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Facing a Second Trial, Ernie Lopez Takes Plea Deal

An Amarillo man whose conviction for sexually assaulting a child was reversed after experts questioned forensic evidence used against him, pleads guilty to a reduced charge.

Ernie Lopez (Photo courtesy of PBS Frontline)

This story was co-published with PBS Frontline.

Ernie Lopez, an Amarillo man whose sexual assault conviction was reversed after experts questioned the forensic evidence used against him, pleaded guilty today to a charge of causing serious bodily injury to a child.

The plea, entered during a 15-minute court appearance, concluded a case that drew national attention from ProPublica, PBS "Frontline," and NPR, and stirred debate about the science used to win other child homicide and sexual assault convictions. In a series of reports, the three news organizations examined two dozen instances in Canada and the U.S. in which people were wrongly accused of killing children.

Today, Lopez, dressed in a gold shirt and matching tie and surrounded by family, barely spoke as he was sentenced to time served for a single felony charge. Afterward, he and his family members declined to comment. Under the terms of the plea agreement, he is prohibited from proclaiming his innocence or encouraging anyone else to do so.

In 2003, a jury found Lopez guilty of sexually assaulting Isis Vas, a six-month-old child he had been babysitting. During the trial, hospital workers and a medical examiner provided the key testimony, describing bleeding in the child's genital area and bruising on multiple areas of her body. Vas died a day after being hospitalized. The jurors sentenced Lopez to a 60-year prison term.

Lopez, however, insisted he'd never harmed the child. After a host of medical experts challenged the evidence at the heart of the case, the Texas Court of Criminal Appeals last year overturned his conviction, ruling that Lopez had received ineffective legal representation during the trial. Dr. Michael Laposata, the top pathologist at Vanderbilt University Medical Center, reviewed hospital records and concluded that Vas had been afflicted by a severe blood-clotting disorder that caused her to bruise and bleed.

The reversal allowed Lopez to return home to Amarillo and restart his career as a machinist, but his freedom was restricted. He had a 10 p.m. curfew and was required to wear an electronic monitoring bracelet. He was forbidden from being around young children.

Lopez also was promptly confronted with the possibility of standing trial for a second time when Potter County District Attorney Randall Sims refiled sexual assault charges.

By agreeing to the plea arrangement, Lopez is spared the possibility of being hauled back into a prison cell. The constraints on his freedom have been lifted.

Sims said he made the right choice in deciding to prosecute Lopez a second time.

"I think he's wound up pleading guilty to the charge that he committed," Sims told NPR, adding that he remained convinced by the evidence.

The prosecutor pointed to a polygraph test in which an expert found that Lopez allegedly answered questions deceptively concerning whether he had harmed Vas. During earlier court hearings, experts for Lopez raised questions about the veracity of the test. In the plea deal, Lopez waived his right to challenge the test.

Lopez's former attorney, Heather Kirkwood, said the plea bargain "is what the DA requires you to sign in exchange for your freedom."

"After nine years of false imprisonment, freedom has been pretty good to Ernie," Kirkwood said. "He has a good job, he is surrounded by supportive friends and family, he is reunited with two of his children. There's a lot to be grateful for."

Kirkwood stressed that she is no longer advising Lopez and, thus, is not restricted by the terms of the plea deal.

Outside legal experts said they weren't surprised Lopez had accepted a plea deal.

Veteran defense lawyer Stuart Hanlon said he would've encouraged Lopez to agree to the plea bargain rather than risk a second trial.

"Unless the client said they would never plead guilty, I would say to this person they should take the deal," said Hanlon, who recently handled the case of a man accused of killing a 3-month-old infant. San Francisco prosecutors eventually dropped the charges. "There's a presumption of guilt in these cases, not a presumption of innocence."

Sims told NPR his office had invested 4,000 hours into the case and was certain that justice had been served.

"I'm confident," he said. "Mr. Lopez and I shook hands after it was over with. In fact, we shook hands with everyone in the courtroom."

Mark Haslett of High Plains Public Radio contributed to this report.

Texas Law requires that a plea of guilty is only accepted if the defendant admits he is guilty in open court and that he is saying that because he is guilty and FOR NO OTHER REASON.  Any equivocation of that and the judge will not do the plea.
    Texas and its criminal justice system take flack for a lot of things, but we swhould not for that.  To do otherwise, you are allowing someone to be punished for something they did not do.  There is no justice in allowing that!
    Mr. Lopez knows this.  While he can talk to whoever he chooses, any claim of innocence will result in the plea being broken as would have happened if such had occurred during the plea.
    Pleas happen every day across the Texas under this same requirement.
    The polygraph itself done by a defense expert witness had nothing to do with what has happened in this case.  The post interview is the important part There the two are just talking.  During that interview,  the defendant made two incriminatory statements that during the plea he admitted were true.  One state incriminated him for the charge to which he pled guilty.

