontaneously in individuals with pulmonary infections. Quigley v. Industrial Accident Commission
Physicians are liable for professional negligence or medical malpractice when they negligently cause pneumothorax, or when they fail to treat pneumothorax in accordance with the standard of care expected of medical doctors. See, e.g., Breazeal, supra, at 1336 (doctors who allegedly caused, misdiagnosed, and mistreated pneumothorax held liable for negligence and wrongful death). Boggs caused Destiny’s pneumothorax, and was so negligent in his treatment that he arranged to transport Destiny nearly twenty miles away in order to shift responsibility for Destiny’s respiratory distress to another health facility.
III. DESTINY WAS LETHALLY INJURED BY AGGRESSIVE AND EXCESSIVE RESUSCITATIVE EFFORTS
Destiny was exceedingly vulnerable
to injury caused by vigorous cardiopulmonary resuscitation: Not only pneumothorax but also bleeding, because
she suffered from a coagulation deficiency. When Ms. Vildosola first
noticed that Destiny had stopped breathing, she performed CPR (RT 1805 L. 24;
RT 1634 L. 21-1635 L. 5). Then, CPR was
administered by a lifeguard named Gary Robert Hernandez, who was visiting the
Jacobo home on December 5, 1995 (RT 1552 L. 6-22 & RT 1637 L. 20-23). CPR was also administered to Destiny by Ms.
Vildosola during the car ride to Santa Marta Hospital (see RT 1639 L.
16-19 and Case Report, County of Los Angeles, No. 95-09550, Dr. Z. Reda,
December 6, 1995 (hereinafter “CR”) (Exhibit P5) (“Mother calling
rescue and attempting CPR”)). Next, CPR
was performed “six or seven times” at
resuscitation, especially when performed improperly on infants, produces
symptoms of SBS--including retinal hemorrhaging. See Myron v.
Some courts have employed expert witnesses to determine whether an infant received improper or excessively forceful CPR. See In re C.R.S. (Sup. Ct. PA 1997) 696 A. 2d 840, 845 (pediatric ophthalmologist rendered opinion as to retinal hemorrhages in case where parents who performed CPR were wrongly convicted of child abuse); People v. Wheeler (CA 4th IL 1998) 299 Ill. App. 3d 245, 248, 701 N.E. 2d 178 (ruling out CPR and osteogenesis imperfecta as causes of rib fracture and thrombocytopenia as explanation for bruising); Frank v. Commonwealth (CA VA 1999) 1999 Va. App. Lexis 298, 5 (in SBS case, medical specialists ruled out, inter alia, aggressive CPR, hypoxia, apnea, and reflux); State v. Gulertekin (CA 10th OH 1998) 1998 Ohio App. Lexis 5641, 12-13 (doctor ruled out CPR, choking, and esophageal reflux); State v. Wiley (CA 9th OH 1995) 1995 Ohio App. Lexis 5625, 11-12 (postmortem CPR unlikely to explain subdural or subarachnoid hemorrhaging); George v. State (CA 9th TX 1997) 1997 Tex. App. Lexis 5802, 3-4 (rib fractures in 6-week-old alleged SBS victim ruled out CPR as cause of death).
received CPR numerous times, and with such force that her lungs were broken
Destiny’s subarachnoid and retinal hemorrhaging, petechiae, and other indications of bleeding are not diagnostic of SBS, but are instead attributable to a blood coagulation defect caused by heredity, vitamin K deficiency, anemia, liver disease, and/or other factors (cf. RT 1782 L. 10-1783 L. 15). Coagulopathic diseases are often misdiagnosed as SBS. Scimeca, P.G.; Cooper, L.B. & Sahdev, I. (1996) Suspicion of Child Abuse Complicating the Diagnosis of Bleeding Disorders, 13(2) Pediatric Hematology & Oncology 179-182. See also, e.g., Rutty, G.N.; Smith, C.M. & Malia, R.G. (1999) Late-Form Hemorrhagic Disease of the Newborn: A Fatal Case Report with Illustration of Investigations that May Assist in Avoiding the Mistaken Diagnosis of Child Abuse, 20(1) Am. J. Forensic Med. Pathol. 48-51 (hematological assays advised to avoid misdiagnosis of child abuse); Choo, K.E.; Tan, K.K.; Chuah, S.P.; Ariffin, W.A. & Gururaj, A. (1994) Haemorrhagic Disease in Newborn and Older Infants, 14(3) Annals of Tropical Paediatrics 231-237 (all 42 hemorrhagic infants in study had prolonged prothrombin and partial thromboplastin times corrected by vitamin K administration; subdural hemorrhage was the commonest form of intracranial bleeding, followed by subarachnoid hemorrhage); Shemie, S. & Cutz, E. (1995) Late Hemorrhagic Disease of the Newborn: A Fatal Presentation of Hepatobiliary Disease Masquerading as Shaken Baby Syndrome, 10(6) J. Intensive Care Med. 315-318 (late hemorrhagic disease of infancy classically presents with intracranial hemorrhage in coagulopathic children who receive no Vitamin K prophylaxis); Vitamins for Seeing (1990), 16(4) Compr. Ther. 62 (vitamin K deficiency causes retinal hemorrhages in neonates); Strijks, E.; Poort, S.R.; Inatomi, Y.; Inoue, T.; Visudhiphan, P.; Bhanchet, P.; Lakanapichanchat, C. & Chiemchanya, S. (1974) Intracranial Hemorrhage in Infants due to Acquired Prothrombin Complex Deficiency, 41(1) J. Neurosurgery 14-19 (spontaneous bleeding cured with intravenous vitamin K and fresh blood transfusion to correct coagulopathy and anemia); Hamada, Y.; Mizoguchi, M.; Ishibashi, H.; Nagata, S. & Matsuno, H. (1994) A Postoperative Intracranial Hemorrhage due to a Vitamin K Deficiency in Treated Severe Subarachnoid Hemorrhage Patients, 3(1) Japanese J. Neurosurg. 59-64 (describes patients with insufficient dietary vitamin K whose subarachnoid hemorrhages spread intracerebrally); Scheiber, Viera (March 31, 1999) Shaken Baby Syndrome: The Vaccination Link, New Vegetarian and Natural Health, 61-63 (a side effect of DPT (diphtheria, pertussis (whooping cough), tetanus), OPV (oral polio vaccine), and HiB (H. influenza type B) shots is thrombocytopenia, characterized by easy bruising, petechia, and brain hemorrhages, and often appearing months after the vaccination); McNamara, John J.; Baler, Robert & Lynch, Ellen (1985) Ehlers-Danlos Syndrome Reported as Child Abuse, 24 Clinical Pediatrics 317 (in Ehlers-Danlos syndrome, minor trauma causes bruising, ecchymoses, and hematomas mistaken for child abuse). See generally Lyon, Thomas D.; Gilles, Elizabeth E. & Cory, Larry (1996) Symposium: Child Abuse: Medical Evidence of Physical Abuse in Infants and Young Children, 28 Pacific Law J. 93-167, 151, 154, 156 & 160 (coagulopathy is cause of subarachnoid and retinal hemorrhages, especially when subdural hematomas absent), citing Garcia, Julio H. & Anderson, Michael L. (1991) Circulatory Disorders and their Effects on the Brain, in Textbook of Neuropathology (Richard L. Davis & David M. Robertson, eds., 2nd ed., 1991), 621, 701 (techniques for diagnosing bleeding disorders). Cf. Renier, W.O.; Gabreels, F.J.M. & Bertina, R.M. (1999) Hereditary Prothrombin Deficiency Presenting as Intracranial Haematoma in Infancy, 30(6) Neuropediatrics 320-324 (parents of infant with bleeding disorder were accused of child battering, because socioeconomic status was unstable).
Because hematological disorders can produce all of the symptoms of SBS, it is mandatory that infants with subdural hemorrhage be subjected to a multidisciplinary investigation. Before considering an SBS diagnosis, the child should receive a social assessment, expert ophthalmoscopy, a radiographic skeletal survey with either a bone scan or repeat survey, coagulation screening, and a neuro-radiologic analysis. Hartley, L.M. & Khwaja, O.S. (2001) Glutaric Aciduria Type 1 and Nonaccidental Head Injury, 107 Pediatrics 174-176 (child with glutaric aciduria causing subdural bleeding misdiagnosed as having nonaccidental injury (hereinafter “NAI”)), citing O’Hare, A.E. & Eden, O.B. (1984) Bleeding Disorders and Non-Accidental Injury, 59 Archives of Disease in Childhood 860-864. Another recommended protocol is examination by a pediatric ophthalmologist and pediatric neurosurgeon, Computerized Axial Tomography (hereinafter “CAT” or “CT”) and Magnetic Resonance Imagery (hereinafter “MRI”) brain scans, a detailed evaluation and medical history by a pediatrician trained in child abuse, complete blood cell (CBC) and platelet counts (including hemoglobin/hematocrit), and clotting studies (bleeding time, mild prothrombin time (PT), activated partial thromboplastin time (PTT), thrombin time (TT), fibrinogen, fibrin degradation products (FDP)). Morris, Mark W.; Smith, Sally & Cressman, Joanne (2000) Evaluation of Infants with Subdural Hematoma who Lack External Evidence of Abuse, 105 Pediatrics 549-553 (subdural bleeding is often the only indication of abuse). See also Harley, J.R. (1997) Disorders of Coagulation Misdiagnosed as Nonaccidental Bruising, 13(5) Pediatric Emergency Care 347-379 (cites cases where children with coagulation disorders were wrongly thought to be victims of NAI); Wynne, Jane & Hobbs, Chris (1998) Shaken Babies, 352(9130) Lancet 815 (diagnosing child abuse is like solving a jigsaw puzzle), citing Lazoritz, S.; Baldwin, S. & Kini, N. (1997) The Whiplash Shaken Infant Syndrome: Has Caffey’s Syndrome Changed or Have We Changed his Syndrome? 21 Child Abuse and Neglect 1009-1014. Cf. Limbos, Mary Ann P. & Berkowitz, Carol D. (1998) Documentation of Child Physical Abuse: How Far Have We Come?, 102 Pediatrics 53-58 (physician documentation of child abuse did not improve during 1980-1995).
Coagulopathy is a frequent complication of head trauma, particularly pediatric abusive head trauma. PT prolongation and activated coagulation are strongly associated with the extent of parenchymal brain damage. If parenchymal brain damage is absent, coagulation may be caused by a preexisting hemorrhagic diathesis. Coagulation abnormalities are also strongly related to severity of illness, and are especially common in fatal SBS cases. Hymel, Kent P.; Abshire, Thomas C.; Luckey, Dennis W. & Jenny, Carole (1997) Coagulopathy in Pediatric Abusive Head Trauma, 99 Pediatrics 371-375 (among pediatric abusive head trauma patients with parenchymal brain damage who died, 94% displayed PT prolongations, and 63% had evidence of activated coagulation). Cf. Gotthold, William E. (1986) Bleeding Disorders and Non-Accidental Injury, 59 Arch. Dis. Child. 860-864 (8 of 50 children diagnosed with NAI had bleeding abnormalities).
Doctor John Patrick Ryan examined Destiny’s hematological tests, and found that Destiny’s platelet count was 97,000 (compared to a normal reading of 140,000 to 450,000 platelets per milliliter), which is about 31% below the minimal normal reading (see RT 1782 L. 10-24). Platelets are vitally important in blood coagulation. Destiny’s prothrombin (PT) measure was 99 seconds (compared to 11.9 seconds for the control), also strikingly subnormal (RT 1783 L. 3-5). Another crucial blood clotting factor is thromboplastin. Destiny’s partial thromboplastin time (PTT) was over 100 seconds, compared to a 29.9-second control time—-again severely below normal (RT 1783 L. 11-15). Destiny’s coagulation system was so seriously compromised that the type of bleeding observed in Destiny would require four to five times more force to produce in a normal infant (RT 1784 L. 25-27). In other words, Destiny bruised very easily—-like a child with leukemia, or a hemophiliac (RT 1785 L. 5-7).
Destiny also suffered from an immunological deficiency. Her thymus gland weighed only seven grams, compared to a normal weight of 35 grams in a 21-month-old baby. RT 2111 L. 20-21. Her repeated bouts of otitis media (RT 1810 L. 17-18), rhinitis, bronchitis, and even pertussis (RT 1810 L. 19-20) suggest compromised immunity (RT 1810 L. 16 & 24-25). A complete blood count (CBC) might have uncovered a weakened immune system, which would explain the development of pneumonia and/or meningitis.
We may never know whether a coagulopathy or other blood-related disorder contributed to Destiny’s death, because there was no hematological consultation or blood analysis while Destiny was hospitalized or during her autopsy, and Dr. Ribe failed to make even one slide of the liver for microscopic examination (RT 1845 L. 17-1846 L. 4). Because of these severe evidentiary shortcomings, habeas corpus relief should be granted.
A principal cause of Destiny’s death was pneumonia (see, e.g., RT 1344 L. 20-26 (“well-developed acute bronchopneumonia”); RT 1807 L. 2-5; RT 1839 L. 4-7 & 10-11; and RT 1818 L. 3-10 (Destiny had pneumonia for at least “a couple of days” before her death)) caused by haemophilus influenza meningitis, or (less likely) streptococcus pneumonia meningitis. See Friedman, E.M.; McGill, T.J.I. & Healy, G.B. (1990) Central Nervous System Complications Associated with Acute Otitis Media in Children, 100(21) Laryngoscope 149-151 (of 92 patients (61% under 12 months of age) having otitis media concurrently with other central nervous system (CNS) disease, 91% had meningitis, with a “high incidence of haemophilus influenza type-B” (HIb)) and Kaplan, S.L. (1995) The Emergence of Resistant Pneumococcus as a Pathogen in Childhood Respiratory Tract Infections, 10(1) Seminars in Respiratory Infection 31-36 (streptococcus pneumonia is the most common cause of recurrent otitis media and sinusitis in infants, and remains an important cause of pneumonia and meningitis). Shockingly, Ribe never mentioned pneumonia as a cause of death, despite overwhelming evidence in his autopsy findings (e.g., AR 9 (Respiratory System) (“lung tissue is congested”); RT 1344 L. 11-17 (Ribe testifies that Destiny died from bilateral pneumothorax (i.e., “popped lungs”) caused by Dr. Boggs’ CPR efforts at Sta. Marta Hosp., and pneumonia (RT 1344 L. 24-25 (Ribe testifies that Destiny had “acute bronchopneumonia in at least one lung, possibly both”)))), particularly the microscopic slides (see Microscopic Description, Autopsy of Destiny Jacobo (hereinafter “MR”) (Exhibit P8), pp. 1-2, SLIDES 2-5; RT 1807 L. 2-1811 L. 4 (describing the evidence of pneumonia in Ribe’s microscopic sections of lung tissue); RT 1812 L. 2-14 (X-rays revealed Destiny’s lungs diffusely congested, causing “poor inspiration”)).
not only ignored his own overwhelming microscopic evidence of pneumonia, but
even failed to consider Destiny’s medical record from Thomas Lin, M.D., Destiny’s pediatrician during almost all
of her life (RT 744 L. 16-24 & 748 L. 20-21; RT 2219 L. 4-13). Dr. Lin detected otitis media on five
separate occasions (e.g., RT 746 L. 23; RT 750 L. 26-28; RT 751 L.
13-15; 752 L. 2-3; RT 752 L. 19-22; RT 1098 L. 20-1099 L. 8), and treated
Destiny several times for otitis media (RT 750 L. 26-751 L. 3 (Suprax;
unsuccessful tx); RT 752 L. 17-21 (Pediazole; unsuccessful tx)), eye infections
(e.g., RT 751 L. 21-27 (“left eye was red and draining mucus”); RT 752
L. 10-11 (L. conjunctiva red)), and respiratory problems (RT 746 L. 22; RT 748
L. 3; RT 750 L. 8-13; RT 750 L. 21-25; RT 751 L. 8-12; RT 2219 L. 14-17). In addition, on or about
One common pneumonic pathogen, Haemophilus influenza, is also the leading cause of bacterial meningitis in children under five, and is particularly common from one month to four years of age. See Asmar, B.I.; Slovis, T.L.; Reed, J.O. & Dajani, A.S. (1978) Hemophilus Influenza Type B Pneumonia in 43 Children, J. Pediatrics 389-393 (mean age of patients was 26 months; associated illnesses were upper respiratory infection (hereinafter “URI”), otitis media, epiglottitis, and meningitis). H. influenza meningitis often follows a URI, and frequently develops slowly. The infection typically spreads from the nasopharynx to the blood stream, and ultimately to the meninges, where it can be fatal. Risk factors include: (1) a recent history of otitis media, sinusitis, pharyngitis, or URI; (2) Native American ancestry, which increases the frequency threefold; and (3) exposure to a day-care setting. Among the American Indian population, the incidence of H. influenza is at least five (5) per 10,000 people, and much higher among infants.
The symptoms of H. influenza meningitis in infants include irritability, poor feeding, fever, stiff neck, nuchal rigidity, photophobia, opisthotonos, and seizures. Destiny had many of these signs: (1) She was irritable, manifested by frequent, high-pitched crying (RT 1088 L. 14-15 (Marina Francine Neria, Destiny’s step-sister, said that Destiny cried all day on December 5, 1995, the day that she died)); (2) she was difficult to feed (CR (“eating problems”)), and had lost considerable weight; (3) she had an elevated temperature during her frequent sicknesses, and was pyrexic prior to her hospitalization; (4) her neck was noticeably stiff and rigid long before her death; (5) she often stood or sat in an opisthotonic position, motionless and apparently staring into space (c.f., e.g., RT 994 L. 14-18 (Destiny was “standing like a statue”)); and (6) she often threw tantrums. See, e.g., RT 2364 L. 18 & 24.
In addition, Destiny had a chronic history of otitis media, a common precursor to H. influenza meningitis. According to the testimony of her pediatrician, Dr. Lin, Destiny had repeated ear (e.g., RT 752 L. 20-22) and eye infections (RT 750 L. 23-28 & 751 L. 23-752 L. 9). She was brought to Lin for treatment of otitis media on at least five occasions (RT 1810 L. 17-19). The conjunctivitis (RT 752 L. 10-11) and other eye inflammation (RT 751 L. 25), coupled with coughing and prolonged crying (RT 751 L. 9-10), may also explain Destiny’s retinal and ocular hemorrhages.
Moreover, the subarachnoid hemorrhaging detected during Destiny’s autopsy indicates a meningeal infection. Cf. Singer, M.B.; Atlas, S.W. & Drayer, B.P. (1998) Subarachnoid Space Disease: Diagnosis with Fluid-Attenuated Inversion-Recovery MR Imaging, 208(2) Radiology 417-411 (of 15 patients with meningitis, 6 had acute subarachnoid hemorrhage); Rabah, R.; Kupsky, W.J. & Haas, J.E. (1998) Arteritis and Fatal Subarachnoid Hemorrhage Complicating Occult Candida Meningitis, 122(11) Archives of Pathology and Laboratory Medicine 1030-1033 (undetected meningitis; death caused by subarachnoid hemorrhage). Subdural hemorrhaging in the absence of subarachnoid hemorrhaging would have pointed toward SBS, but Destiny had negligible subdural hemorrhaging (see AR 7 (only “subarachnoid hemorrhaging” noted); County of Los Angeles Care Facility Report, Long Beach Memorial Hospital, Case No. 95-09550, Zacharia Yehya Reda, M.D. (hereinafter “CFR”) (Exhibit P9) (“diffuse subarachnoid hemorrhage”); and CR (“diffuse subarachnoid bleed”)). Subdural hemorrhaging, typically bilateral, is the critical element in diagnosis of fatal SBS. See, e.g., Smith v. Montgomery (6th Cir. 1989) 884 F. 2d 580 (whiplashing can result in “bilateral thin acute subdural hematoma, and cerebral edema in death”); State v. Qualls (CA NC 1998) 130 N.C. App. 1, 502 S.E. 2d 31 (“primary components” of SBS are “subdural hematoma” combined with “retinal hemorrhages”) [Emphasis added.].
Furthermore, Destiny was of Native American ancestry. Both her mother and father are Mexican-American mestizos of mixed Spanish and Indian heritage, and each is at least 50% American Indian. Therefore, Destiny’s likelihood of contracting H. influenza meningitis was probably three or more times that of the average American infant.
had yet another risk factor: her domestic
situation. Although she was never placed
in a day care facility, she spent fifteen months in a foster home run by Joanne
and Daniel Garza. The Garzas ran a
“foster mill,” grossing about $600 per month for each child that they “took
in.” RT 577 L. 12-578 L. 14. The Garzas had an average of three or four
foster children at any given time while Destiny was in their abode (RT 577 L.
23-24 & 27-28), and children arrived and left constantly. RT 577 L. 23 (“The number changed all the
time.”); RT 577 L. 28 (“Children come and go all the time.”). During their careers as foster parents, the
Garzas already have had in excess of forty (40) children in their
domicile. Fleeman, Michael (August 14,
If Destiny’s pneumonia was not caused by H. influenza, she was probably the victim of pneumococcal meningitis, caused by Streptococcus pneumonia, also known as pneumococcus. S. pneumonia is the most common form of meningitis in adults. Infection is usually rapid, which would explain Destiny’s sudden death. Some of Destiny’s symptoms correspond with pneumococcal meningitis, including her high fever, stiff neck, and irritability. In addition, S. pneumonia meningitis is frequently preceded by an ear infection or URI. Destiny was chronically plagued by both otitis media and URIs.
Physicians often fail to diagnose infantile meningitis, and sometimes confuse SBS or child abuse with meningitis. Thorne v. Hennepin County (CA MN 1997) 1997 Minn. App. Lexis 1258, 4 (“doctors could only hypothesize alternative theories for the cause of bleeding, including possibly ‘an infarction,’ ‘cerebral edema,’ ‘acute apnea,’ ‘trauma,’ ‘aneurysm,’ ‘shaken baby syndrome,’ ‘meningitis,’ or ‘seizures’”); Myron, supra, at 1088-1089 (alleging medical malpractice for, inter alia, SBS misdiagnosis and failure to test for meningitis with spinal tap on six-month-old baby with fever and possible otitis media). For example, in Myron, an infant was rendered a spastic quadriplegic, allegedly because she had meningitis and was improperly resuscitated at the hospital. The infant’s mistreatment evidently resulted from a false diagnosis of SBS.
Likewise, Destiny was a victim of medical malpractice, because SBS was errantly diagnosed before pneumonia or meningitis were ruled out, and rigorous CPR (which was injurious to a baby as fragile as Destiny) was repeatedly administered (RT 1805 L. 24; RT 1634 L. 21-1635 L. 5; RT 1637 L. 20-23; RT 1639 L. 16-19; RT 1605 L. 26-27; RT 1839 L. 18-22; RT 1805 L. 28-1806 L. 1). There is powerful evidence that Destiny was suffering from pneumonia when she died (e.g., RT 1807 L. 2-5; RT 1839 L. 4-5 & 10-11; and RT 1818 L. 3-10). Dr. Lin apparently misread a pleural X-ray (taken by David Underwood, M.D., a radiologist) which indicated that Destiny had pneumonia as early as May 12th of 1995 (RT 753 L. 8-755 L. 10 & 1811 L. 1-1812 L. 14). According to Dr. Ryan, Destiny became infected with pneumonia at least 72 hours before her death (RT 1817 L. 8-10).
Destiny’s autopsy report unequivocally points to pneumonia as a cause of death (see MR). Destiny’s peribronchiolar peripheral lung parenchyma was “filled” with “acute confluent inflammatory alveolar exudates of neutrophils” (i.e., immunological cells active in inflammations), erythrocytes (aka. red blood cells or RBCs), large macrophages (another type of white blood cell found in infections), and fibrin (MR 1, SLIDE 2). In other words, Destiny’s outer lung tissue was suffused with white blood cells, and there was some bleeding. “The infiltrate crosses lobular septa” (MR 1, SLIDE 2). That is, the pneumonia had spread across the lung. “Bacterial colonies” are found “in alveoli” (MR 1, SLIDE 2). The bacteria are likely H. influenza meningitis or S. pneumonia. Bronchioles and alveoli contain “large cellular aggregates” (MR 1, SLIDE 2). “Most nearby bronchioles also contain aggregates of more clearly defined desquamated epithelium” (MR 1, SLIDE 2). Such intrabronchiolar or intraalveolar cellular aggregates are typically found in pneumonia fatalities.
On closer inspection, Destiny’s lung parenchyma was found to be “well-inflated” (MR 1, SLIDE 3). “Neutrophils” were ubiquitous “in septa” (MR 1, SLIDE 3). “Bronchi and bronchioles have acute mural inflammation.” A “larger bronchiole is plugged by a large aggregrate of purulent mucus, fibrin, macrophages, and bronchial epithelium” (MR 1, SLIDE 3). In other words, globules of pus were blocking some of the inner air passages of the lungs. “Nearby is a confluent pneumonic infiltrate” (MR 1, SLIDE 3). Clearly, Destiny’s lungs were heavily congested with pus and other infiltration characteristic of pneumonia.
Even the larger airways of Destiny’s lungs were diseased. A mainstem bronchus was found to have “acute focal inflammation of the wall,” and its luminal surface was “coated with pus” (MR 2, SLIDE 4). “The bronchial epithelium is completely denuded” (MR 2, SLIDE 4). In other words, all of the surface layer of cells inside the larger lung air ducts was gone. “Bacterial colonies are focally present.” “[B]ronchial mucus glands are hyperactive” (MR 2, SLIDE 4). Peripheral lung tissue shows a “large area of confluent alveolar exudate of polymorphonuclear lymphocytes and RBCs (MR 2, SLIDE 4). Bronchial hilar nodes were conspicuously small and “burned-out” (MR 2, SLIDE 5). All of these findings are diagnostic of pneumonia.
people also observed: (1) that Destiny’s
respiratory system was congested (RT 751 L. 8-9 (“the baby came in again
congested”); RT 752 L. 23-25; RT 1632 L. 20 (“she was congested”); AR 9 (“lung
tissue is congested”)), (2) that she wheezed when breathing (RT 1632 L. 26),
and (3) that she coughed frequently (RT 751 L. 9; RT 752 L. 23-25; RT 1632 L.
20). In fact, Destiny was wheezing
immediately before she died (RT 1632 L. 28-1633 L. 18). Destiny’s lungs were so congested that on
Even when all of the classic symptomatology of SBS is present, alternative pathologies must be ruled out, including, inter alia: (1) pneumonia, (2) meningitis, (3) congenital arteriovenous malformations, (4) coagulopathies, (5) aneurysms, (6) immunodeficiency disorders, (7) dietary imbalances, (8) genetic abnormalities, and (9) accidental trauma. In Ms. Vildosola’s trial, the prosecution failed to consider that Destiny may have been the victim of medical malpractice. The prosecutors also failed to systematically rule out all reasonably probable alternative causes for the deaths of both Carissa and Destiny. That Destiny may have died from multiple causes, including pneumonia and meningitis, was never seriously considered. Instead, the prosecution was myopically riveted on SBS, with both parents as the presumptive villains.
William Jacobo III (hereinafter “Billy III” or “Little Billy”) sexually and physically abused his siblings (RT 999 L. 13-14 (“I got a monster in my house”); RT 1000 L. 2-3 (“Billy was accused by his brother Michael of sexually molesting him on two occasions”); RT 1000 L. 16-17 (“Michael said he was anally penetrated.”); RT 1002 L. 3-4 (“he tried to anally molest one of the other little boys [Anthony], also”); RT 1611 L. 11-1612 L. 6 (e.g., RT 1611 L. 17-19 (Billy was “touching the other little boys, molesting them, incest”) & RT 1611 L. 23-24 (“[T]he little monster was in his house [sic] he was the one touching the kids.”)); RT 1023 L. 25-1024 L. 3), including Destiny. E.g., RT 1098 L. 14-1103 L. 12; RT 1626 L. 13-27 & 1628 L. 13-18). As a result, Billy III was removed from the custody of his mother, Gloria Rodriguez Jacobo, and placed under the control of the Department of Children’s Services (hereinafter “DCS”). See RT 1612 L. 4-6. Cf. Whitesell, Jeffrey M. (1996-1997) Ridicule or Recourse: Parents Falsely Accused of Past Sexual Abuse Fight Back, 11 J. Law & Health 303, 331 (professional liability in cases of false child abuse accusation); Horowitz, Mirah A. (2000) Kids Who Kill: A Critique of How the American Legal System Deals with Juveniles Who Commit Homicide, 63 Law & Contemporary Problems 133, 172 (abused children frequently become abusers and killers).
Not only did Little Billy Jacobo abuse his siblings, but he admonished them to keep quiet, threatening that harm would come to Ms. Vildosola if they reported being abused. See RT 1611 L. 25-1612 L. 1. Billy III warned his younger brothers that he would “kill his mom and hurt her” if they told on him. RT 1611 L. 27-28. Nevertheless, Michael Jacobo informed on Billy. See, e.g., RT 1000 L. 16-17 (“Michael said he was anally penetrated.”). In response, Little Billy consummated his threat, by lying to investigators and providing perjurious testimony, so that his stepmom, Ms. Vildosola, would be “hurt” by a long prison sentence.
During pre-trial interviews, Billy III repeatedly changed his story, shifting much of the blame for molestation to Jimmy Sanchez, the boyfriend of Ms. Gloria Jacobo, who is the ex-wife of William Jacobo, Jr. (see, e.g., RT 998 L. 16-22). Jimmy Sanchez was arrested for child molestation, but the charges were dropped when it was determined that Billy III was responsible (cf. RT 998 L. 9-10 & 18-20). Ms. Vildosola knew about Billy III’s abusive behavior, and forbade him from playing with Destiny (see RT 1098 L. 5-6 & 1613 L. 19-24). Nevertheless, Billy III admits that on several occasions, he and other siblings “sneaked” to play with Destiny, either in groups or alone (RT 1098 L. 18-1099 L. 8).
