Journalism in the Public Interest

Free, But Not Cleared: Ernie Lopez Comes Home

The case of an Amarillo man, released from prison last week, reflects a larger controversy over the reliability of scientific evidence in child death cases.

Ernie Lopez hugs his daughter, Nikki Lopez, for the first time since 2009 after being released from prison on March 2, 2012, in Amarillo, Texas. Lopez, who was convicted for sexually assaulting a 6-month-old girl, was released after the Texas Court of Criminal Appeals ruled that his original attorneys failed him by not calling potentially important medical experts as witnesses. (Katie Luke for NPR)

This story was produced in collaboration with PBS "Frontline" and NPR.

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After nearly nine years in prison, Ernie Lopez has returned home to Amarillo, Texas, where a throng of family members and supporters celebrated his release.

Hugging his daughter Nikki and brother Eddie late last week, Lopez seemed overwhelmed and relieved.

A jury in 2003 convicted Lopez -- who was profiled by ProPublica, PBS "Frontline" and NPR last year -- of sexually assaulting six-month-old Isis Vas, whom he was babysitting. The girl died shortly after the alleged attack.

But in the years since Lopez was sentenced to 60 years behind bars, new evidence has surfaced suggesting Vas died of natural causes -- a severe blood disorder called Disseminated Intravascular Coagulation, which can cause bleeding throughout the body. Lopez's appellate lawyers, led by Seattle attorney Heather Kirkwood, have amassed a team of medical specialists who have challenged the notion that Lopez sexually assaulted the child and fatally injured her brain.

Lopez, 41, has always maintained his innocence.

In January, the Texas Court of Criminal Appeals overturned Lopez's conviction, saying that his original legal team had provided him with ineffective assistance during his trial by "failing to call medical experts" to dispute the prosecution's theory that Lopez had attacked the baby. The court -- the highest criminal court in Texas -- didn't absolve Lopez, but said there was a "reasonable probability" that he would have been acquitted had his attorneys countered the medical evidence arrayed against him.

Lopez's story reflects a broader controversy. Increasing numbers of doctors and other experts are questioning the reliability of the science used to prosecute cases of fatal child abuse and sexual assault. In Canada and the U.S. at least 23 people who were wrongly accused of killing children based on flawed or biased work by forensic pathologists have been cleared over the last 15 years.

The Texas court's ruling set the stage for Lopez to be released Friday on a $10,000 bond. His release order bars him from initiating contact with children, though he is allowed to spend time with his three children. It also requires him to wear an electronic monitoring anklet and to abide by a 10 p.m. to 6 a.m. curfew.

At his parents' home on the outskirts of Amarillo, Lopez celebrated the events and holidays he missed during his long confinement. The family even put up a Christmas tree.

While Lopez was overjoyed to be reunited with his family and friends, Potter County District Attorney Randall Sims has signaled his intent to retry Lopez on sexual assault charges.

Sims recently declined to talk about the details of the case with ProPublica, PBS "Frontline," and NPR. Throughout the appeals process, prosecutors have maintained that Lopez assaulted Vas, and have enlisted an array of medical professionals to support that contention.

Lopez's lawyers said they expect their client to face trial again this fall. Since his release, Lopez has reveled in his freedom and grappled with the reality that it may be only temporary.

The videos were produced by the following: Producer: Catherine Upin; Editor: David Chmura; Camera: Zachary Stauffer; Field Producer: Zachary Stauffer; Orignal Music: Rob Morsberger; Additional Editing: Michael H. Amundson.

bruce ritchie

March 5, 2012, 5:02 p.m.

How is it that retrying this man is NOT double jeopardy?

Walter D. Shutter, Jr.

March 5, 2012, 5:46 p.m.

