Jury finds man not guilty in child’s death

San Jose verdict is another strike against the pursuit of capital punishment

rsalonga@bayareanewsgroup.com

A man who has spent more than four years in jail fighting allegations he raped and killed his girlfriend’s 2-year-old son is literally home free after a jury found him not guilty Friday, closing a death penalty case in which his attorneys challenged the DNA evidence used to implicate him in the child’s death.

Manuel Anthony Lopez, 26, heard the verdict in a San Jose courtroom Friday after five days of juror deliberations for a murder trial that was halted for two months when state courts went largely dormant amid COVID-19 shelter-in-place orders. On May 18, it became the first trial in the state to resume proceedings. Hours after the verdict, Lopez was out of the Santa Clara County jail and at home with his family.

One of Lopez’s lead attorneys, Santa Clara County Deputy Public Defender Michael Ogul, said he postponed his retirement to bring Lopez justice.

“I knew with every ounce of

my body, soul and existence that he was innocent. I put off my retirement two years to see his case through,” Ogul said after the verdict was announced. “The jury not only could see that, they could feel that.”

The defense centered on casting doubt on the quality of DNA samples authorities collected from the home Lopez shared with his then-girlfriend, the mother of 2-yearold Apollo Torres. Ogul and Deputy Public Defender Kelley Kulick, aided by expert testimony, argued that Lopez’s DNA found in the house was often in small quantities and mixed with other people’s DNA.

They also contend that none of the genetic evidence directly linked Lopez to the boy’s injuries and that it was analyzed using outdated interpretive methods.

“Literally every single sample that was obtained in this case was a low-level complex mixture. You can’t really conclude anything from it,” Kulick said. “After using probabilistic genotyping, it pointed away from guilt in this case.”

The process Kulick referred to, probabilistic genotyping, relies on computer analysis to examine DNA even when it is present in low amounts that previously would not meet examination thresholds. Because this system does not parse out these smaller amounts, Kulick said, “It provides a bigger picture” of a crime scene.

“This was just a really dirty house, and DNA accumulates,” Kulick said.

District Attorney Jeff Rosen said Friday he stands by his office’s case against Lopez.

“We are deeply disappointed that we could not find justice for Baby Apollo. It was not for lack of evidence or months and months of our best effort. The jury has now spoken and we must respect their decision,” Rosen said in a statement. “Apollo’s short life was let down by those who were supposed to care for him. But he leaves a legacy. We at the DA’s Office will carry his memory close to us as we continue to fight every day against those who hurt children.”

Lopez was arrested in January 2016 in connection with the death of Apollo, who died Jan. 14 that year and was determined to have been the victim of severe physical injuries including head trauma. Injuries to the child’s rectum and genitals led to sexual assault charges being added to a murder charge against Lopez.

“There is no question Apollo suffered from extreme abuse. Every human should be aghast and repulsed at what happened to him,” Ogul said. “But as soon as they found abuse to certain parts of his body, (authorities) jumped to a conclusion, and it was wrong.”

Both Ogul and Kulick contend that the implication of sexual abuse prompted investigators to rule out women and others as potential culprits. The child’s mother has pending charges of being an accessory to murder and child neglect — for allegedly putting her child in danger — and a perjury charge related to testimony she gave during the preliminary examination for the case.

“They did not have any evidence that showed Manuel Lopez ever did anything. The only thing they had was that his DNA was in a lot of places in the house,” Ogul said.

Kulick is known for exonerating a homeless man by proving his DNA was transferred to a Monte Sereno murder scene in 2012 by a paramedic who treated him earlier in the night, in what is believed to be the first instance in California in which DNA evidence falsely placed an innocent person at the scene of a crime. She said Lopez’s case should raise healthy skepticism of criminal forensics.

“What this case exemplified is that bad science is dangerous,” Kulick said. “If we’re going to move forward with jury verdicts where someone could get condemned to death, we want to rely on good science.”

Apollo’s death gained more notoriety after two renowned county pediatricians were fired on the grounds they failed to report possible child abuse when the child was treated about six months before with arm fractures. One of the fired physicians sued the county and her superiors in federal court, contending she was scapegoated and that her career was ruined. A federal judge dismissed part of the case in 2018, and it was refiled in the county court, where records show mediation failed and a trial setting hearing is scheduled in July.

Ellen Kreitzberg, a Santa Clara University law professor and death penalty expert, noted Lopez’s acquittal is the latest instance of a South Bay death penalty defendant who did not end up on Death Row. She cited how Sierra LaMar’s murderer Antolin Garcia Torres

was spared that fate by a jury in 2017 and how the DA dropped its death penalty pursuit of another childmurder defendant, Alejandro Benitez, last year.

For Kreitzberg, the unrest over racial injustice and the fact death penalty defendants in California are predominantly people of color should prompt Rosen and other county prosecutors to shelve capital punishment.

“The DA and his office need to think long and hard before they’re filing for death in cases that are costing citizens in this county for millions,” she said.

In a similar nod, Ogul and Kulick added that their success in Lopez’s case was a function of resources.

“We work in an office that provided us with funding and the support we needed to approach a level playing field (with prosecutors),” Ogul said. “Not every defendant has the benefit of having those resources.”