Although other family members, including siblings, are often the abusers, the mother is frequently held responsible for child abuse, either because of her presumed failure to protect her child or because of her silence. Dohrn, Bernardine (1995) Symposium: Domestic Violence, Child Abuse, and the Law: Bad Mothers, Good Mothers, and the State, 2 U. Chicago L. School Roundtable 1 (mothers are afraid to speak in their own defense for fear of losing custody of their children), citing Schechter, Susan (March 11-13, 1994) Family Violence Across the Life Cycle, American Medical Association National Conference on Family Violence. Ms. Vildosola could not keep her eyes on Destiny at all times, however, so there were many opportunities for Little Billy and other individuals to harm Destiny.
of Destiny’s siblings testified at trial, and both were accompanied on the
stand by a “therapist” (e.g., RT 985 L. 21-24 (“Ms. Smith” was Billy
III’s therapist); RT 1027 L. 9-10 (“Ms. Tally” was
the testimony of Little Billy was evasive, inconsistent, contradictory, and
unambiguously dishonest, and
False child abuse allegations are rampant in today’s society. A San Diego County grand jury investigation, wherein over 250 social workers, therapists, judges, doctors, and families were interviewed, resulted in a 56-page 1992 report concluding that the child protection system (hereinafter CPS) is “out of control, with few checks and little balance.” Compitello, Michael (1997) Parental Rights and Family Integrity: Forgotten Victims in the Battle Against Child Abuse, 18 Pace L. Rev. 135, 148-149 (war on child abuse leaves countless innocent parents and families as casualties), quoting Wilkins, Okerblom (Feb. 7, 1992) Child Protection System Ripped, San Diego Union Tribune, A1, A19. The grand jury found that the CPS has developed a mind-set that child abuse is ubiquitous, biased toward proving allegations instead of seeking truth. CPS cannot distinguish real abuse from fabrication, neglect, poverty, or cultural differences. Of 300 reviewed cases, 83% were seriously flawed, and 60% involved innocent families! There is no reason to believe that our judicial system handles child abuse crimes with any more consistency or accuracy than CPS. Compitello, supra, at 149. Ms. Vildosola is another victim of fallacious child abuse prosecution.
VII. SOME OR ALL OF DESTINY’S INJURIES WERE SELF-INFLICTED OR ACCIDENTAL
Destiny’s bruising was caused by accidental falls and bumps, most likely from three sources: (1) striking objects or tripping while walking and exploring (e.g., RT 1187 L. 7-12 (Destiny tripped on a Barbie doll the day before she died, bruising her knee), RT 1891 L. 17-18 (according to Bianca Placa, a babysitter, Destiny was “bruised all the time” from “falling” while “learning how to walk”), RT 1890 L. 14-23 (Destiny would fall without using her hands to brace herself), RT 1892 L. 2-3 (bruises were on Destiny’s legs “where she would fall”) & L. 10-12 (Ms. Placa observed Destiny falling and hitting her forehead)); (2) dropping to the floor when being tossed in the air by a sibling or other person (Clerk’s Transcript, Preliminary Hearing (hereinafter “CT”) (Exhibit P10), p. 158, Lines 8-13 (baby thrown into the air, then falling and hitting “head on the ground”) & 26-27 (a police officer took such a statement), RT 1629 L. 28-1630 L. 1 (Destiny “fell down” and hit her forehead on “the dresser”), RT 1630 L. 23-28 (“she had a little bump on her head”)); and (3) hitting her head against objects during tantrums or seizures.
children become ambulatory and mobile, generally at nine months of age and
beyond, they frequently suffer bruises and injuries from minor falls and
bumping into surroundings.
In addition, young children often injure their heads during seizures, or while engaged in temper tantrums. Destiny was frequently paroxysmal. In a typical tantrum, Destiny would throw herself onto the floor. RT 867 L. 8-25 (Esther Jacobo observed Destiny throwing herself to the floor “several times”). Sometimes, she would drop without using her hands to cushion the fall. RT 1890 L. 4-1892 L. 12. Once on the floor, Destiny would repeatedly bang her head. Cf. Affidavit of Ernie Rodriguez (hereinafter “AER”) (Exhibit P11) and RT 2364 L. 18 & 24.
Babysitter Bianca Placa testified that Destiny was bruised because she was learning to walk (RT 1891 L. 17-18), and she would fall without extending her hands (RT 1890 L. 21-22). Ms. Placa directly observed that Destiny’s falls bruised her legs (RT 1892 L. 2-3), and that on at least one occasion Destiny hit her forehead when falling (RT 1982 L. 10-12). Mr. Jacobo, Ernie Rodriguez, John Estrella, and Michael Jacobo also eyewitnessed some of Destiny’s tantrums and head-banging. See, e.g., AER and RT 2364 L. 18 & 24.
As confirmation, Detective Delhauer testified that, according to Esther, Destiny “frequently threw herself down, [sic] when she had tantrums and hurt herself.” RT 1197 L. 27-1198 L. 1. Furthermore, Detective Echeverria testified that Destiny constantly fell and hurt herself. See RT 1872 L. 25-27 and RT 1879 L. 2-1880 L. 23. Echeverria also testified that Patricia recounted three incidents when Destiny fell: (1) Destiny cut or split her chin on or about Thanksgiving Day of 1995 (RT 1879 L. 10-12); (2) she hit her forehead on or about December 5, 1995, and on many occasions nonspecific as to time (RT 1879 L. 12-14); and (3) she hit her head on a dresser on or about December 5, 1995, the day before she died.
Destiny had no skull fractures. See RT 1785 L. 21-22 (“Dr. Ribe did not describe any fractures in his gross examination.”). However, let us assume hypothetically that she had the two very small fractures (RT 1786 L. 28-1787 L. 15 (“less than [¼] inch”; “depression in the skull [1/8] inch deep … a defect … consistent with a fracture.”) alleged by Ribe (see RT 1289 L. 17-24 (“all you can see is these rather vague whitish areas”)). See RT 1352 L. 4-1355 L. 19. According to Ribe, the two “fatal fractures” and their corresponding bruises were immediately above each eyebrow, on the lower forehead. RT 1353 L. 18-21.
Contrarily, Ribe admits that the force causing these tiny forehead lesions was too slight to have been lethal. See RT 2204 L. 14-2209 L. 13 (“[Y]ou told the police officers … you saw no fractures” (RT 2206 L. 1-3); “[T]he faint nature of the fracture bears a direct relation to the amount of force” (RT 2206 L. 20-22); “I conclude from a small amount of force, insufficient force to kill a child.” (RT 2206 L. 25-27)). Such small bilateral brow injuries occur when a baby falls on her face while trying to walk, and could not have been caused by parental abuse! RT 2206 L. 28-2207 L. 6 (“the kind of injury that a child … could get from falling down and striking her head on the floor or against a dresser”). If these tiny injuries did not occur accidentally while Destiny was learning to walk, they must have been inflicted during one of her head-banging tantrums. Cf. Wardinsky, Terrance D. (1995) Genetic and Congenital Defect Conditions that Mimic Child Abuse, 41(4) J. Family Practice 377 (6 case histories of infants with bone fractures and other indications of child abuse who actually suffered from congenital ailments).
Skull fractures from short falls, especially onto hard floor surfaces, are common in children. Leventhal, John M., et al. (1993) Fractures in Young Children: Distinguishing Child Abuse from Unintentional Injuries, 147 American J. Diseases in Children 87, 90-92 (bilateral and multiple skull fractures not more common among abused than nonabused children). Skull fractures from falls of less than four feet are predominantly linear and simple. Duhaime, Ann-Christine, et al. (1992) Head Injury in Very Young Children: Mechanisms, Injury Types, and Ophthalmologic Findings in 100 Hospitalized Patients Younger Than 2 Years of Age, 90 Pediatrics 179, 181 (skull fractures from short falls are linear, narrow, and uncomplicated).
In contrast, complicated skull fractures occur in about one-fourth of short falls, and especially among infants under six months of age. Complicated fractures are also common when children fall from a parent’s arms, or when a baby is thrown in the air. Leventhal, supra, at 90. Depressed and diastatic fractures are twice as common in abused as nonabused children, a difference insufficiently substantial for the determination of abuse. See Hobbs, C.J. (1989) Skull Fracture and the Diagnosis of Abuse, 59 Archives of Disease in Childhood 246, 246-250; Meservy, Clifford J., et al (1987) Radiographic Characteristics of Skull Fractures Resulting from Child Abuse, 149 AJR 173, 175 and Leventhal, supra, at 90-91. Multiple fractures are particularly common among children who suffer from osteogenesis imperfecta, infantile cortical hyperostosis, scurvy, rickets, hypophosphatasia, copper abnormalities, hypocalcemia, osteoid osteoma, neoplasms, osteomyelitis, and syphilis. Carty, H. (1988) Brittle or Battered, 63 Archives of Disease in Childhood 350, 350-353 (multiple fractures of different ages, especially of ribs, virtually diagnostic of abuse).
If Destiny had any skull fractures, which Ms. Vildosola emphatically denies, they were most likely caused by: (1) Dr. Ribe’s autopsy procedures, such as his dissection and scraping around the skull (see RT 1289 L. 2-4 (“the specimen skull, I have used a knife blade to actually scrape off that periosteal membrane”) and RT 1291 L. 9-10 (“I lifted up the top of Destiny’s skull at autopsy”)); (2) her frequent rages or temper tantrums, when Destiny repeatedly swung her head and rammed her forehead on the floor (witnessed by, inter alia, Ernie Rodriguez (see AER), John Estrella, Michael Jacobo, and William Jacobo, Jr., none of whom had an opportunity to testify); (3) accidental injuries, such as the time when she tripped over a Barbie doll (RT 1051 L. 24-27); and (4) hitting the ground after being tossed in the air by her brother Billy III (referred to indirectly at CT 158 L. 8-13 (baby thrown into the air, then falling and hitting “head on the ground”) & 26-27 (a police officer took such a statement), and witnessed by, inter alia, Ernie Rodriguez and John Estrella).
Because: (1) Dr. Ribe’s findings are dubious as to fracturing, and (2) all or most of Destiny’s bruising and other injuries were caused by (a) temper tantrums, (b) her falls while learning to walk, and (3) being tossed in the air by Billy III, there is a reasonable probability that all of Destiny’s contusions were accidental.
discovery of new, exculpatory evidence is a basis for reconsidering a criminal
prosecution on appeal, or for granting habeas corpus relief.
The cause of death of the alleged victim, Destiny, was not shaken baby syndrome, blunt force trauma, or any other form of child abuse. SBS was an erroneous diagnosis. The preceding sections (i.e., §§ I-VII) and the remainder of this section (i.e., § VIII) will present new, exculpatory scientific and eyewitness evidence.
In earlier times, sexual abuse was the focus of most child abuse prosecutions. Rainey, Ryan (1994) Medical Examiners in Child Homicide Cases: Prosecutor’s Perspective, 28 Prosecutor 7. Cf., e.g., Commonwealth ex rel. Sleighter v. Banmiller (Penn. 1958) 392 Pa. 133, 135, 139 A. 2d 918, 921 (evidence of child sexual abuse admitted in murder trial); State v. Aikens (Mo. 1944) 352 Mo. 746, 751, 179 S.W. 2d 84, 87 (microscopic examination of dead infant revealed no evidence of sexual abuse); Wallace v. Der-Ohanian (CA 5th Cal. 1962) 199 Cal. App. 2d 141, 146, 18 Cal. Rptr. 892, 896 (“danger of sexual molestation to young girls is an ever present threat”), Sup.Ct. h’g den. Sexual abuse allegations, although highly inflammatory and never substantiated, were a component of Ms. Vildosola’s prosecution. For example, pathologist James K. Ribe, M.D., unsuccessfully tried to introduce evidence that during a “sexual assault,” a “foreign object” was inserted through Destiny’s anus into her rectum, allegedly causing a postrectal hematoma. RT 1263 L. 8-1265 L. 9.
In 1962, child
physical abuse attained the status of an independent medical diagnosis, “The
Battered Child Syndrome” (hereinafter “BCS”). Kempe, C. Henry, et al. (1962) The
Battered Child Syndrome, 181 JAMA
17. This diagnosis was expanded to
include child neglect in 1963.
By the 1970s, a
burgeoning number of pediatric fatalities were ascribed to “Sudden Infant Death
Syndrome” (hereinafter “SIDS”), also known as “crib death” or “cot
death.” Reece, Robert M. (1993) Fatal
Child Abuse and Sudden Infant Death Syndrome:
A Critical Diagnostic Decision, 91 Pediatrics
423, 424 (SIDS kills one to two infants for every one thousand live
births). SIDS was defined in 1969 at the
Second International Conference on Causes of Sudden Death in Infants as “sudden
death of any infant or young child, which is unexpected in history, or in which
a thorough post-mortem examination fails to demonstrate an adequate cause of
death.” Reece, Laura E. (1991) Comment: Mothers Who Kill: Postpartum Disorders and Criminal Infanticide,
38 UCLA L. Rev. 699, 757 n. 12, quoting
Bluglass (1988) Infant Deaths:
Categories, Causes, and Consequences, in Motherhood and Mental Illness 2:
Causes and Consequences 212, 214.
SIDS researchers focused their attention on prolonged apnea as the
etiological pathway, and at-risk children were placed on apnea monitors. See generally Steinschneider, Alfred
(1972) Prolonged Apnea and the Sudden Infant Death Syndrome: Clinical and Laboratory Observations, 50 Pediatrics 646. Soon the fashion was to diagnose SIDS
quickly, without investigating the circumstances or the death scene. Hickey, Charles B., et al. (May 6, 1996) SIDS
Researcher Sidestepped Critics,
Destiny was placed on an apnea monitor during her stay at the home of foster parents Daniel and Joanne Garza, during which time she had sleeping and breathing problems, as well as chronic ear infections (RT 1224 L. 18-1226 L. 3). Apnea monitoring was recommended by Destiny’s pediatrician, Thomas Lin, M.D., because it was believed that her half-sibling, Carissa Neria, died of sudden infant death syndrome (RT 1852 L. 27-1853 L. 3; RT 2220 L. 4-7). Prosecutor Lewis falsely concluded that because Destiny was no longer on an apnea monitor for a few months prior to her death, she had no respiratory problems. In fact, Destiny was removed from the apnea machine because the Garzas were no longer willing to pay for the monitoring (RT 1859 L. 10-13 (Ms. Garza talked with Tricia Higa, the social worker at DCS assigned to Destiny, about discontinuing apnea monitoring for financial reasons); RT 2220 L. 12-13). Apnea monitoring might have saved Destiny’s life, especially if SIDS was a cause of her death.
By the 1970s, babies whose deaths previously would be labeled as SIDS, like Carissa and Destiny, were increasingly suspected of being child abuse victims. Then, along came the SBS concept, first proposed in the early 1970s, when it was analogized to whiplash injuries. Guthkelch, A. Norman (1972) Infantile Subdural Hematoma and Its Relationship to Whiplash Injury, 2 British Medical Journal 430 and Caffey, John (1972) On the Theory and Practice of Shaking Infants: Its Potential Residual Effects of Permanent Brain Damage and Mental Retardation, 124 American Journal of Diseases in Children 161. See also Caffey, John (1974) The Whiplash Shaken Infant Syndrome: Manual Shaking by the Extremities with Whiplash-Induced Intracranial And Intraocular Bleedings, Linked with Residual Permanent Brain Damage and Mental Retardation, 54 Pediatrics 396 and Duhaime, Ann-Christine; Gennarelli, T.A.; Thibault, L.E.; Bruce, D.A.; Margulies, S.S. & Wiser, R. (1987) The Shaken Baby Syndrome: A Clinical, Pathological, and Biochemical Study, 66(3) Journal of Neurosurgery 409.
By the 1980s, deaths previously attributable to SIDS were increasingly suspected of being abuse-related, so many received the new SBS label. See Hadley, Mark N., et al. (1989) The Infant Whiplash-Shake Injury Syndrome: A Clinical and Pathological Study, 24 Neurosurgery 536; Goldenberg, Catherine L. (1999) Sudden Infant Death Syndrome as a Mask for Murder: Investigating and Prosecuting Infanticide, 28 Southwestern Univ. L. Rev. 599, 606 (SIDS rate dropped by one-third in the 1990s); and Couser, Sally (1993) Shaken Baby Syndrome, 1993 J. Pediatric Health Care 238 (noting exponential growth in reported SBS casualties). Like SIDS, Battered Child Syndrome, the first recognized diagnostic appellation for child abuse, became increasingly disfavored, as SBS rose in popularity. Not surprisingly, many BCS and SIDS deaths were misclassified as SBS, and vice versa. Starr, Raymond H., et al. (1980) The Epidemiology of Child Maltreatment, in Children at Risk: An Evaluation of Factors Contributing to Child Abuse and Neglect (Robert T. Ammerman & Michael Hersen, eds., 1990) 23, 32 (accidental deaths often misidentified). Cf. Emery, John L., et al. (1988) Three Crib Deaths, A Babyminder and Probable Infanticide, 28 Med. Sci. L. 205, 209-210 (difficulty differentiating SIDS from asphyxiation or suffocation).
SBS is now ascribed to
more than two hundred fatalities and over two thousand serious injuries
annually among American children, and approximately 10-12% of all child deaths
attributed to abuse or neglect.
Tabner-Thayer, Jody (1997) The Latest Evidence for Shaken Baby
Syndrome: What Defense Lawyers and
Prosecutors Need to Know, 12 Criminal
Justice 15. The typical SBS
victim is a male under six months of age. Lancon, J.A.; Haines, D.E. & Parent, A.D.
(1998) Anatomy of the Shaken Baby Syndrome, 253(1) Anatomical Record 13-18. See also Ludwig, Stephen & Warman,
Matt (1984) Shaken Baby Syndrome: A
Review of 20 Cases, 13(2) Annals of
Emergency Medicine 104, 105 and
Shaken baby syndrome may be defined as “violent shaking, resulting in subdural hematoma.” State v. McClary (CT 1988) 207 Conn. 233, 246, 541 A. 2d 96; People v. Kailey (Col. 1983) 662 P. 2d 168, 170 (bilateral subdural hematomas); State v. Ostlund (CA MN 1987) 416 N.W. 2d 755, 760-61 (subdural hemorrhaging); State v. Jasper (KS 2000) 269 Kan. 649, 651, 8 P. 3d 708, 710 (“shaken impact syndrome” evidenced by subdural hematoma and two skull fractures). Cf. People v. Sargent (Cal. 1999) 19 Cal. 4th 1206, 1211, 970 P. 2d 409, 411-412, 81 Cal. Rptr. 2d 835 (although infant had bilateral subdural hematomas caused by violent shaking, felony child abuse conviction rev’d and remanded to determine whether defendant had requisite mens rea). But see Duhaime, supra, 66 J. Neurosurgery at 409-415 (shaking alone, without blunt head impact, will not cause SBS) and Plunkett, J. (1999) Shaken Baby Syndrome and the Death of Matthew Eappen: A Forensic Response, 20(1) Am. J. Forensic Med. Pathol. 17-21 (disputing specificity of subdural hematoma, retinal hemorrhage, and cerebral edema in diagnosing SBS).
There is no evidence that Destiny was ever shaken, and her autopsy report indicates that she had negligible subdural bleeding (AR 1 § 1; Neuropathology Forensic Consultant’s Report of Hideo Henry Itabashi, M.D., January 25, 1996 (hereinafter “NR”) (Exhibit P12), p. 1 (“epidural and subdural surfaces are clean”) & 2 (“dural surfaces are free of hemorrhage, and subdural surfaces show a minimal stain associated with … acute subarachnoid hemorrhage”); CFR (only “diffuse subarachnoid hemorrhages” and “bruises” noted)), ruling out SBS. Furthermore, no evidence was presented concerning whether Destiny was injured by blunt force trauma, aside from: (1) alleged skull fractures, which were probably just “small pieces of residual scalp tissue” (see Radiology Consult of Donald Clarence Boger, January 5, 1996 (hereinafter “RR”) (Exhibit P13)), and which in any event were so minute as to be undetectable (CT 174 L. 21-27), except ostensibly by a radiologist (see RR and RT 1253 L. 17-1255 L. 14); and (2) an alleged “contre-coup” injury—the key brain evidence—which was lost by the pathologist, Dr. James Ribe, and never submitted into evidence (RT 1407 L. 21-1410 L. 28).
SBS is sometimes described as abusive shaking
resulting in ocular bleeding or blindness.
People v. Earp (
Retinal hemorrhaging, particularly when bilateral and intraocular, is a hallmark symptom of SBS. Spaide, Richard F. (1987) Shaken Baby Syndrome: Ocular and Computed Tomographic Findings, 7(2) J. Clin. Neuro-Ophthalmology 108-111 (retinal examination absolutely essential for SBS diagnosis); Poepel, B.; Kivlin, J.D.; Simons, K.B.; Lazoritz, S. & Ruttum, M.S. (2000) Shaken Baby Syndrome, 107(7) Ophthalmology 1246-1254 (retinal hemorrhages (85% bilateral) found in 83% of SBS cases); Zimmerman, Robert A., et al. (1979) Computed Tomography of Craniocerebral Injury in the Abused Child, 130 Radiology 687, 689 (80% of abused children with interhemispheric subdural hematomas have retinal hemorrhages); Seiberth, V.; Knorz, M.C. & Kachel, W. (1994) Ocular Findings in the Shaken Baby Syndrome, 91(3) Ophthalmologie 380-382 (intraocular hemorrhages may precede both clinical and radiologic recognition of subdural haematoma); Budenz, Donald L., et al. (1989) Ocular and Optic Nerve Hemorrhages Abused Infants with Intracranial Injuries, 101 Ophthalmology 559; Kivlin, J.D. (1999) A 12-Year Ophthalmologic Experience with the Shaken Baby Syndrome at a Regional Children’s Hospital, 977 Trans. Amer. Ophthalm. Soc. 545-581 (no fundus finding is pathognomic of SBS). Cf. Wilkinson, W. Scott, et al. (1989) Retinal Hemorrhage Predicts Neurologic Injury in the Shaken Baby Syndrome, 107 Archives of Ophthalmology 1472, 1473 and Kapoor, S.; Schiffman, J.; Tang, R.; Kiang, E.; Li, H. & Woodward, J. (1997) The Significance of White-Centered Retinal Hemorrhages in the Shaken Baby Syndrome, 13(3) Pediatric Emergency Care 183-185 (white-centered retinal hemorrhaging common in SBS).
However, retinal hemorrhaging is not always caused by SBS, and may result from major accidental trauma, Terson Syndrome, birth trauma, blood disorders, adverse vaccination reactions, hypertension, hydrocephalus, aneurysms, arteriovenous malformations, meningitis, pertussis, other infections, papilledema, apnea, hypoxia, ischemia, anemia (Krivoy, A.; Valdivia, R.D. & Silva, V. (1978) The Battered Child, 36(2) Neurosurgery (Santiago) 189-201 (in 11 cases of alleged battered child syndrome, 4 had anemia)), leukemia (Cupoli, Michael (1988) Is It Child Abuse? Telltale Physical Findings, 22(7) Patient Care 28 (parents of children with undiagnosed leukemia have been falsely accused of child abuse)), Vitamin K deficiency (Wetzel, supra, 95 Pediatrics at 771-773 (retinal hemorrhaging is caused by coagulopathies)), and CPR-induced Purtscher retinopathy. See Lyon, supra, at 151 (“nonabusive causes of intracranial bleeding must be considered when retinal hemorrhages are presented with . . . extensive subarachnoid hemorrhages”) & 154-155; Smith, Wilbur L.; Alexander, Randell C.; Judisch, Frank; Sato, Yutaka & Kao, Simon C.S. (1992) Magnetic Resonance Imaging Evaluation of Neonates with Retinal Hemorrhages, 89 Pediatrics 332-333 (differential diagnosis of retinal hemorrhages includes abusive head trauma, bleeding disorders, vasculopathies, increased intracranial pressure, and CPR); Duhaime, supra, 90 Pediatrics at 183 (retinal hemorrhages can be caused by spontaneous subarachnoid hemorrhage); Child Abuse or Misdiagnosis? (1997), 3(4) Healthwatch 25-26 (DPT vaccine and other inoculations can cause retinal hemorrhaging and other false signs of SBS); and Hardman, John M. (1991) Cerebrospinal Trauma, in Textbook of Neuropathology (Richard L. Davis & David M. Robertson, eds., 2d ed.) 969, 991 (retinal hemorrhages occur in response to increased intracranial pressure not related to traumatic injury). Destiny’s ocular hemorrhages were not completely bilateral, since only in the right eye was bleeding reportedly found in the anterior chamber and vitreous cavity (OR 1 (“Gross Description”)). Such bleeding is consistent with causes other than SBS, including bleeding disorders and CPR induction.
Other ocular dysfunctions associated with abuse include optic nerve sheath hemorrhages, retinoschisis, retinal folding, retinal detachment, leukocoria, cataract, subluxated lens, retinal dialysis, Coats’ disease, chorioretinal scarring, macular scarring, and periorbital ecchymosis. Lyon, supra, at 148-149, citing Ommaya, Ayub, K., et al. (1968) Whiplash Injury and Brain Damage: An Experimental Study, 204 JAMA 285; and Harley, R.D. (1980) Ocular Manifestations of Child Abuse, 17(1) J. Pediatric Ophthalmology & Strabismus 5-13 (emphasizing the importance of ophthalmologists in early identification of child abuse). Because of these complications, determination of whether intraocular bleeding is caused by child abuse should be made by a pediatric ophthalmologist familiar with hemorrhages, using the proper equipment, and after mydriatic dilation of the child’s pupils. Hatina, Joseph D. (1998) Note: Shaken Baby Syndrome: Who Are the True Experts? 46 Clev. St. L. Rev. 557, 566. Destiny was never examined, pre- or post-mortem, by a pediatric ophthalmologist or hematologist.
d. Absence of subdural hematomas—RULING OUT SBS
Nary a trace of the other hallmark symptom of
SBS, subdural hematoma, was found in Destiny (see NR 2 (“subdural
surfaces show a minimal stain associated with … acute subarachnoid hemorrhage”)
and Neuropathology Forensic Pathologist’s Report of Hideo H. Itabashi,
Microscopic Description and Final Neuropathologic Diagnosis, February 13, 1996
(hereinafter “NMR”) (Exhibit P14)). See also Guthkelch, supra, at
430; Backstrom, J.; Falk, M. & Li, V. (1998) Serial Radiography in the
Infant Shaken Impact Syndrome, 29(2) Pediatric
Neurosurgery 77-85 (acute subdural hemorrhage is the most common
intracranial abnormality in
Subdural hematomas are not unique to SBS, and can also be caused, inter alia, by accidental trauma, coagulopathy, meningitis, thrombocytopenia, cerebral hyperemia, benign subdural effusion (Dykes, Lucinda J. (1984) The Whiplash Shaken Infant Syndrome: What Has Been Learned?, 10 Child Abuse & Neglect 211, 216 (SBS characterized by absence of external signs of head trauma)), hygroma (Bruce, Derek A. (Feb. 1990) Head Injuries in the Pediatric Population, 66 Current Problems in Pediatrics 85), aneurysms, arteriovenous malformations, angiopathy (Date, H.; Hosoi, Y.; Watanabe, Y., et al. (1979) Spontaneous Intracerebral Hematoma. An Analysis of 36 Cases in Pre-CT Era and CT Era, 7(11) Neurol. Surg. 1053-1060), encephalitis, neurodegenerative disease, perinatal trauma, and hereditary predisposition to hemorrhagic diseases. Hatina, supra, at 562, quoting Spaide, Richard F.; Swengel, R.M.; Scharre, D.W. & Mein, C.E. (1990) Shaken Baby Syndrome, 41(4) American Family Physician 1145, 1147; Lyon, supra, at 135, 137, 157 & 162. See also, e.g., Kleinman, Paul K. (1998) Shaken Babies, 352(9130) Lancet 815, citing Shaken Babies (Editorial) (1998), 352(9124) Lancet 335 (children with subdural hematomas due to other causes have been diagnosed with SBS, and parents or caretakers charged criminally); McLellan, N.J., et al. (1986) Spontaneous Subhyaloid and Retinal Haemorrhages in an Infant, 61 Archives of Disease in Childhood 1130, 1132 (arteriovenous malformations within the meninges may bleed directly into the subdural space, or a subdural haematoma can develop if an aneurysm or arteriovenous malformation ruptures through the arachnoid mater); and Dietrich, Ann, et al. (1994) Head Trauma in Children with Congenital Coagulation Disorders, 29 Journal of Pediatric Surgery 28. Because Destiny had negligible subdural hemorrhaging and no rib bruises, nonaccidental head trauma should have been eliminated as a possible cause of her death. SBS can also be ruled out for Carissa, because she had scalp hemorrhaging, but none of the signs of SBS such as retinal hemorrhaging, subdural hematoma, or rib bruising (see CT 340, Autopsy Protocol for Carissa A. Neria by Nenita R. Duazo, M.D., January 22, 1991 (hereinafter “CA1”) (Exhibit P15), p. 4 (Diagnosis, § IV) and RT 2247 L. 25-27).
