POST: "Vincente Benavides," by Maurice Possley, published by The National Registry of Exonerations on April 18, 2018.
GIST: On April 19, 2018, 68-year old
Vicente Benavides was released from California’s death row, 25 years
after he was sentenced to death for the rape, sodomy, and murder of a
21-month-old girl in Delano, California. His convictions were vacated and
the charges were dismissed after numerous experts concluded that the girl
had never been raped or sodomized, and that the medical evidence used to
convict Benavides was wrong.
The case began on the evening
of November 17, 1991, when the 42-year-old Benavides and his girlfriend,
Estella Medina, brought Medina’s 21-month-old daughter, Consuelo, to the
Delano Regional Medical Center in Delano, California. They said they
thought that Consuelo might have hit her head on a door while chasing her
nine-year-old sister Cristina. Consuelo was initially not fully
responsive, but she was awake and responded to stimuli.
Medical personnel focused a
small bruise on her forehead and scrapes on her nose and lip. They
initially believed she had a closed head injury. Several unsuccessful
attempts were made to insert a catheter. When Consuelo’s stomach began to
distend and her condition deteriorated, she was transferred to Kern
Medical Center in Bakersfield, California. The receiving nurse there
noted that she had “blown pupils,” which are often seen in victims of
blunt force trauma from an auto accident.
Attention was immediately
focused on the girl’s distended abdomen. A nurse attempting to insert a
catheter noted a bruise on Consuelo’s external genitalia. Eventually, a
small feeding tube was inserted instead of a catheter. Within 20 minutes
of arrival, her abdomen had become even more distended. Diagnostic
surgery revealed that her bowel, duodenum, and pancreas were “cracked in
half,” with portions of each on either side of her spine.
A surgeon would later testify
that those injuries could have been caused by a kick or punch to the
abdomen. The surgeon also noted scars, which he said indicated injuries
suffered two months earlier between her colon and liver.
The morning after the surgery,
Dr. Jess Diamond, a pediatrician, examined Consuelo and found a tear in
her hymen and bruises around her anus. There were also tears in her anus
and damage to the sphincter muscles. He concluded that her injuries were
not consistent with Consuelo being hit by or running into a door. He
believed that she had been sodomized, that her vaginal area had been
penetrated and the vaginal wall torn, and that she had been kicked or
punched in the abdomen.
On November 19, 1991, Consuelo
was transferred to UCLA Medical Center in Los Angeles. Her entire body
was swollen and her kidneys had stopped functioning. A second surgery was
performed. On November 20, Benavides was arrested. Six days later, on
November 26, 1991, Consuelo died.
On December 12, 1991,
Benavides was charged with first-degree murder, rape, sodomy, and lewd
conduct with infliction of great bodily injury.
On March 15, 1993, Benavides
went to trial in Kern County Superior Court. Medina testified that she
changed Consuelo’s diaper and went to work at about 6:40 p.m. on the day
of the incident. When she left, Cristina and Consuelo were eating
hamburgers for dinner.
Medina said Cristina called
her at 7:20 p.m. and reported that Consuelo was pale, sick, and could not
breathe. Medina said she returned home and found Benavides sitting on a
bed holding Consuelo in his arms. She drove them to the hospital in
Delano.
Cristina testified that after
the incident, state welfare officials removed her from the family, and
police and social workers questioned her several times. Ultimately, in
May 1992—six months later—she suddenly remembered a time when Benavides,
who was caring for her and Consuelo alone overnight, took a crying
Consuelo into his locked bedroom until morning. She admitted on
cross-examination that the following day, Consuelo did not appear hurt or
afraid of Benavides.
Cristina told the jury that on
the night of the incident, she asked Benavides for permission to go
outside to play with a friend. She said Benavides told her to be home in
30 minutes. She said she opened the door as she went out and closed it
behind her. She said that she did not see Consuelo near the door. About
15 minutes later, Benavides came outside and told her to come home. When
she got home, she said, Benavides was holding Consuelo and putting
alcohol on her forehead. He told her to call Medina.
Cristina testified that on the
way to the hospital, Benavides told Medina that Cristina had hit Consuelo
with the door when she went outside. He said that he had found Consuelo
outside and brought her back inside. Cristina told the jury that she did
not hit Consuelo with the door.
A Delano detective testified that
he interviewed Benavides on November 18, 1991—the day after the child was
brought to the hospital. The detective said Benavides reported that when
Cristina went outside, Consuelo followed her and Cristina brought her
back. Benavides said he told Cristina to take Consuelo with her, but she
refused and left, shutting the door hard.
Benavides said he had gone
into the kitchen. After a minute, when he didn’t hear Consuelo, he came
out and found the door ajar. He said he looked outside and found Consuelo
on a grassy area adjacent to the carport. She was on her back with blood
on her nose and mouth, and she was vomiting. The detective said Benavides
said he brought the girl inside and cleaned her face with toilet tissues,
but that he realized she was “injured bad” because her eyes were rolling.