In response to Bruce Ritchie:

An Appellate Court can not render a verdict of either guilty or not guilty.  In this case, the Texas appellate court simply said that the defendant did not recieve a fair trial because of ineffective assistance of counsel, i.e., that there was a “reasonable probability” that the defendant would have been found not guilty had his counsel presented expert medical testimony to counter the State’s expert medical testimony. Accordingly, the Texas high Court overturned the defendant’s conviction and threw the case back into the lap of the court of original impression where, after a reasonable period of time-in most jurisdictions, a year-the State must either retry him or dismiss the charges. 
As you are probably already aware, conviction in a criminal trial requires that the finder-of-fact, usually a jury, find the defendant guilty “beyond a reasonable doubt”.  In the instant case, the Texas High Court has already issued an opinion that, assuming no new evidence such as a confession or eyewitness testimony, would be introduced in a new trial, reasonable doubt already exists. There’s that word “reasonable” again. 
The real question that should be asked is this:  Assuming the unlikely prospect of success, why has the DA announced that his office is preparing to retry the accused? The cynic might might note that 2012 is and election year-even in Texas-and that the DA is probably up for retention.  Har-har-har.

Darryl Phillips

March 5, 2012, 6:26 p.m.

Thanks Mr. Shutter for your explanation. Many folks (probably including Mr. Lopez) don’t understand the whole system until it hits them personally.

Too often jury members go along with the crowd rather than hanging on to their own belief of “reasonable doubt”. Even one jury member could have saved this man 3285 nights in prison.

I’m a firm believer that juries should be aware of what they’re doing. They need at least a visit and a meal in prison, if they’re going to sentence a man to 60 years (21900 nights) they should spend a night first themselves.  Then, if he deserves prison - and many do - give it to him. Just know what you’re doing first.

Our system needs some measure of punishment for DAs who use their power inappropriately. Today, not even an apology is required. Perhaps disqualification from holding that job would be fair.

Thank God he is finally released. Sadly, most likely he will be retried. And sadly any case involving a child the emotions run high with a jury towards conviction! Across our nation DA’s only want to close cases with convictions at all cost. As soon as they announce they will try a suspect the case is never about seeking justice it is about getting coinvictions to close cases. This will continue as long as proscecuting attorneys are immune from any legal recourse for their actions.  Look at the case of NORFOLK FOUR… There was a case where not only should their murder and Rape convictions be wiped clean, but their Dishonorable Discharges should be reversed and they should be permitted to finish their career in the Navy.

In Texas, a prosecutor in most counties can convict a ham sandwich. Most Texas counties have no public defenders’ office (as woeful as those usually are), and instead pick an attorney from a list of criminal defense attorneys who’ve volunteered to provide legal counsel to the indigent. Now, who is going to spend billable time defending an indigent person? A busy criminal lawyer with an excellent record of getting his clients off and a rate to match? Or the shambling drunkard who is a disgrace to the Bar and who would be happy to receive the beggars’ pittance that Texas allots to indigent defense? You do the math! And this is an *improvement* over the system that existed prior to 2001, when a judge could appoint literally *anybody* to represent the indigent, even lawyers who had no criminal defense experience at all—there were *no* state standards for indigent criminal defense!

Now you know why Texas has almost 5% of its population either behind bars or on probation or parole…

It’s a shame that justice remains the preserve of the rich.  And that prosecutors sometimes see their role more as that of persecutor.

The idea of electing officials like public prosecutors really encourages the “hang ‘em high” mentality, which isn’t what the position is supposed to be about - where is the “protect the people” notion in all this?  That includes all people - and running unfair and unbalanced criminal proceedings doesn’t protect anyone.  Nor does scaring the public into following your “law and order” ideology and blindly giving you powers you neither need nor can exercise wisely.

In fairness to most prosecutors, most prosecutors won’t prosecute a dubious case—they *can* convict a ham sandwich in Texas, but they *won’t*—usually. Texas “justice” may often resemble a comedy show (see the Willie Nelson prosecution for that one!) or Stalinist show trials, but probably 95%+ of those convicted *are* guilty. But there’s definitely jerks on an ego trip who look at the evidence, decide that the accused is guilty, then refuse to look at any evidence to the contrary once they’ve made up their mind. They’re not *most* Texas prosecutors… but there’s enough of them for the occasional miscarriage of justice to grate on one’s nerves.

Thanks you AC for another great piece!

This article is part of an ongoing investigation:
Post Mortem

Post Mortem: Death Investigation in America

A year-long investigation into the nation’s 2,300 coroner and medical examiner offices uncovered a deeply dysfunctional system that quite literally buries its mistakes.

The Story So Far

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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