In addition to subdural hematomas, subarachnoid hemorrhaging is sometimes associated with SBS. However, subarachnoid hemorrhaging is often caused nontraumatically. See, e.g., Hacke, W.; Zeumer, H.; Adelt, D. & Hundgen, R. (1984) Spontaneous Subarachnoid Hemorrhage, 10(3) Notfall Med. 347-358 (subarachnoid hemorrhage often misdiagnosed as cephalgia); Koyama, T.; Gibo, H. & Hirabayashi, F. (1998) Surgical Treatment for Subarachnoid Hemorrhage of Unknown Etiology, 21(2-3) Neurosurg. Rev. 81-86 (intra-arterial digital subtraction angiography and exploratory aneurysm surgery advised for diagnosis of etiology of subarachnoid hemorrhage). Aside from CT, MRI, and post-mortem spinal tap, Destiny was not tested for any of the other possible causes of her subarachnoid hemorrhage.
Among the many
nontraumatic or accidental causes of subarachnoid hemorrhages are (1) meningitis
(Apolo, Julio O. (1987) Bloody Cerebrospinal Fluid: Traumatic Tap or Child Abuse?, 3 Pediatric Emergency Care 93, 94; Pfiffner
v. Correa (LA 1994) 643 So. 2d 1228, 1231 (meningitis and subarachnoid
hemorrhage differentially diagnosed with lumbar puncture and CT scan); Westphal
v. Guarino (Sup. Ct. NJ 1978) 163 N.J. Super. 139, 142, 394 A. 2d 377
(misdiagnosis of subarachnoid hemorrhage caused by meningitis); (2)
aneurysms (Jain, Kewal K. (1983) Pitfalls in Diagnosing Intracranial
Aneurysms, 27(1) Am. Fam. Physician
139-144 (enumerating incorrect diagnoses of patients with intracranial
aneurysms); Craig, J.J.; Patterson, V.H.; Cooke, R.S.; Rocke, L.G. &
McKinstry, C.S. (1997) Diagnosis of Subarachnoid Hemorrhage, 350(9072) Lancet 216-217 (subarachnoid hemorrhage
is frequently misdiagnosed or diagnosed too late); Brust, J.C.M.; Yasargil,
M.G. (1975) Subarachnoid Hemorrhage.
Diagnosis and Therapy, 64(15) Praxis
439-444 (hydrocephalus malresorptivus is a frequent complication of
subarachnoid hemorrhage due to obstruction of cerebrospinal fluid (hereinafter
An example of an
infant with subarachnoid hemorrhaging whose parents were nearly prosecuted for
SBS can be found in Weissgold, David J.; Budenz, D.L.; Hood, I. & Rorke,
L.B. (1995) Ruptured Vascular Malformation Masquerading as Battered/Shaken
Baby Syndrome: A Nearly Tragic Mistake,
39(6) Survey of Ophthalmology
509-512 (complete postmortem examination is crucial in suspected child abuse
cases). In that case, an infant died
with significant lesions on the brain, abundant subarachnoid hemorrhaging, and
blood at the junction of the optic nerve and the globe of the eye. The prosecutor was willing to conclude that
the diagnosis was SBS, but a thorough autopsy wherein sections of the
subarachnoid hemorrhage were meticulously examined microscopically revealed the
cause of death to be a developmental defect of the cerebral vasculature.
Destiny’s examiners, none of whom was a child abuse expert, hastily concluded that she died of SBS, basing their judgment largely on the apparent presence of subarachnoid hemorrhaging. However, some or all of Destiny’s subarachnoid hemorrhage may have been nothing more than the CSF extravasation caused by a spinal tap, or postmortem bleeding into the subarachnoid space triggered by autopsy incisions. In fact, Dr. Ribe severed Destiny’s spinal cord during the autopsy.
Destiny had some
subarachnoid hemorrhage, but no subdural hematomas (see, e.g.,
CFR). Yet of all the many cases of
alleged SBS in the literature, none involve subarachnoid hemorrhaging in
the absence of prominent subdural bleeding, and the preponderance have
only subdural hemorrhaging. See,
e.g., Sargent, supra, at 412 (bilateral subdural hematomas
and bilateral flame-shaped retinal hemorrhages; no subarachnoid bleeding); People v. Albritton
(CA 4th Cal. 1998) 67
Because Destiny’s subarachnoid hemorrhaging was spotty and petechial (see, e.g., NMR (“intracortical petechiae,” “cortical petechiae”); NR 3 (“minute petechiae”; “On the right side, similar petechiae”), it was probably caused by postmortem extravasation exacerbated by her coagulopathy, and certainly not by physical abuse. The next most likely explanation for her subarachnoid hemorrhaging is a hereditary hemorrhagic disease, or a congenital abnormality, such as an arteriovenous malformation. Other strong candidates are an aneurysm, meningitis, or a blood deficiency disease. There are many other possible causes of Destiny’s subarachnoid hemorrhages aside from abuse, none of which were ruled out by the prosecution during Ms. Vildosola’s trial.
Tears in the parenchyma of the brain,
particularly the white matter or myelin, are strongly indicative of abuse.
Some courts recognize
a constellation of SBS symptoms. Rachelle
G. THERE IS NO UNIFORM DESCRIPTION OF SBS WITHIN THE MEDICAL COMMUNITY
Many descriptions of SBS can be found in the medical literature, some vague and others inconsistent with Destiny’s injuries. E.g., State v. Willis (CA WD MO 1999) 2 S.W. 3d 801, 802 (“closed head injury”); In re M.R.F. (CA SD MO 1995) 907 S.W. 2d 787, 790 (“brain damage and blood”); Powell v. State (CA GA 1997) 226 Ga. App. 861, 862, 487 S.E. 2d 424, 425 (injuries caused by “‘shaken infant syndrome’ followed by blunt force trauma”). Because of the inconsistencies in the descriptions of SBS, and its confusion with SIDS and BCS, an estimated 85% of child deaths where abuse is suspected are misidentified. Jones, Owen D. (1997) Evolutionary Analysis in Law: An Introduction and Application to Child Abuse, 75 North Carolina L. Rev. 1117, 1181 n. 138, citing McClain, Philip W. (1993) Estimates of Fatal Child Abuse and Neglect, United States, 1979 through 1988, 91 Pediatrics 338, 338. The attribution of SBS to Destiny’s (and Carissa’s) death is yet another example of misidentification.
Not only is general
agreement lacking as to the symptomatology of SBS, but there is no consensus
concerning its etiology. Often, blunt
force trauma--caused when the baby’s head is hit by a hard object, hand, or
foot, or stricken against a bed, sofa, or pillow--is presented as causing
physical damages conjointly with SBS. Cf.
State v. Brunell (
Many experts believe that shaking alone is unlikely to cause the panoply of SBS symptoms. Blunt force trauma may be integral to some of SBS’s typical injuries. Alexander, Randall, et al. (1990) Incidence of Impact Trauma with Cranial Injuries Ascribed with Shaking, 144 American J. Diseases in Children 724; Bogard, B.; Nimkoff, L.; Novak, G.; Lanzkowsky, P.; Hollander-Bobo, R.; Gandhi, M.; Shenker, I.R. & Gauthier, B. (1993) Intracranial Injuries due to Child Abuse, 5(1) Child. Hosp. Quarterly 47-50 (intracranial injuries of SBS largely due to trauma when child is thrown onto crib or couch, not shaking); Hatina, supra, at 560 (injuries attributed presumptively to shaking often actually caused by blunt force trauma). In Ms. Vildosola’s case, the prosecution alleged that bruises on Destiny’s legs were traumatic, caused either by sexual abuse (Dr. James Ribe) or when Destiny was swung against a wall (Cheri Lewis). However, the room where the alleged swinging or throwing would have occurred is lined almost from floor to ceiling with furniture and shelves. Furthermore, Destiny’s bruising was much more likely caused by rescue efforts, accidental falls, and blood dyscrasia.
General agreement is also lacking as to the severity and duration of shaking necessary to produce the symptoms of SBS. See, e.g., Webber v. Commonwealth (CA VA 1998) 26 Va. App. 549, 553, 496 S.E. 2d 83, 85 (“very vigorous shaking” of infant typically “less than a year of age,” causing microscopic axonal tearing); People v. Renteria (CA 1st IL 1992) 232 Ill. App. 3d 409, 413, 597 N.E. 2d 714, 717 (“significant,” vigorous shaking); State v. Cudgel (CA 5th OH 2000) 2000 Ohio App. Lexis 855 (“severe” shaking); State v. Davis (CA ES TN 1999) 1999 Tenn. Crim. App. Lexis 1184 (“purposeful ... rapid shaking”). Since laboratory validation of SBS theory could be highly unethical, we may never know whether SBS is a legitimate medical phenomenon.
Even more bewilderingly, SBS is often used interchangeably or confused with “battered child syndrome” and other forms of child abuse. State v. Anderson (NC 1998) 350 N.C. 152, 160, 513 S.E. 2d 296, 302 (pediatric expert concluded that child “‘was a victim of severe child abuse,’ ... shaken-baby syndrome and the battered child syndrome”); State v. Bansley (CA 4th WI 1989) 149 Wis. 2d 398, 439 N.W. 2d 644 (baby “exhibited the battered and shaken child syndrome.”); Underwood v. State (S.C. 1992) 309 S.C. 560, 425 S.E. 2d 20, 22 (“battered or shaken child syndrome”); State v. Lee (NC 1998) 348 N.C. 474, 490, 501 S.E. 2d 334, 344 (“bruises and head injury” likely caused by “child abuse, battered child syndrome, or shaken baby syndrome”); State v. Pierce (NC 1997) 346 N.C. 471, 485, 488 S.E. 2d 576, 584 (child abuse expert needed to determine whether child died from battered-child syndrome and shaken-baby syndrome); State v. Lopez (S.C. 1991) 306 S.C. 362, 412 S.E. 2d 390, 392 (this state has not formally recognized “battered child syndrome” or “shaken baby syndrome”).
Furthermore, there are several contending aliases for SBS. For instance, some researchers, alluding to SBS’ original description as a whiplash-like injury, call it “shaken infant whiplash syndrome” (State v. Hughes (CA IA 1990) 457 N.W. 2d 25, 27 (the condition “can occur in older people”)), “Whiplash Shaken Infant Syndrome” (WSIS) (see Dietz v. Damas (ED NY 1996) 932 F. Supp. 431, 434 (six-month-old boy violently shaken for “at least a minute or longer,” causing blindness); People v. Kailey, supra (baby’s injuries caused by either a blow to the head or WSIS); Freeze v. State (CA 2nd FL 1989) 553 So. 2d 750, 752 (theoretical mechanism of WSIS); Monk v. State (Miss. 1988) 532 So. 2d 592, 595 (neck bruises suggested choking, and thumb-shaped chest bruises consistent with shaking of child); State v. Mergenthaler (Mont. 1994) 263 Mont. 198, 201, 868 P. 2d 560, 562 (negligent homicide)), “whiplash shaken baby syndrome” (State v. Olson (MN 1989) 435 N.W. 2d 530, 531 (bilateral subdural hematomas)), “whiplash/shaken baby syndrome” (C.M.W. v. State (CA 3rd WI 1991) 163 Wis. 2d 968, 473 N.W. 2d 611), or “Whiplash Shaking Infant Syndrome” (United States v. Gaskell (11th Cir. 1998) 134 F. 3d 1039, 1041, citing U.S. v. Gaskell (11th Cir. 1993) 985 F. 2d 1056, 1058 (involuntary manslaughter conviction rev’d because of prejudicial courtroom demonstration of SBS, improper exclusion of expert witness testimony, and erroneous jury instruction).
Others, believing that the head must strike a flat surface to cause the fatal injuries, call SBS “shaken baby impact syndrome” (aka. “shaken impact baby syndrome,” “shaken impact syndrome,” “shaken and impact syndrome,” “shaken/impact syndrome,” “shaken impact/shaken baby syndrome”). Strickland v. Yukins (ED MI 1999) 1999 U.S. Dist. Lexis 4647; see also Efurd v. State (Ark. 1998) 334 Ark. 596, 604, 976 S.W. 2d 928, 933 (in “shaken impact syndrome,” infant is picked up, shaken, and finally struck against firm object); State v. Reynolds (CA 8th OH 1994) 1994 Ohio App. Lexis 3610 (“shaken impact syndrome”); “shaken and impact syndrome” (State v. Candela (CA ED MO 1996) 929 S.W. 2d 852, 859 (“shaken and impact syndrome” symptoms included subdural hematoma, retinal hemorrhages, bruises, brain swelling, nerve shearing)); In re Ashley M. (Me. 2000) 754 A. 2d 341, 344 (only 25%-50% of population aware of dangers from shaking baby, such as “chronic shaken impact baby syndrome”); In re Taylor B. (CA WV 1997) 201 W.Va. 60, 66, 491 S.E. 2d 607, 612 (“Shaken-Impact Syndrome” diagnosed from subdural hematoma and bilateral retinal hemorrhages); People v. Oaks (IL 1996) 169 Ill. 2d 409, 432, 662 N.E. 2d 1328, 1338 (“shaken/impact syndrome”); People v. R.S. (CA 2nd IL 2000) 313 Ill. App. 3d 121, 125, 728 N.E. 2d 1165, 1168 (“shaken impact/shaken baby syndrome”).
Still other designations are common, such as “shaken infant syndrome” (State v. Bolden (CA 2nd LA 1987) 501 So. 2d 942, 948 (aff’g manslaughter conviction); Hughley v. State (CA AL 1990) 574 So. 2d 991, 992 (8-month-old boy “suffering from whiplash”); United States v. Davis (USN-MC CCA 1999) 50 M.J. 674, 679 (65% of shaken infants have retinal bleeding and diffuse brain swelling)), “shaken child/infant syndrome” (In re Lou R. (Fam. Ct. NY 1986) 131 Misc. 2d 138, 143, 499 N.Y.S. 2d 846, 849), “shaken child syndrome” (In re Richard H. (CA 2nd Cal. 1991) 234 Cal. App. 3d 1351, 1358, 285 Cal. Rptr. 917, 920 (head contusions and seizures consistent with “shaken child syndrome”); Coleman v. State (Wyo. 1992) 843 P. 2d 558, 559 (felony child abuse)). The many alternative terminologies for SBS illustrate that Destiny’s death cannot be attributed to any uniformly recognized condition with a specific nomenclature and symptomatology.
SBS is difficult to diagnose
correctly, because its symptoms are often secondary to other childhood
maladies, and SBS frequently is found in combination with other diseases and
multiple forms of abuse. Shaken
Babies, supra, at 335 (SBS is overdiagnosed, and many fatalities attributed
to SBS cannot be ruled out as accidental or disease-induced); Gilliland, M.G.
& Folberg, R. (1996) Shaken Babies--Some Have No Impact Injuries,
41(1) J. Forensic Science 114-116
(most child head injuries not caused by SBS); Atwal, G.S.; Rutty, G.N.; Carter,
N. & Green, M.A. (1998) Brusing in Non-Accidental Head Injured Children,
96(2-3) Forensic Science Int’l. 215-230
(bruising is independent of and usually unrelated to SBS); Teyssier, G.; Rayet,
Even more troublingly, most SBS is diagnosed by physicians and coroners who have limited knowledge of and inadequate experience with SBS, whose testimony is nevertheless used prosecutorily. Zylke, Jody W. (1989) Child Abuse Problems Demands Much of Physician But Also of the Community and Its Officials, 261 JAMA 2930, 2931. Consequently, many criminal lawsuits alleging SBS are errantly filed. For example, State v. Thompson (Ohio App. 10th 1997) 1997 Ohio App. Lexis 4351, 3 (trial judge remarked that expert witness was a forensic pathologist, but failed to inquire as to expert’s experience with children, specifically abused children or those suffering from shaken baby syndrome); State v. Schneider (Ohio App. 6th 1984) 1984 Ohio App. Lexis 11988, 3 (coroner relied upon podiatrist and two neuropathologists, all non-experts, for dubious SBS diagnosis); State v. Wiley, supra, at 10 (coroner found no retinal hemorrhaging in alleged SBS case, erroneously claiming that retinal hemorrhaging only occurs in 50% of SBS cases, when actual incidence is closer to 90%). But see Billmire, Elaine & Meyers, Patricia A. (1985) Serious Head Injuries in Infants: Accident or Abuse?, 75 Pediatrics 340, 341 (neurological and CT exams of 84 children used to identify SBS; 89% had retinal hemorrhages) and Traster, supra (infant met at emergency room by pediatric neurologist and pediatric ophthalmologist trained to systematically examine for SBS). Destiny was examined, both while alive and postmortem, by physicians with no expertise in diagnosing SBS, or any other form of child abuse.
H. SBS fails THE Kelly-Frye Test, so should not be recognized as A medical syndrome
Currently, there are so many descriptions of
SBS, it is so difficult to diagnose, and the injustices caused by its
misdiagnosis are so severe that it cannot be called a “generally recognized
medical condition” in accordance with the Kelly-Frye test (People v. Kelly (Cal. 1976) 17 Cal. 3d 24, 31, 549
P. 2d 1240, 130 Cal. Rptr. 144 (conviction rev’d because only expert witness
was unqualified to testify that a new technology (i.e., electronic voice
identification system) was generally accepted by scientific community); Frye
v. United States (CA DC 1923) 54 App. D.C. 46, 293 F. 1013, 1014). According to Kelly-Frye, admissibility of scientific
evidence requires satisfaction of a three-pronged test: (1) reliability (e.g., the syndrome must be
diagnosable consistently by qualified experts), (2) the witness must be an
expert in the field, and (3) it must be shown that correct scientific procedures
were utilized during diagnosis. People
v. Cegers (CA 4th Cal. 1992) 7 Cal. App. 4th 988,
994, 9 Cal. Rptr. 2d 297, 301 (evidence of a syndrome is inadmissible due to
lack of foundational proof if the syndrome has not been generally accepted by the
scientific community), rev. den. (1992 Cal. Lexis 4974); People v.
With regard to the admissibility of SBS evidence, this court may decide to: (1) exclude SBS pursuant to the Kelly-Frye test; (2) exclude the SBS diagnosis, limiting evidence to: (a) a description of SBS by an SBS expert and (b) a report of the autopsy findings for Destiny (and Carissa) by a forensic pathologist or other qualified physician, without a conclusory diagnosis of SBS; or (3) allow all previously admitted evidence related to SBS. In any case, the petitioner will prove that SBS was a misdiagnosis.
The misdiagnosis and overdiagnosis
of SBS has caused grave injustices for many parents and caretakers. See, e.g., Thomas v. Chadwick (CA
4th Cal. 1990) 224 Cal. App. 3d 813, 816, 274 Cal. Rptr. 128,
130-131 (physician wrongly diagnosed subdural hematoma as nonaccidental injury
from shaking or falling; actual cause was congenital cerebral arteriovenous
malformation); Hodge v. Carroll County Dept. of Soc. Svcs. (DC MD 1992)
812 F. Supp. 593, 609 (reporting of misdiagnosed child abuse was invasion of
familial privacy without due process); Myron v. South Broward Hospital
(CA 4th FL 1997) 703 So. 2d 527, 529 (8 doctors charged with
misdiagnosing meningitis as SBS); Harris v. Montgomery (
Parents suffer grievously when a baby is seriously injured or dies. When, in addition, they are wrongfully charged with child abuse, they must suffer the further agonies of prosecution and lengthy incarceration. Kaplan, J. Martin (1986) Pseudoabuse--the Misdiagnosis of Child Abuse, 31(4) J. Forensic Science 1420-1428 (overdiagnosing child abuse can be as harmful as failing to recognize it); Kaplan, J. Martin (1984) The Misdiagnosis of Child Abuse, 30(3) American Family Physician 197-200 (case histories of innocent parents incarcerated for child abuse); Pressel, David M. (2000) Evaluation of Physical Abuse in Children, 61(10) Amer. Fam. Physician 3057 (misdiagnosing child abuse can be as devastating to a family as missing a diagnosis of abuse can be to a child); Levin, Alex V. & Selbst, Steven M. (1988) Vulvar Hemangioma Simulating Child Abuse, 27 Clinical Pediatrics 213-215 (“possibility of iatrogenic[ally]-induced emotional distress if child abuse is misdiagnosed”); Goskowicz, Maki O. (1994) Endemic “Lime” Disease: Phytophotodermatitis in San Diego County, 93 Pediatrics 828-830 (misdiagnosis of phytophotodermatitis as child abuse has led to false accusations against parents, and caused “significant psychological trauma”).
The problems faced by families that are indigent, undereducated, or chemical-abusing are especially severe. Not only are they more likely to be falsely charged with child abuse, but they are less able to cope when confronted with unjust prosecution. Makari, George S.; Gahagan, Sheila & Rimsza, Mary E. (1991) Child Abuse or Osteogenesis Imperfecta: How Can We Tell?, 88 Pediatrics 987-992 (especially if family is unsophisticated, uneducated, and has social problems such as substance abuse, physicians may misdiagnose infirmities as child abuse); Carroll, James E. & Burton, Edward M. (1994) Hereditary Sensory Neuropathy Manifesting as Possible Child Abuse, 93 Pediatrics 840-842 (parents of lower socioeconomic status are particularly vulnerable to misdiagnosis).
Destiny’s parents were of relatively low socioeconomic status. Ms. Vildosola never finished high school, and Destiny’s father, William Jacobo, Jr., was unemployed throughout Destiny’s life. Destiny resided in a foster facility for her first fifteen months, and had to live at her great-grandmother Esther’s home for the remainder of her life. Esther finished less than a year of high school. Because Destiny’s relatives had limited education and income, they were viewed disrespectfully and prejudicially by physicians and attorneys. Consequently, Ms. Vildosola was wrongly charged with killing Destiny. Ms. Vildosola and Mr. Jacobo did not understand the legal and medical jargon used at trial. Because neither had ever been charged with a felony before, they relied heavily on their attorneys—attorneys who, unbeknownst to the defendants, were not competent to handle such complex medicolegal issues.
If SBS is to be recognized jurisprudentially, then its misdiagnosis and the resulting injustices must be minimized. Several specialists trained to identify shaken baby syndrome and other types of child abuse should evaluate the patient. Hatina, supra, at 567. See also Spaide, supra, 41 Amer. Fam. Phys. at 1145-1152 (SBS is often misidentified, because findings for most organ systems are nonspecific). See generally Phipps, Charles A. (1999) Responding to Child Homicide: A Statutory Proposal, 89 J. Crim. L. & Criminology 535-613 (providing exhaustive description of types of physical injury or abuse causing child homicide as a way to reduce SBS misdiagnosis). Unfortunately, Destiny’s death was attributed to SBS by physicians with limited understanding and exposure to SBS, particularly Dr. James Ribe, who was not a pediatric pathologist or neuropathologist, who in his career had performed only twelve autopsies on infants aged two or younger, and who claimed that about half of those babies--an astoundingly large proportion--were SBS victims. Notwithstanding Ribe’s inexperience, no SBS or child abuse specialists were consulted.
Recognizing the many
difficulties in correctly diagnosing child abuse, the United
States Advisory Board on Child Abuse and Neglect (U.S. Dept. of Health
and Human Services (1995) A Report of the U.S.
Advisory Board on Child Abuse and Neglect, a Nation’s Shame: Fatal Child Abuse and Neglect in the
U.S., 43) and the national medical community (American Academy of
Pediatrics, supra, 92 Pediatrics
at 874) have encouraged the enactment of laws establishing child autopsy
protocols. Furthermore, the
j. DESTINY WAS NOT A VICTIM OF SBS OR CHILD ABUSE
Leading experts on SBS,
including Pathologist Michael Ward, M.D.
(Exhibit P16), Pathologist Mary Case, M.D. (Exhibit P17),
and Jose Martinez, M.D. (Exhibit P18) unanimously agree that
Destiny did not die as a result of SBS, or any other form of child abuse. These expert opinions, as
well as the autopsy conclusions of Drs. John P. Ryan and Hideo H. Itabashi,
refute the SBS theory, and indicate that pneumothorax, pneumonia, and bleeding
deficiency were the principal causes of Destiny’s death. This new medical evidence casts a penumbra of
doubt over the guilt of Ms. Vildosola. In
re Johnson (
Not only was SBS
misdiagnosed, but the prosecution could present only circumstantial
evidence. Where only
circumstantial evidence is available, the prosecution must establish: (1) a pattern of violent behavior toward the
child, or exclusive control, (2) a pattern of non-accidental injuries, and (3)
probability of death from such injuries.
State v. Evans (CA NC 1985) 74 N.C. App. 31, 36, 327 S.E. 2d
638. Cf. Bews v. Morgan (9th
Cir. 1999) 1999
Destiny had neither subdural hematomas nor any direct evidence of abuse. Moreover, there is no evidence of (1) a pattern of violent behavior toward Destiny; (2) exclusivity of control of Destiny by her mother or anyone else; or (3) any pattern of shaking, blunt force trauma, or NAIs of any kind. Destiny was constantly surrounded by brothers, sisters, uncles, her great-grandmother Esther, and her father, as well as her mother. Therefore, it is highly probable that Destiny was not physically abused by Ms. Vildosola, but instead died of pneumothorax, infection, or metabolic abnormality, or some combination thereof.
beware of overzealousness in their pursuit of child abusers. “Much as the death of a two-year-old child
demands an explanation, we must also be concerned about due process and the
constitutional mandate that all persons be presumed innocent until proven
guilty.” Martineau v. Angelone (9th
Cir. 1994) 25 F. 3d 734, 743. In Martineau,
as in the instant case, medical experts provided widely discrepant explanations
for the cause of death of a 27-month-old female infant. Like Destiny, “Her death could have been due
to circumstances beyond appellants' control; it could have been an accident, a
medical anomaly, a failure to observe [her] symptoms, or an error of
judgment.” The Nevada Supreme Court concluded
that the evidence was insufficient to permit a jury to convict for manslaughter,
willful neglect, or delay in seeking medical care, because nothing contradicted
the appellants' claim that they did everything they could to save the
baby. Ms. Vildosola was, if anything,
even more diligent than the Matineau appellants.
IX. FALSE, IRRELEVANT, AND HIGHLY PREJUDICIAL EVIDENCE WAS ADMITTED
A writ of habeas corpus may be prosecuted for the following reasons, inter alia (Cal. Pen C. Part 2 (Criminal Procedure), Title 12 (Special Proceedings of a Criminal Nature), Chapter 1 (Writ of Habeas Corpus) § 1473(b)-(c) (Who may prosecute writ; Grounds)):
“(b)(1) False evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at any hearing or trial relating to his incarceration; or
(2) False physical evidence, believed by a person to be factual, probative, or material on the issue of guilt, which was known by the person at the time of entering a plea of guilty, which was a material factor directly related to the plea of guilty by the person.
(c) Any allegation that the prosecution knew or should have known of the false nature of the evidence referred to in subdivision (b) is immaterial to the prosecution of a writ of habeas corpus brought pursuant to subdivision (b).
(d) Nothing in this section shall be construed as limiting the grounds for which a writ of habeas corpus may be prosecuted or as precluding the use of any other remedies.” [Emphasis added.]
The trial court repeatedly permitted the introduction of evidence with prejudicial effects clearly exceeding any probative value, particularly the autopsy data concerning a child of Ms. Vildosola’s, Carissa Neria, who died about five years before Destiny in a different home, whose father was different from Destiny’s, and whose death did not lead to any charges against Ms. Vildosola. (See § IX.E., infra pp. 56-66, for further points and authorities).
For example, after Destiny’s death,
the autopsy findings were changed for another daughter of Ms. Vildosola, Carissa
Arlene Neria, who died in 1991 in San Bernardino when ten months old (see
Carissa’s revised autopsy report of 1996, a 2-page document written by Sheridan
and signed by Duazo, dated January 23, 1996 (hereinafter “CA2”) (Exhibit
P19)). Although the original 1991
report indicated that the cause of death was “undetermined” (CA1 4 (Cause of
Death)), the newly revised 1996 report stated that Carissa died as the result
of physical abuse (CA2 2 (“Blunt head injury”)). Shortly after Destiny’s death in December of
The fact that the
significant external trauma, such as the bleeding noted on Carissa’s scalp, is
a contraindication of SBS. See Meuli,
M., et al. (1991) Characteristics and Prognosis of Extradural Hematomas in
Children, 1 European J. Pediatric
Surgery 196, 198 (31 children with epidural hematomas, none attributed
to abuse) and Shugarman, Richard P., et al. (1996) Epidural
Hemorrhage: Is it Abuse?, 97 Pediatrics 664 (93 children three years
old and under with epidural or subdural hematomas; abuse diagnosed in 28 of 59
or 47% of children with subdural hematomas, and 2 of 34 or 6% of children with
epidural hematomas). Cf.
Carissa’s 1991 autopsy report, Dr. Duazo also noted cardiomyopathy (CA1
4 (Diagnosis, § III) [changed in 1996 to “no evidence [!!!]
of cardiomyopathy” (CA2 2)]) and chronic tracheobronchitis (CA1 4
(Diagnosis, § II) [changed in 1996 (CA2 2 (“chronic tracheobronchitis …
is not [sic] considered to be life threatening”))]), with marked pleural
congestion (CA1 2 (Respiratory Tract) (“Both lungs … markedly
congested”)). Those findings were
inexplicably altered in Carissa’s revised autopsy report of 1996.
The only similarities between Carissa and Destiny are that both were born prematurely and underweight (compare AR 2 (External Description) to CA1 4 (Diagnosis), § I), and each was suffering from severe pleural congestion when she died (compare AR 9 (Respiratory System) (“lung tissue is congested”) with CA 2 (Respiratory Tract) (“Both lungs are subcrepitant and markedly congested”)). If the discrepancies in the babies’ medical conditions had been adequately considered during Ms. Vildosola’s trial, Carissa’s autopsy would have been excluded, since it fails to indicate any pattern of behavior by Ms. Vildosola which could account for the characteristics of both Carissa’s and Destiny’s deaths. Thus, the fraudulently transmuted autopsy report of Carissa Neria was not only highly prejudicial, but also lacked any probative value. (See § IX.E., infra pp. 56-66, for further points and authorities).
