If this case seems vaguely familiar to you, take that as a sign you have staved off feeble-mindedness for yet another day. Jesse Romero was convicted and executed based on the same purchased and perjured testimony as was Davis Losada. The story I tell here, I've told before.
San Benito is near the southern tip of Texas, just about as far south you can get in the U.S. unless you go to Hawaii or Key West. There in the brush, on the outskirts of the small city, on the day before Christmas in 1984, they found the naked and battered body of 15-year-old Olga Lydia Perales. She had been bludgeoned 10 to 20 times about the head and shoulders. She had been stabbed twice in the chest, postmortem.
Rafael Leyva was sixteen years old at the time. Two weeks later, on January 8, Leyva told his probation officer that he knew who killed Olga Lydia Perales. He had been there. He had done nothing wrong himself, but the other three had raped and murdered Perales. By the time of Romero’s trial, Leyva would admit he was involved.
According to his testimony, on the night of the murder, he had been riding around with three others: Davis Losada, Jesse Romero, and Jose Cardenas. They heard about a party going on over at the home of Ray Amaya. By the time they arrived, everyone was gone except Amaya and Perales. Amaya told them that Perales was in the shed and that they had been having sex. The four in the car offered to give her a ride home. Amaya called her from the shed. She spoke to Amaya and then got in Cardenas’ car.
Leyva was sitting in the back seat along with Losada. Cardenas was driving. Romero was sitting in the middle of the front seat. Perales was sitting the front seat, next to the passenger-side window. Before they could drive away, Romero pushed Perales head down between her knees. He held a knife to her neck and told her not to make any noise.
Cardenas drove out into the country and stopped the car. Levya, Cardenas, and Romero got out of the car. Losada remained in the back seat and ordered Perales to climb in the back seat. Her clothing was removed and, although she pleaded with them to let her go, she was raped repeatedly. Initially she was raped by Losada. Then she was forced to commit oral sodomy on him while Romero and then Leyva had anal intercourse with her. Although Cardenas did not have intercourse with her, he did insert an object into her while she was performing oral sodomy on Losada. When everyone else was finished, Losada raped her two more times, once in the back seat of the car, once on the top of the trunk lid.
After raping her, they decided they had to do something to keep her from going to the police. Cardenas pulled a pipe out of the car and handed it to Levya. Everyone told him to hit her. He didn’t want to so he asked her to promise she wouldn’t tell anyone. She said she wouldn’t. He tried to convince the other three she wouldn’t tell, but they insisted he hit her. Suddenly, his mind went blank; he took the pipe and hit her on the right side of the head. Romero then grabbed the pipe and began striking her. When blood began squirting out of her head, Leyva turned away. He could still hear the others beating her with the pipe.
After the beating stopped, Losada stabbed her once in the chest. Levya and Romero dragged her body into the brush and Levya stabbed her one more time in the chest. They got back in Cardenas' car and left. During the trip back to San Benito, they threw the knives out of the car window and stopped on a bridge and threw the victim's clothing into a creek.
Davis Losada was tried first. Leyva was the State's key witness. On cross-examination, Losada’s attorney, Jose Luis Peña, asked only three questions of the Leyva.
Q: Mr. Leyva, I was reading your statement here and it says here that at the time of the rape you stated that you did not know who the girl was at that time; is that correct?
A: Sir, I didn’t hear you.
Q: Mr. Leyva, I was reading one of the paragraphs in your confession, your statement, and it says here somebody was raping the girl and that you, at this time, you didn’t know who the girl was; is that correct?
A: Yes, Sir.
Q: You didn’t know who she was?
A: No, Sir.
Though Losada didn’t testify, the defense tried to make a case that Losada was indeed at the scene, but had only consensual sex with the victim, and did not harm her in anyway.
Davis Losada didn’t stand a chance. He was convicted and sentenced to death exclusively on the testimony of Rafael Leyva.
Jose Cardenas was tried, convicted, and sentenced to life in prison based exclusively on the testimony of Rafael Leyva.
Then Jesse Romero was tried, convicted, and sentenced to death based exclusively on the testimony of Rafael Leyva.
Leyva was sentenced to twenty years, and is a free man today.
I initially scored Romero as having zero chance of actual innocence. I couldn’t, however, find anybody who was arguing that Jesse Romero was wrongfully executed. For this case, the only substantive resources I could find were the appellate decisions for each of the three people who were convicted based on the testimony of Rafael Leyva. After reviewing those five appellate rulings, there was little reason to believe that Romero wasn’t factually guilty.
