Twist in penalty phase of trial
Defense attorneys choose not to call on controversial detective
SAN JOSE — Testimony in the penalty phase of the Sierra LaMar trial wrapped up with a surprising twist Thursday, when defense attorneys opted not to call out the lead detective, whose statements had been discredited in a different case.
Instead, they produced Antolin Garcia-Torres’ former boss and the grandmother of his two young daughters for more character testimony similar to what was heard during the previous three days, designed to garner sympathy from the six men and six women on the jury.
But despite successfully arguing for his testimony to be admissible, attorneys did not call Santa Clara County sheriff’s Sgt. Herman Leon to the stand. Leon was the lead investigator in the Sierra case and the subject of a different judge’s decision — after Garcia-Torres was already convicted — to retry an earlier case because he provided “false testimony” in that
murder trial.
That, the defense argued, may have left the jury uncertain enough about Leon’s credibility to eschew the death penalty in favor of life without parole. But before the final witnesses were heard Thursday morning and with deputies outside the courtroom ready to offer counter-testimony, the defense told the judge they’d changed their minds.
“We will be calling Leon but not in the penalty phase,” said defense attorney Al Lopez. “We will save that for another time.”
Lopez later said that would involve a new trial — something that baffled Professor Robert Weisberg, co-director of the Stanford Criminal Justice Center.
“I’m just not sure even how they plan on using him later,” Weisberg said. “And I’m not sure why that thwarted their plans to use him now. Hell, this is a death-penalty case — throw what you got in there.”
The disclosure came the day after Superior Court Judge Vanessa Zecher ruled the defense could put Leon on the stand because his testimony could give them what the court calls “lingering doubt” as attorneys argue whether Garcia-Torres should be sentenced to death for the killing of Sierra LaMar. Such doubt comes into play because unlike the guilt phase, in which the “beyond a reasonable doubt” threshold is used, jurors who are not absolutely certain of someone’s guilt may opt not to make a decision that cannot be reversed.
Judge Sharon Chatman found earlier this month that Leon — who linked Garcia-Torres to three unsolved attempted kidnappings in Morgan Hill in 2009 — provided false statistics in a case involving a 19-year-old woman who was stabbed to death at the Alum Rock light rail station in 2009. The testimony took place last year.
Chatman did not address whether Leon deliberately misled the jury or was merely mistaken, but as a result she set aside guilty convictions for two men suspected in the stabbing.
Legal analyst Steven Clark said it’s possible that the defense wanted to shore up its case against Leon before bringing it to the fore.
“Clearly, this is not the last we’ve heard of it,” he said. “Maybe they didn’t want to make a record that could come back to haunt them. Or they felt that the penalty phase had gone fairly well for them, and didn’t want to do something to change that momentum.”
Prosecutor David Boyd said in open court that the defense may have been concerned about a counterpunch from his team.
“They made tactical adjustments based on what I might bring out,” he said.
Clark said the defense had done well in the penalty phase. Previous witnesses described a childhood marred by extreme poverty, a mother who was never around because she worked two full-time jobs, and an abusive, alcoholic father who sexually molested a female relative in the homes where Garcia-Torres grew up.
On Thursday, the defense showed a slide show of the smiling defendant with his infant daughter at the zoo, among trees at a park, dressed up in a patriotic way for the Fourth of July, making a funny face at the Jelly Belly Candy Company.
“She’s got a goofy personality, too,” said Danelle Atwell, the mother of Garcia-Torres’ ex-girlfriend. “She’s almost the spitting image of him, with their goofy personalities, always doing something silly.”
The slides offered the jury its first glimpse of Garcia-Torres as a father, and his mother and rela- tives talked about how they hoped he would be spared so his daughters— a second was born after he was jailed — can keep a relationship with their dad, even if he is behind bars.
“They want to say that these children are victims as well, and if he is executed it only compounds the misery for everyone,” Clark said. “Just like the DA talked about the ripple effect of Sierra, they are saying there is a ripple effect in executing him. And that’s the kind of test that the jury will have to sort out when making this difficult moral decision.”
Closing arguments are scheduled for Tuesday, after which the jury will begin deliberations.