C. THE Prosecution improperly used information about Carissa
When the court granted permission to introduce evidence about Carissa’s death, the purpose for the admission was limited to showing “a common scheme or plan or method of committing a crime which goes to … the mental element of the murder count, whether [Ms. Vildosola] had knowledge of the danger to and consciously disregard [sic] human life.” Cheri Lewis, the prosecutor, flagrantly disregarded those constraints, repeatedly using evidence about Carissa to argue that Ms. Vildosola was accountable for the deaths of both Carissa and Destiny (e.g., RT 2049 L. 25-27 (“After the second baby died she finally got caught, and she is finally being held accountable for her actions with regard to Destiny.”); RT 2051 L. 10-12 (“She didn’t care what was happening to Carissa any more than she cared what was happening to Destiny.”) & 18-23 (“that prior child abuse and murder of Carissa is of the same type as [Destiny’s]”); RT 2052 L. 7 (“she did commit murder of the prior baby”); RT 2053 L. 10-12 (“The baby [Carissa] had already been murdered before … the Emergency Medical Technician got there on January 21st.”); RT 2095-2096, 2099-2101, RT 2247 L. 28-2248 L. 2 (“Vildosola got away with murder on that baby [Carissa], and I hope she does not get away with murdering this one.”).
Prosecutor Lewis expressly advised the jury to use the evidence about Carissa for the impermissible purpose of showing a common scheme or plan (RT 2049 L. 28-2050 L. 7 (“[Y]ou were allowed to hear about the death of Carissa … because … [i]t shows … a common scheme or plan or method of committing a crime ….”)). She then piggybacked onto this proscribed use the only allowable application of Carissa’s autopsy evidence, “whether she had the knowledge of the danger to and consciously disregard [sic] human life” (RT 2050 L. 4-6). Doubtlessly, the prosecution confused the jury regarding how to use Carissa’s autopsy evidence. Furthermore, the judge refused to instruct the jury as to what specifically described information (i.e., Carissa’s autopsy) would be subject to what precise evidentiary limitations (i.e., proving knowledge of danger to and conscious disregard for human life), instead issuing the vague prescriptions of CALJIC 2.09 (see § XV, infra (Abuse of Discretion)). Under these circumstances, the introduction of evidence concerning Carissa Neria’s death was reversible error, requiring habeas corpus relief. (See § IX.E., infra pp. 56-66, for further points and authorities).
D. evidence concerning COCAINE USE OR ADDICTION OF Ms. Vildosola AND DESTINY was FALSE, AND more prejudicial than probative
Evidence about the defendant’s cocaine use prior to Destiny’s birth was also admitted, despite the fact that its prejudicial impact undeniably exceeded its probity. For instance, the prosecutor, in her closing argument, errantly declaims, without foundation, that “Defendant Vildosola snorted cocaine during her pregnancy…. The fact that she believed it would hurt her baby … shows her callous disregard … for human life.” (RT 2053 L. 15-16 & 21-28). The prosecution also described Destiny as a “crack baby,” and such false drug-related characterizations were leaked to the press (see, e.g., p. 147, L. 13, infra, and p. 148, L. 1, infra). The admission of such evidence without deliberation contravenes, inter alia, Cal. Evid. C. § 1101(b) (see p. 82, infra), and is the consequence of either ineffective assistance of defense counsel or abuse of judicial discretion. In either event, the introduction of such blatantly prejudicial information constitutes reversible error. (See § IX.E., infra pp. 56-66, for further points and authorities).
E. Improper use of prior-injury evidence constitutes reversible error
The introduction of prior-injury evidence is
restricted by, inter alia, Cal. Evidence Code § 352 (discretion of court to
exclude evidence), Cal. Evid. Code § 1101(b) (evidence of character to prove
conduct) (see p. 82, infra), and
Federal Rule of Evidence 404(b). Evid.
Code § 352 states: “The court in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” People v. Zapien (
In applying § 352, the California judicial system employs a three-pronged test to weigh the probative versus prejudicial value of evidence: (1) its tendency to demonstrate a common design or plan, (2) the extent to which the source of prior bad acts evidence is independent of the evidence of the charged offense, and (3) whether the prior acts resulted in criminal convictions. Cf. People v. Sam (Cal. 1969) 71 Cal. 2d 194, 205, 454 P. 2d 700, 77 Cal. Rptr. 804 (evidence of uncharged misconduct inadmissible if--instead of showing common design or plan--suggesting that defendant acted spontaneously) and Brown v. Smith (CA 4th Cal. 1997) 55 Cal. App. 4th 767, 792, 64 Cal. Rptr. 2d 301, 316 (trial court prejudicially erred in allowing evidence of uncharged bad conduct in contravention of § 1101 (see p. 82, infra)). Carissa’s autopsy report evidence fails all three prongs of the § 352 admissibility test: (1) the circumstances of Carissa’s death do not demonstrate a common design or plan vis-a-vis Destiny’s death; (2) Carissa’s autopsy report was changed as a direct consequence of Destiny’s death, and thus did not originate from an independent source; and (3) Carissa’s death did not result in any convictions of Ms. Vildosola or anyone else. Furthermore, assuming hypothetically that Ms. Vildosola abused both Carissa and Destiny, the evidence suggests--if anything--that Ms. Vildosola acted spontaneously. Since prior uncharged conduct cannot be used to show that a defendant acted spontaneously, Carissa’s autopsy report should have been excluded at Ms. Vildosola’s trial.
Carissa’s autopsy report is also inadmissible according to Evid. Code § 1101(b), which reads:
“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” [Emphasis added.]
Carissa’s autopsy did not prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or unlawful sexual conduct with respect to Destiny’s death. Instead, the evidence concerning Carissa’s death tended to taint Ms. Vildosola’s character, and was offered to prove to the jury that if Ms. Vildosola’s conduct toward Carissa was homicidal, then she was also homicidal toward Destiny. Because evidence of uncharged offenses is so prejudicial, its admission requires caution and extremely careful analysis. Carissa’s autopsy report was admitted without adequate circumspection, and after peremptory analysis.
According to Federal
Rule of Evidence 404(b): “Other crimes,
wrongs, or acts [are] not admissible to prove the character of a person in
order to show that he acted in conformity therewith. It may, however be admissible for other
purposes such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
The standard of proof for determining admissibility of prior bad acts ranges among jurisdictions from a preponderance of the evidence to beyond a reasonable doubt. Compare United States v. Brown (5th Cir. 1979) 608 F. 2d 551, 555 (relevance predicated on proof that defendant committed prior act) and United States v. Ebens (6th Cir. 1986) 800 F. 2d 1422, 1432 (prior bad acts admissible if preponderance of evidence establishes that defendant committed acts). No burden of proof standard was specified with regard to Carissa’s death, nor was any purpose explicated for the admission of Carissa’s autopsy report.
Prior acts evidence
must be relevant to an issue other than the accused’s character, and its
probative value must exceed its potential prejudice. Estelle v. McGuire (1991) 502
proper jury instructions, evidence suggesting prior acts of child abuse is more
prejudicial than probative, rendering a trial arbitrary and fundamentally
unfair, warranting habeas corpus relief and the reversal of a conviction on the
grounds that the petitioner’s Fourteenth Amendment Due Process rights were
violated. McGuire v. Estelle (9th
Cir. 1990) 902 F. 2d 749, 753 (trial
court failed to establish intent, and did not prove beyond reasonable doubt
that defendant was abuser), rev’d, Estelle v. McGuire, supra,
The Estelle case, upon which the prosecution relied in arguing for the admission of Carissa’s autopsy report, is distinguishable from the present case. Both trial courts admitted extensive evidence of prior physical abuse, as well as evidence of possible sexual abuse. However, the differences between the two cases are striking: (1) Estelle was a case of “battered child syndrome,” defined as a “prolonged pattern of abuse” by “someone regularly caring for the child” (see State v. Tanner (Utah 1983) 675 P. 2d 539, 543 (pattern of abuse relevant to show intentionality) and People v. Jackson (CA 4th Cal. 1971) 18 Cal. App. 3d 504, 506, 95 Cal. Rptr. 919, 921 (syndrome implies that someone regularly caring for child caused injuries)), while Destiny allegedly died of SBS, which often results from a single abusive incident (see D’Lugoff, M.I. & Baker, D.J. (1998) Shaken Baby Syndrome: One Disorder with Two Victims, 15(4) Public Health Nursing 243-249 (discusses victimization of the mother, who typically is “the nonoffending parent” in SBS) and Lyon, supra, at 94 (physical abuse diagnosis is “often extremely difficult”)); (2) the mother’s boyfriend was the defendant in Estelle, whereas only the mother, Ms. Vildosola, remains as a defendant in the instant case; (3) there was more exclusivity of control over the Estelle baby than Destiny, whose great-grandmother (i.e., Esther Jacobo) was a frequent caretaker, and who was constantly surrounded by siblings, half-siblings, and other relatives, some of whom were teen-aged, and several of whom occasionally acted as her custodian (e.g., babysitter Bianca Placa); (4) the prior acts occurred six or seven weeks earlier in Estelle, as opposed to almost five years earlier in Ms. Vildosola’s case (i.e., Carissa died on January 21, 1991, while Destiny was pronounced dead on December 6, 1995); (5) the injuries in Estelle, including “inordinate bruising” of the head and chest, 17 chest contusions, 29 abdominal contusions, “a split pancreas, a lacerated large intestine, heart damage, rib fractures, and rectal tearing” (Estelle, supra, at 478), were unmistakably caused by battering, whereas Carissa’s injury, if any, was limited to “minimal” scalp bleeding; and (6) the prior bad acts evidence pertained to the deceased baby victim in Estelle, whereas the evidence in this case concerns Carissa, another baby altogether.
Unlike Estelle, Prosecutor Lewis did not establish, even by a preponderance of the evidence, that any of the purported physical or sexual abuse of Destiny was committed by Ms. Vildosola. Instead, the prosecutor contended that the other defendant, William Jacobo, Jr., was at least jointly responsible for Destiny’s alleged injuries. Moreover, she fastidiously omitted any evidence suggesting that other parties could have harmed Destiny. Yet there is a strong likelihood that other people abused Destiny--if she was abused at all--including stepbrother Billy Jacobo III (e.g., RT 1097 L. 25-1103 L. 4), the Great-Grandmother Esther, Great-Uncle Anthony Jacobo, Jr. (a career criminal and felon who lived in the room adjacent to Destiny), and any of the Jacobo children who lived with and babysat Destiny (e.g., Destiny’s stepsister Marina (see RT 1098 L. 25-27 & RT 1020 L. 5-6 (Little Billy saw Marina playing with Destiny))). There is now a great deal of evidence that Billy Jacobo III abused his siblings (e.g., RT 1098 L. 20-1099 L. 8), but the defense has not yet presented substantiating testimony. Because anyone--including Billy Jacobo III, William Jacobo, Jr., Anthony, Marina, and/or Esther--could have inflicted Destiny’s alleged injuries, the prosecution failed to establish by a preponderance of the evidence that Ms. Vildosola abused Destiny. Therefore, prior injury evidence concerning Carissa should have been excluded as irrelevant. See McGuire, supra, at 754.
prior injuries or bad acts is permissible for the limited purpose of proving in
“Battered Child Syndrome” cases that the child’s current injuries did not occur
While the prosecution contended that the defendants deliberately abused Destiny, the defense provided evidence, inter alia, that Destiny died of pneumothorax (RT 1313 L. 13-14; RT 1344 L. 11-17; RT 1839 L. 17-24), hemophilus influenza pneumonia (RT 1808 L. 6-1812 L. 14) or pneumococcal meningitis, exacerbated by a weakened immune system (RT 1810 L. 24-25 (“jeopardized immune system because a child in one year does not get five [occurrences of] otitis media”)) and/or abuse by Billy Jacobo III (RT 1098 L. 20-1099 L. 8). Unfortunately, the defendants’ contentions were overwhelmed by Carissa’s corruptly revised autopsy report, which enabled the prosecution to convince the jury of Ms. Vildosola’s guilt without having to prove beyond a reasonable doubt that the defendants killed either Carissa or Destiny. Although the prosecution did not even prove by a preponderance of the evidence that Ms. Vildosola injured Carissa or Destiny, the inclusion of Carissa’s fallacious 1996 autopsy so poisoned the jury that the defense faced an insurmountable wall. See McGuire, supra, at 754 (her appearance in a trial for the “grisly murder of an innocent baby implicates highly charged emotions.”). The impact of the information about Carissa, albeit highly inaccurate, was so prejudicial that it determined the outcome of the trial.
prosecution failed to provide evidence that Ms. Vildosola caused any
harm to Destiny, and there was no history of abuse. There were no witnesses to any acts of
physical or sexual abuse by Ms. Vildosola, nor was there any salient
circumstantial evidence. This lack of
evidence distinguishes the instant case from the vast preponderance of child
murder convictions, such as United States v. Lewis (9th Cir.
1987) 837 F. 2d 415, 418-419, cert. den. (Lewis v. United States
(1988) 488 U.S. 923, 109 S. Ct. 304, 102 L. Ed. 2d 323). In Lewis, prior bad acts evidence was
admitted in the form of the testimony of two maintenance workers who said that
they saw the defendant severely punishing his stepson six weeks before the
child’s death. See also, e.g., Mills,
supra, at 903-904 (several witnesses testified seeing stepfather on many
occasions shouting obscenities at deceased child and slapping, spanking,
striking, poking, and kicking her on head, neck, back, tailbone, eyes, and
face; child hospitalized briefly 3 months before death with fractured tibia,
bruised and swollen forehead); People v. Evers (CA 4th Cal.
1992) 10 Cal. App. 4th 588, 12 Cal. Rptr. 2d 637 (2-year-old dead
child hospitalized when 6 months old for burns; sister hospitalized at 6 weeks
of age for SBS; father admitted being home alone with both infants), rev.
In Ms. Vildosola’s trial, bad acts evidence was admitted in the forms of medical testimony about Destiny’s healed lesions and Carissa’s altered autopsy, but there was no direct evidence that Ms. Vildosola ever injured Carissa or Destiny, and the prosecution failed to consider whether other parties, such as Billy Jacobo III, Anthony, or Esther Jacobo, may have caused any or all of the purported physical harm. Yet several witnesses observed Billy III tossing Destiny into the air, and hearing Destiny drop to the ground on at least one occasion (RT 1626 L. 13-27 (“Destiny fell.”); RT 1628 L. 13-18 (“[Little Billy] told me that she was bleeding … it was the bottom of her chin.”); RT 1017 L. 14-16 & 1018 L. 6-7 (Little Billy and Destiny were playing alone together when she fell on or about November 24, 1995)).
The unproven characterization of Ms. Vildosola as a child abuser through the admission of Carissa’s renovated autopsy report maximized the prejudice flowing from irrelevant evidence. See Dudley v. Duckworth (7th Cir. 1988) 854 F. 2d 967 (habeas corpus relief granted where prejudicial effect of evidence so outweighed probative value that result was denial of fundamental fairness) and Osborne v. Wainwright (11th Cir. 1983) 720 F. 2d 1237 (rev’g and remanding a denial of habeas corpus petition because prejudicial evidence might amount to denial of fundamental fairness). Because neither Carissa nor Destiny had any history of abuse, and died under markedly different conditions nearly five years apart, the inflammatory evidence about Carissa’s death was irrelevant, and its admission denied fundamental fairness to Ms. Vildosola.
The trial court not
only admitted highly prejudicial evidence, but instructed the jury to
use that evidence improperly. See
§ XV.B., infra (Abuse of Discretion:
Issuing Vague and Incomplete Jury Instructions). Aspen Skiing Co. v. Aspen Highlands Skiing
Corp. (1985) 472
Whenever prior bad act evidence is admitted, the jury must be given a qualifying instruction, restricting the evidence to its intended purpose. See United States v. Green (9th Cir. 1981) 648 F. 2d 587, 593 (per curiam) (reversal required where trial judge failed to provide limiting instruction following admission of bad act evidence); cf. Butcher v. Marquez (9th Cir. 1985) 758 F. 2d 373, 378 (no due process violation where instructions limited use of evidence to finding intent) and United States v. McCown (9th Cir. 1983) 711 F. 2d 1441, 1454 (no violation of due process when trial judge offered limiting instruction after admitting prior bad acts evidence, and where prejudice was minimal). In Ms. Vildosola’s trial, extremely prejudicial evidence was admitted with insufficient limiting and qualifying instructions; and the permitted instructions were too vague to be properly applied by the jury. See § XV.B., infra.
The defense attorneys failed to prevent the admission of highly prejudicial information, including the evidence about Carissa. They also acted negligently during the Instruction Phase of the trial by, inter alia, submitting unacceptable instructions, failing to argue competently for instructions beneficial to the defendants, and neglecting to argue adequately against instructions favorable to the prosecution. Such negligence amounts to ineffective assistance of counsel, in contravention of Cal. Const. Art. I § 15. Crotts v. Smith (9th Cir. 1995) 73 F. 3d 861 (aff’g habeas corpus relief based on ineffective assistance, where counsel failed to object to highly prejudicial testimony); In re Jones (Cal. 1996) 13 Cal. 4th 552, 917 P. 2d 1175, 54 Cal. Rptr. 2d 52 (counsel incompetent in failing to seek exclusion of unduly prejudicial evidence, and in not thoroughly investigating and preparing prior to murder trial); In re Gay (Cal. 1998) 19 Cal. 4th 771, 793-794, 968 P. 2d 476, 488, 80 Cal. Rptr. 2d 765 (habeas corpus granted where counsel was ineffective in failing to seek exclusion of highly prejudicial prior bad acts during murder trial); United States v. Recio (9th Cir. 2000) 226 F. 3d 1087, 1090-1091 (failure of counsel to request new trial was prejudicial and constituted ineffective assistance).
instructions, coupled with the admittance of prejudicial evidence, “so infected
the entire trial that the resulting conviction violate[d] due process.” Cupp v. Naughten (1973) 414
X. THE DEPUTY CORONER’S TESTIMONY WAS FALSE AND ERRONEOUS
Deputy Coroner James Ribe was unqualified to diagnose Shaken Baby Syndrome. He was not certified in pediatrics, pediatric pathology, neuropathology, or hematology (RT 1330 L. 5-24). He was not a member of the panel of experts approved by the superior court for appointment to review child deaths. What’s more, he admitted to having performed about a dozen autopsies of infants under two years of age in his entire career (CT 148 L. 10-13), an astounding six of which he claimed to have been SBS cases (RT 1329 L. 18-27).
In Destiny’s case, if not all of Ribe’s SBS autopsies, the child was referred to the coroner before a death certificate was issued, based on a tentative diagnosis that child abuse was the cause of death. Ribe then customized his autopsy findings to fit the errant child abuse allegations, ignoring alternative explanations for Destiny’s death. The neuropathologist, Hideo Henry Itabashi, M.D., asked Ribe to rule out SBS and other causes of death (e.g., RT 2217 L. 27-28). Ribe ignored Itabashi’s advice, perfunctorily concluding that Destiny was an SBS baby (e.g., RT 2217 L. 13-14).
jurisdictions identify SBS using child abuse experts or teams of
specialists. People v. Culuko (CA
is Deputy Coroner Ribe inexperienced and unqualified to diagnose SBS, but he
has changed his testimony in at least three murder cases. Krikorian, Greg (November 25, 1997) D.A.
Gets Extension on Records; Courts: Judge
Gives Office Three More Weeks to Find Data on Deputy Coroner Whose Credibility
is Questioned, Los Angeles Times (hereinafter
“LAT”), Metro Section, 8. By way of
example, Deputy Medical Examiner Ribe changed his opinion about the time of a
baby’s (Lance Helms) death in a
At the Helms trial, Ribe admitted that his conclusion at the time of Wingfield’s trial was “just ridiculous.” Blankstein, Andrew (September 26, 1998) Helms Sentenced to 21 Years to Life; Courts: Hollywood Man Convicted in Beating Death of his Son, 2 1/2, Remained Unmoved by Emotional Comments Read by his Mother, Who Showed a Video of the Little Boy, Los Angeles Times, Metro Section, Part B, 1. During the trial, Ribe’s altered opinion was described as “frightening,” and he was accused of “tailoring his scientific opinion to coincide with the facts.” Blankstein, Andrew (August 15, 1998) Father Convicted of Son’s Fatal Beating; Court: David Helms is Found Guilty of Abuse Originally Blamed on his Girlfriend, Los Angeles Times, Part A, 1. If the mother (Gail Helms) of the convicted father had not kept a diary of his abuse and fought for three years for her own son’s prosecution, it is doubtful that Ribe would have changed his opinion. See, e.g., Stewart, Jill (September 18, 1997) Daddy Dearest; How the LAPD and the D.A.’s Office Botched the City’s Most Infamous Child-Abuse Murder Case, Ignoring Evidence That Pointed to Lance Helms’s Father as the Real Killer, New Times Los Angeles, Features Section; Saunders, Debra J. (January 24, 1996) Who Killed Lance Helms?, San Francisco Chronicle, Editorial Section, A17; and Blankstein, Andrew (August 13, 1998) Tot’s Fatal Beating Case Goes to Jury; Crime: Attorney for Father Accused in Boy’s Slaying Puts Blame on Girlfriend Previously Imprisoned, Then Freed, in the Death, Los Angeles Times, Valley Edition, Metro Section, Part B, 4.
One of Ribe’s excuses for his diagnostic mistake in the Helms case was that it was based on “vague and incorrect” information from police. Blankstein, Andrew (September 13, 1997) Woman Sent to Prison in Killing Ordered Freed; Courts: Judge Says Police Reinvestigation Shows the 24-Year-Old May Be Innocent in North Hollywood Beating Death of 2-Year-Old, Los Angeles Times, Metro Section, Part B, 1. If the deputy coroner is so critically dependent upon police when rendering his medical opinions, then it is likely that either he lacks medical competency or he customizes his findings to conform with police theories. In either case, Ribe’s opinions lack credibility.
rationalization given by Ribe for the erroneousness of his original autopsy
findings was that he “had zero time to prepare.” Blankstein, Andrew (August 6, 1998) Medical
Official Revises Views on Toddler’s Death; Trial: Lance Helms Died Almost Immediately After
Beating, Examiner Tells Jury. Testimony
Bolsters Case Against Boy’s Father, Los
Angeles Times, Metro Section, Part B, 1.
The Helms baby died on or about
to Fed. R. Evid. 702, which governs the admission of expert testimony, a
“qualified” expert may give an opinion if and only if the expert’s
“specialized” knowledge would help the jury to understand the evidence or
decide a fact at issue.
courts stringently limit the testimony of medical witnesses to areas within
their scope of expertise. Robins v.
Because he lacks expertise in SBS, child abuse, or even pediatric pathology, Dr. Ribe’s testimony lacks reliability and relevance, and is therefore inadmissible under Fed. R. Evid. 702. Dr. Ribe’s autopsy report and oral opinion testimony could have been rendered sufficiently valid and credible if the prosecution had introduced a supporting expert in SBS, child abuse, pediatric pathology, pediatric forensics, or any of several subspecialties of pediatrics or forensic pathology, but no such experts were presented. Furthermore, because he is a medical doctor, Dr. Ribe’s testimony that Destiny was a victim of SBS had the import of a closing argument to the jury. People v. Luna (CA 5th Cal. 1988) 204 Cal. App. 3d 726, 736, 250 Cal. Rptr. 878, 883 (expert testimony confined to defining “child abuse accommodation syndrome” as a class--diagnosis inadmissible), quoting People v. Roscoe (CA 5th Cal. 1985) 168 Cal. App. 3d 1093, 1100, 215 Cal. Rptr. 45, 50 (expert testimony re child molestation limited to discussing victims as a class, not diagnosing child as molestation victim) and Bledsoe, supra, at 248 (expert could describe “rape trauma syndrome,” but could not testify that victim suffered from “rape trauma syndrome”).
jury confusion, Dr. Ribe’s testimony should have been explicitly segregated
into: (1) describing SBS, and (2)
presenting autopsy findings. See Luna,
supra, at 883-884. A diagnosis of
SBS, if any, should have been left to the trier of facts to decide. People v. Bowker (CA 4th
Cal. 1988) 203
Among the evidence which was not available at trial, the most important was a critical portion of Destiny’s brain. This neuropathological material was removed from Destiny’s brain by Dr. James Ribe and purportedly placed in a jar (see AR 7), but never made available to the defendants and not presented at trial (RT 1409 L. 1-19). Nevertheless, testimony concerning the artifact was repeatedly permitted during the trial. That piece of brain disappeared because it would have exonerated the defendants.
Specifically, the occipital lobe lesion that supposedly contained the contre-coup contusion was excised and excluded from the autopsy specimens submitted at trial. Yet the contre-coup wound, according to Ribe, was the only injury that was life-threatening (cf. CT 174 L. 17-175 L. 6). The contre-coup artifact—if it had been presented at trial, and if it contained any anomalous lesion—would probably have revealed that Destiny in fact died from a disease or accident, such as meningitis or an aneurysm.
ultimate goal of our system of administering criminal justice is the ascertainment
of truth. Evans v. Superior Ct. (
of establishing whether evidence is relevant or “material” is met when the
profferor shows “that there is a reasonable possibility” that the evidence, if
preserved, would have constituted “favorable evidence on the issue of guilt or
innocence.” People v. Hitch (
destruction, loss, or concealment of evidence is subject to criminal
sanctions. Cal. Penal C. § 135
(Destroying evidence) states: “Every
person who, knowing that any book, paper, record, instrument in writing, or
other matter or thing, is about to be produced in evidence upon any trial,
inquiry, or investigation whatever, authorized by law, willfully destroys or
conceals the same, with intent thereby to prevent it from being produced, is
guilty of a misdemeanor.” Sanctions must
be imposed even when the destruction or loss is intentional but nonmalicious (People
v. Chapman (CA 3rd Cal. 1975) 47 Cal. App. 3d 597, 607, 121 Cal.
Rptr. 315, 322 (sanctions limited to material evidence with prospective
application at trial), rev. den., citing Hitch, supra,
at 652-655), unless the prosecution can show that the responsible governmental
entities have established, enforced, and attempted in good faith to adhere to
appropriate procedures. More concisely,
the prosecution must establish that reasonable precautions were taken to
preserve the evidence. People v.
Newsome (CA 1st Cal. 1982) 136
can also be imposed for negligent loss or unintentional destruction of material
evidence, even when the destruction is done in good faith. People v. Bradley (CA 3rd
Cal. 1984) 159 Cal. App. 3d 399, 404, 205 Cal. Rptr. 485, 488 (police under no
duty to collect blood-stained articles at crime scene, even if possibly
exonerating defendant), h’g den.; People v. Alfieri (CA 2nd
Cal. 1979) 95 Cal. App. 3d 533, 546, 157 Cal. Rptr. 304 (good faith
unintentional destruction requires sanctioning unless responsible agency acted
in good faith to adhere to rigorous and systematic preservational procedures), reh’g
& rev. den. (1979). The burden
of preservation also applies to physical evidence relevant to the determination
of preliminary facts requisite to the admissibility of critically incriminating
evidence. People v. Swearingen
(CA 2nd Cal. 1978) 84
Ms. Vildosola’s co-defendant, William Jacobo, Jr., won release from prison after being convicted on the same charges for which Ms. Vildosola was sentenced. In winning his appeal, Mr. Jacobo successfully pled that he received ineffective assistance from Attorney Raymond Santana. Incredibly, Ms. Vildosola’s lawyer, Guy Edward O’Brien, Esq., was even less effective than Santana, and a Marsden motion to replace O’Brien was summarily denied. See § XIII, infra. The appellate attorneys, Michael A. Brush and Juliana Drous, were also manifestly ineffective. As a result, Ms. Vildosola remains incarcerated, a victim of ineffective legal representation, as the following arguments will show.
Under the Sixth
Amendment of the U.S. Constitution and the California Constitution, Article I §
15 (2000) (Safeguards in Criminal Prosecutions), a criminal defendant has a
right to due process, including “assistance of counsel for the defendant’s
defense.” Frazer v.
The ultimate purpose
of the right to effective assistance of counsel is to protect the defendant’s
fundamental right to a trial that is both fair in its conduct and reliable in
its result. People v. Davis (
A defendant claiming ineffective assistance of counsel must establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) said representation had a prejudicial impact upon the outcome at trial. Dubria v. Smith (9th Cir. 2000) 224 F. 3d 995, 1003-1004 (using two-pronged (unreasonableness and prejudice) test for ineffective assistance), cert. den. (Dubria v. Smith (2001) 148 L. Ed. 2d 963), citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 104 S. Ct. 2052, 2064-2065, 80 L. Ed. 2d 674, 687-688 (no Sixth Amendment relief where defense counsel’s performance not unreasonable, defendant suffered insufficient prejudice, and justice rendered not fundamentally unfair or unreliable), reh’g den., 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). The two-pronged (performance deficiency and prejudiced outcome) test for ineffectiveness of counsel was first articulated in Strickland, supra, 80 L. Ed. 2d at 684 (investigation limitation reasonable if nonprejudicial). See also Johnson v. Kemp (SD GA 1985) 615 F. Supp. 355, 364 (habeas corpus granted; petitioner satisfied performance and prejudice prongs of Strickland) and Anderson v. Calderon (9th Cir. 2000) 232 F. 3d 1053, 1086 (for 6th Amendment violation to be found due to ineffective assistance of counsel, prejudicial effect must be shown).