I did find one interesting problem while working on the case of Davis Losada. It turns out that Lodada's attorney, Jose Luis Peña, had been assigned by the State to represent Leyva, and had done so for a short time, before he was re-assigned by the State to represent Losada. Since Peña was bound by attorney-client privilege not to reveal anything he had learned during his one interview with Leyva, the re-assignment created a clear conflict of interest and should have never been permitted.
In an affidavit submitted as part of Losada’s appeal, Peña conceded that he had indeed been inhibited in his questioning of Leyva because he did indeed have insight from his interview with Leyva. He could not ask any questions knowing the answer from his interview with Leyva. Peña was not specific about his insight, since that too would violate the attorney-client privilege. The appellate court was unimpressed, argued the conflict was insignificant given the overwhelming evidence of Losada’s guilt, and declined to grant a new trial.
I mulled Losada's case for several days. Leyva’s testimony began to nag at me. It changed over time, always to the benefit of the State that would later decide Leyva’s fate. The first nag was tiny. “Before we drove off, Romero pushed Perales’ head between her knees, held a knife to her throat, and told her to be quiet.” [Not an exact quote.] That seemed odd. That would cause it to appear as if Romero and Cardenas were choosing to sit uncomfortably close to one another in the front seat. I didn’t think two young macho Latino males would drive around like that. Why not have Perales’ sit between them?
Then it hit me that Ray Amaya, the party giver and the one who had brought Perales to the car, never mentioned anything about Romero forcing Perales’ knees between her head. Why would they do such a thing just before they drove off anyway? Why not wait until they weren’t being observed?
I remembered also a twist that Leyva had added at the last of the three trials, the one for Jesse Romeo. He testified then that as Perales approached the car, Romero “pushed” her in, then forced her to place her head between her knees. If Romero pushed her in, how did he end up sitting between her and the driver? It didn’t make sense. It did however help the State convince the jury that Perales did not consent to any sex with any of the four.
Then one more thing. I thought it odd that Leyva claimed Cardenas did not participate in the rape, but instead inserted an unidentified object into her. I recalled reading in a Cardenas appeal that blood was found on a pair of Romero’s shorts they found in his house. The blood was Type A or Type AB. Cardenas was type A, as was Romero. The other three defendants were Type O, and Cardenas was a Type O secretor. That means his blood type can be determined from his other bodily fluids, such as semen. It occurred to me that they must have found no Type O secretor semen during the autopsy, needed an alternative means of convicting Cardenas of raping the victim, and had Leyva testify about the mysterious object.
These three tidbits of suspicion came from three different trials. Had I been a juror on Romero's trial and had all three tidbits, I would have suspected Leyva was tailoring his testimony to please the state, would have lost trust in his testimony, and would not have voted guilty. I would have still suspected that Romero had been involved in the rape and murder, and I would have been utterly pissed that the State had put me in such a moral dilemma. They would have been asking me to violate my oath to bail them out of a mess they made. I hope I would have had the wisdom and courage to make the correct decision.
The morning I was planning on posting the Davis Losada story, I found the one news article I was looking for. It was published just before Losada was executed. Peña (Losada's attorney) had apparently become so concerned about seeing Losada die, he signed another affidavit regarding his conflict of interest. In this affidavit, he violated his attorney-client privilege with Leyva and told the appellate court what he had learned in his one interview with Leyva. It was a serious violation of his legal ethics and professional conduct, but Peña apparently decided he could no longer withhold the information.
According to Peña, Leyva told him that Perales was engaging in consensual sex with the others. Because he had been drinking and using drugs, he had been unable to attain an erection. She mocked him, that enraged him, and he killed her, to the shock and amazement of the other three.
The appellate court was still unimpressed and refused to grant a stay and Losada was killed by the State of Texas.
Peña’s affidavit is believable based on his behavior during Losada’s trial, based on his non-questioning of the State’s star witness, and on his argument to the jury that Losada had consensual sex with the defendant and did not harm her. His affidavit is believable as well because he exposed himself to disbarment for violating attorney-client privilege. I believe Peña was telling the truth.
If Leyva was telling the truth to Peña during the interview, and I see no reason he would lie when he claimed he couldn’t perform sexually and that he alone killed the victim, then grave injustice has occurred and is occurring. Leyva is walking free. Losada and Romero are in the ground, and Cardenas is spending his life behind bars.
While I am not as truly shocked at how Romero's case played out, since I had already been truly shocked when I worked through Losada's case, I must claim to be at least somewhat truly shocked to justify the parallel use of the blog post title.
The bottom line, however, remains the same. Romero and Losada are planted, Cardenas lives in a cell, and Leyva walks free. Such are the unsurprising injustices of purchased testimony.