Did Kern send an innocent man to Death Row?
High court considering the stunning possibility
An innocent Kern County man may have been condemned to death and the California Supreme Court may be close to reversing the conviction and freeing the man after 26 years in prison.
“This is among the most hair-raising false evidence (cases) that I’ve encountered in all the time I’ve been looking at criminal cases,” Supreme Justice Carol Corrigan said when the case was argued before the seven justices in January. Corrigan is a former prosecutor.
Vincente Figueroa Benavides, now 68, was convicted in 1993 of murdering his girlfriend’s 21-month-old daughter in a sexual assault so brutal that it caused fatal internal injuries.
In oral arguments before the State Supreme Court on Jan. 3, some justices seemed willing to accept the argument that Benavides is completely innocent and that the girl died after being hit by a car. A decision in the case is expected before April 4.
Although the prosecutor arguing the case before the high court wouldn’t agree Benavides is innocent, he couldn’t defend the conviction and the death sentence.
Deputy Attorney General Kenneth Sokoler conceded “false evidence” required the reversal of the death penalty and first-degree murder conviction.
He asked justices to rule that Benavides was guilty of second-degree murder.
Three of the seven justices were openly skeptical of the idea of reducing the charges.
Attorneys for Benavides argued that the entire conviction should be reversed and the case returned to Bakersfield for a new trial.
Kern County District Attorney Lisa Green told Channel 17’s Olivia LaVoice that re-trying the case would be very difficult because key evidence has been discredited.
LaVoice spent a month examining the case.
She read thousands of pages of documents and made dozens of phone calls.
She interviewed the prosecutor, who says he still believes Benavides is guilty.
She interviewed the juror who cast the deciding vote to send Benavides to Death Row.
She tracked down a dozen other key players who simply didn’t want to talk about such a traumatic case.
Little Consuelo Verdugo died of internal injuries in November, 1991. There’s no question Benavides was alone with her for a critical 15 minutes just before her injuries were noticed.
Dr. James D. Dibdin, the autopsy surgeon hired by the Kern County Coroner, ruled the child died of injuries caused by a vicious rape.
Dr. Jess Diamond, the head of pediatrics at Kern Medical Center, examined the child, reviewed Dibdin’s findings and agreed a sexual assault was the cause of death.
Then-Deputy District Attorney Robert Carbone presented the testimony of both doctors to the jury when the case came to trial in 1993. The jury convicted Benavides of first-degree murder and recommended the death penalty. Judge James M. Stuart concurred and sent Benavides to Death Row.
On appeal, lawyers argued Benavides is developmentally disabled. His attorneys presented evidence he has an IQ of 72 and the mental ability of a 7-year-old but, in 2005, the California Supreme Court upheld the conviction and death sentence.
Then, nine years ago, new evidence.
At the request of the state Attorney General’s Office – the prosecutors on appeal – Dr. Diamond re-examined the hospital reports in the case and came to a shocking conclusion: He had not been provided all the medical evidence before the trial.
Based on the previously-unseen evidence, Diamond changed his opinion. He now believes the sexual attacks never happened.
In a sworn statement to the Supreme Court, he said he was so disturbed by the new evidence that he sent it to one of the foremost experts in child abuse, Dr. Astrid Heger.
Heger reached the same conclusion Diamond did: Consuelo never was sexually assaulted and the entire case against Benavides was based on incorrect information.
Hager said the original autopsy finding, that the child died of sex abuse, “… is so unlikely to the point of being absurd.
“No such mechanism of injury has ever been reported in any literature of child abuse or child assault,” Hager said in a sworn declaration.
It led to a miscarriage of justice, said Diamond, who usually was a prosecution witness.
“This tragedy would not have resulted had I – and the many other doctors who testified – had full knowledge of Consuelo’s medical history,” Diamond wrote. “Under these circumstances, I do not believe that Mr. Benavides received a fair trial, and I provide this declaration in the hope that the current legal proceedings will correct this injustice.”
Consuelo was treated at three hospitals before she died: Delano Regional Medical Center, Kern Medical Center and the UCLA medical center. She died eight days after her injuries were first noticed.
In sworn statements to the Supreme Court, several doctors say they now believe some of the injuries first believed to have been sexual abuse actually were caused by medical procedures used in the futile effort to save the little girl’s life.
The statements point out that medical staff at KMC said they saw sexual abuse, but the doctors who saw her the previous day at Delano Regional Medical Center didn’t see such injuries. That supports the claims that the injuries were inadvertently inflicted during medical procedures after Consuelo arrived at the hospital.
Based on the doctors’ statements, the Attorney General’s Office conceded to the Supreme Court that allegations of sexual abuse in the Benavides case were based on “false evidence.”
That admission was surprising to Carbone, the prosecutor who won the conviction in 1993.
But it was truly shocking to Gorden Jones, the stubborn juror who was the last holdout in deciding whether to condemn Benavides to die.
Eleven other jurors voted for death. Everyone except Jones.
So the foreman had a request.
“He asked the judge to have the bailiff send in the pictures of that little girl again,” Jones told LaVoice late last month. “And they circulated those. And then he said, ‘if that doesn’t call for the death penalty, what does?'”
Jones looked at photos of the girl’s body, the evidence presented to show the signs of sexual abuse.
The haunting images changed Jones’ mind, making the death penalty vote unanimous.
Twenty-four years later, he sat in stunned silence after LaVoice told him two weeks ago that experts now believe the little girl had not been molested.
“That’s unbelievable,” he said. “I feel the damn court let us down, if what you’re saying is true.”
“If this is the case, how many hundreds of thousands of times has this happened in the last 100 years, here in this country?
“That opens quite a door because in that case, anytime a jury man or woman goes to court, you can’t believe anything that’s said up there, no matter what.”
“I can’t hardly … this is like unbelievable,” Jones said. “All this time this has went by. I even dreamed a lot about that trial. Ha. And we come down to this.”
Carbone still is struggling to understand how Diamond could have changed his opinion.
LaVoice interviewed Diamond in February. The doctor is now 100 years old, and says he has no clear memory of the case, which he last dealt with five years ago when he filed his sworn declaration with the Supreme Court.
“Dr. Diamond was present at the autopsy,” Carbone said, “Opinions 20 years later … don’t seem to make sense, given the jury’s verdict.”
Diamond was a cornerstone of Kern molestation cases for decades.
“Most of what I learned about prosecuting child molest or other sexual assault cases came from Dr. Diamond,” Carbone said. “He was our source.”
And likewise Hager, he said.
“Dr. Heger’s work speaks for itself,” Carbone said. “I mean, she the pre-eminent expert in the Western United States.”
If Benavides didn’t murder Consuelo, how did she suffer fatal abdominal injuries?
Both sides admit we’ll probably never know for sure.
Benavides always has maintained his innocence. He says he doesn’t know what happened to the child. But, he said, she was outside playing near the apartment complex parking lot just before her injuries became apparent.
Maybe, he said, she was hit by a car.
Hager, the child abuse expert, said that’s a real possibility. It would have taken the full weight of an automobile to cause the kind of crushing reported in Consuelo.
“I am convinced to a high degree of medical certainty that Consuelo’s abdominal and rib injuries were most likely caused by a vehicular accident, rather than by physical abuse,” she said.
Ed Jagels, the district attorney at the time the Benavides case was prosecuted, did not return calls for this story.
Attorneys from the Habeas Corpus Resource Center and the Attorney General’s Office declined interviews due to the pending legal decision.
Conuselo’s mother and other family members declined comment.