Jeanne Spencer, a criminalist
from the Kern County Regional Crime Laboratory, testified that she
searched the apartment on November 20, 1991. She said that she did not
find any blood or vomit or any indication that either had been cleaned up
in the area near the door or outside. Spencer said she found paper towels
soaked with vomit containing semi-digested food consistent with a
hamburger bun and carpet fibers consistent with the rug in the apartment.
She said she found no dirt, gravel, or any other substance she would have
expected to find had the vomit been cleaned up outside.
Spencer also testified she
found a towel that tested positive for blood and semen on the master
bedroom floor. The blood was consistent with both Medina and Benavides,
and the semen was consistent with Benavides. She found bloody tissues in
the bathroom wastebasket, and vomit in a pattern indicating it came from
a downward spray on the right leg of the pants Benavides was wearing when
he came to the hospital.
Consuelo’s clothing was not
torn and had no dirt or markings that would indicate she had landed on
pavement. No semen was detected. No diaper was included in the bag of the
girl’s clothes obtained from the hospital. A microscopic examination of
her clothing revealed no signs of trauma.
A California Highway Patrol
accident investigator testified that Consuelo would not have landed
outside the apartment door on the grassy area between the building and
the carport had she been hit by a car pulling into or backing into the
carport. And even if she had been hit in that fashion, he said, her
injuries would have been far less severe.
Dr. James Dibdin, the
pathologist who conducted the autopsy, testified that Consuelo died of a
blunt force penetrating injury of the anus that not only lacerated her
anus, but also severely damaged her internal organs. The anus was
expanded to seven or eight times its normal size. He concluded she had
been anally sodomized. He said the vaginal tear was the reason for the
difficulty in attempting to insert a catheter at the hospital.
Dibdin said there were several
fractured ribs, which he attributed to Consuelo being gripped tightly
around the chest from behind. He found bruises resulting from thumbs
being pressed against her. He also found a subdural hematoma and brain
swelling, which he said was evidence that Consuelo had been shaken
violently during the sexual assault.
Dibdin testified that the
facial abrasions resulted from Benavides holding a hand over her mouth.
He said her injuries were not consistent with a fall or running into
something. Dibdin admitted that he had not written up his autopsy
findings until two months after Consuelo’s death, and well after
Benavides had been charged with her murder and sexual assault.
Dr. Diamond testified that
although he learned of the tear in the rectum wall from Dibdin’s autopsy,
he had concluded at the hospital while Consuelo was still alive that she
had been sexually assaulted. Dr. John Bentson testified that Consuelo’s
head injuries were consistent with receiving blows to the head.
The defense lawyers presented
two medical experts who testified that Consuelo’s injuries were
consistent with a fall or a car accident, as well as the effects of the
various medical procedures that were employed during the eight days she
was hospitalized before her death. The defense also presented evidence
that some plant material was removed from Consuelo’s nasal passage at
UCLA.
Benavides testified that he
had been cooking eggs in the kitchen when he went to look for Consuelo.
He said he found her outside on the ground, vomiting and bleeding from
her nose and mouth. He brought her inside and put her on the couch, and
then went back out to call Cristina inside. He told the jury he tried to
clean up Consuelo’s face with toilet paper. He said he used kitchen
towels to clean up the vomit outside, tossing the towels into the trash.
He admitted that the door to
the apartment opened inward, and that a person leaving would pull the
door shut behind them. He agreed that if Consuelo hit her head on the
door, she would have been inside, not outside, of the apartment.
Benavides denied assaulting
Consuelo in any fashion or inflicting any harm on her.
On April 20, 1993, the jury
convicted Benavides of first-degree murder, rape, sodomy, and lewd
conduct inflicting serious injuries. Two days later, the jury voted to
impose the death penalty.
In 2005, the California
Supreme Court upheld Benavides’s convictions and death sentence.
In 2007, attorneys for
Benavides filed a 395-page petition for a writ of habeas corpus. The
petition argued that the convictions were based upon false medical
testimony, that the police and prosecution withheld evidence, and that
the prosecution made improper arguments.
The petition also cited the
failure of Benavides’s defense attorneys (both of whom were subsequently
disbarred or suspended) to provide an adequate defense. Benavides was
developmentally disabled—his mental capacity was that of a seven-year-old—the
defense never brought that out at his trial.
The primary focus of the
petition, however, was on the medical testimony.
“Virtually every medical
observation and conclusion that the prosecution presented – from the
cause of death to the ‘evidence’ of rape and sodomy – was manufactured
and false,” the petition said. “The indisputable evidence presented in
this petition—provided by world-renowned medical authorities, the medical
personnel who observed Consuelo Verdugo immediately upon her arrival at
the hospital, and the doctors who testified on behalf of the
prosecution–disproves each and every element of the prosecution's case.”
“The jury did not learn or
know that the pathologist's cause of death—anal penetration that severed
her pancreas—is medically impossible,” the petition said. “The jury did
not learn or know that the numerous medical personnel who administered
Consuelo's care immediately upon her arrival at the hospital emphatically
deny that she had such injuries. Indeed, the jury did not hear that the
injuries used to support the charges resulted not from criminal conduct,
but rather from the invasive and sustained medical efforts to address
Consuelo's increasingly deteriorating medical condition.”