In open court, under oath, Mr. Lopez admitted:
  1.  he was pleading guilty because he is guilty and for no other reason as is required by Texas law before a plea can occur.
and   2.  the statements in the Exhibit A   (Stipulation of Evidence)  are true and correct.
    Thus, Mr. Lopez admitted to recklessly causing serious bodily injury to the victim which directly contradicts the main defensive theory raised by writ defense and their experts that medical conditions were responsible for the victim’s injuries not Mr. Lopez"s actions. 
    Mr. Lopez neither lied nor committed perjury during the plea.  Anyone saying he is not guilty is saying things factually incorrect and against Mr. Lopez’s own words.  The State now has sworn testimony,a confession of guilt, and a guilty plea to establish he is, in fact, guilty.

Randall Sims
47th District Attorney

Mr Sims,
Though your points are good in a strictly constructed legal sense, you make no allowance for human frailty, specifically this persons sense of guilt or responsibility. Just about anyone who has experienced real tragedy knows that emotions and feelings around said tragedy are tumultuous and difficult to control. Lots of things can be thought and said in unguarded moments, which are not strictly true. It is the job of a prosecutor to not only present evidence clearly and concisely, but also to see the possibility that evidence may not tell the whole story. I am not saying that he is guilty or not guilty (your last paragraph) since really, I don’t know. What I am saying is that humans do not live in law books, and they do things that are not always apparent at first look. And I submit that you don’t know the full truth in this matter, just like me. When you say “Mr Lopez neither lied nor comitted perjury during the plea”, and use this as a weapon against him, are you really sure your statement is true? As a human, I know that truth is always somewhat elastic, especially when emotion (guilt- not the legal kind, but the psychological) is involved.

Innocent or not (note that I’m not disputing the verdict, as I know none of the facts that haven’t been presented by ProPublica), I both understand the plea as an expedient measure to not waste years having one’s name dragged further through the mud and wish it had gone to trial to actually test the facts of the case, minus the parts that were botched in the first trial.

I can’t speak to the situation in Texas, but New York has many similar laws regarding plea deals.  Yet, spending an hour or so watching the local traffic court shows that everybody pleads guilty to something and nobody pleads guilty to anything on the list of charges.

That would suggest that either perjury in plea deals is typical and sanctioned (since the prosecution makes the offer and the judge is fully aware of the difference in charges) or the rights of every defendant in traffic court is violated by forcing them to spontaneously confront charges unrelated to the tickets they received.

I won’t try to cast doubt on what Mr. Sims is saying, since that’s up to he and the district he serves to hash out.  And he wouldn’t have anything to gain (and would have a lot to lose) in coming here to lie on the public record.  But I do have to raise this to point out that I find the idea that a guilty plea precludes innocence to be a little bit laughable.

Amarillo is in Texas. Guilty or innocent, Mr. Lopez took the correct course for his own sake.

“The innocence project” a national organization working to exonerate wrongfully convicted people,  sites Texas as the state with the highest number of prisoners found to be innocent after DNA testing.

Texas has the highest per capita prison population in our country,  Texas also holds the record for having the highest number of private (for profit) prisons in the country.

Convicting and jailing people in Texas (innocent or guilty) just seems to be good business for Texans.

The poster Carolyn, above, is right.  Our legal system has been corrupted by a massive conflict of interest which has, does and will continue to pervert and seriously taint the pursuit of true justice: the prison for profit system.  If this issue continues expect the fastest, most exponentially growing business in America to turn the nation essentially into a population predominately made of prisoners, jailers and draconian laws/prison terms to have a detrimental on virtually everyone.  Sadly, corruption and conflicts have become so pandemic in America that it has affected most aspects of business, the body politic and essential social services.  The present course of legislation and philosophical belief that financial profits should trump all will only continue to exacerbate this situation, so we probably won’t see any change for the better in our system that favors profiteering, absurdly referred to as “free enterprise”. 