To establish deficiency, a defendant must show that his attorney's performance was unreasonable under prevailing professional standards. To show prejudice, a defendant must establish a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. When evaluating a claim of ineffective assistance in a 28 U.S.C. § 2255 motion, the district court should hold an evidentiary hearing unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. See, e.g., United States v. Picard (9th Cir. 1999) 1999 U.S. App. Lexis 18512 & 31332 (191 F. 3d 462) (conviction for serious bodily injury to 22-month-old who died of battered child syndrome and pneumonia rev’d and remanded because of: (1) due process difficulties imposed by defendant’s near developmental deficiency, (2) attorneys’ possible failure to investigate, and (3) possible assaults by other individuals). The instant case is very similar to Picard, especially in that (1) the attorneys did scant investigation; and (2) other individuals, including Billy Jacobo III, Anthony Jacobo, and Esther Jacobo, could have injured Destiny.
In demonstrating that
there was a prejudicial impact, the defendant must show more than that
counsel’s errors had some conceivable effect on the outcome of the
proceeding. People v. Bradford (
Determination of the adequacy or reasonableness of an attorney’s performance is a mixed question of law and fact, entitled to de novo review. McKenzie v. Pickett (ND Cal. 1995) 1995 U.S. Dist. Lexis 10700; Porter v. Gramley (7th Cir. 1997) 122 F. 3d 351, 352 (all mixed questions in habeas corpus petitions entitled to de novo review); Moore v. Johnson (5th Cir. 1999) 194 F. 3d 586, 604 (deficient pretrial investigation of alibi defense), citing Horton v. Zant (11th Cir. 1992) 941 F. 2d 1449, 1462 (rev’g denial of habeas corpus on 3 grounds, including inadequate investigation of mitigating evidence). See also Groseclose v. Bell (6th Cir. 1997) 130 F. 3d 1161, 1164 (ineffective assistance of counsel claim is mixed question of law and fact, entitled to de novo review in both state and federal court); Driscoll v. Delo (8th Cir. 1995) 71 F. 3d 701, 706 (whether Sixth Amendment rights violated by ineffective assistance of counsel subject to de novo review); Tejeda v. Dubois (1st Cir. 1998) 142 F. 3d 18, 22 (de novo review by federal court of state court’s ineffectiveness of counsel determination); Albanese v. McGinnis (ND IL 1993) 823 F. Supp. 521, 537 n. 12 (reasonableness is a mixed question of law and fact), citing Strickland, supra, at 698 (performance and prejudice components of ineffectiveness inquiry are both mixed questions of law and fact); Wright v. West (1992) 505 U.S. 277, 289, 112 S. Ct. 2482, 2488-2489, 120 L. Ed. 2d 225 (mixed constitutional questions subject to plenary federal review on habeas), citing Miller v. Fenton (1985) 474 U.S. 104, 112-114, 106 S. Ct. 445, 451-452, 88 L. Ed. 2d 405 (discussing differences between questions of law and fact); Box v. Petsock (MD PA 1987) 697 F. Supp. 821, 825 (whether counsel was ineffective in failing to make reasonable investigations is mixed question of law and fact); Williams v. Calderon (CD Cal. 1998) 41 F. Supp. 2d 1043, 1048 (question of fact as to what trial counsel did to uncover potentially mitigating evidence); Thunder v. United States (CD S.D. 1994) 873 F. Supp. 1362, 1384 (whether investigation was reasonable under the circumstances is question of fact).
received ineffective assistance of counsel. People v. Mayfield (
A. FAILURE TO EXPOSE Conspiracy Involving PROSECUTION, DCS, and OTHER PARTIES
The prosecution conspired to
predetermine the outcome of Ms. Vildosola’s case, and to cover up glaring
deficiencies in the child welfare system of
The Department of Children’s Services, in collaboration with the Los Angeles County District Attorney’s Office, conspired, in order to evade liability for Destiny’s death, inter alia: (1) to conceal evidence of sexual and physical abuse perpetrated against Destiny by Billy Jacobo III; (2) to change the cause of death of Carissa Neria to SBS, so that Carissa’s autopsy could be admitted at trial; (3) to blame Esther Jacobo for some or all of Destiny’s abuse in order to coerce Esther into testifying against Ms. Vildosola (see, e.g., RT 910 L. 8-10); (4) to hide evidence of abuse by the Garzas, Destiny’s foster parents; and (5) to conceal evidence of egregious deficiencies and irregularities within the DCS.
Cindy Romero, an attorney at DCS, was the central figure in the conspiracy against Ms. Vildosola and Mr. Jacobo that began shortly after Destiny’s demise. Because of her position at DCS, Ms. Romero was personally responsible for Destiny’s welfare. Consequently, Romero was liable for any harm that befell Destiny. Romero had been grossly derelict in her protective duties prior to Destiny’s death (RT 940, 943, 950-951, 959). In order to deflect the blame for Destiny’s death from herself and DCS, Romero needed to fabricate a case against Destiny’s caretakers. Ms. Vildosola and Mr. Jacobo were ideal patsies, because they lived out of wedlock on a meager income and were not well-educated. Esther Jacobo would also be easy to manipulate, considering her antipathy toward Ms. Vildosola (RT 904 L. 1 (“Patricia hates you with a patient [sic], right?”) & 6-7 (“‘[Patricia] could burn in hell as far as I am concerned’”)) and her advanced age.
One of Ms. Romero’s most blatantly conspiratorial tactics was to attribute statements which incriminated the defendants to Esther Jacobo, who was almost eighty years old at the time of the trial. These purported statements were ostensibly made in December of 1995 or January 1996, within a few days or weeks of Destiny’s death. For example, the day after Destiny died, Romero telephoned the Jacobo home for the very first time, and yelled at a grieving Esther that she was responsible for the baby’s death and should be in jail (RT 910 L. 3-9 & 936 L. 26-28). During the same conversation, Romero said that Ms. Vildosola had already murdered one baby, so why not this one too? (RT 910 L. 11-12). Romero also mendaciously claimed that Esther admitted seeing bruises on Destiny on or about Halloween of 1995 (RT 928 L. 8-12), and empty liquor bottles left by Ms. Vildosola lying around the house (RT 929 L. 9-13).
Esther was told that if she testified in conformity with the above statements, she would receive immunity from prosecution. Yet Esther never made any of these statements. In all documented interviews, Esther testified that she never saw any abuse of Destiny (RT 1184-1186, 1189-1191). In order to remember her telephone conversation with Esther, Romero referred to her notes. Damningly, those notes, purportedly taken contemporaneously with her 1995 conversations, were dated from 1997, near the time of the trial (RT 953 L. 15-20). Obviously, Romero fabricated the notes to divert guilt from her to Esther and the defendants.
Secondly, Prosecutor Lewis conspired with the Office of the Coroner of Los Angeles and/or San Bernardino County to have Carissa Neria’s autopsy file reopened and refashioned, so that the circumstances of Carissa’s death could be made to appear similar to Destiny’s, thereby to ensure conviction of Ms. Vildosola.
Thirdly, Prosecutor Lewis conspired with witnesses and/or defense attorney(s) to keep many exculpatory witnesses from appearing in court. Lewis: (a) aided and abetted Dr. Boggs in his disappearance during trial; (b) gave dishonest explanations for Dr. Reda’s nonappearance; and (c) refused to call at least ten eyewitnesses to the events surrounding the deaths of Carissa and Destiny, including, inter alia, Ernie Rodriguez, Henry Diaz, John Estrella, Eric Klimek, Michael Jacobo, Jimmy Sanchez, Ray Saucedo—each and every one of whom would have engendered reasonable doubt in the minds of the jury.
Before the trial, on or about December 1995 and January of 1996, DCS employees organized a protest against the firing of the two DCS social workers who were responsible for Destiny’s case—caseworker Tricia Higa and her supervisor, Henry Barbosa (see RT 128 L. 23-27 and Hong, Peter Y. & Nazario, Sonia (January 13, 1996) Social Workers Protest Firings, Los Angeles Times, Metro Section, B1 & B8 (more than 300 DCS workers picketed at DCS’ Los Angeles headquarters)). The terminations of Higa and Barbosa were based upon their alleged negligence in failing to monitor the circumstances of Destiny’s living arrangements. Ms. Romero was not dismissed, but had plenty of time during and after the protest period to manufacture a defense against her own negligence, and to shift the focus of public and prosecutorial attention to the Jacobos and Ms. Vildosola.
The existence of said conspiracy or conspiracies was known by Attorney Santana, and he admitted to his knowledge in the presence of Mr. William Jacobo, Jr. and Father George, the Roman Catholic Chaplain at the Los Angeles County Jail. Santana admitted to the conspiracy on another occasion, while conversing with Mary Louise Jacobo (the mother of William Jacobo, Jr.) and Magdalena Robles (an aunt of William Jacobo, Jr.). Finally, Santana conspicuously failed to appear when Ms. Vildosola’s and William Jacobo’s verdicts were rendered, because of his fear that Mr. Jacobo would expose the conspiracy.
Santana and O’Brien negligently or purposefully failed to bring to light any facts concerning the aforementioned prosecutorial conspiracies. The defense counsel should have presented the available evidence of conspiracy at trial, so that the trier of fact could have at least assessed the merits of any allegations of conspiracy. Immunity does not extend to conspiracy by defense counsel and other state officials to secure a defendant’s conviction. Tower v. Glover (1984) 467 U.S. 914, 922, 104 S. Ct. 2820, 2825, 81 L. Ed. 2d 758 (barristers, public defenders, and defense attorneys liable for intentional misconduct), cited in Robinson v. Volkswagenwerk AG (10th Cir. 1991) 940 F. 2d 1369, 1373 (no absolute immunity for defense counsel who allegedly conspired to fraudulently conceal their true relationship with automobile industry in automobile accident liability case). Cf. In re Disbarment of Isserman (1953) 345 U.S. 286, 73 S. Ct. 676, 97 L. Ed. 1013 (defense attorneys charged with conspiracy to obstruct trial); Torres v. Prunty (9th Cir. 2000) 223 F. 3d 1103 (habeas corpus relief aff’d; petitioner alleged that defense attorney conspired against him); Sims v. Meyers (ND Cal. 1994) 1994 U.S. Dist. Lexis 11409 (defense counsel conspired to present a false defense to jury, rendering trial fundamentally unfair); State v. Hansen (CA 1st WA 1992) 67 Wn. App. 511, 516, 837 P. 2d 651 (defense attorney conspired against defendant at trial, causing wrongful imprisonment); United States v. Garcia-Machado (5th Cir. 1988) 845 F. 2d 492, 493 (government and defense counsel allegedly conspired to sever co-defendants’ proceedings); Molina v. New York (ED NY 1995) 956 F. Supp. 257, 259 (pro se claim that defense counsel conspired and broke confidentiality); Hill v. Gorman (6th Cir. 1987) 831 F. 2d 294 (civil rights deprivation claim based on alleged conspiracy by defense attorney to deprive claimant of constitutional rights); Hosier v. Baily (9th Cir. 1995) 1995 U.S. App. Lexis 38263, 76 F. 3d 386 (pro se litigant alleged that defense counsel conspired to violate his civil rights during criminal prosecution); United States v. Howe (9th Cir. 1993) 1993 U.S. App. Lexis 30487, 9 F. 3d 1554 (allegations of prosecution and defense counsel conspiracy).
Because conspiratorial acts involving the prosecution, DCS, Boggs, Sheridan, and/or other parties were known by the trial and appellate attorneys, particularly defense attorney Santana, yet information about conspiracy was suppressed, there was reversible error, and Ms. Vildosola is entitled to a new trial or dismissal of all charges.
B. Investigation WAS Grossly Deficient
The investigative efforts of both
defense attorneys, as well as appellate attorneys Brush and Drous, were grossly
inadequate. To cite an example, they did
not bother to find that the physician under whose care Destiny died and who
first attributed Destiny’s death to battering, Dr. Joseph Dodridge Boggs, Jr.,
had a suspended medical license during a five-year period that
began prior to his involvement with Destiny (Exhibit P2). Defense counsel also failed to discover or
disclose that Boggs had recently been convicted of drunken driving (Exhibit
P3), and that Boggs had been sued many times for malpractice (Exhibit P4). Defense counsel even neglected to subpoena
Boggs, or at least to investigate Boggs’ involvement in the egregious
mistreatment of Destiny at
defense or appellate counsel to conduct a reasonably thorough investigation is
a ground for habeas corpus relief, reversal of judgment, or retrial. In re Avena (
A defense attorney has a duty to investigate all potentially meritorious defenses prior to trial, and to continue to pursue factual investigations throughout the trial, whenever necessary. Wade v. Calderon (9th Cir. 1994) 29 F. 3d 1312, 1328 (Reinhardt, J., concurring) (ineffective assistance of counsel at penalty phase of trial), cert. den. (Calderon v. Wade (1995) 513 U.S. 1120, 115 S. Ct. 923, 130 L. Ed. 2d 802); Deutscher v. Whitley (9th Cir. 1989) 884 F. 2d 1152, 1161 (defense attorney’s failure to investigate defendant’s mental state was ineffective assistance of counsel), cert. den. (Deutscher v. Hatcher (1992) 506 U.S. 939, 113 S. Ct. 374, 121 L. Ed. 2d 285); Jamison v. Collins (SD OH 2000) 100 F. Supp. 2d 647, 725 (investigation, discovery, and presentation of mitigating evidence is a matter of “‘life and death importance’”), quoting O’Guinn v. Dutton (6th Cir. 1996) 88 F. 3d 1409, 1424 (Merritt, C.J., concurring) (8th Amendment requires that jury be able to consider all mitigating evidence); Austin v. Bell (6th Cir. 1997) 126 F. 3d 843, 848-849 (ineffective assistance of counsel where mitigating evidence is not investigated and presented); Valdez v. Johnson (SD TX 1999) 93 F. Supp. 2d 769, 772 (habeas corpus petition granted where trial counsel did not investigate mitigating evidence in preparation for sentencing phase).
The time to conduct legal and factual investigations regarding possible defenses is before the trial commences. It is inexcusable for an attorney to proceed to trial before completing the factual investigation essential to developing a defense theory. “Without this most basic element of trial strategy, the defense attorney’s voir dire, opening statement, cross-examination of the prosecution’s witnesses, and other stages of representation are rendered rudderless.” Wade, supra, at 1328.
A defense attorney must investigate all available evidence supporting mitigation or a defense theory, unless articulating a reasonable strategic basis for limiting investigation. Strickland, supra, at 690-691 (strategic choices made after less than complete investigation are reasonable if reasonable professional judgment supports such investigative limitation); Williamson v. Ward (10th Cir. 1997) 110 F. 3d 1508, 1517 (counsel has duty to make reasonable investigations or to make reasonable decisions that make particular investigations unnecessary); Malone v. Vasquez (8th Cir. 1998) 138 F. 3d 711, 731 (Heaney, C.J., dissenting) (when facts supporting a specific line of defense are generally known to counsel, and defendant has given counsel reason to avoid or minimize said line of defense, counsel may reasonably limit investigation into said defense theory); Antwine v. Delo (8th Cir. 1995) 54 F. 3d 1357, 1367 (habeas corpus granted because investigative limitations were unreasonable; thus subsequent strategy was also unreasonable); Black v. Collins (5th Cir. 1992) 962 F. 2d 394, 403 (counsel may reasonably limit investigation of defenses which would likely prejudice defendant); Wilkins v. Iowa (8th Cir. 1992) 957 F. 2d 537, 540-541 (decision to limit investigation of diminished capacity claim reasonable because defendant not inebriated at time of alleged crime, and counsel reasonably believed that jury would be unsympathetic toward self-induced intoxication); Harris v. Dugger (11th Cir. 1989) 874 F. 2d 756, 763 (attorney not necessarily required to investigate every evidentiary lead); Thompson v. Wainwright (11th Cir. 1986) 787 F. 2d 1447, 1454 (duty to investigate limited to reasonable investigation), citing Strickland, supra, at 2066; Evans v. Smith (DC MD 1999) 54 F. Supp. 2d 503, 521 (strategic choices made after less than complete investigation reasonable if investigation limitation is based on reasonable professional judgment). See also Troedel v. Wainwright (SD FL 1986) 667 F. Supp. 1456, 1461 & 1468 (investigation unreasonably limited; habeas corpus writ granted, conviction and sentences vacated).
corpus relief to be granted, the petitioner must not only demonstrate that
investigational or discovery efforts were insufficient, but that the
unreasonably deficient investigative performance had a prejudicial effect upon
the defendant’s due process rights. Strickland,
supra, at 697 (standard of review is whether result of particular
proceeding is unreliable because of lack of fundamental fairness in adversarial
process); In re Ross (Cal. 1995) 10 Cal. 4th 184, 211, 892 P.
2d 1287, 1304, 40 Cal. Rptr. 2d 544 (must consider at habeas corpus hearing
whether it is reasonably probable that outcome would have been different with
additional evidence available after fuller investigation), reh’g den.
The inadequate investigations of Ms. Vildosola’s defense and appellate attorneys had a prejudicial effect upon the trial outcome, because additional information about any of the following, if known to the defense and presented at trial, would have exonerated Ms. Vildosola, inter alia: (1) Destiny’s pneumothorax, (2) Destiny’s pneumonia and bronchitis, (3) Destiny’s blood condition, (4) Billy III’s abuse of Destiny, (5) Destiny’s self-inflicted and accidental injuries, and (6) Dr. Boggs’ maltreatment of Destiny.
Some criteria for determining investigative reasonableness or sufficiency have been established in precedential child abuse prosecutions. Motley v. State (5th Cir. 1994) 18 F. 3d 1223, 1228 (failure to investigate neurological damage unreasonable in child abuse case), cert. den; Archie v. Hobbs (WD VA 1997) 954 F. Supp. 1149, 1155 (additional investigation would have yielded evidence that people other than defendant could have been involved in child’s death); State v. Nipple (CA 4th WI 1998) 223 Wis. 2d 268, 588 N.W. 2d 928 (in SBS case, counsel allegedly failed to adequately investigate medical evidence, including determining length of time after shaking for subdural hematoma and other symptoms to appear); Grady v. Boone (10th Cir. 2000) 2000 U.S. App. Lexis 4105 (because of defense counsel’s incomplete investigation, defendant was convicted of child abuse and murder with tainted evidence).
In Ms. Vildosola’s case, defense counsel’s investigative efforts were so deficient as to constitute ineffective assistance of counsel for the following reasons, inter alia: (1) no investigation was conducted to explore the possible culpability of others, particularly Dr. Boggs and Billy III. United States v. Picard (9th Cir. 1999) 1999 U.S. App. Lexis 28012 & 37362 (202 F. 3d 280) (rev’d and remanded for evidentiary hearing as to whether lack of investigation into possible culpability of other people re child battering constituted ineffective assistance of counsel); Sparman v. Edwards (ED NY 1996) 26 F. Supp. 2d 450, 465 (habeas corpus granted due to ineffective assistance of counsel where mitigating evidence was inadequately investigated), citing Williams v. Washington (ED IL 1994) 863 F. Supp. 697, 705-707 (habeas corpus relief granted where counsel failed to present evidence concerning “several other people who lived in petitioner’s home”).
Because the counselors for the defense, O’Brien and Santana, never investigated Dr. Boggs, and failed to call Boggs to testify, the major cause of Destiny’s death, pneumothorax, was inadequately presented to the jury. If Boggs had testified honestly, he would have admitted that Destiny’s lungs collapsed while he was administering CPR, and that Destiny’s vital signs plummeted to life-threatening levels immediately after pneumothorax occurred.
and Santana also completely failed to investigate Billy III, although he was
known to have abused his siblings, including Destiny. Destiny lived in the same household as
Anthony Jacobo, Jr., a known felon, yet no mention was made of Anthony Jacobo’s
possible culpability during the trial.
Other people were also alone with Destiny on frequent occasions,
including babysitter Bianca Placa, Marina Neria, and other children. Although many individuals other than the
parents could have abused Destiny, the defense attorneys conducted little or no
investigation into such defenses. Ernie
Rodriguez and John Estrella told Attorneys O’Brien and Santana, prosecutor
Lewis, and police officers who conducted the preliminary investigation that
they eyewitnessed Billy III tossing Destiny into the air on many
occasions. Messrs. Rodriguez and
Estrella were not called by either defense attorney, nor by the
prosecution. In addition, Ms. Vildosola
testified that she heard Destiny fall after being thrown in the air by
Billy III on
(2) Mitigating medical information was inadequately
investigated. People v. Pensinger
Considering the dearth of information uncovered by Attorneys O’Brien, Santana, Brush, and Drous, and the ineptitude of their investigation, Ms. Vildosola received ineffective assistance of counsel.
C. Jury Selection Was Grossly Deficient
Ms. Vildosola’s suggestions as to which prospective jurors to dismiss were ignored by Mr. O’Brien, who unilaterally made all decisions during voir dire. Moreover, jurors were systematically excluded who had any medical background, or who had close relatives with careers in health fields. Yet jurors with medical knowledge would have been more objective, and better able to assess the merits of SBS allegations.
assistance of counsel exists when: (1)
the defendant is denied input and involvement during jury selection, or (2)
voir dire challenges tend to exclude jurors favorable to the defendant. Paradis v. Arave (9th Cir.
1992) 954 F. 2d 1483, 1490 (deficient voir dire performance alleged in habeas
corpus ineffective assistance of counsel claim), cert. den. (Paradis
v. Arave (1995) 513 U.S. 1117, 115 S. Ct. 915, 130 L. Ed. 2d 796); People
v. Mendoza (Cal. 2000) 24 Cal. 4th 130, 167-168, 6 P. 3d 150,
172, 99 Cal. Rptr. 2d 485 (defense counsel’s performance allegedly deficient
for failing to assure that reasonable inquiries were made into specific
prejudices of jurors), reh’g den. (2000 Cal. Lexis 8580), cert. filed
(2001); United States v. Christoffel (9th Cir. 1991) 952 F.
2d 1086, 1088-1089 (ineffective assistance of counsel argument based on alleged
errors during jury selection process, including denial of defendant’s right to
intelligently exercise peremptory challenges), cert. den. (Christoffel
v. United States (1992) 503 U.S. 996, 112 S. Ct. 1700, 118 L. Ed. 2d 410); People
v. Staten (Cal. 2000) 24 Cal. 4th 434, 450, 11 P. 3d 968, 978,
101 Cal. Rptr. 2d 213 (complaint of ineffective assistance of counsel based on
defense attorney’s failure to conduct public opinion survey or submit oral
questions during voir dire); United States v. Nielsen (9th Cir.
1993) 1 F. 3d 855, 861 (ineffective assistance of counsel complaint based in
part on counsel’s failure to object to manner by which voir dire was
conducted), cert. den. (Nielsen v. United States (1994) 511 U.S.
1023, 114 S. Ct. 1410, 128 L. Ed. 2d 82); Dickson v. Thompson (9th
Cir. 2000) 2000 U.S. App. Lexis 27258 (where inadequate voir dire does not
undermine confidence in trial outcome, counsel’s assistance not ineffective); Lyons
v. Crawford (9th Cir. 2000) 232 F. 3d 666, 668 (habeas petition
with claims of ineffective assistance of counsel and tainting of jury selection
process by racist comments of a potential juror); People v. Banner (CA 5th
Cal. 1992) 3 Cal. App. 4th 1315, 1321, 5 Cal. Rptr. 2d 125, 127
(habeas petition contending that trial counsel was deficient for failing to
make a motion challenging the constitutional validity of jury selection
procedures on equal protection and due process grounds), rev. den. (1992
Cal. Lexis 2286); People v. Ferro (CA 2nd Cal. 1993) 21
Mr. O’Brien’s jury selection methods undermined Ms. Vildosola’s defense, because: (1) he systematically excluded jurors favorable to the defense, particularly those with knowledge of medicine; and (2) O’Brien rebuffed or ignored Ms. Vildosola’s efforts to participate in the selection process. Because of such ineffective assistance of counsel, Ms. Vildosola deserves habeas corpus relief.
D. DEFENSE Counsel Failed to Present Exculpatory and Mitigating Evidence
Defense attorneys O’Brien and Santana were grossly deficient in their presentation of exculpatory and mitigating evidence, and appellate attorneys Brush and Drous further failed to address these deficiencies.
of Destiny’s medical and autopsy records supporting the fact that Destiny died
from causes other than child abuse were not introduced at trial, and were withheld
from the defendants by their own counsel. As an example, the Children’s Crisis Report (hereinafter
“CCR”) of Diana Elliott, PhD., contains observations of DCS caseworkers and
interview transcripts of Billy III, Marina, and other children of William
Jacobo, Jr. and Ms. Vildosola. Among the
more explosive items in the CCR were:
(1) a shaft-like object was purportedly extended up Destiny’s rectum
0-14 days prior to her death, and (2) there were supposedly numerous needle
marks on Destiny at the time of her death.
The defense counsel failed to provide defendants with complete copies of
the CCR. Hence, the defendants were
neither able to refute such false allegations, nor to present exculpatory
evidence contained in the CCR. In re
Branch, supra, at 214 (“new evidence” includes
exculpatory evidence which defense failed to present at trial.); People v.
Foster (CA 2nd Cal. 1992) 6
When codefendants who
have possible conflicting interests appear jointly at trial, counsel may be
inhibited from producing evidence or from arguing matters or objecting to the
introduction of evidence which may be exculpatory as to one of the defendants
because such a course may be prejudicial to the codefendant. The very failure to produce or emphasize such
information creates a void and results in a record which shields the fact of any
possible conflict and makes it difficult to demonstrate on appeal that such a
conflict did in fact exist. People v.
Dooley (CA 5th Cal. 1980) 112
The defense attorneys failed to obtain critical exculpatory evidence, such as the CCR. They also neglected to bring exculpatory and mitigating evidence to light, such as eyewitness statements from Destiny’s siblings, relatives, and family friends about Billy Jacobo III’s history of abusive behavior. But for the negligence of defense counsel, exculpatory evidence would have been presented, inter alia, contradicting CCR allegations, elucidating that Boggs caused Destiny’s fatal pneumothorax, and substantiating not only that Billy III abused Destiny, but that he was at least partially responsible for Destiny’s death.
Any eyewitness accounts not presented at trial are considered “new evidence,” which, if arguably exculpatory, warrant habeas corpus relief or a new trial. Schlup, supra, at 324 (any reliable exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence is new evidence, so long as it was not presented at the trial court level).
O’Brien and Santana failed to call many important medical witnesses, eyewitnesses, and expert witnesses, and appellate attorneys Brush and Drouse did not raise these oversights in their appellate arguments. Some of the pathologists and physicians whose reports were used by the prosecution were never called to testify, and thus were never cross-examined by the defense. Among these important medical witnesses were, inter alia: (1) Joseph Dodridge Boggs, M.D., who “popped” Destiny’s lungs; (2) Hideo Henry Itabashi, M.D., the neuropathology expert who contradicted Ribe’s findings and testimony; (3) Zacharia Yehya Reda, M.D., of Long Beach Memorial Hospital, the last pediatrician to treat Destiny; (4) Donald Clarence Boger, M.D., the radiologic consultant for Destiny’s autopsy; and (5) Narsing Adupa Rao, M.D., the ophthalmalogical consultant for Destiny’s autopsy.
Boggs killed Destiny by providing negligent medical services—specifically,
administering CPR with such force that he caused bilateral pneumothorax. Boggs’
After a mortally wounded
Destiny was diverted twenty miles away from Boggs to Long Beach Memorial
Hospital, Reda treated Destiny for pneumothorax, acute respiratory distress
syndrome (ARDS), and cardiogenic shock, and noted that Destiny had subarachnoid
hemorrhaging (not symptomatic of SBS or BCS) and renal dysfunction. Reda would have testified that Destiny’s
cause of death was ARDS, precipitated by pneumothorax, contradicting Lewis’
premise that Destiny died of SBS.
Although she knew that Reda would ruin her case, Lewis told the jury
that Reda’s testimony would be a waste of time, and that Reda should not be
inconvenienced by a trip all the way from
counsel also failed to call many eyewitnesses to Destiny’s home life, including
those who saw Billy III abusing Destiny.
These indispensable witnesses include, inter alia, (1) Henry Diaz, who
was about ten feet away from Destiny during most of the day of December 5,
1995, and never saw or heard any abuse of Destiny, and
who was intimidated by police to discourage him from testifying; (2) John Estrella, who directly observed Billy III throwing
Destiny into the air in the back bedroom of Esther Jacobo’s domicile, and who
also was frightened by the police; (3) Ernie Rodriguez, who witnessed Billy III
tossing Destiny into the air on another occasion, also in Esther Jacobo’s back
bedroom, and told this information to the investigating
detectives, Prosecutor Lewis, and Messrs. O’Brien and Santana (contained within
the Police Supplementary Report, and alluded to at CT 157 L. 22-158 L. 27 (“The
officer is here who took the statement”)); (4)
Jimmy Sanchez, who was accused of sexually molesting Michael and Anthony
Jacobo, until the Jacobo children told DCS that Billy III was the molester; (5)
Ray Saucedo, who was at the Jacobo home on December 5, 1995,
and never heard nor saw any abuse of Destiny; (6)
Michael William Jacobo, whose pre-trial CCR interview was quoted out of context
during the trial, who wanted to testify in order to clarify what he actually
said, who witnessed Billy III sneaking to “play” with
Destiny, who saw Billy III abusing Anthony Jacobo, and who was himself abused
by Billy III; (7) Eric Klimek,
the boyfriend of Ms. Vildosola’s mother Frances, who was present at Ms.
