Journalism in the Public Interest

Texas Court Voids Conviction in Child Death Case

The court set aside the conviction of Ernie Lopez, whose case we explored in our series on flawed death investigations.

A Texas judge voided the conviction of Ernie Lopez, who is currently serving a 60-year sentence for harming six-month-old Isis Vas, who later died. In the years since his trial, physicians who have reviewed the medical evidence in the case have questioned the soundness of Lopez's conviction. (Photo courtesy of PBS FRONTLINE)

This story was co-published with PBS Frontline.

The Texas Court of Criminal Appeals today set aside the conviction of Ernie Lopez, an Amarillo man found guilty in 2003 of sexually assaulting six-month-old Isis Vas. The baby died shortly after the purported attack.

Lopez has been serving a term of 60 years in Texas prison for the crime. But a joint reporting effort by ProPublica, NPR, and PBS "Frontline" last year explored the possibility that Lopez might be innocent.

In the years since Lopez's trial, a host of physicians have reviewed the medical evidence in the case, raising questions about the soundness of his conviction. Many of these specialists have come to believe that Vas actually died of natural causes, and that Lopez never assaulted the child at all.

During a tearful prison interview, the inmate insisted he wasn’t a sex offender and killer. "That's not my character," he said. "That's not who I am."

"We are very pleased with the Court of Criminal Appeals' decision to set aside Ernie’s conviction," said one of Lopez’s attorneys, Heather Kirkwood, in an email. "The Texas courts deserve ample recognition for the careful review of the record that led to today’s decision."

The Lopez case highlights the growing international controversy about 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 have been wrongly accused of killing children based on questionable medical evidence, and California Gov. Jerry Brown is currently considering commuting the sentence of a grandmother convicted of fatally shaking her 7-week-old grandson.

The Texas court didn’t rule on Lopez’s culpability and did not set him free. Instead, the court concluded that Lopez received ineffective legal representation during his trial because his lawyers failed to challenge the prosecution’s medical evidence.

The ruling, which affirms the findings of a lower court, calls for Lopez to be returned to Amarillo, where local prosecutors will have the option to try him a second time or simply let him go.

In August 2010, Potter County Judge Dick Alcala recommended that Lopez's conviction be overturned, stating that Lopez's original attorneys had failed to "fully investigate the medical issues of whether a sexual assault had occurred" and "the cause of death of the child."

Kirkwood, who began representing Lopez after he’d been sent to prison, said she was hopeful that her client would be released on bond while District Attorney Randall Sims decides whether or not to retry Lopez.

During the appeals process, the prosecutor’s office tapped a number of medical experts who supported the conclusion that Vas had been sexually assaulted and abused.

A phone call to Sims was not immediately returned.

Whoa, whoa, whoa.  I’m certainly on-board with “might not be shaken-baby syndrome.”  But dismissing an assessment of sexual contact is going to take more than, “sometimes labs get things wrong,” isn’t it?

I’m not accusing Lopez, certainly, because I’m not in a position to intelligently review the case from any angle.  And surely, the bulk of the damage came from attempts to revive her.  But vaginal bruising and bleeding without from malnutrition or improper CPR?  I don’t know, but it sounds too much like teenage girls losing their virginity to incubi conjured by witches to me.

It wasn’t about teenage girls. . . Dummy. It was about the sexual assault of a 6 month old baby girl.

Camille Taiara

Jan. 26, 2012, 8:38 p.m.

Great work, A.C.!!!

My prayers go out to Ernie and his family.. Hopefully this time he’ll have adequate counsel.. Or even better hopefully they drop charges..

While I normally wouldn’t bother to respond to name-calling, Rochelle, do me the favor of actually reading my comment.  Any of the words (for example “like,” suggesting a comparison), and hopefully all the words, might be relevant.  Looking up “incubus” (the singular of incubi) might also be worth a moment.

Or do you know of some way that CPR, malnutrition, or neglect can bruise one’s genitals at any age?  Perhaps my clear lack of intelligence makes any facts irrelevant, though, so never mind.

John, your questions are answered in the original report linked to in the first paragraph. I suggest you read the whole thing.

I read it through, but I’m not seeing it, Shiela.  Can you walk me through it?  I’m neither a medical professional or a woman.

Again, I’m not trying to push the light back on Lopez.  I’m happy to accept that the death wasn’t violent, and with the evidence as reported, I agree.

My objection is, in dismissing abuse as the cause of death, ignoring what still seems like clear evidence of non-fatal abuse.  To simplify the situation, if someone is punched in the nose and dies weeks later of a drug overdose, there’s still a guilty party, even if it’s not the original suspect or for murder.

John, start here: “After taking on Lopez’s case, Kirkwood started contacting physicians in hopes of getting them to analyze Isis’ medical history. She sent a stack of documents to Dr. Richard Soderstrom, an emeritus professor of gynecology at the University of Washington. As an adviser to the Food and Drug Administration, Soderstrom served on a panel that studied the accuracy and safety of the colposcope, a device that can be used to take photos of injuries in sexual assault exams.

