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California Supreme Court Grants Habeas Petition and Vacates Capital Murder Conviction Due to False Expert Testimony at Trial

by Richard Resch

The Supreme Court of California granted a death row prisoner’s petition for writ of habeas corpus based upon the introduction of false evidence at trial and vacated his convictions in their entirety.

On November 17, 1991, 21-month-old Consuelo Verdugo was rushed to the emergency room at Delano Regional Medical Center. Her mother and Vicente Benavides Figueroa reported that Consuelo had been chasing her sister and hit her head on a door. She “was limp and minimally responsive to external stimulation.” Medical personnel observed mild redness on her vagina while attempting to insert a catheter, which they repeatedly tried unsuccessfully.

As her condition worsened, she was transferred to the Kern Medical Center. While attempting to insert a catheter once again, staff noticed a bruise on Consuelo’s “external genitalia and a tear extending from her urethra to vaginal opening.” Other injuries were observed, but the surgeon who operated on her did not know whether she had been sexually assaulted.

The next day, pediatrician Jess Diamond examined her and concluded that, in his opinion, she had been sodomized. She was subsequently transferred to UCLA Medical Center but died on November 25, 1991. Dr. Dibdin, the forensic pathologist, concluded that the cause of death was “blunt force penetrating injury of the anus.”

Figueroa was convicted of several crimes, including murder committed with three special circumstances of felony-murder rape, sodomy, and lewd conduct. He was sentenced to death. On appeal, the California Supreme Court affirmed his convictions and death sentence. He then filed a petition for habeas corpus relief. The Court issued an order to show cause on his claims that his convictions were based upon false evidence and ineffective assistance of counsel.

The State conceded that false evidence was introduced at trial in the form of expert medical witness opinion testimony. At trial, several expert witnesses testified to the effect that Consuelo had been sexually assaulted, which resulted in her death. However, with the exception of Dr. Dibdin, every expert witness who testified at trial later recanted. For reasons unknown, most of them had not reviewed her full medical file prior to testifying. When they eventually did so, they concluded that she had not been sexually assaulted.

In addition, in support of Figueroa’s petition, several other leading medical experts refuted any suggestion that Consuelo had been sexually assaulted. They concluded that any indication of sexual assault was actually the result of the medical treatment, especially the numerous failed attempts to insert a catheter. The evidence against sexual assault was so overwhelming that a leading expert in the field declared that based on the case facts, if any sexual assault occurred “it would be a unique and singular noteworthy incident in the annals of pediatric child abuse literature.”

The California Supreme Court began its analysis by briefly discussing habeas relief. The Court explained that it is enshrined in the California Constitution (Art. I, § 11) and may be available when the invalidity of a judgment is not apparent from the record on appeal. In re Robbins, 959 P.2d 311 (Cal. 1998). Ordinarily, an evidentiary hearing is required; however, one is not needed if “there are no disputed factual questions as to matters outside the trial record.” People v. Duvall, 886 P.2d 1252 (Cal. 1995). The Court concluded that an evidentiary hearing was not required because the State conceded that false evidence was introduced at trial, and thus there were no facts in dispute.  

To be entitled to habeas relief under Cal Pen Code § 1473, a petitioner must establish that false evidence was admitted at trial and that the evidence was material. Under § 1473(e)(1), false evidence includes opinions that have been repudiated by the expert witness who originally provided them. In re Richards, 371 P.3d 195 (Cal. 2016). The Court determined that the “concession [by the State] and repudiations lead overwhelmingly to the conclusion that false evidence was introduced at” Figueroa’s trial. Thus, the first factor for relief was satisfied.

The standard for materiality is a reasonable probability the result would have been different without the false evidence. Id. The Court instructed that the standard is the same as the reasonably probable test for state law error announced in People v. Watson, 299 P.2d 243 (Cal. 1956).

The Court stated that without the false evidence the facts established at trial essentially show that Consuelo suffered grave injuries while in Figueroa’s care that were consistent with having been in an automobile accident. There was also evidence that she suffered multiple injuries in the weeks prior to her death. Even the State conceded that in light of the false evidence the convictions must be vacated, but the State argued the murder conviction should be reduced from first to second degree.

The Court flatly rejected the State’s position. It noted that the jury had no opportunity to evaluate the evidence “divorced from the specter of the false evidence” and declined “to discern what a jury might have concluded had untainted evidence, argued under a different legal theory, been presented.” Accordingly, the California Supreme Court granted Figueroa’s writ of habeas corpus, vacated his convictions in their entirety, and remanded the case to the Kern County Superior Court. See: In re Figueroa, 4 Cal. 5th 576 (2018). 

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