Vildosola’s grandmother’s house during the night of January 21, 1991, when
Carissa Neria died, and neither heard nor saw any abuse; and (8) Gloria Rodriguez Jacobo, Little Billy’s mother, who could
have explained why Billy III was removed from her home. See RT 1000 L. 13-15 (Gloria was not
subpoenaed) & RT 1612 L. 4-6 (on
All of the above individuals were
eyewitnesses to the events of
Any of the ten aforementioned witnesses—Boggs, Reda, Ernie Rodgriguez, Diaz, Saucedo, Klimek, Michael Jacobo, Estrella, Gloria Jacobo, or Sanchez (who came to court many times, but was always excluded by Judge Croft)—could have established reasonable doubt as to Ms. Vildosola’s guilt: (1) Boggs and Reda would have revealed evidence of Destiny’s pneumothorax; (2) Ernie Rodriguez, Estrella, and Michael Jacobo would have testified that Billy III abused Destiny; (3) Diaz and Saucedo would have confirmed that Destiny was not abused on December 5, 1995; (4) Sanchez, Gloria Jacobo, and Michael Jacobo would have destroyed Billy III’s credibility; and (5) Klimek would have established that Carissa was not abused. By failing to call such exculpatory lay witnesses, Attys. O’Brien and Santana rendered ineffective assistance.
Further still, the defense counsel called only one physician, John P. Ryan, a general pathologist with no forensic or pediatric credentials (RT 1841 L. 16-17 (Ryan never attended a seminar on SBS); RT 2090 L. 24-2094 L. 23 (Ryan did only 3 child abuse autopsy reviews, all as a defense witness)), who was so incompetent that he neglected to examine Destiny’s and Carissa’s autopsy specimens and microscopic slides, and forgot that he had reviewed autopsy photographs (RT 1818 L. 21-24 (Carissa’s slides); RT 1819 L. 5-7 (Carissa’s photographs); RT 1819 L. 19-22 (Carissa’s autopsy specimens); RT 1819 L. 27-1820 L. 6 (Destiny’s autopsy specimens); RT 1820 L. 7-10 (Destiny’s slides); RT 1820 L. 11-14 & 19-21 (Destiny’s photographs)). An expert on Shaken Baby Syndrome, child abuse, pediatric pathology, or even forensic neuropathology or hematology would have been decisive in establishing reasonable doubt. Such an expert would have demonstrated that Destiny probably died from a combination of pneumothorax caused by CPR, pneumonia, bleeding dysfunction, and immunodeficiency. Furthermore, the jury would have given much greater weight to the opinions of an expert in SBS or pediatric pathology than they granted to Ryan or even Ribe. Thus, the failure of the defense to call an adequate expert constituted ineffective assistance of counsel.
that counsel was ineffective for failing to locate and call witnesses, a movant
must show that the counsel knew or should have known that the witnesses
existed, that reasonable investigation would have located the witnesses, that
the witnesses would have testified if called, and that the testimony of the
witnesses would have provided a viable defense.
People v. Easley (Cal. 1982) 33 Cal. 3d 65, 654 P. 2d 1272, 1290,
187 Cal. Rptr. 745, 762 (failure to call two key witnesses not ineffective
assistance of counsel where there is no showing that witnesses would have
presented exonerating evidence), reh’g granted, 34 Cal. 3d 858; State
v. Broseman (CA WD MO 1997) 947 S.W. 2d 520, 527 (where character witnesses
would not have unqualifiedly supported defense, decision not to call them was
reasonable trial strategy), citing State v. Harris (MO 1994) 870
S.W. 2d 798, 817 (reasonable to leave a witness mute where harmful testimony
would likely outweigh benefits); Tacho v. Martinez (9th Cir.
1988) 862 F. 2d 1376, 1379 (review denied re ineffective assistance of counsel
claim based on failure to call alibi witnesses). See also Strickland, supra,
Defense attorneys O’Brien and Santana failed to investigate or even call at least four physicians who were witnesses to Destiny’s medical condition, and at least ten eyewitnesses to the domestic circumstances of Destiny, Carissa, and Little Billy. They also neglected to call any experts on Shaken Baby Syndrome, child abuse, pediatrics, or neuropathology. Furthermore, appellate attorneys Brush and Drous did not address these deficiencies. But for such ineffective assistance of the defense and appellate counsel, Ms. Vildosola would have been acquitted of all charges related to Destiny’s death.
F. FAILURE TO ADEQUATELY EXAMINE EXPERT WITNESSES
Defense attorneys Guy O’Brien
and Raymond Santana were negligent in both (1) the insufficiency of their
cross-examination of prosecution experts, including Drs. Ribe,
Although the lone expert witness for the defense, Ryan, might have sufficed in the hands of competent, effective defense attorneys, he was nevertheless grossly deficient (see, e.g., § XII.E. (FAILURE TO CALL KEY WITNESSES), supra)). See also United States v. Tarricone (2nd Cir. 1993) 996 F. 2d 1414, 1419 (case remanded for factual findings re ineffective assistance, where counsel failed to call handwriting expert to dispute material evidence linking defendant to crime); Jenner v. Dooley (S. Dak. 1999) 590 N.W. 2d 463, 466 (ineffective assistance of counsel claimed where attorney failed to perform DNA analysis on hair samples, and failed to call DNA expert to contradict prosecution expert). Cf. Shumate v. Newland (ND Cal. 1999) 75 F. Supp. 2d 1076, 1093 (where the evidence does not warrant it, failure to call an expert does not amount to ineffective assistance of counsel); Wilson v. Henry (9th Cir. 1999) 185 F. 3d 986, 990 (decision not to call psychiatric expert reasonable where no evidence that defendant had relevant psychiatric disorder); Cage v. Newland (ND Cal. 1999) 1999 U.S. Dist. Lexis 18553 (failure to call pharmacological expert not ineffective assistance of counsel, because there was no evidence that defendant was drug abuser); United States v. Maxwell (10th Cir. 1992) 966 F. 2d 545, 546 (failure to interview and call expert witnesses for reasonable strategic reasons not ineffective assistance of counsel); Phoenix v. Matesanz (1st Cir. 2000) 233 F. 3d 77 (strategic choice to not call defense experts not ineffective assistance of counsel where experts would not have affected outcome of case). Dr. Ryan had inadequate credentials, including no certification or licensure in forensics, pediatrics, neuropathology, or hematology, and had never taken a course in SBS. He also failed to review any autopsy specimens of Carissa or Destiny, any microscopic slides of Carissa or Destiny, and any photographs of Carissa. His memory required refreshing before he could even recall examining any photographs of Destiny. In addition, Ryan never put his findings into written form. But for these palpable deficiencies of the only defense expert, Ms. Vildosola would not have been convicted.
defense attorneys also failed to adequately voir dire the expert
witnesses. For instance, Dr. Sheridan
purported to be a pathologist specializing in pediatrics and
neuropathology. The defense stipulated
to his expertise despite neglecting to ask
defense counsels were particularly negligent in their examination of expert
witnesses for the prosecution. For
instance, they did not illuminate Dr. Duazo’s precise role in the 1996
reconstruction of Carissa’s 1991 autopsy, and they failed to query Duazo as to
whether she approved of each of the revisions made by
O’Brien and Santana were notably ineffective during their examination of Dr. Thomas Lin, Destiny’s pediatrician. They failed to attack Lin’s credibility with respect to the chest X-ray of May 22nd, 1995, which revealed that Destiny had diffusely congested lungs, but which Lin misread as an artifact caused by suboptimal inspiration. They also neglected to evince from Lin that Destiny was immunologically compromised. If the defense counsel had asked Lin to explain Destiny’s repeated bouts of coughing, wheezing, otitis media, and eye infections, he would have been forced to admit that Destiny had a weakened immune system, exacerbating her respiratory difficulties, which eventually progressed to pneumonia.
The cross-examination of Dr. Ribe was also patently ineffective. They did not go over Ribe’s microscopic slides of Destiny’s lungs (see MR) in detail. If they had, Ribe could not have eluded the incontestable conclusion that Destiny was dying from pneumonia and tracheobronchitis. They also failed to inquire about Destiny’s pneumothorax, which was probably the immediate cause of Destiny’s death. Not only did they neglect to interrogate Ribe in detail about Destiny’s popped and collapsed lungs, but they never even called Dr. Boggs, whose malpractice caused the pneumothorax.
Most importantly, the defense counsel never demanded that Ribe either provide the missing occipital lobe artifact (RT 1408 L. 7-1411 L. 2) or explain why it was kept from Dr. Itabashi and the defense. They also should have asked Dr. Itabashi whether—considering the absence of the artifact—Destiny’s neurological condition was consistent with causes of death other than child abuse, such as meningitis, pneumonia, tantrums, accidental falls, or a bleeding disorder. That piece of brain material alone might have exonerated the defendants.
The defense attorneys had many opportunities while questioning the expert witnesses to engender reasonable doubt, yet neglected to adequately examine them on every occasion. Moreover, appellate attorneys Brush and Drous failed to argue that the trial attorneys deficiently handled expert witnesses. For all of these reasons, the ineluctable conclusion is that Ms. Vildosola received ineffective assistance of counsel.
G. FAILING TO PREVENT ADMISSION OF Evidence with More Prejudice Than Probity
Defense counsel repeatedly allowed the introduction of evidence with prejudicial effects clearly outweighing any probative value.
For instance, the 1991 autopsy results of Carissa Neria, a daughter of Ms. Vildosola by an earlier marriage, were modified in 1996, after Destiny’s death, to indicate that the cause of death was SBS. The defense attorneys negligently failed to prevent the admission of this evidence. The purpose of the SBS rediagnosis was to suggest that Carissa and Destiny died under similar circumstances. Aside from the unfortunate coincidence of having lost two daughters, no evidence was presented to establish that Ms. Vildosola shook or otherwise abused either Carissa or Destiny. Thus, the transfigured autopsy report of Carissa Neria was highly prejudicial, yet lacked probative value, and should never have been admitted.
Evidence about the defendant’s cocaine use prior to Destiny’s birth was also admitted, despite the fact that its prejudicial impact undeniably exceeded its probity. For instance, the prosecutor, in her closing argument, asserts that “Defendant Vildosola snorted cocaine during her pregnancy…. The fact that she believed it would hurt her baby … shows her callous disregard … for human life.” (RT 2053 L. 15-16 & 21-28). The admission of such evidence without deliberation contravenes, inter alia, Cal. Evid. C. § 1101(b), and is the consequence of either ineffective assistance of defense counsel or abuse of judicial discretion. In either event, the introduction of such glaringly prejudicial information constitutes reversible error.
failure of a defense lawyer to object to the admission of prejudicial evidence
constitutes ineffective assistance of counsel. People v. Sanders (
But for the ineffective assistance of defense attorneys O’Brien and Santana, highly prejudicial evidence, such as Carissa Neria’s autopsy, would not have been admitted, and Ms. Vildosola would have been exonerated. Furthermore, the appellate attorneys, Brush and Drous, by failing to adequately argue that Carissa’s autopsy was more inflammatory than probative, were also ineffective. A new trial is warranted, so that Ms. Vildosola can rectify these deficiencies.
H. Declaration of Defendant’s Guilt by Defense Counsel
During the trial, Guy O’Brien, Ms. Vildosola’s defense attorney, repeatedly inculpated her, intimating that Ms. Vildosola was guilty (RT 2237 L. 12-21). For example, during closing arguments, Mr. O’Brien indicated that Ms. Vildosola was a bad mother (RT 2228, L. 26-27 (“It is obvious [that Ms. Vildosola] wasn’t an excellent mother.”); RT 2229, L. 8-9 (“this is a woman who failed to do many things that good parents should do”); RT 2232 L. 5-7 (“She was a lousy mother … and, frankly, could have cared less”); RT 2237 L. 1-2 (“She wasn’t a good mother in many ways.”)). He characterized her as negligent (RT 2231 L. 25-26 (“I think she was negligent.”)), inattentive (RT 2231 L. 27), and distracted (RT 2231 L. 27-28). O’Brien also declared that Ms. Vildosola should not be acquitted on all charges (RT 2237 L. 12-13 (“I can’t tell you … that my client should be acquitted on all charges.”)). He suggested that Ms. Vildosola should be charged with Manslaughter (CT 225 L. 2-19 (“could characterize a charge of manslaughter or …, as I say, … involuntary manslaughter”); RT 2237 L. 17-19). Yet Ms. Vildosola steadfastly insisted, in full honesty, that she was completely innocent of all charges.
counsel’s admission of the defendant’s guilt undermines the adversarial process
and constitutes per se ineffective
assistance of counsel. Wiley
v. Sowders (6th Cir. 1981) 647 F. 2d 642, 644-646 & 648
(conviction rev’d because
court-appointed lawyer admitted defendant’s guilt to jury in violation of 6th
and 14th Amendments); United States v. Swanson (9th Cir.
1991) 943 F. 2d 1070, 1074-1075 (defense attorney who admits guilt effectively
abandons his duty of loyalty and joins with the state in attempting to convict
his client). See also Nixon v.
The defense attorneys bolstered the prosecution’s case every time they made a remark which the jury was likely to interpret as a derogation of either defendant. There were many instances when Ms. Vildosola was disparaged by O’Brien, such as those cited above from his closing argument! Such expressions of culpability from a criminal defense attorney constitute reversible error.
I. APPELLATE Counsel FAILED TO RAISE IMPORTANT ISSUES
Ms. Vildosola’s appeal was handled
even more negligently than her trial (see Notice of Appeal of Patricia
Vildosola, in propria persona, Case No. GA026525-01, submitted to the Los Angeles
County Superior Court and dated
appellate attorney can be charged with ineffective assistance according to the
same principles and procedures as a trial counsel. Matire v. Wainwright (11th
Cir. 1987) 811 F. 2d 1430 (standard for ineffective assistance of counsel is
identical for trial and appellate counsel).
See also People v. Sturns (CA 1st
Vildosola’s appellate assistance was ineffective from beginning to end. The NOA, while allowing for the possibility
that other issues could be raised by appellate counsel (NOA 1, CT 581 L.
18-19), only concerns itself with alleged prejudicial errors of the trial
judge, namely, inter alia: (1)
permitting introduction of evidence about Carissa’s death (see NOA 1, CT
581, L. 20-21 and Cal. Evid. C. § 1101(b)), (2) allowing a finding of
The NOA negligently failed to mention anything about, inter alia, ineffective assistance of counsel (e.g., inadequate investigation, failure to present witnesses, lack of proper objections and requests during trial), conflicts of interest, conspiracy, malicious prosecution, prosecutorial misconduct, Brady violation, false evidence, denial of due process in rejecting Marsden motion and during jury selection procedures, inadequacy of expert witnesses, and newly discovered exculpatory evidence.
The appellate brief is modeled after the NOA. The first Argument (AB 15-19), “Evidence Does Not Support a Second Degree Murder Conviction,” addresses Ms. Vildosola’s state of mind or mens rea during the time when the alleged felonious acts (i.e., abuse, murder) against Destiny occurred. Argument 1 focuses on the concepts of malice, wantonness, express and implied malice, negligence, and types of homicide, including involuntary manslaughter. Since all of these concepts were considered during the trial and nothing new was offered, this argument was futile.
Drous’ second argument (AB 20-27), concerning the trial court’s refusal of the
defendants’ request for CALJIC 3.31.5, the issue again is the state of mind of
the appellant, applied specifically to Pen. C. § 273ab. Argument 2 focuses on the concepts of strict
liability, due process, reasonable doubt, malice, the Chapman test, and the
harmless error standard of People v. Watson (1956) 46 Cal. 2d 818, 836,
299 P. 2d 243, 254 (en banc), reh’g den., cert. den. (Watson v. Teets
(1957) 355 U.S. 846, 78 S. Ct. 70, 2 L. Ed. 2d 55). See Chapman v. California, supra,
reh’g den. 386
attorney Drous makes just one other argument (Argument 3, AB 28-34)—that the
evidence about the death of Carissa Neria was reversible error. This contention is the only one also raised
in the instant habeas corpus petition.
Using logic similar to that of this petition (see § II, supra
(Irrelevant and Highly Prejudicial Evidence was Admitted)), she argues that the
admission of information about Carissa violated Evid. C. § 1101(b), which
prohibits the use of evidence of prior conduct to prove subsequent conduct. Ewoldt, supra, at 393. Specifically, evidence of an uncharged
“offense” cannot be used to prove a propensity to commit the charged
crime. People v. Thompson (
Her exposition is weak, however, and for several reasons, inter alia: (1) Attorney Drous fails to itemize the many differences between Carissa and Destiny, including the different: (a) health histories, (b) domestic circumstances, and (c) causes of death. (2) Drous does not discuss the conspiratorial nature of the 1996 revamping of Carissa’s 1991 autopsy. (3) Drous provides no information that was not already presented at trial. (4) Drous cites pages in the Trial Transcript that have no relevance to the associated text of her brief. (5) Drous improperly cites case authorities.
Because the assistance rendered by Appellate Attorney Juliana Drous was ineffective and grossly deficient, the appellate court decision should be reversed and remanded, and this habeas corpus petition should be granted.
Ms. Vildosola was denied a Marsden Hearing, despite her repeated insistence that she was dissatisfied with Mr. O’Brien’s representation, and that she wanted a new attorney. See CT 356 (“Defense Marsden motion is held and denied”).
The issue in a Marsden hearing is whether continued representation by an appointed counsel would substantially impair or deny the constitutional right to effective counsel. People v. Marsden (Cal. 1970) 2 Cal. 3d 118, 123-124, 465 P. 2d 44, 84 Cal. Rptr. 156 (en banc) (denial of motion for substitution of attorneys, without opportunity to enumerate specific examples of inadequate representation, deprives defendant of fair trial); People v. Lewis (Cal. 1978) 20 Cal. 3d 496, 497, 573 P. 2d 40, 143 Cal. Rptr. 138 (defendant must be permitted to state reasons for believing court-appointed counsel should be discharged). See also People v. Dennis (CA 3rd Cal. 1986) 177 Cal. App. 3d 863, 870, 223 Cal. Rptr. 236, 241 (Marsden hearing should be adversarial, but must minimize self-incrimination and exposure of work product or trial strategies), citing People v. Carr (Cal. 1972) 8 Cal. 3d 287, 299, 502 P. 2d 513, 520, 104 Cal. Rptr. 705 (en banc) (right to discharge or substitute court-appointed counsel is matter of judicial discretion unless there is substantial showing that defendant’s right to assistance of counsel would be substantially impaired if the request were denied); and Freeman v. Lindsey (9th Cir. 2000) 2000 U.S. App. Lexis 26117 (habeas corpus petitioner alleged violation of 6th Amendment right to conflict-free assistance of counsel when (a) Marsden hearing request denied and (b) attorney was required to argue his own incompetence in motion for new trial).
assistance of counsel is the underlying plank which supports the Marsden
rule. People v. Maese (CA 5th
Cal. 1980) 105
with a court-appointed counsel is entitled to the services of a reasonably
competent attorney acting as a conscientious, diligent advocate. Cf. People v. Pope, supra,
XIV. PROSECUTORIAL MISCONDUCT: VIOLATION OF DUE PROCESS AND EQUAL PROTECTION RIGHTS
Prosecutor Cheri Lewis acted unethically and illicitly on numerous occasions, inter alia: (1) conspiring with other government officials to insure a conviction, and to minimize governmental liability for a chaotic child welfare system by, inter alia, altering Carissa Neria’s 1991 autopsy, so that Carissa’s revamped 1996 medical record would resemble Destiny’s; (2) obstructing justice by, inter alia, aiding and abetting Drs. Boggs and Reda in eschewing court appearances; (3) improperly asking jurors to compare Carissa’s and Destiny’s deaths, in order to discern a common scheme or plan of action by Ms. Vildosola, thereby confusing the jury; (4) tainting jurors by repeatedly declaring that the jury should punish Ms. Vildosola for the uncharged “offense” of murdering Carissa, and that the punishment should be a conviction for the murder of Destiny; (5) concealing or destroying exculpatory evidence, such as the occipital lobe artifact misplaced by Dr. Ribe; (6) vouching for the credibility of prosecution witnesses, such as Drs. Ribe and Sheridan; (7) personally attacking the credibility of defense witnesses, such as Dr. Ryan and Ms. Vildosola; and (8) ad hominem attacks on the defendants.
misconduct of sufficient magnitude to deny a defendant’s right to a fair trial
constitutes violation of due process rights under the Fifth and Fourteenth
Amendments of the United States Constitution, warranting habeas corpus
relief. Greer v. Miller (1987)
The Assistant District Attorney (hereinafter “D.A.”) violated the due process rights of Ms. Vildosola by, inter alia:
The prosecution, including but not necessarily limited to Deputy District Attorney Cheri Lewis and the Family Violence Division of the Los Angeles District Attorney’s Office, where Ms. Lewis is employed, committed at least six conspiratorial acts, all of which may or may not have been part of one common conspiracy to secure Ms. Vildosola’s conviction and to protect governmental entities associated with child welfare from liability: (1) arranging with the San Bernardino Coroner’s office to transform Carissa Neria’s autopsy, in order to facilitate the prosecution of Ms. Vildosola for the abuse and murder of Destiny; (2) aiding and betting the concealment or destruction of the occipital lobe fragment ostensibly showing a contre coup injury, which was mishandled by Dr. Ribe; (3) aiding and betting Drs. Boggs (the negligent Santa Marta Hospital physician whose excessive CPR caused pneumothorax, from which Destiny died) and Reda (the Long Beach Memorial Hospital pediatrician who treated Destiny for bilateral pneumothorax, acute respiratory distress syndrome, and cardiogenic shock) in their nonappearance during the trial; (4) collaborating with the Los Angeles Department of Childrens’ Services and Cindy Romero in concealing evidence of sexual and physical abuse perpetrated against Destiny by Billy Jacobo III; (5) hiding evidence of abuse by Daniel and Joanne Garza, Destiny’s foster parents during her first fifteen months of life, in collaboration with the Los Angeles Department of Childrens’ Services and Cindy Romero; and (6) blaming Esther Jacobo for some or all of Destiny’s abuse, in collaboration with the Los Angeles Department of Childrens’ Services, Cindy Romero, and Los Angeles County Sheriff’s Department Homicide Detectives Robert Tauson and Paul Delhauer (both of whom were Coroner’s Investigators during 1995-1996 (see RT 1171 L. 27-1172 L. 16)), in order to coerce Esther into testifying against Ms. Vildosola. See RT 2064 L. 6-9 (“We gave [Esther] immunity … in the hope that she would come clean.”).
and civil complainants may allege conspiracies involving prosecutors, other
governmental agents, and lay witnesses, both as affirmative defenses and in
suing for damages. Briscoe v. LaHue
(1983) 460 U.S. 325, 330, 103 S. Ct. 1108, 1113, 75 L. Ed. 2d 96
(“nongovernmental witnesses [can] act under color of law … by conspiring with a
prosecutor or other state officials”); Dennis v. Sparks (1980) 449 U.S.
24, 27-29, 101 S. Ct. 183, 186-187, 66 L. Ed. 2d 185 (no immunity for state
officials conspiring with other state officials or private parties); Ashelman
v. Pope (9th Cir. 1986) 793 F. 2d 1072, 1077 (no prosecutorial
immunity where prosecutors conspired to predetermine outcome of proceeding); Beard
v. Udall (9th Cir. 1981) 648 F. 2d 1264, 1271 (per curiam) (no
prosecutorial immunity unless prosecutor is acting within scope of authority
and in quasi-judicial capacity); Jacobson v. Rose (9th Cir. 1978)
592 F. 2d 515, 524 (prosecutors enjoy only qualified immunity for actions taken
in administrative or investigational authority), cert. den. (Jacobson
v. Rose (1979) 442 U.S. 930, 99 S. Ct. 2861, 61 L. Ed. 2d 298). Cf. Supreme Court of Virginia v. Consumers
Union (1980) 446
Prosecutor Lewis acted
outside the scope of her authority and beyond the bounds of her qualified
immunity, because she conspired with witnesses (including Boggs and Reda), DCS
employees (including Cynthia Romero), and governmental representatives
Ms. Lewis obstructed justice by secluding or not calling witnesses whom she knew would provide exculpatory testimony, including, inter alia: (1) Dr. Joseph Boggs, (2) Dr. Zacharia Reda, (3) Ernie Rodgriguez, (4) Henry Diaz, (5) Raymond Saucedo, (6) Eric Klimek, (7) Michael William Jacobo, (8) John Estrella, and (9) Jimmy Sanchez.
(1) Boggs killed Destiny by providing negligent medical
When Destiny was rushed by
her parents to
(2) Reda treated Destiny for pneumothorax, acute respiratory distress
syndrome (ARDS), and cardiogenic shock, and noted that Destiny had subarachnoid
hemorrhaging (not symptomatic of SBS or BCS) and renal dysfunction. Reda would have testified that Destiny’s
cause of death was ARDS, precipitated by pneumothorax, contradicting Lewis’
premise that Destiny died of SBS.
Although she knew that Reda would ruin her case, Lewis told the jury
that Reda’s testimony would be a waste of time, and that Reda should not be
inconvenienced by a trip all the way from
Messrs. Rodriguez, Diaz, Saucedo, and Klimek were all on the prosecution’s witness list, and came to court several times, expecting to be called to testify, but were never allowed to take the stand. All of these individuals were eyewitnesses to the events of December 5, 1995 or January 21, 1991, and each would have provided exculpatory testimony: (3) Mr. Rodriguez told the investigating detectives, Ms. Lewis, and Messrs. O’Brien and Santana that he observed Little Billy (Billy III) alone with Destiny in the back bedroom of Esther Jacobo’s home throwing Destiny into the air (contained within the Police Supplementary Report, and alluded to at CT 157 L. 22-158 L. 27 (“The officer is here who took the statement”)); (4) Mr. Diaz worked throughout the day of December 5, 1995, just outside the open door of the back bedroom of Esther Jacobo’s house, where Destiny slept, and he never saw or heard any abuse of Destiny; (5) Mr. Saucedo was also working at Esther Jacobo’s home during the afternoon and evening of December 5, 1995, and never heard nor saw any abuse of Destiny; and (6) Mr. Klimek, the boyfriend of Ms. Vildosola’s mother Frances, was present at Ms. Vildosola’s grandmother’s house during the night of January 21, 1991, when Carissa Neria died, and neither heard nor saw any abuse.
Three other exculpatory witnesses were known to the prosecution, but neither called nor included in the prosecution’s witness list: (7) Michael Jacobo witnessed Billy III sneaking to “play” with Destiny, saw Billy III abusing Anthony Jacobo, and was himself abused by Billy III; (8) John Estrella also saw Billy III throwing Destiny into the air on a different occasion from Ernie Rodriguez’s sighting; and (9) Jimmy Sanchez, Billy III’s stepfather, would have served as a powerful character witness against Billy III, because he was arrested for sexually molesting Michael William and Anthony Jacobo based on Billy III’s false allegations, then released when the children came forward and declared that they were actually abused by Billy III. Just as he lied about his stepfather, Billy III likewise lied on the stand in the trial against his stepmother, Ms. Vildosola.
Ms. Lewis knew that if Boggs, Reda, Rodgriguez, Diaz, Saucedo, Klimek, Michael Jacobo, Estrella, or Sanchez testified, any one of them would at least establish reasonable doubt as to Ms. Vildosola’s guilt. Lewis was aware that: (1) Boggs and Reda would reveal evidence of Destiny’s pneumothorax; (2) Rodriguez, Estrella, and Michael Jacobo would testify that Billy III abused Destiny; (3) Diaz and Saucedo would confirm that Destiny was not abused on December 5, 1995; (4) Sanchez and Michael Jacobo would have destroyed Billy III’s credibility; and (5) Klimek would establish that Carissa was not abused, and that all of the above testimony would be exculpatory. Moreover, Messrs. Diaz and Estrella were intimidated by the police to discourage their testimony.
The prosecutors in a
criminal trial may be charged with obstruction of justice.
By, inter alia, intentionally and maliciously intimidating (Diaz and Estrella) and hiding (Boggs and Reda) witnesses, and refusing to call others (e.g., Rodriguez, Saucedo, Sanchez, Klimek), Ms. Lewis obstructed justice, causing reversible error.
Prosecutor Lewis’ declamations hopelessly confused the jury, particularly her assertions concerning the errantly admitted autopsy file of Carissa Neria. Lewis knew or should have known that the evidence concerning Carissa’s death was admitted for the limited purpose of proving whether, based upon her behavior at the time of Carissa’s death, Ms. Vildosola had knowledge of the danger to and conscious disregard for human life, and that recurrence of such behavior killed Destiny. Lewis wantonly disregarded those strictures, exploiting Carissa’s autopsy material unrestrictedly, accusing Ms. Vildosola of murdering Carissa and asking the jury to punish Ms. Vildosola for Carissa’s murder.
First, Ms. Lewis told the jury, during
her closing argument, that they could use Carissa’s autopsy data to find a
common scheme, plan, or method of action vis-à-vis Destiny’s death, despite the
fact that Ms. Vildosola was never charged with any crime or offense in
connection with Carissa’s death. RT 2049
L. 28-2050 L. 7. Evidence about a
defendant’s character, such as an uncharged offense, may not be used to prove
conduct on a specified occasion. Cal.
Pen C. § 1101(a); Thompson, supra, at 27
Secondly, Lewis explicitly asked the jury panel to condemn Ms. Vildosola for Carissa’s death. Lewis argued that Ms. Vildosola murdered both Carissa and Destiny, and that she needed to be punished for killing Carissa (e.g., RT 2049 L. 25-27 (“After the second baby died she finally got caught, and she is finally being held accountable for her actions with regard to Destiny.”); RT 2051 L. 10-12 (“She didn’t care what was happening to Carissa any more than she cared what was happening to Destiny.”) & 18-23 (“that prior child abuse and murder of Carissa is of the same type as [Destiny’s]”); RT 2052 L. 7 (“she did commit murder of the prior baby”); RT 2053 L. 10-12 (“The baby [Carissa] had already been murdered before … the Emergency Medical Technician got there on January 21st[, 1991]”); RT 2095-2096, 2099-2101, RT 2247 L. 28-2248 L. 2 (“Vildosola got away with murder on that baby [Carissa], and I hope she does not get away with murdering this one.”).
Jury confusion is a recognized form of
prosecutorial misconduct. People v.