Isis Vas had been examined using a colposcope. But as Soderstrom stared at the photos taken of her, he wasn’t convinced that she’d been violated. “I couldn’t see anything that would say, beyond a reasonable doubt, that there was penetration,” he said.

Soderstrom gave a sworn affidavit stating that, in his opinion, the photos did not suggest there had been sexual abuse. No semen or pubic hair had been found on Isis’ body. Further, Soderstrom said, the lack of injuries to the child’s inner thighs, labia major, and hymen, was “inconsistent with abuse.”

Kirkwood also approached Dr. Michael Laposata, the chief pathologist for Vanderbilt University Medical Center in Nashville and a leading expert on blood disorders. At Laposata’s sprawling lab, white-coated technologists run some 6 million tests per year, feeding a never-ending line of blood samples into an array of machines.

Looking at the file on Isis, Laposata quickly homed in on the tests run on her blood while she was in the hospital. To gauge how the blood is clotting, physicians typically begin with a pair of basic tests called the PT and PTT. In Isis, the “PT and PTT were markedly abnormal,” Laposata said, adding that other tests also suggested a coagulation disorder. Where McClain had seen a “classic” case of blunt force trauma, Laposata saw something entirely different, a “classic picture” of Disseminated Intravascular Coagulation, a potentially lethal condition that can cause bleeding from sufferers’ every orifice. ”

John, the guilty party very well could be the parents for not seeking medical care earlier since Isis was obviously having problems for days before she died.

Sadly, the fact that her mother is a doctor could be the biggest factor in her death, at least in my opinion it could be. Most mothers, who are not doctors, would have taken the baby to the doctor early on. I think this doctor, her mother, dismissed the symptoms much too easily. Also, considering the appearance of bruises you’d think a doctor-parent would see a red flag. Maybe she was just too busy and whatever was taking her to Detroit for the weekend was more prominent in her mind?

I’m not saying that her mother was criminally negligent but it does seem that she missed an opportunity to save her child- one way or the other.

One more thing- if the child had been sexually assaulted/raped there would have been more than a “laceration of the vagina area” on a child that size. That could have been a scratch that happened during cleaning or the child touching herself when diaper is removed, which babies will do.

Your final comment was the most helpful, Shiela.  Thanks.

I did see the same thing in the first article, but it sounded too much like, “well, we can’t do anything about the rape charge, because you showered afterward,” that happens so often.  It means that Lopez probably didn’t assault her, I agree, but not that it didn’t happen at all.

But if it’s a set of symptoms that happens to baby girls as a matter of course, that’s obviously very different and reduces the chances of a (non-negligence) crime.

I have viewed this on pbs and believe Enie Lopez is innocent. The sickness the baby had wou make the baby bleed all over, because the blood would not coagulate.

Her hyman was still intact meaning she was not sexually assaulted she was sick and her platlet count was so low that you can bleed anywhere. The medical examiner failed to do lab work. When it comes to infants it takes less of a disease to kill them. This was not sexual assault this man is innocent

This man is innocent.  It would be a travesty of justice for this man to be retried.  If anyone should have been prosecuted it should have been the mother as she was obviously a very sick women.  Her neglect was what killed this child, not Ernie Lopez.  Hang in there Ernie, you’ll be a free man soon.

Hopefully with all the facts and evidence of negligence by the mom(Dr), the state will go after her. She’s a looser!

Stay strong Ernie and the whole Lopez family… God bless

Fascinated by the Frontline investigative journalistic show on PBS a concise eye opener, paralleling a show I saw on Shaken Baby Syndrome on a Canadian station last month.  Too many innocent prisoners behind bars and families suffering, the basic simple but difficult principles of justice and science being thrown over in favor of knee jerk obvious but mistaken conclusions, then stubborn refusal to own up to the terrible mistakes of an unfair overburdened expensive legal system.  There has to be a shakeup and mass pardon.  The injustice is huge. The families and the Kirkwoods of this Continent are the only hope, but the suffering is so unfair. .

I just saw the Frontline piece. This man is innocent. He did nothing worse than babysit a very sick, neglected little girl as she was dying. (Frankly, being with Mr. Lopez was the best case scenario for Isis Vas. At least she was with someone who tried to save her.) I can’t imagine the jury that would’ve convicted him given the evidence that’s come to light since he’s had a competent defense attorney.

This case really highlights some major flaws in the American justice system. Over-zealous prosecutors, especially in sexual cases, and especially when children are involved. Vilified defense attorneys. Possibly even perceptions about social status (with the child’s mother being a doctor, and the person babysitting her being male, and, dare I mention it, Latino). Which is not to demonize the jury, it seems to me they were presented with a ridiculously obvious decision because of the defense’s failure.

And is it really surprising that the defense failed? Horrifying, yes, but our society can be downright venomous towards criminal defense attorneys. We often perceive them as the scum that frees scum, forgetting how important it is that they do their job and do it well. Would you want to be the person who defended and freed the man who was caring for an unrelated baby girl when she died, covered in bruises and bleeding vaginally?

Thank goodness for people like Heather Kirkwood, who’re willing to answer such a question with, “Yes, I would.” It takes a special kind of person to be a hero in the face of hatred.

Godspeed to Mr. Lopez, his family, and his lawyers.

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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