I have for several weeks been heavily involved in other projects to the expense of this blog. I expect it will be another two weeks before I can once again spend the time necessary to post frequently. I've decided learn from television and present reruns, now frequently referred to as encore presentations.
Immediately below, I present an encore presentation of
The Truly Shocking Case of Davis Losada, initally presented July 23, 2010.
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I’ve worked on this case off and on all through this week. I’ve spent fifteen hours or more researching, evaluating, scoring, and writing of it. It has taken more time than I can justify, given that it is just one case out of sixty or so that I must detail, and given all that I ignored to complete it. Davis Losada is dead, the case was confusing, and I believed him to be guilty.
Throughout my early research, I suspected Losada would end up with a low score. I found the case just one more distressing example of the evil that one human can do to another. I had to force myself to work on it. I decided I would use it as another example to prove I would be harsh in my scoring when the evidence so demanded, such as I was with
Lionel Herrera and, to a lesser extent,
Ruben Cantu.
A couple of nights ago, as I laid awake thinking of the case, some of the star witness testimony suddenly struck me as particularly odd. The case suddenly changed to one in which I thought the person was probably guilty, but one in which I would have had to vote Not Guilty because of suspicions I had about the State’s case. I decided then I would write of the difficulty of being a juror faced with such a decision.
This morning, as I was trying to pull everything together and prepare a scorecard, I searched the web one last time to see if I could find that one article, that one clip, that one paragraph that would cause the story to make sense. To my amazement, I found it. If you persist to the end of this post, you will see that I score Davis Losada as likely innocent, but certainly dead.
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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 Losada’s trial, he 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.
On cross-examination, Losada’s attorney, Jose Luis Peña, asked only three questions of the State’s star witness.
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. Then 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.
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I passed Davis Losada through my coarse filter based solely on a Northwestern University Center on
Wrongful Conviction list of possibly innocent people who were executed. Northwestern didn’t explain why they felt Losada might be innocent, but since they are among the most trustworthy institutions in the wrongful conviction movement I decided to investigate his case.
I couldn’t, however, find anybody who was arguing that Davis Losada was wrongfully executed. That is unique so far in
my search for the 54 innocent people I calculated Texas must have executed. Usually, the internet is awash with claims of actual innocence for those who had passed through my coarse filter. The typical problem has been to find a reasoned article or paper on why the person was in fact guilty. Usually for that I rely on Google Scholar to find appellate decisions. The appellate courts, when justifying their refusal to grant a new trail, frequently provide the best case summaries for the State’s case.
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 Losada wasn’t factually guilty.
I did find one interesting problem that seemed to me to be the basis for Northwestern’s inclusion of Losada on their list of people possibly innocent but certainly executed. It turns out that 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.
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I mulled the 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 Losada'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 Losada 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.
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This morning
I found the one news article I was looking for. It was published just before Losada was executed. Peña 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.
Finally, I offer my Actual Innocence Scorecard for Davis Losada. I score him at 75, meaning I think it is three times more likely he was innocent than he was guilty.
And I’m truly shocked at how this all turned out.
In recent decades the U.S. has experienced a surge in its prison population, quadrupling since 1980, partially as a result of mandated sentences that came about during the "war on drugs." Violent crime and property crime have declined since the early 1990s.