Pineiro (CA 1st Cal. 1982) 129
Jury confusion is also a ground for
reversal of judgment. Delli Paoli v.
United States (1957) 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278
(reversible error if instructions lack sufficient clarity); People v. Garceau
(Cal. 1993) 6 Cal. 4th 140, 187-188, 862 P. 2d 664, 692, 24 Cal.
Rptr. 2d 664 (arguing that trial court committed reversible error because
“instructions represented ‘chaotic array’ that confused the jury”), reh’g
den. (1994), cert. den. (Garceau v. California (1994) 513
U.S. 848, 115 S. Ct. 144, 130 L. Ed. 2d 84).
Cf. Brignoli v. Seaboard Transportation Co. (Cal. 1947) 29
Cal. 2d 782, 789, 178 P. 2d 445, 449 (failure of trial judge “to give
defendant’s instruction … confused the jury and seriously affected the outcome
of the trial.”), reh’g den., and Bean v. Calderon (9th
Cir. 1998) 163 F. 3d 1073, 1091 (O’Scannlain, J., partially concurring and
partially dissenting) (according to majority, jury could be confused re
which crimes applied to instructions re “aiding and abetting” and
“conspiracy”), cert. den. (Calderon v. Bean (1999) 528 U.S. 922,
120 S. Ct. 285, 145 L. Ed. 2d 239). When
there is a reasonable likelihood that a jury may be confused, the court should
issue clarifying instructions.
Unfortunately, not only did prosecutor Lewis confuse the jury, but the
judge refused to instruct the jury as to what specifically described
information (i.e., Carissa’s autopsy) would be subject to what precise
evidentiary limitations (i.e., proving knowledge of danger to and conscious
disregard for human life), instead issuing the vague prescriptions of CALJIC
2.09 (see § XV, infra (Abuse of Discretion) and RT 2014 L.
13-18). See also United States v. Frega (9th Cir. 1999)
179 F. 3d 793, 809 (jury clearly expressed its confusion about a controlling
legal principle, and explicitly requested clarification from the trial judge), cert.
den. (Frega v.
By, inter alia, repeatedly requesting that the jury
punish Ms. Vildosola
for Carissa Neria’s death, and declaring that Carissa
was murdered by Ms. Vildosola, Prosecutor Lewis tainted the
jury, fomenting the jurors to return a guilty verdict against Ms. Vildosola
based, at least in part, on Ms. Vildosola’s unindicted association with
Carissa’s demise. See Mach v.
Stewart (9th Cir. 1998) 137 F. 3d 630, 631 (rev’g denial of habeas corpus petition because jury was “biased and
tainted” by “introduction of prior bad acts”), 633 (“at least one juror was tainted,”
violating defendant’s “right to an impartial jury”) & 634 (Sixth Amendment
right to unbiased jury violated because taint “substantially affected jury’s
verdict”); Lawson v. Borg (9th Cir. 1995) 60 F. 3d 608, 614
(Trott, C.J., dissenting) (“if even one juror is tainted” by admission
of evidence of “prior bad acts” or “reputation,” defendant is “denied a fair
trial”), citing Dickson v. Sullivan (9th Cir. 1988)
849 F. 2d 403, 408-409 (new trial granted, because comment that defendant had
done “something like this before” could “only be understood as referring to a
previous act of brutality or murder”), citing Parker v. Gladden
(1966) 385 U.S. 363, 366, 87 S. Ct. 468, 471, 17 L. Ed. 2d 420 (defendant is
“entitled to be tried by 12, not 9 or even 11 … unprejudiced jurors”). See also United States v. Lewis
(9th Cir. 1986) 787 F. 2d 1318, 1323 (“To tell a jury to ignore the
defendant’s prior conviction [or uncharged offense] in determining whether he
or she committed the offense being tried is to ask human beings to act with a
measure of dispassion and exactitude well beyond mortal capacities.”), reh’g
en banc den. (798 F. 2d 1250), cert. den. (Lewis v. United States
(1989) 489 U.S. 1032, 109 S. Ct. 1169, 103 L. Ed. 2d 227), quoting United
States v. Daniels (D.C. Cir. 1985) 770 F. 2d 1111, 1118, 248
Because their prejudicial impact vastly exceeded their probative value, Carissa’s autopsy findings should never have been admitted into evidence at trial. However, the trial judge attempted to limit their use to establishing whether Ms. Vildosola had knowledge and conscious disregard of the danger to human life of the actions which allegedly caused the deaths of Carissa and Destiny. Prosecutor Lewis then proceeded to use the information about Carissa to unmitigatedly smear Ms. Vildosola. Lewis proclaimed that Ms. Vildosola murdered both Carissa and Destiny, and that she needed to be punished for killing Carissa (e.g., RT 2049 L. 25-27 (“After the second baby died she finally got caught, and she is finally being held accountable for her actions with regard to Destiny.”); RT 2051 L. 10-12 (“She didn’t care what was happening to Carissa any more than she cared what was happening to Destiny.”) & 18-23 (“that prior child abuse and murder of Carissa is of the same type as [Destiny’s]”); RT 2052 L. 7 (“she did commit murder of the prior baby”); RT 2053 L. 10-12 (“The baby [Carissa] had already been murdered before … the Emergency Medical Technician got there on January 21st.”); RT 2095-2096, 2099-2101, RT 2247 L. 28-2248 L. 2 (“Vildosola got away with murder on that baby [Carissa], and I hope she does not get away with murdering this one.”).
The right to due process guarantees that any
evidence which has been destroyed or is otherwise unavailable at time of trial
must be excluded. Hitch, supra,
at 641; Arizona v. Youngblood, supra (bad faith loss or
destruction of possibly exculpatory evidence violates Fourteenth Amendment); California
v. Trombetta (1984) 467 U.S. 479, 487, 104 S. Ct. 2528, 2533, 81 L. Ed. 2d
413 (destruction or loss of possibly exculpatory evidence not Due Process
Clause violation if substitute evidence available); People v. Roybal
(Cal. 1998) 19 Cal. 4th 481, 508, 966 P. 2d 521, 537, 79 Cal. Rptr.
2d 487 (no due process violation when prosecution lost or destroyed
nonexculpatory evidence), reh’g den. (1999
(1) The missing “piece” of Destiny’s occipital lobe which Dr. Ribe testified to be evidence of a contre coup blunt force injury related to SBS (see, e.g., CT 174 L. 17-175 L. 6). Considering that Destiny had no subdural hematomas, a universal finding in SBS victims, the prosecution needed evidence that Destiny was physically abused. Since no such evidence exists, and there was no evidence of a coup injury, Ms. Lewis and Dr. Ribe had to pin all of their hopes on the brain material excised by Ribe. To win a conviction, Lewis and Ribe introduced testimony about the missing material, but concealed it from the defendants, the court, and the jury.
(2) At least nineteen (19) of 33 photographs taken during the autopsy of Carissa Neria disappeared before trial. Consequently, only fourteen (14) photographs were introduced at trial. The missing photographs would have shown that Carissa had no bruises, nor any other signs of physical abuse (RT 622 L. 14-626 L. 1). If the prosecution had not concealed or destroyed the missing photographs, Carissa’s autopsy would probably have been excluded from evidence, and Ms. Vildosola would have been exculpated.
(3) At least eighteen (18) photographs of Destiny, ten (10) of which were taken by the Monterey Park Police Department, and eight (8) of which were taken at Santa Marta Hospital (only three 35 mm. photographs from Long Beach Memorial Hospital were introduced at trial), which would have shown that immediately prior to hospitalization, Destiny had very little bruising, and no needle marks (RT 1109 L. 17-1111 L. 11 (when the Court asks whether any photographs are from Santa Marta, Lewis replies, “I don’t know.”) & RT 1132 L. 2-6 (asked where proffered photographs were taken, Police Officer Ostremba responds, “I don’t know”)).
photographs would have exculpated Ms. Vildosola insofar as the needle punctures
are concerned. The prosecution argued
that the needle marks were evidence that Destiny was abused by her parents. RT 2128 L. 11-17 (“the baby had been battered,
beaten and punctured to death”).
The prosecution contended that nineteen (19) nontherapeutic needle
notches were found during Destiny’s autopsy (CT 134 L. 13-19). Yet Officer Otremba, who was with Destiny shortly
after she arrived at
The missing photographs would also have been exculpatory with respect to Destiny’s bruising. They would have revealed that Destiny’s bruising was not caused by her parents, but by “violent” CPR administered during her hospitalizations at Santa Marta and Long Beach Memorial Hospitals, exacerbated by her bleeding disorder (RT 2233 L. 4-2235 L. 5 (bruising was caused by “well-intentioned violence” used to resuscitate a child with a “coagulation problem”)). The prosecution systematically excluded all exculpatory photographs in order to maintain their fallacious theory that Destiny was a victim of SBS.
A criminal conviction must be reversed if
the prosecutor failed to present any and all evidence exculpatory of the
defendant. Brady, supra
(murder retrial granted because state suppressed evidence favorable to the
accused, violating 14th Amendment Due Process Clause); Giles v. Maryland
(1967) 386 U.S. 66, 98, 87 S. Ct. 793, 809, 17 L. Ed. 2d 737 (Fortas, J., concurring)
(violation of due process of law for prosecution to withhold evidence); California
v. Trombetta, supra, 467 U.S. at 488-489, 81 L. Ed. 2d at 422 (duty
to preserve limited to (1) evidence with exculpatory value apparent before
evidence was destroyed, where (2) defendant would be unable to obtain
comparable evidence by reasonable means); Arizona v. Washington (1978)
434 U.S. 497, 516, 98 S. Ct. 824, 836, 54 L. Ed. 2d 717 (new trial granted
where prosecutor deliberately withheld exculpatory evidence from defense). See also Cal. Const., Art. I § 7
(2000) (Due Process; Equal Protection; Privileges and Immunities); Cal. Penal
Code § 939.7 (consideration of exculpatory evidence); Cal. Penal C. § 1054.1
(information to be disclosed by prosecution); United States v.
Brumel-Alvarez (9th Cir. 1992) 976 F. 2d 1235, 1242
(prosecutor’s withholding of evidence favorable to the accused violates due
process if evidence is material to either guilt or innocence); In re Lessard (Cal.
1965) 62 Cal. 2d 497, 508-509, 399 P. 2d 39, 46-47, 42 Cal. Rptr. 583
(suppression of substantial material evidence favorable to the accused violates
due process, irrespective of good or bad faith of prosecution); Hendricks
v. Zenon (9th Cir. 1993) 993 F. 2d 664, 672 (prosecution
withheld exculpatory evidence, depriving habeas corpus petitioner of due
process rights), amended by 1993 U.S. App. Lexis 16929; Hitch, supra
(due process violation for prosecution to destroy evidence of potential
exculpatory value before defense has chance to examine or test it); Wang
Zong Xiao v. Reno (ND Cal. 1993) 837 F. Supp. 1506, 1555 (burying document
and failing to produce document during discovery was brazen Brady doctrine
violation), aff’d Wang v. Reno (9th Cir. 1996) 81 F.
3d 808; People v. Roybal, supra, 19 Cal. 4th at 508,
966 P. 2d at 537 (defendant alleged that prosecution lost or destroyed
exculpatory evidence in contravention of Fourteenth Amendment Due Process
Clause, and that comparable evidence could not be obtained by any other means);
People v. Matian (CA 2nd Cal. 1995) 35 Cal. App. 4th
480, 483, 41 Cal. Rptr. 2d 459, 460 (prosecution’s withholding of material
evidence violates due process), rev. den. (1995
(4) The prosecution assisted in the
disappearance and/or nonappearance of two exculpatory medical witnesses, and
intentionally excluded at least ten exculpatory lay witnesses. The most arrant example is Dr. Joseph Boggs
of Sta. Marta Hosp., who killed Destiny by bursting her lungs (causing
pneumothorax) while performing CPR (RT 1313 L. 13-14;
RT 1344 L. 11-17; RT 1839, L. 17-24), passing Destiny on immediately
thereafter to Dr. Reda at Long Beach Mem. Hospital. Boggs then left Sta. Marta, and, although
first on the prosecution’s witness list, was never called to testify because,
according to Lewis, he was unlocatable (e.g.,
RT 1250 L. 22-24 (“if we ever find Boggs”); RT 2257 L. 17-18). Similarly, Lewis kept Reda from testifying,
claiming that it would be a waste of time, and that Reda should not be burdened
by the long drive from
(5) The prosecution also failed or refused to consider mountainous exculpatory medical evidence. For instance, autopsy findings strongly suggest pneumothorax, aggressive CPR, pneumonia, bronchitis, meningitis, blood dyscrasias, self-inflicted (paroxysmal) wounds, accidental injuries, and/or congenital defects caused Destiny’s death. Yet Cheri Lewis relentlessly and exclusively pursued a dubious SBS theory.
Prosecutor Lewis improperly vouched for the credibility of prosecution witnesses, such as Dr. James Ribe, Billy Jacobo III, Dr. Frank Sheridan, and Diana Elliott, PhD. The credentials of prosecution experts Ribe and Sheridan were lavishly lauded, while the credentials of Dr. John Ryan, the lone defense expert, were vilified. Lewis went so far as to vouch for Ribe’s credibility, arguing, “[H]is opinion is the expert opinion that you should trust and rely on with regard to how Destiny died ….” RT 2106 L. 6-7.
In vouching for the credibility of Billy III (RT 2077 L. 3-15), Lewis claimed that the boy “even said at one point that he was being careful to be truthful, because he didn’t want to lie.” RT 2077 L. 10-12. Lewis further vouched for Billy III’s credibility through attribution to Dr. Elliott: “[Billy’s] credibility … ended up being corroborated … by Dr. Elliott, the psychologist, who also found him very credible when she interviewed him.” RT 2077 L. 12-15. “[Dr. Elliott’s] opinion … of little Billy’s credibility is that he was very insightful and observant.” RT 2078 L. 4-6. “Dr. Elliott’s opinion [of] this little boy, Billy, … is that he was very thoughtful and insightful ….” RT 2078 L. 26-28. The highlighted text above pinpoints classic examples of vouching.
then proceeded to vouch for the credibility of Dr. Elliott. See RT 2077 L. 16-2080 L. 21. For example, “in evidence is a copy of [Dr.
Elliott’s] resume vitae [sic], … detailing all of her credible
experience.” RT 2077 L. 16-18. Next, she vouched for Marina Neria, another
child interviewed by Elliott, declaring that
The prosecutor further vouched for the authenticity of police officer Otremba. See RT 2082 L. 4-2083 L. 5. Lewis declared, for instance, that “[Officer Otremba] was obviously a credible witness ….” (RT 2082 L. 7), and that “He was honest ….” (RT 2082 L. 11). Such testimonials to truthfulness undoubtedly swayed the jury.
is a ground for granting a new trial or habeas corpus relief. Lambright, supra (vouching for
witness credibility was basis for granting certificate of appealability); Dubria,
supra, at 1004 (prosecutor cannot express opinion about defendant’s
guilt or vouch for government witnesses); Thomas v. White (9th
Cir. 1999) 1999 U.S. App. Lexis 11082 (habeas petition denied because
prosecution did not improperly vouch its primary witness); In re Marvich
(Cal. 1946) 27 Cal. 2d 503, 506, 165 P. 2d 241, 242 (habeas corpus petitioner
alleged that prosecutor vouched for truthfulness of State’s witness despite
knowing that it was perjured), cert. den. (Marvich v. California
(1946) 328 U.S. 841, 66 S. Ct. 1014, 90 L. Ed. 1616). See also Cal.
Evid. C. prec. § 785 (Attacking or Supporting Credibility of Witnesses);
by a prosecutor regarding the credibility of witnesses poses two dangers: (1) Such comments may convey to the jury that
evidence known to the prosecutor but not presented at trial supports charges
against the defendant, thereby jeopardizing the defendant’s right to be tried
solely on the basis of evidence presented to the jury; and (2) the prosecutor’s
opinion bears the implicit imprimatur of the government, possibly inducing the
jury to substitute the judgment of governmental authority for its own view of
the evidence. United States v. Young
(1985) 470 U.S. 1, 18, 105 S. Ct. 1038, 1048, 84 L. Ed. 2d 1 (prosecutor’s
vouching and expressing personal opinion about guilt of accused was improper
and in error, but not to extent that juror’s deliberations were compromised), citing
Berger v. United States (1935) 295 U.S. 78, 88-89, 55 S. Ct. 629, 79 L.
Ed. 1314 (prosecutor is representative of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all, and
whose interest is not to win the case, but to administer justice). See also Lambright, supra,
at 1029 (prosecution allegedly unconstitutionally vouched for credibility of
principal defense witness); United States v. Daas (9th Cir.
1999) 198 F. 3d 1167, 1171 (prosecutor improperly vouched for credibility of
two witnesses who supplied the only direct evidence of defendant’s culpable
intent), cert. den. (Daas v. United States (2000) 121 S. Ct. 498,
148 L. Ed. 2d 468); United States v. Perez (9th Cir. 1995) 67
F. 3d 1371, 1378 (prosecutor impermissibly vouched for credibility of informant
witnesses during direct examination and rebuttal argument), reh’g en banc
granted (77 F. 3d 1210 (1996)); People v. Frye (Cal. 1998) 18 Cal. 4th
894, 970, 959 P. 2d 183, 223, 77 Cal. Rptr. 2d 25 (prosecutors are prohibited
from vouching for credibility of witnesses or otherwise bolstering the veracity
of testimony by referring to evidence outside the record), reh’g den.
that the prosecutor vouched for the credibility of witnesses are reviewed for
plain error where no objection was made by the defendant at trial.
By telling the jury that her witnesses could be believed while denigrating the truthfulness of defenses witnesses, Prosecutor Lewis engaged in improper vouching—a reversible error calling for habeas corpus relief.
Ms. Lewis personally
attacked the credibility of defense witnesses, including Marina Neria and Drs.
John P. Ryan and Nenita R. Duazo. Such
attacks can be a basis for the granting of a new trial or habeas corpus
For example, Lewis told the jury that they should take Dr. Ryan’s opinions and “throw [sic] out the window.” RT 2094 L. 15-16. She referred to Dr. Ryan’s opinion as “worth less than the paper it was written on ….” RT 2094 L. 11-14. She further maligned Dr. Ryan by remarking that he “doesn’t know what he is talking about,” then reiterated the same obloquy. RT 2265 L. 16-17 & 18-19. Lewis also assailed Dr. Duazo, calling her a “junior pathologist.” RT 2261 L. 25. The purpose of denouncing Dr. Duazo (who performed Carissa’s 1991 autopsy) was to lend credence to Dr. Sheridan’s 1996 autopsy revision, thereby encouraging jurors to infer Ms. Vildosola’s guilt from the 1996 autopsy.
vouched for and attacked Marina Neria’s credibility. Examples of Lewis’ deprecation of Marina’s
veracity can be found at RT 2080 L. 2-3 (“[Marina] was protective of her
mother”); RT 2080 L. 13 (“she was protective”); RT 2080 L. 15-16 (“Marina was
not totally candid”); and RT 2080 L. 20-21 (“being protective of her mother.”). Ms. Lewis’ treatment of
attacks by a prosecutor on the credibility of attorneys or witnesses for the
defense are improper, requiring reversal or vacating of judgment if having a
prejudicial effect on the trial outcome.
Pierson v. O’Leary (7th Cir. 1992) 959 F. 2d 1385,
1388 (prosecution’s calumnious attacks on credibility of defense counsel
clearly improper); State v. Klinge (Haw. 2000) 92 Haw. 577, 594, 994 P.
2d 509, 526 (prosecutor’s denunciation of defense counsel during closing
argument did not amount to plain error), citing United States v. Linn
(10th Cir. 1994) 31 F. 3d 987, 993 (prosecutor impermissibly vouched
for witness credibility, and personally attacked defense counsel during closing
argument); United States v. Velez (7th Cir. 1995) 46 F. 3d
688, 692 (defendant moved for mistrial because of prosecutor’s opprobrium of
defense counsel); State v. Henderson (CA 11th OH 2000) 2000
Ohio App. Lexis 4579 (prosecutor’s endorsement of prosecution witnesses’
truthfulness, and impugnment of the credibility of defendant and his witnesses,
were sufficiently pervasive and prejudicial to constitute reversible error); State
v. Brumfield (La. 1998) 737 So. 2d 660, 666 (prosecutor should refrain from
making personal attacks on defense counsel and strategy); Hernandez v. State
(CA 3rd TX 2000) 2000 Tex. App. Lexis 2403 (alleging personal attacks
on defense counsel by prosecutor amounted to due process violation). Cf. People v. Haskett (
By besmirching defense witnesses, and personally attacking their credibility and character, Prosecutor Lewis prejudiced the jury against the defendants, depriving them of their due process rights as promulgated by the Fourteenth Amendment of the United States Constitution. Therefore, Ms. Vildosola is entitled to habeas corpus relief.
Personal or ad hominem attacks on the character
or credibility of a defendant violate the Due Process Clause of the Fourteenth
Amendment and Article VI § 13 of the California Constitution (judgment may be
set aside where error resulted in miscarriage of justice). Thus, such attacks are grounds for reversal
of judgment or habeas corpus relief. Oregon
v. Kennedy (1982) 456 U.S. 667, 670, 102 S. Ct. 2083, 2086-2087, 72 L. Ed.
2d 416 (conviction rev’d, because personal attack on the general character of
defendant left Hobson’s choice—accept “necessarily prejudiced jury,” or move
for mistrial and start over); United States v. Prantil (9th
Cir. 1985) 756 F. 2d 759, 767 (conviction rev’d where prosecutor launched
personalized attack on defendant’s motives during summation), amended by
764 F. 2d 548. Cf. Church of
Scientology v. Wollersheim (CA 2nd Cal. 1996) 42
Prosecutor Lewis repeatedly attacked both defendants personally, especially Ms. Vildosola. For example, she announced during closing argument, “[T]he defendant can cry all she wants.” RT 2048 L. 21-22. After an objection to this comment was sustained (RT 2048 L. 23-25), Lewis continued, “You saw her cry throughout the time she was on the witness stand … and she finally took a Kleenex…. There were actually at that point no tears coming out of her eyes.” RT 2048 L. 26-2049 L. 4. After another sustained objection (RT 2049 L. 5-7), Lewis again continued, “I can’t argue to you that she was faking the crying…. [T]hose were tears of not remorse over killing either of those two babies, but the fact that she has now been caught.” RT 2049 L. 20-25. Later, Lewis argued “[W]e know she didn’t care. She didn’t give a darn about that baby, about Destiny. She didn’t care about that baby just like she didn’t care about Carissa Neria.” RT 2088 L. 8-11.
Lewis also directly referred to both Ms. Vildosola and Mr. Jacobo as “idiots” and “stupid.” These remarks were apparently expurgated from the trial transcript copies provided to the defendants. Such censorship is further evidence that the defendants were the victims of a conspiracy detrimental to our system of justice.
Ms. Lewis furthermore went too far in
attacking the credibility of the defendants.
She characterized Ms. Vildosola as “lying through her teeth.” RT 2087 L. 23. The prosecutor also errantly argued that
according to Ms. Vildosola, Destiny “committed suicide” (RT 2269
L. 1-2 & 14) by not always putting her arms out to break her falls. See RT 2269 L. 1-2270 L. 4. Ms. Lewis next avouched, “If you
believe that, if you buy that, there is this island off
Prosecutor Lewis’ profuse invective against the codefendants, especially Ms. Vildosola, tainted and prejudiced the jury. Ms. Vildosola was thereby denied the right to a fair, impartial trial. Accordingly, Ms. Vildosola should be conferred habeas corpus relief.
An abuse of discretion implies that the court has made an unreasonable, unconscionable or arbitrary decision. Citizens for Non-Toxic Pest Control v. Department of Food & Agriculture (CA 1st Cal. 1986) 187 Cal. App. 3d 1575, 1585, 232 Cal. Rptr. 729, 734 (abuse of discretion shall be found if a decision was arbitrary or capricious, or if proceedings were not conducted in the manner required by law), rev. den. (1987); People v. Allen (Cal. 1986) 42 Cal. 3d 1222, 1291, 729 P. 2d 115, 159, 232 Cal. Rptr. 849 (Bird, C.J., concurring and dissenting) (reviewing court must consider whether there was procedural error; whether any of the findings was the result of passion, prejudice, or any other arbitrary factor; and whether there was abuse of discretion), reh’g den. (1987), cert. den. (Allen v. California (1987) 484 U.S. 872, 108 S. Ct. 202, 98 L. Ed. 2d 153); Koehn v. State Board of Equalization (Cal. 1958) 50 Cal. 2d 432, 434, 326 P. 2d 502, 504, 30 Cal. Rptr. 4 (en banc) (appeals board was arbitrary and capricious, constituting prejudicial abuse of discretion), reh’g den.; Westinghouse Electric Corp. v. Superior Ct. (CA 5th Cal. 1983) 143 Cal. App. 3d 95, 101, 191 Cal. Rptr. 549, 552 (petition alleging that decision of respondent court was unreasonable, arbitrary, and a prejudicial abuse of discretion); People ex rel. Sobieski v. Western Airlines, Inc. (CA 2nd Cal. 1968) 258 Cal. App. 2d 213, 216, 66 Cal. Rptr. 316, 318 (Commissioner prejudicially abused discretion by acting arbitrarily and prejudging issues, thereby abusing the administrative process and denying defendant a fair hearing and trial), reh’g den.
The trial court judge, the Honorable Janice Claire Croft, abused her discretion on several occasions, thereby committing reversible errors. Among the abuses of discretion for which Ms. Vildosola seeks habeas corpus relief are, inter alia: (1) Admission of highly prejudicial evidence concerning the death of Carissa Neria, a baby who died under vastly different conditions than Destiny five years earlier; (2) issuing vague and incomplete jury instructions; (3) rejecting each and every one of the nine jury instructions requested by defense counsel (CALJIC 8.21 (CT 526), CALJIC 17.01 (I) (CT 527), CALJIC 17.01 (II) (CT 528), CALJIC 4.80 (CT 529), CALJIC 3.01 (CT 530), CALJIC 3.02 (CT 531), CALJIC 4.71.5 (CT 532), Special Instruction No. A (CT 533), and Special Instruction No. B (CT 534)), while rejecting none of the jury instructions submitted by the prosecution; (4) permitting the admission of “gruesome,” gory, highly prejudicial pictures of Destiny’s autopsy (see, e.g., RT 1256 L. 2-3 & RT 1261 L. 16-1262 L. 8); (5) perfunctorily denying Ms. Vildosola’s Marsden motion (see CT 356 (“Defense Marsden motion is held and denied”)); (6) refusing to allow Ms. Vildosola to use a law library (see RT A-12, L. 23 (Motion for Continuing Order to use Sybil Brand library) through A-13, L. 18 (“motion for continued access privilege is denied”)); (7) refusing to replace a juror who talked constantly to himself, expressing his distaste for the defendants and defense witnesses, during trial proceedings and in the presence of the other jurors (RT 1071 L. 12-1084 L. 1); (8) allowing a juror to remain on the panel despite her intention to go on vacation (RT 2283 L. 20-2287 L. 18); (9) entreating Juror Number 12 for a quick verdict; and (10) generally confusing the panel of jurors.
A. Admitting Highly Prejudicial Evidence about Carissa Neria
The evidence about Carissa was so potentially inflammatory that it never should have been admitted. See CT 241 (People’s Motion in Limine to Admit Evidence under Evid. C. § 1101(b), regarding admission of evidence about Carissa), CT 300 (Opposition to Admission of § 1101(b) evidence), and CT 349 (“People’s motion to admit evidence per 1101.1 B [sic] is granted.”). However, once it became part of the record, the jury should have been admonished to handle it with kid gloves—that is, as objectively and unemotionally as possible, and only for the limited purpose of establishing whether Ms. Vildosola had knowledge of and conscious disregard for the danger of her alleged actions to human life. Instead, Judge Croft gave the jury broad latitude in their use of the material about Carissa.
B. Issuing Vague and Incomplete Jury Instructions
The instruction given by Judge Croft pertaining to Carissa’s death information was CALJIC 2.09, which reads:
“Certain evidence was admitted for a limited purpose. At the time this evidence was admitted you were instructed it could not be considered by you for any purpose other than the limited purpose for which it was admitted. Do not consider this evidence for any purpose except the limited purpose for which it was admitted.” RT 2014. [Emphasis added.]
The above instruction, which merely refers to “certain evidence,” is so vague that it undoubtedly caused jury confusion, and encouraged jurors to base their decisions on personal biases and sentiments. Furthermore, no limiting instruction was issued when the evidence about Carissa was introduced. See RT 602-664.
Later, a slightly less cryptic directive was furnished to the jury:
“Evidence has been introduced for the purpose of showing that defendant Vildosola committed crimes other than that for which she is on trial. This evidence, if believed, may not be considered by you to prove that the defendant Vildosola is a person of bad character or that she has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show a characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case, which would further tend to show the existence of the mental state which is a necessary element of the crime charged in count 1 of the information, namely, murder. For the limited purpose for which you may consider such evidence you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.
cardinal problem with the above instruction is that it never specifies which “crime
or crimes,” if any, are to be considered. Naturally, the jury must have incorporated
all evidence about Carissa and Destiny as a “crime or
crimes” to be evaluated by the adjured preponderance of evidence
standard of proof! See Jackson
v. Denno (1964) 378
The burden of proof was further confused during closing argument, when Prosecutor Lewis was permitted to say that Dr. Duazo had to be “100 percent sure” before declaring Carissa’s death to be murder. E.g., RT 2097 L. 16-18 (“in 1991 … she was not 100 percent sure that it was murder”) & 20-21 (“she had to be 100 percent sure”); RT 2100 L. 1-2 (“[Dr. Duazo] felt she had to be 100 percent sure”). Lewis then argues that unlike Duazo’s “100 percent sure” standard, “You [jurors] only have to be convinced by a preponderance of the evidence, more likely than not. It is a very low standard, a very low burden that I as a prosecutor have with regard to that issue on the death of Carissa Neria.” Under such circumstances, the jurors were likely to employ the “very low” preponderance of the evidence standard in finding the defendants guilty of Destiny’s death. When jury instructions and evidence standards are as vague and incomplete as in Ms. Vildosola’s trial, the jurors are invited to follow their prejudices in arriving at a verdict.
