Photograph Source: Felton Davis – CC BY 2.0
Scharlette Holdman died in 2017. She was the subject of two New York Times appreciations, one with an improbable photograph of her as a young woman, looking healthy and gorgeous, the other with a more familiar photo, in which she appears older, worn but twinkling. Scharlette hit California’s community of people working to stop the death penalty like a wildfire in the mid-1980s. Her timing was perfect. She arrived from the South just as three good California Supreme Court justices were tossed aside by the voters, and politicians were winning higher office by chanting “Death, Death, Death,” all day and night, even while they were bring financed by Agribusiness and insurance companies. It was clear that sophisticated legal arguments would not work any more, but it was not at all clear what might take their place.
Scharlette had the answer. It was an updated version of the deterministic thinking articulated by Clarence Darrow a hundred years ago, that moved the sentencer’s attention away from the gory details of a horrendous crime to the life of the accused — almost always a horrifying narrative in its own right. The costs of poverty are usually looked at in the abstract, if at all, but she would have you do what it takes to find the visceral truth, all the violence, abuse, neglect, and damaged brains, and present evidence of toddlers given a concussion when they were thrown against the kitchen wall by their fathers, of sex with prepubescent children, of hungry three-year-olds on the kitchen counter, alone, pouring water onto flour, make the magic gestures they hoped would lead to food — and have an expert point to how equally traumatizing it was to grow up in South Central Los Angeles in the 1980s as in Beirut. When you tell the full story of someone who has been brutalized and violated when they weren’t being ignored, the notion that he (almost always the right pronoun) made a rational choice to do evil, or any choice at all, becomes ridiculous. A detailed familial and social narrative presented by official documents and testimony from real people can actually move someone, even a judge, to vote for a sentence of less than death.
Scharlette was forceful, intense, and very, very funny. She had character —always a precious commodity — as well as brilliant ideas that brimmed with direction, and she took over completely. Initial grumblings by lawyers who researched and wrote fine legal arguments faded as the new California high court tossed those arguments aside and moved straight to where it was appointed to go — towards the highest rate of death penalty affirmances in the country. Her ideas percolated down to the new category of “mitigation specialists” trained to get intimate revelations from poor families and taught how to rummage through bureaucratic records, and also percolated up to the US supreme court, which made it a general requirement of lawyers representing someone selected for the death penalty to develop a life history before making tactical choices on how to defend.
After more than four decades of application, the template she developed remains alive and well. Like the Theory of Relativity, it is simple enough that a passing acquaintance with how it works is rewarding, but its depths are intricate and vast, and their social and existential implications remain unplumbed.
What could go wrong? Application of her ideas can become pro forma, squeezed by a lack of time and funding and the desire to fit in with the community of others working to stop the official imposition of death. The life histories can blend together, as investigators trained by the same people march towards the same communal narratives, until everyone is telling the same stories. The infinite forms of neglect and abuse by parents and society can boil down to one or two “facts” du jour, and when those particular facts are not found the investigators become discouraged. But that’s not a problem of the template; that’s a problem of time, of money, of human entropy. A more elusive problem is the one of whether to apply the template at all.
In 1992, Vicente Benavides was convicted in Kern County of raping, sodomizing, and then suffocating 21-month-old Consuelo Medina, who he was supposed to be babysitting. There were no eyewitnesses, but according to the California Supreme Court’s 2005 affirmance of Vicente’s death sentence, “A pediatrician with an expertise in child endangerment examined Consuelo. He found a tear in her hymen and a bruise of the perineum. The anus was markedly swollen and gaping. There were tears in the anal sphincter and damage to the sphincter muscles caused by the insertion of some object into the anus and resulting in the loss of sphincter tone….The pediatrician believed Consuelo had been sodomized, that something had penetrated the vaginal area and torn the vaginal wall, and that she had been kicked or punched in the abdomen, causing the internal injuries.”
The initial notions of a car accident or collision with a metal door were rejected by medical experts. Consuelo’s nine-year-old sister Cristina and her mother Estella testified to suspicious behavior of Vicente around Consuelo. He was quickly convicted. At the penalty phase of his trial, he presented no social history, and two witnesses: “A lifelong friend testified that defendant was a noble, calm person, and a prior employer testified that defendant was a good worker and a good, nonviolent person. The parties stipulated that defendant had no prior felony convictions or prior acts of violent conduct.” In the teeth of such a horrific crime, this did not detain the jury long from sentencing Vicente to death. His convictions were affirmed by the California Supreme court in 2005.
At the time Vicente’s postconviction case was being prepared – the late 1990s-early 2000s – Kern County was notorious for wrongful prosecutions in child sex abuse cases. Dozens of people sent to prison for decades and even centuries in the 1980s eventually had their convictions overturned. These convictions had been based on coercive interviews of children, bad medical evidence, and official misconduct.
At first, it seemed that these cases were the result of overzealous caseworkers and prosecutors who thought the only mistake you could make when investigating possible crimes against children was to fail to be aggressive enough or caring enough to press on, even in the teeth of denials. But, the discovery of an audiotape in a case where several people were convicted of large-scale sex abuse showed that the investigators were not just overzealous; they were corrupt. They had sworn under oath that no such tape existed. They also swore that they knew the dangers of asking very young children leading questions – but the tape showed that leading and directive questions were the only kind of questions they asked. Kern County eventually paid out millions of dollars to people they had wrongly convicted in order to keep their investigative methods from coming to trial. Some of these investigators were involved in constructing the case against Vicente.