The only medical witness who
did not recant his trial testimony was Dibdin, the pathologist. The
habeas petition noted that Dibdin had been fired or his contract was
terminated from medical examiner offices in Oklahoma City; Brown County,
Wisconsin; Tasmania, Australia; San Bernardino County, California; Nevada
County, California, and, some time after Benavides’s conviction, his
contract with the Kern County Coroner’s Office was not renewed.
In the early 2000s, Dibdin was
hired as a pathologist at a hospital in South Shields, England, analyzing
tissue samples to diagnose illnesses. In 2007, the General Medical
Council found he had made numerous errors, some of which resulted in
belated diagnoses of cancer in patients. The Council suspended Dibdin’s
medical license. Subsequently, he returned to California and resumed
practicing.
The petition also said that
the initial x-ray of Consuelo’s body showed no rib fractures, but the
report of the x-ray was amended to state that the fractures were visible
after detectives claimed they spotted fractures in the x-rays. The police
report documenting the change in the original report of the x-rays was
not disclosed to the defense.
In addition, the two experts
presented by Benavides’s attorneys were provided with only some of the
medical evidence. Moreover, what they were given came too late to fully
inform their testimony.
Among evidence that was not
disclosed to the evidence, according to the petition, were the lab
reports of Spencer, the crime lab criminalist. Despite her testimony that
there was no evidence that Consuelo was outside, the lab report
documented that plant material was found on the girl’s sweatshirt and
that there was dirt and blood on the sole of her shoe.
The petition said that after
Cristina was removed from the home by state child protective services,
she was subjected to numerous interviews by social workers and
detectives. During these interviews, she was threatened that unless she
provided testimony favorable to the state, she would never go home.
Moreover, the prosecution
failed to disclose that the state paid benefits to the family members who
took temporary custody of Cristina. Both had testified at Benavides’s
sentencing hearing that they wanted “justice” for Consuelo.
The prosecution, according to
the petition, threatened Medina that if she continued to support
Benavides’s innocence, she would never regain custody of Cristina. After
repeated interviews and threats relating to Cristina, Medina ultimately
testified—falsely, according to the petition—that she had warned
Benavides not to harm her children and that if he did, “I would have you
locked up.”
The prosecution also failed to
disclose that Dr. Diamond conducted an examination of Cristina and
determined that she had never been molested. The report was significant,
the defense contended, because the prosecution suggested that Cristina
“was lucky to get out alive.”
The Supreme Court ordered the
prosecution to respond to the petition. In August 2010, the prosecution
filed a 501-page response, conceding that the convictions were based on
false medical evidence. However, the prosecution argued that while the
charges relating to sexual assault should be dismissed, Benavides’s
first-degree murder conviction should be reduced to second-degree murder.
In March 2018, the California
Supreme Court vacated all of the convictions, noting that the defense
medical experts were virtually unanimous in concluding that Consuelo was
not sexually assaulted. At least 10 physicians or treating personnel
recanted their trial testimony, the court noted.
The court concluded that the
injuries were caused by the numerous medical interventions and “bodywide
swelling.”
“A comparison between
witnesses’ trial testimony and their later declarations is striking,” the
court said.
Two doctors who treated
Consuelo at UCLA, the final hospital to which she was admitted, reviewed
all of the medical records and declared that anal penetration could not
have been the cause of death because the organs between the anus and
upper abdomen were not injured. “Dr. Rick Harrison, the physician in
charge of Consuelo’s care at UCLA, believed that the cause of death given
by Dr. Dibdin was anatomically impossible,” the court said.
The court pointed out that Dr.
Diamond, the child abuse expert who evaluated Consuelo at Kern Medical
Center and testified at trial that the appearance of Consuelo’s anal
region was consistent with penetration had recanted, saying “it is now my
opinion to a high degree of medical certainty that Consuelo was not raped
or sodomized.”
Dr. Nat Baumer, a medical
expert who testified for the defense, subsequently declared that he had
not been given Consuelo’s complete medical record before testifying and
“[c]onsequently, [his] testimony supported the prosecution’s allegations that
Consuelo had been anally penetrated with a penis which, based on [his]
own observations, [he] could not support.”
The court specifically noted
that Dr. Tracey Corey, a forensic pathologist who reviewed the case in
post-conviction, stated that she was “embarrassed about the pathologist
because what he says isn’t even . . . anatomically possible.” She added,
“I’m embarrassed that . . . a pathologist didn’t know better, didn’t know
anatomy better.”
On April 19, 2018, Kern County
District Attorney Lisa Green moved to dismiss the charges and Benavides
was released.
The entire post - with further information about the case and the National Registry - can be read at the link below:
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. The Toronto Star, my previous employer for more than
twenty incredible years, has put considerable effort into exposing the
harm caused by Dr. Charles Smith and his protectors - and into
pushing for reform of Ontario's forensic pediatric pathology system.
The Star has a "topic" section which focuses on recent stories related
to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
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