C. Rejecting Defense’s JURY INSTRUCTION REQUESTS
Not only were Judge Croft’s jury instructions vague, but she cursorily refused each and every instruction submitted by the defense, including CALJIC 3.01 (as modified), 3.02 (as modified), 3.31.5, 4.71.5 (as modified, in part), 4.80, 8.31 (as modified), 17.01, and defense’s special instructions A and B, despite beseechment of the defense. All of the defense’s instructions were reasonable. Notwithstanding, Judge Croft denied them without explaining her decision—another reversible error.
The purpose of most of the defendants’ instructions were to establish appropriate standards of proof, or requisite mens rea for the crimes charged. For example, CALJIC 8.31 (see CT 526) enumerates the elements of second degree murder, including (1) intent; (2) high probability that act or omission would result in death; and (3) knowledge of danger to and conscious disregard for human life. Without this instruction, the jury was more likely to find Ms. Vildosola guilty of second degree murder without unanimously agreeing that her behavior corresponded with each of the three elements listed above.
CALJIC 17.01 (see CT 527 & 528) pertains to cases where the prosecution has presented evidence of more than one act upon which a conviction could be based, and requires that the jurors unanimously agree that the defendant perpetrated one particular act. In Ms. Vildosola’s case, for instance, the prosecution presented evidence related to the deaths of both Carissa Neria and Destiny Jacobo. With CALJIC 17.01, the jury would be required to unanimously agree that Ms. Vildosola killed both Carissa and Destiny. Without that instruction, the jury could agree that Ms. Vildosola killed Destiny by weighing the evidence pertaining to both Carissa and Destiny, even if the evidence was insufficient to convict Ms. Vildosola of killing either Carissa or Destiny.
CALJIC 4.80 (Parent’s Right to Discipline Child) was also refused. See CT 529. According to that instruction, parents may lawfully administer corporal punishment which is reasonably necessary, justified, and not excessive under the circumstances. Without CALJIC 4.80, any injury to Destiny, even if resulting from reasonable disciplinary measures, would be assumed by the jury to be caused by abusive or homicidal acts.
CALJIC 3.01 pertains to aiding and abetting. To be held guilty of aiding and abetting a criminal perpetrator, the abettor must have: (1) knowledge of unlawful purpose; (2) intent or purpose of committing, facilitating, or encouraging crime; and (3) by act, advice, or omission, promoted or instigated crime. This instruction would have required the jury to consider the relative roles of both codefendants in the alleged crimes. Thus, the jury would have to find one defendant guilty of a crime, and the other defendant to be at least an aider or abettor. Without CALJIC 3.01, the scienter for the alleged crimes is attributable to both defendants, irrespective of whether one or both of the defendants are innocent of committing, aiding, or abetting the crime.
CALJIC 3.02, which Judge Croft similarly refused, concerns the liability of an aider or abettor for the natural or probable consequences flowing from the commission of a crime. See CT 531. As modified, 3.02 specifies that a finding of aiding and abetting murder, or assault causing death of a child under 8, requires the jury to unanimously agree that: (1) child abuse, neglect, or endangerment occurred; (2) the defendant aided or abetted said abuse, neglect, or endangerment; (3) the co-principal committed murder and/or assault causing death of a child under 8; and (4) said murder and/or assault causing death of a child under 8 was a natural or probable consequence of child abuse, neglect, or endangerment. Without CALJIC 3.02, the jury was free to find both defendants guilty of murder and assault causing death of a child under 8 without considering: (1) whether one, both, or neither of the defendants might have been the perpetrator; (2) whether one, both, or neither of the defendants might have been an aider or abettor; and (3) whether murder or assault causing death on a child under 8 was a natural or probable consequence of child abuse, neglect, or endangerment. Hence, without even considering whether the alleged abuse could naturally cause death, or which of the defendants was a perpetrator, aider, or abettor, the jury found both defendants guilty of both murder and assault causing death on a child under 8.
Defense Instruction A defines an “act” to include failure to act where there is a legal duty to act, such as a parent’s affirmative duties to provide a child with necessary food, clothing, shelter, and medical attention. This instruction was derived from caselaw introduced by the prosecution, People v. Burden (CA 2nd Cal. 1977) 72 Cal. App. 3d 603, 614, 140 Cal. Rptr. 282, 288 (murder defendant father under common law duty to care for young son’s exigencies), distinguished by Barber v. Superior Court (CA 2nd Cal. 1983) 147 Cal. App. 3d 1006, 1017, 195 Cal. Rptr. 484, 47 A.L.R. 4th 1. If it had been allowed, Instruction A could have reduced jury confusion by differentiating affirmative acts from omissions.
Defense Instruction B (see CT 534) was submitted to emphasize to the jury that they must find sufficient scienter or mens rea for each element of the alleged crimes. Although Ms. Vildosola maintains that she did nothing wrong, if any harm did come to Destiny as a result of any act or omission by Ms. Vildosola, it was accidental, or at worst negligent. In any event, the jury should have reached unanimous decisions as to Ms. Vildosola’s mental state for each crime element. Moreover, each juror should have been convinced beyond a reasonable doubt, unless otherwise instructed, as to each mental state element. Because Instruction B was refused, the jury tended to ignore the mental state of Ms. Vildosola, blaming her for all harm that came to Destiny, including the injuries that were caused by medical malpractice.
The defendants also asked for CALJIC 3.31.5 with respect to the charge of assault on a child causing death, Cal. Pen. C. § 273ab. See RT 1984-1987. CALJIC 3.31.5 instructs the jury that:
“In the crime charged [in count two], there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists the crime to which it relates is not committed. In the crime of assault on a child causing death, the necessary mental state is knowledge that the force could result in great bodily injury or death.”
By rejecting CALJIC 3.31.5, Judge Croft allowed the jurors to render a verdict as to Count Two, Assault on a Child Causing Death, without considering Ms. Vildosola’s mental state. Hence, the jurors could find Ms. Vildosola guilty according to a strict liability standard. That is, Ms. Vildosola could be found guilty of assaulting and killing Destiny irrespective of her mental state. With such ignorance of the “state of mind” element, the jury could and did find Ms. Vildosola guilty of violating Pen. C. § 273ab without considering whether Destiny’s death was entirely accidental, involuntary, or caused by someone other than the defendants (i.e., Dr. Joseph Boggs)!
A trial judge has a responsibility to insure that jury instructions are reasonably complete and clear, so that jurors can render an accurate and impartial verdict. Frega, supra, at 809 (jury clearly expressed its confusion about a controlling legal principle, and explicitly requested clarification from the trial judge), citing Bollenbach, supra, 326 U.S. at 612-613, 66 S. Ct. at 405 (when jury is confused, trial judge should clear the way “with concrete accuracy”); Guerra v. Handlery Hotels (Cal. 1959) 53 Cal. 2d 266, 272, 347 P. 2d 674, 677, 1 Cal. Rptr. 330 (en banc) (“instructions should be clear and simple in order to avoid misleading the jury”). As detailed forthwith, Judge Croft failed to clarify all issues pertinent to the jury’s deliberations, thus causing reversible error.
An appellate court may
overturn a trial court decision where instructions are inadequate, vague, or
confusing to the jury.
D. ALLOWING GORY, GRUESOME, INFLAMMATORY PHOTOGRAPHS
Another reversible error of the trial court was the admission of the cadaverous photographs of dead baby Destiny. During trial, the defendants should have been presumed innocent. Thus, the jury should have assumed that someone other than the defendants may have caused the ghastly injuries to Carissa. Unfortunately, such expectations of jury impartiality are unrealistic, so it is necessary to consider the inflammatorily prejudicial impact of such shocking pictures. Judge Croft based her decision to admit the photographic evidence solely on their purported relevance, while disregarding prejudicial impact altogether. E.g., RT 1260, L. 19-21 (image 50, skull with tissue pulled back, revealing bleeding which may just be postmortem artifact), L. 16-18 (“The court will allow [photographs 45 and 51-53] over the objection of the defense—I find that … these have some significance.”), and L. 22-24 (“I myself wouldn’t call them gruesome. Everyone has their own definition ….”). Judge Croft ignores the issue of the prejudicial or inflammatory impact of such gory pictures, beyond espousing that they are not gruesome to herself.
Images 45 and 53 were particularly inappropriate for submission, because they graphically depict a bloody spinal cord. See RT 1255 L. 27-1256 L. 3 (“Injury to the spinal cord … is not diagnostic of the cause of death, shaken baby syndrome” (RT 1255 L. 27-28); “[T]hat’s a very gruesome picture.” (RT 1256 L. 1-2); Judge Croft: “It is just a cord with blood on it.” (RT 1256 L. 3)). Yet no evidence was offered to suggest that Destiny’s spinal column was injured by shaking, blunt force trauma, or accident. Both defense attorneys objected to the photograph’s inclusion. Furthermore, Judge Croft herself was confused as to the contents of the two photographs (RT 1262 L. 4-9). Nevertheless, both images were not only admitted, but blown up, enhanced, and hung prominently in the courtroom for the duration of the trial (along with other gruesome photographs of gory eyeballs and a blood-streaked brain)—especially egregious abuses of discretion.
Absolutely no evidence
was presented that Ms. Vildosola ever abused Destiny. Moreover, substantial evidence was introduced
that Destiny was injured nosocomially.
Destiny’s lungs were ruptured by hyperintense CPR, and she was intubated
endotracheally, nasogastrically, and intrapleurally. See Nursing Report,
Considering that Destiny had no large scars, bruises, punctures, or external wounds when she was last under the control of Ms. Vildosola, and that all of the hideous, ghastly injuries depicted in the photographs admitted at trial were produced during either her hospitalization or autopsy, none of the gross photographs of Destiny’s bodies should have been admitted. Unlike microscopic or radiologic images, the photographs of Destiny’s autopsied body were more prejudicial than probative. Therefore, Destiny’s conviction should be reversed, and a more thorough examination should be made of the relative probative benefits and prejudicial effects of each photograph before their use in any future legal proceeding.
e. PERFUNCTORILY DENYING MARSDEN MOTION
Judge Croft’s bias toward Ms. Vildosola can be further illustrated by at least four other abuses of discretion. First, Ms. Vildosola was deeply dissatisfied by the representation of Mr. O’Brien, and repeatedly sought a Marsden hearing. See § XIII, supra (Denial of Adequate Counsel). Ms. Vildosola’s motion was peremptorily denied. CT 356 (“Defense Marsden motion is held and denied.”). Judge Croft’s apparent reasoning was that the judicial system met its legal obligation by providing a state-subsidized counsel, at no expense to the defendant, presumptively competent and compatible with Ms. Vildosola, and that it was a waste of the court’s time to listen to an indigent criminal’s spurious complaints about an appointed attorney.
Ms. Vildosola was denied a hearing on her Marsden request. The denial of a Marsden hearing, when a defendant requests a substitute counsel, is reversible error. See Marsden, supra (denial of motion for substitution of attorneys, without opportunity to enumerate specific examples of inadequate representation, deprived defendant of right to fair trial, necessitating reversal of conviction by trial court); People v. Minor (CA 1st Cal. 1980) 104 Cal. App. 3d 194, 163 Cal. Rptr. 501 (convictions for child molestation, etc., were reversed, because trial court erred in denying defendant’s request for substitution of appointed counsel without first allowing defendant to explain the basis for the request); and Schell v. Witek (9th Cir. 2000) 218 F. 3d 1017 (en banc) (judgment rev’d in part and remanded in part for evidentiary hearing, because petitioner did not voluntarily, knowingly, and intelligently waive motion for substitution reasonably believed to have been denied, and petitioner may have been denied effective assistance of counsel at trial). Because Ms. Vildosola’s Marsden request was summarily denied, and she was given no opportunity to explain why Mr. O’Brien’s services were ineffective or incompetent, each of her convictions should be reversed.
F. ReVOCATION OF LIBRARY ACCESS
Secondly, Judge Croft revoked Ms. Vildosola’s law library privileges during pre-trial motions. See RT A-12, L. 23 through A-13, L. 18. Since Ms. Vildosola was innocent but unable to afford bail, she naturally wanted to explore the ramifications of the charges against her. She was especially interested in the media accounts, which seemed to prejudge her—-and codefendant William Jacobo, Jr., whose charges were dropped after he had served five years in prison—-as guilty. Ms. Vildosola was also so dissatisfied with her court-appointed lawyer that she wanted a Marsden hearing, and might have represented herself but for Croft’s denial of library access. The library at Sybil Brand Institute for Women was the only means by which Ms. Vildosola could do such research. Apparently, Judge Croft preferred to keep Ms. Vildosola in the dark as to her legal rights.
Denial of law library access, whether rendered arbitrarily, venally, or retaliatorily, is likely to be injurious to constitutional rights, such as due process and freedom of speech. Montayne v. Haymes (1976) 427 U.S. 236, 244, 96 S. Ct. 2543, 2548, 49 L. Ed. 2d 466 (Stevens, J., dissenting) (prisoner may be transferred within state without right to hearing, unless said transfer entails grievous loss, or retribution for exercise of protected rights); Brown v. Pitchess (Cal. 1975) 13 Cal. 3d 518, 531 P. 2d 772, 119 Cal. Rptr. 204 (aff’g prelim. injunctive relief in action based on privileges and immunities clause of federal Civil Rights Act 42 U.S.C. § 1983, ordering supplementation of jail law library and use of library by legally represented prisoners, in addition to “pro per” inmates).
The official policy of
the State of
g. RETAINING EXPRESSLY BIASED “TALKING JUROR”
Thirdly, Juror Number Five constantly talked to himself and gesticulated throughout much of the trial, usually expressing hostility toward the defendants or defense witnesses. See RT 1071 L. 12-1083 L. 1. Details about these irregularities were presented by Alternate Juror Number Three (RT 1073 L. 1-1075 L. 10 (e.g., “Sometimes he gets very, very loud” (RT 1073 L. 17))) and Juror Number 6 (RT 1076 L. 19-1078 L. 8 (e.g., “the attorney asks a question, and he tries to answer … himself” (RT 1076 L. 26-27))). He asked and answered his own questions and made comments during testimony. RT 1071 L. 17-21 (“[He] make[s] comments like ‘No, no,’ ‘That’s not right,’ ….”). His behavior was described as “very distracting” and “an ongoing problem to the jurors around him.” RT 1071 L. 22-23. His comments were uniformly negative and denigrating toward the defendants and their kin. See, e.g., RT 1076 L. 28-1077 L. 4 (“when Esther was testifying … he says [sic], oh, that’s kind of stupid”) and RT 1077 L. 5-8 (“[W]atching Marina [Neria] answer, he tries to say, ‘No, no.’”).
The cornerstone of our
criminal justice system is the precious right to an impartial jury of one’s
peers. Irvin v. Dowd (1961) 366
In a criminal case,
any private communication, directly or indirectly, with a juror during a trial
about any matter pending before the jury is deemed presumptively
prejudicial. In order to avoid a
mistrial, the prosecution has the burden to establish that said communication was
harmless to the defendant.
Judge Croft’s response to the “talking juror” problem was to interview a few jurors (Alternates 3 and 4, and Jurors 4, 6, and 10-12) and to admonish Juror 5 to refrain from further outbursts. See RT 1081 L. 12-1083 L. 1 (e.g., “there is nothing like that … you were doing anything improper” (RT 1082 L. 5-6); “you are the only one who knows” (RT 1082 L. 11-12); “We are not accusing you of doing anything wrong.” (RT 1082 L. 13-14)). Undeniably, Judge Croft was punctiliously gracious toward Juror 5, and determined to keep him on the panel—-despite the fact that his utterances and gestures conveyed an obvious bias against the defendants, and tainted other jurors.
Fourthly, when Judge Croft learned
Twelve wanted to fulfill her duty, so on Monday she decided to defer her
vacation. Not surprisingly, a guilty
verdict was returned on that very Monday and announced at on
must be excused if a hardship (e.g., preplanned vacation, infirmity,
death or illness in the family) is likely to interfere with the juror’s ability
to deliberate impartially, without undue stress, time constraints, or other
encumbrances, for as long as is necessary to arrive at a carefully reasoned,
unhurried verdict. See Cal. Code
Civ. Proc. §§ 204(b) (exemption from jury service for undue hardship) &
233 (discharge of juror before verdict returned for good cause); People v.
Mickey (Cal. 1991) 54 Cal. 3d 612, 663-667, 818 P. 2d 84, 108-110, 286 Cal.
Rptr. 801 (juror hardship excusal violates impartial-jury guaranty of Sixth
Amendment, reliable guilt and penalty determination guaranties of Eighth
Amendment, and/or due process and equal protection guaranties of Fourteenth
Amendment, and is erroneous or reversible, if abusing discretion or
prejudicial), reh’g den. (1992
of judicial indiscretion in the exclusion or retention of jurors are not
uncommon among criminal defendants.
Improper juror excusal is a frequent appellate issue. See, e.g., People v. Fudge (
case, the retention of a juror is in dispute.
Ms. Vildosola contends that the retention of Juror Twelve during the
guilty phase of deliberations was an abuse of discretion. A similar argument was made in People v.
Beeler (Cal. 1995) 9 Cal. 4th 953, 972-975, 891 P. 2d 153, 39
Cal. Rptr. 2d 607 (juror retained, despite initial emotional disturbance about
burglary-murder offense of trial, because she was no longer upset, able to act
objectively, and willing to remain on panel), reh’g den. 1995
similar case, People v. Lucas (
Many of Judge Croft’s rulings were
made without explanation or reasoning.
For example, a Petition for Writ of Habeas Corpus similar to the instant
pleading was presented to Judge Croft on or about
judicial decision: (1) reached
arbitrarily or capriciously, (2) apparently influenced by illegitimate motives,
(3) made without explicit reasoning, or (4) lacking an unambiguous rational
basis is a reversible error.
Many of Judge Croft’s decisions were arbitrary, capricious, an abuse of discretion, not made in accordance with current law, not based on substantial or explicit evidence, or contrary to statutory, procedural, or constitutional requirements, as illustrated above in this Argument XV, Sections A-I. In particular, Judge Croft’s response to this writ of habeas corpus was a mere one-page denial, in which no rational basis for that denial was indicated.
In conclusion, Judge Croft’s many abuses of discretion, which tended to: (1) mislead and confuse the jury, and (2) deny procedural due process to Ms. Vildosola and Mr. Jacobo, constitute reversible error.
Ms. Vildosola was the victim of
highly inflammatory and extensive media coverage throughout
Perhaps most damaging to Ms. Vildosola’s due process rights were the innumerable television stories and newspaper articles. See, e.g., Exhibit P24. For example:
News Service published a report on Wednesday, December 6, 1995, indicating that
“William Jacobo” and “Patricia Vildosola” were “being held in lieu of $1
million bail” on suspicion of “killing their daughter,” who “suffered multiple
(C) An LAT
(D) On May 29, 1996, the LAT announced that—according to Deputy District Attorney Cheri Lewis—the trial of “Patricia Inez Vildosola and William Jacobo, Jr.” for the “murder and child abuse of their 18-month-old [sic] daughter” Destiny, “A victim of what appeared to be shaken baby syndrome,” had been set for July 10, 1996. Official Business: Trial Date Set for Couple Accused in Daughter’s Death (May 29, 1996), Los Angeles Times, Metro Section, B4.
San Gabriel Valley Tribune ran a front-page, above the fold story on
(H) On or
The eight stories cited above are by no means an exhaustive list, and many other examples can be provided upon request.
Before the trial, on or about December 1995 and January of 1996, DCS employees organized a “big protest” (RT 128 L. 27) against the firing of two DCS social workers who were responsible for Destiny’s case—Tricia Higa and her supervisor, Henry Barbosa (see RT 128 L. 17-129 L. 28 and Hong & Nazario, supra, at B1 & B8 (more than 300 DCS workers picketed at DCS’ Los Angeles headquarters)). Their terminations were based upon their alleged negligence in failing to monitor the circumstances of Destiny’s living arrangements.
The Hong & Nazario LAT article included an 8” x 6” full-color picture of protestors above the fold on the first page of the Metro Section. The story began: “Her name was Destiny. She began life addicted to cocaine and died 18 months later, shaken so brutally that her brain knocked against her skull, according to sheriff’s officials.” The Hong article was inaccurate from the start, because Destiny was not a cocaine baby. She was more than 20 months old when she died. Furthermore, in January of 1996, there was no proof that Destiny was brutally shaken, and Ms. Vildosola was entitled to a presumption of innocence.
exposure in the
When there is a risk that pretrial media coverage could have inflamed, tainted, or prejudiced potential jurors, such that a defendant might not receive a fair trial, the court should order a change of venue. Sheppard v. Maxwell (1966) 384 U.S. 333, 352-353, 86 S. Ct. 1507, 1517, 16 L. Ed. 2d 600 (judgment rev’d because change of venue was not granted; unsequestered jurors were potentially subjected to newspaper, radio, and television coverage of trial; and judge’s admonitions to jury were inadequate); Williams v. Superior Court (Cal. 1983) 34 Cal. 3d 584, 589, 668 P. 2d 799, 802, 194 Cal. Rptr. 492 (crime received front-page coverage in Placer County, warranting change of venue to different county); Jeffries v. Blodgett (9th Cir. 1992) 5 F. 3d 1180, 1188-1190 (judgment vacated; local newspapers and television stations ran several stories which, inter alia: (1) identified defendant and his criminal history, (2) gave details about the murder, and (3) included sheriff’s statement that murders were premeditated; one juror told other jurors that defendant was a convicted armed robber), reh’g en banc den., cert. den. (Blodgett v. Jeffries (1994) 510 U.S. 1191, 114 S. Ct. 1294, 127 L. Ed. 2d 647). Interestingly, in Jeffries the extensive media coverage was not considered prejudicial, whereas one juror merely mentioning what was seen in media stories was held to be juror misconduct and reversible error. Apparently, as long as jurors’ biases are tacit, their exposure to highly inflammatory media coverage can be assumed not to be prejudicial.
media issue was the celebrity of Cheri Lewis, who was seen frequently on
national and local television as part of the team prosecuting O. J.
Simpson. Ms. Lewis admitted to the problem
of her fame. See RT 129 L.
18-28. Yet at every opportunity, Lewis
made televised statements about the case, and assisted news bureaus in their
coverage. It is very likely that the
jury, composed of
Before trial, Judge Croft attempted to minimize the effects of media coverage, admonishing the jury to not read any news articles about the case, nor watch any televised reports. RT 233 L. 24-234 L. 10. However, at least one juror was already familiar with the case before the trial commenced. RT 233 L. 25-26 (Juror “10, Mr. Norton”). That tainted juror may have been responsible for the wrongful conviction of Ms. Vildosola.
After trial, if not earlier, Judge Croft was no longer concerned about media effects. See RT 2322 L. 20-2325 L. 18. She ruled, over the objections of both defense counsel (RT 2325 L. 17-18), that a San Gabriel Valley news organization (RT 2322 L. 20) could publish approximately twelve photographs (RT 2322 L. 21) of the defendants, pursuant to Rules of Court, Rule 980. The defense contended that such media exposure would likely result in violent attacks on the defendants by fellow prisoners, who, like everyone, despise presumed child killers. See RT 2323 L. 3-6 & 18-21 (“the more publicity … link[ing] Ms. Vildosola’s person and her picture[,] the more we are endangering her in the jail system.”). Judge Croft’s callous disregard for the defendant’s bodily safety mirrored her disregard for Ms. Vildosola’s constitutional rights.
The prosecution must prove that the particular
defendant was guilty beyond a reasonable doubt.
People v. Perhab (CA 4th Cal. 1949) 92
Given the evidence in the record of this case, no trier of fact could conclude beyond a reasonable doubt that Ms. Vildosola caused Destiny’s mortal injuries. No one ever observed Ms. Vildosola abusing any of her children. In contrast, many witnesses saw Little Billy Jacobo abusing his siblings, including throwing Destiny into the air and dropping her. Furthermore, the jury ignored evidence of, inter alia, pneumothorax, coagulation deficiency, pneumonia, meningitis, immunological deficiency, abuse by Little Billy, self-inflicted paroxysmal wounds, and accidental injuries.
Nor could a jury
rationally conclude that Ms. Vildosola acted in the heat of passion, or with
recklessness or gross negligence.
Instead, circumstantial evidence, in the form of medical testimony and
autopsy reports, was used to fashion a circumstantial case that someone
fatally abused Destiny. Most
egregiously, the autopsy of a child who died five years earlier was altered,
then admitted into evidence. Despite the
inflammatory nature of Carissa’s recast autopsy, jurors were asked to assess
its similarities to Destiny’s autopsy by a mere preponderance of the evidence
standard. As a result, a prejudiced jury
found Ms. Vildosola guilty by a preponderance of the evidence. See
Ms. Vildosola did not physically abuse or murder Destiny, and is innocent of all charges for which she is imprisoned. Meritorious claims of innocence, or of fundamental injustice, will be grounds for relief on habeas corpus whenever presented. In re Sanders (Cal. 1999) 21 Cal. 4th 697, 734, 981 P. 2d 1038, 1063, 87 Cal. Rptr. 2d 899 (Baxter, J., dissenting) (habeas corpus relief may be granted at any time against a fundamental miscarriage of justice, such as conviction of an innocent party or constitutional flaws during trial).
Ms. Vildosola suffered severely enough when her daughters, Carissa and Destiny, died. It was the height of injustice when¾while still mourning the loss of Destiny¾she was falsely charged with murdering both Carissa and Destiny, and unjustly imprisoned for a period of nearly six years and counting.
Vildosola has no other plain, speedy, or adequate remedy at law, having
exhausted her remedy at law. An appeal
was filed with the Court of Appeals of the State of
Petitioner has exhausted all administrative remedies with regard to the unjust imprisonment of PATRICIA INEZ VILDOSOLA by Warden Gwendolyn Mitchell of the Central California Women’s Facility (CCWF) at Chowchilla.
Prior application has not been made for a writ of habeas corpus in regard to this imprisonment.
WHEREFORE, petitioner prays for judgment as follows:
1. That a writ of habeas corpus be granted, directed to Warden Gwendolyn Mitchell of the Central California Women’s Facility (CCWF) at Chowchilla, commanding her to have the body of PATRICIA INEZ VILDOSOLA, together with the authority for her imprisonment for the period of fifteen (15) years to life, before this Honorable Court at a specified time;
2. That PATRICIA INEZ VILDOSOLA be released and freed from any further imprisonment pertaining to the death of Destiny Jacobo and any alleged abuse of or injury to Destiny; and
3. For other and further relief as the court may deem proper.
LEWIS OWEN AMACK, ESQ.
I, LEWIS OWEN AMACK, ESQ., am the petitioner in the above-entitled proceeding. I have read the petition above and know its contents. The same is true of my own knowledge, except as to those matters which are alleged on information and belief, and as to those matters, I believe them to be true.
I declare under penalty of perjury under the laws of the State of
Dated this 15TH day of May, 2001
LEWIS OWEN AMACK, ESQ.
PATRICIA INEZ VILDOSOLA
 Risk factors for cerebrovascular disease in children include, inter alia, cardiac and systemic vascular disorders, hematologic disorders, coagulopathies, congenital heart disease, hemoglobinopathies (sickle cell anemia, sickle cell-hemoglobin C disease), ventricular septal defect, atrial septal defect, idiopathic thrombocytopenic purpura, patent ductus arteriosus, thrombotic thrombocytopenic purpura, aortic stenosis, hemolytic-uremic syndrome, mitral stenosis, thrombocytosis, complex congenital heart defects, polycythemia, acquired heart disease, disseminated intravascular coagulation (DIC), rheumatic heart disease, leukemia, prosthetic heart valve, oral contraceptive use, Libman-Sacks endocarditis, congenital coagulation defects, bacterial endocarditis, twin-twin transfusion syndrome, cardiomyopathy, pregnancy and the postpartum period, left atrial myxoma, congenital serum C2 deficiency, arrhythmia, liver dysfunction with secondary coagulation defect, systemic vascular disease, systemic hypertension, Vitamin K deficiency, volume depletion or systemic hypotension, structural anomalies of the cerebrovascular system, superior vena cava syndrome, vasculopathies, carotid fibromuscular dysplasia, systemic lupus erythematosus, moyamoya syndrome, polyarteritis nodosa, agenesis or hypoplasia of the internal carotid or vertebral arteries, granulomatous angitis, rheumatoid arthritis, arteriovenous malformation, dermatomyositis, Sturge-Weber syndrome, inflammatory bowel disease, intracranial aneurysms, drug abuse (especially amphetamines), trauma, central nervous system infection, child abuse, tuberculosis, syphilis, fat or air emboli, homocystinuria, vertebral occlusion following abrupt cervical rotation, Fabry's disease, vasospastic disorders, post-traumatic arterial dissection, migraine, post-traumatic carotid cavernous fistula, ergot poisoning, coagulation defect with minor trauma, vasopasm due to subarachnoid embolization, amniotic fluid/placental embolization hemorrhage, cerebral Infarction, sinovenous occlusion. Ibid.
 In order to preempt investigative efforts and avert media exposure, the DCS fired two employees, Tricia Higa and Henry Barbosa, who served as scapegoats for the DCS’ involvement in Destiny’s death.