Postconviction counsel for Vicente knew all this, and took it to heart. They did a brilliant job of breaking down the prosecution’s case into small parts, and meticulously showing that every last bit of it was shady. Gradually, they were able to reconstruct was happened to Consuelo during the frantic efforts to treat her, and portray the blend of mistakes and malice that created this case. Experts recanted the testimony they had given at trial, and further testified that the evidence actually showed that Consuelo had neither been raped nor sodomized. When Consuelo first arrived at the hospital, there were no signs of damage to either her anal or vaginal areas. Repeated attempts to revive her included several futile efforts to insert catheters; these made marks around her vaginal area that were late interpreted by the absolute King of Quacks, Dr. James Dibdin, to have been caused by a penis – a penis that also managed to snake around at a 90-degree angle and break the child’s ribs.
Dibdin had been banned from practicing medicine in the United Kingdom, kicked out of other states, and dismissed from jobs in other California counties. The pathologist of Riverside County called him “a disaster waiting to happen.” In Kern County, not long before Vicente’s case, a judge dismissed murder charges that were founded solely on Dibdin’s testimony. Nonetheless. Dibdin’s autopsy was the rock on which the prosecution rested – until postconviction counsel presented detailed declarations from eminent doctors saying that it described a “pathophysiological impossibility.” The most logical explanation of what happened to Consuelo was compression of her chest by a large, heavy object like the tire of a car.
There was more. Counsel showed that Consuelo’s sister Cristina was coerced in brutally directive interrogations more appropriate for a suspected bank robber than a nine-year-old child to say things that cast aspersions on Vicente that she had not seen and did not believe. Her mother Estella was threatened with the permanent loss of custody of Cristina if she did not testify against Vicente in the way the prosecution wanted – a common method of witness coercion used by Kern County officials in the sex abuse trials. Postconviction counsel presented declarations from several of the prosecution’s own witnesses, both experts and lay people, describing how that had been deceived, threatened and mistreated by the prosecution. The case against Vicente was in tatters, if it existed at all.
If this case were plucked from the “Kern County Sex Abuse Trial” box, counsel would have stopped here and rested, waiting to pounce on the state’s response. But, since the case was drawn from the “Death Penalty” box, counsel had just begun.
In the second half of their petition, counsel wrote,
“The jury did not hear that [Vicente] suffers from major depression, alcoholism, post-traumatic stress disorder, and significant cognitive deficits. Mr. Benavides was born into a family whose history included mental illness, alcoholism, extreme poverty, malnutrition, and horrific physical and psychological abuse…. From birth, Mr. Benavides’s world consisted of relentless and inescapable trauma, abuse, alcoholism, mental illness and severe poverty and malnutrition.”
Counsel then presented thousands of additional pages, a host of primary documents like school records, and declarations from family members, historians and experts who tested Vicente’s body and mind, and developed a full case in mitigation – even though there was nothing to mitigate.
Such evidence delayed and distracted the court. It undermined the attack on the prosecution by shifting the reader’s attention away from official misconduct and over to Vicente, and even raised the possibility that one so damaged was unable to control himself, and might have lurched into anything – even behaviors like those ginned up by the prosecution.
A chief goal of mitigating evidence is to show a lack of control, an inability to inhibit and direct one’s actions. Where there is no doubt of a defendant’s guilt, such evidence can show how an individual was compelled by circumstances, was unable to stop himself, and was therefore less culpable. It can also show that he had such a brutish life that he should not be forced to bear alone all the shortcomings and pain and ramifications of the brutal social and familial conditions in which he grew up. But if there is solid reason to doubt whether defendant actually did what he was accused of doing, then such evidence rebounds against him. If he truly suffers from a posttraumatic stress disorder, is he not more likely to lash out? Mitigation evidence makes the doing of a murderous deed more comprehensible, and thus more likely to have been done as the state has proposed.
The hapless defendants in the Kern County sex abuse prosecutions ranged from a mild-mannered manager of a tractor parts distribution center to an oil-field roustabout who had “fuck this” tattooed on his penis. None of that mattered, though, because the cases against them were created, not discovered. Vicente’s postconviction counsel did a spectacular job of demolishing the prosecution’s case, of burning it to the ground. They should have stopped there, and pointed to the ashes. The hegemony of Sharlette’s template, though, required them to go on, and present evidence that was at best irrelevant and unnecessary, and at worst weakened their attack on the state’s case.
When work resumed on Vicente’s case after a hiatus of several years caused by an overzealous investigator who had manufactured false witness declarations in mitigation, counsel redoubled their efforts to expose the fraudulent nature of the expert testimony presented against Vicente. The passage of time added to the injustice committed against Vicente, but it also exposed more and more difficulties with forensic evidence in general. The National Academy of Sciences published two reports in 2009 and 2016 calling into question the accuracy and reliability of a wide array of pseudo-scientific evidence used to put a false mantle of objectivity over the prosecutor’s theory in serious criminal cases. In 2018, the California Supreme Court unanimously overturned Vicente’s convictions and sentence. There was no possible retrial. He was released in April of 2018, 26 years after his arrest.
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Social histories are inherently deterministic. A comprehensive social history will have a profound impact, and that part of the impact is to reinforce the notion that the client could not control his behavior. If presented in the context of a death penalty case, a social history may well create sympathy for the accused, even as it reinforces the likelihood that the crime took place as described by the prosecution. It is likely that had Vicente’s postconviction counsel avoided penalty phase claims and prepared no social history at all, Vicente would have been a free man at least a decade earlier. Counsel in death penalty cases should take into account the corrosive effect that a comprehensive social history will have on any claim of innocence.