As far as any “confession” in this case, I tend to view those with a grain of salt.  Having been a policeman initially trained in the military and knowing how to question people over prolonged periods of time without sleep, food and proper legal representation, I can attest confessions, both true and false, are not at all difficult to obtain, even by the most intelligent and otherwise stable individuals being deprived of sleep, nourishment, etc. after as little as two, three days. It’s astoundingly easy to “break” most people, who will “confess” to the most heinous acts they know will end terribly for them just to get a little promised sleep, food, relief from constant badgering, and so on. The mind becomes very unstable and weak in short order at experienced hands. Works great if the person is definitely guilty. Only problem is, almost all zealous “experts” make mistakes in this judgment. More often than they care to admit. 
Looking at the fact that some courts boast a near perfect conviction rate and usually hand out severe, draconian sentences, legal counsel will often advise clients to accept almost any plea deal (which may require a “confession”) offered by the prosecution, regardless of innocence or guilt, in order to avoid a far worse outcome at trial.  A good many prosecutors and others elected/appointed officials in the legal system seem a whole lot less concerned with true justice than they do their conviction rate and job security.  Throw in the prison for profit system and you have a system ripe with corruption and horrific miscarriages of justice.  Those of us in Special Forces used to refer to this as “kill them all and let God sort them out”.  Despite the flag waving opportunity this system offers zealots, it’s a disaster for those who wish to live in a society that protects and serves, not to mention decency and justice.

Mr. Sims:
Please explain what is wrong with the scientific evidence that the child had the clotting disorder that could have caused this.  It appears that this evidence far exceeds the reasonable doubt threshold.

I am not interested in your claims that because he accepted the plea deal in court he has to be guilty.  All you are doing is proving your own arrogance and lack of honesty and decency.

—-Jonathan

Jonathan,
There were two claims on the writ.  One was ineffective assistance of the defense trial lawyers and the other was a claim of actual innocence.  If your theory were true, the writ judge and highest criminal appellate court in Texas would have found for actual innoncence.  They did not!  They reversed the case and sent it back based soley on IAC based o there was a reasonable probability the outcome might have been different.  Well, I can buy a lottery tickey and that gives me a reasonable probability of winning.  Everyone who has one has the same chance of winning but we all know how minimal that chance really is.


The State has plenty of experts who actually saw the victim as well as some that did not.  None of the defense experts ever saw the victim.  It is my belief, after 28 years of prosecution and trial experience, that the State experts are correct.

You must realize, the writ defense was Mr. Lopez did nothing physical to the victim and that all the injuries the victim had were the result of ONLY medical conditions.  Then you take the defendant’s own two admissions (that he did cause physical injuries to the victim) made to a DEFENSE Expert. 

To give you all the information I could tell you would be 100s of pages long. I will end with a good ole cowboy expression my Dad once told me, ” when passing judgment on someone you do not know, all you have done is show others the kind of person you really are”.

This is my last post on this subject.

Mr. Sims,

In your response to Jonathan, you write “If your theory were true…”.  What “theory” are you referring to?  What is the point you are trying to make with your lottery ticket example?  I don’t see the connection to Jonathan’s comment.

“The State has plenty of experts who actually saw the victim as well as some that did not.  None of the defense experts ever saw the victim.  It is my belief, after 28 years of prosecution and trial experience, that the State experts are correct.”  Duh.  You have spent 28 years prosecuting cases in which you relied on State witnesses.  We know where your loyalties reside.  You don’t need to state the obvious.  Hell, based on your logic, we should just throw out all defense witnesses.  That sure would save you a lot of hassle, wouldn’t it?  Like it or not, the defendants get to provided a defense, that is unless you get your way.  Isn’t that exactly the reason you are posting to this article?  Because you don’t like the fact that the defendant’s side is getting air time?

RE your paragraph about Mr. Lopez:  did you ever consider the culpability of the mother or was your focus entirely on Mr. Lopez?

“To give you all the information I could tell you would be 100s of pages long.”  Oh, so we are just supposed to accept your word because you COULD produce 100s of pages?  Convenient for you.

“when passing judgment on someone you do not know, all you have done is show others the kind of person you really are”  Isn’t that exactly what you have been doing for 28 years?  Cowboy expressions and cowboy justice… yee haw.  Seems like you are dead set on proving previous posters correct in their perceptions of Texas “justice”.

I notice that your “last post on this subject” came during a work day.  Hopefully you were on your lunch hour.

I have no idea if Ernie Lopez is guilty or innocent but you are doing yourself no favors with your postings.

PS

If you are so sure of his guilt, why did you offer a plea deal instead of retrying Mr. Lopez?  Why not argue the case in front of a jury rather than in the comment section of a news article?  I guess the burden of proof is much lower in the comment section of a news article than it is in court when a defendant is represented by competent counsel….ie claiming to have 100s of pages of information without having to produce that information and being able to claim that the State’s witnesses are more credible than defense witnesses.

Come to think of it, why continue to retry the case in the comment section if you are so sure that the plea agreement speaks for itself?  Considering that the defendant is barred from claiming innocence, its seems unfair that you continue to retry him over and over, even if it is only in a comment section.

PPS

“This is my last post on the subject.”

Huh?  No one forced you to post anything.  You BEGAN the discussion.

Mr. Sims,

Since you chose to try this case in a public forum rather than in a courtroom, I have a couple of questions for you.

1. Do you think it’s possible that the State witnesses you relied upon could have been (either intentionally or unintentionally) inclined to skew their findings in order to protect one of their own.  After all, she was apparently a substance abuser prior to moving to Michigan where her license was suspended so the local community apparently protected her from repercussions for her substance abuse problem which apparently was a problem while her child was still alive.

2.  Ernie Lopez was convicted of sexually assaulting a child and a murder charge was pending.  You continue to maintain he was guilty.  You also state that you shook his hand in the courtroom.  Is it common for you to shake the hand of an individual you believe to be guilty of sexually assaulting and murdering a child?

And to proudly proclaim that you shook the hand of a person you believe to be a child molester/murderer?

Mr. Sims,

In your first post you state:

“Mr. Lopez neither lied nor committed perjury during the plea.  Anyone saying he is not guilty is saying things factually incorrect and against Mr. Lopez’s own words.  The State now has sworn testimony,a confession of guilt, and a guilty plea to establish he is, in fact, guilty.”

You seem to be arguing that this man you claim is a baby rapist/murderer could not possibly be a liar.  At the same time, you argue that all the times he claimed he was innocent he WAS a liar and that if he claims innocence in the future, he is a liar.  Please explain your tortured logic.

Under the circumstances, it appears the State might be the one with something to gain from suppressing the truth.  If this man was indeed innocent, what would your office/county/state/police department/“State’s witnesses” stand to lose?  Money and reputation for starters.  So it would appear that there would at least be motive on your part to get this man to enter a plea even if he was innocent.

And with all of the above entities already having taken hits for possibly putting an innocent man to death (Johnny Frank Garrett) and protection of guilty parties who happen to be members of a different class such as this poor child’s mother who, at a minimum, appears to have been extremely neglectful (see the current case of the prominent citizen who has been abusing kids for decades),  and one could certainly make the case that a prosecutor would have motive to ask an innocent man to take a plea.

Another quote from your first post:

“Texas and its criminal justice system take flack for a lot of things, but we swhould not for that.  To do otherwise, you are allowing someone to be punished for something they did not do.  There is no justice in allowing that!”

I agree.  There should be a thorough investigation to ensure that justice is served to anyone who acted in a manner that did not serve justice.

Mr. Sims,

You state:

“The State has plenty of experts who actually saw the victim as well as some that did not.  None of the defense experts ever saw the victim.  It is my belief, after 28 years of prosecution and trial experience, that the State experts are correct.”

So it is your belief that Ernie Lopez is a baby rapist/murderer, if you believe your experts as you claim.  And yet you let this baby rapist/murderer off with time served.  How many other baby rapists/murderers have you advocated be freed after 9 years…...and then shook their hand?

And what’s wrong with the judge that accepted this crappy deal?  If he was guilty and the State had proof, they should have been required to prove it.  9 years for a case in which the State claimed Lopez raped and murdered a baby.  If he isn’t guilty, then he shouldn’t have been forced into a position of accepting a plea.  The judge should have seen through the bs Sims was selling..

This deal stinks all the way through.  There was no justice served, least of all for the victim.

From Mr. Sims:

“Texas and its criminal justice system take flack for a lot of things, but we swhould not for that.”

This case is a poster child for what is wrong with the Texas criminal justice system from beginning to end.  Police and prosecutors with single-minded focus from day one…..focus on the poor babysitter and never look at the wealthy mother.  Railroad the babysitter who is provided inadequate representation.  And when the truth comes out, only because of the extreme efforts of an out of state attorney and the national media, the disingenuous prosecutor twists himself in knots to hide the truth so there is no accountability for those involved in a bogus prosecution and the judge goes along with the prosecutor rather than insisting on something resembling justice.

And, of course, local media will never touch a story like this.  Oh, there might be a mention in passing, but there will never be any objective reporting on the culpability on those in positions of power,  The local media is willing to take dictation from those in positions of power but will never ask questions.

This article is part of an ongoing investigation:
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In TV crime dramas and detective novels, every suspicious death is investigated by a highly trained medical professional, equipped with sophisticated 21st century technology.

The reality in America’s morgues is quite different. ProPublica, in collaboration with PBS “Frontline”  and NPR, took an in-depth look at the nation’s 2,300 coroner and medical examiner offices and found a deeply dysfunctional system that quite literally buries its mistakes.

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