The Mysterious Story of Gitano Cervantes: Vignettes of Life (And Death) Under a Broken System of Criminal Justice

By Finbar Manghan

The United States imprisons more than two million men and women in federal prisons and city, county, and state jails. More than 150,000 individuals are incarcerated in each of the states of California and Texas. Calling attention to the flaws in the justice system, The Mysterious Story of Gitano Cervantes tells the stories of five men housed in Swest state units.

Author Finbar Manghan, who has served as a volunteer chaplain in the prisons, looks at the cases of the five men who have been prison residents for a combined period of seventy years. Two are white, two are black, and one is Hispanic. Three of them claim to be innocent, while two admit their guilt; the sentences of the latter are such that they will almost certainly die in prison. One is innocent beyond any reasonable doubt. The experiences of all of them have been tragic.

The Mysterious Story of Gitano Cervantes addresses a host of issues related to the mens stories, including false imprisonment, medical mistreatment, misrepresentation of self due to lifes humiliations, mental harassment, medical bungling, and betrayal. Manghan reviews the court and prison experiences of these men and explores the need for reform throughout the criminal justice system in America.

• Language: English
• Publisher: Archway Publishing
• Release date: Jan 10, 2014
• ISBN: 9781480804418

Finbar Manghan

Finbar Manghan earned a doctorate in moral theology and an MBA. He taught at several universities before launching his banking career of more than twenty years. Manghan has written books on management ethics, contemporary biblical studies, and Christian social action. He and his wife have been state prison volunteers for more than eight years.

Book preview

THE MYSTERIOUS

STORY of GITANO CERVANTES

Vignettes of Life (and Death) under a

Broken System of Criminal Justice

FINBAR MANGHAN

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Copyright © 2014 Finbar Manghan.

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Any people depicted in stock imagery provided by Thinkstock are models, and such images are being used for illustrative purposes only.

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ISBN: 978-1-4808-0440-1 (sc)

ISBN: 978-1-4808-0442-5 (hc)

ISBN: 978-1-4808-0441-8 (e)

Library of Congress Control Number: 2013923108

Archway Publishing rev. date: 1/8/2014

CONTENTS

Prologue.    Five Men Among Over Two Million

Chapter 1.    Guilty Until Proven Innocent

Chapter 2.    Medical Services And An Aging Prisoner

Chapter 3.    The Rejected Child

Chapter 4.    Madness Or Mistreatment?

Chapter 4.    The Step Grand Daughters: Victims Or Liars?

Chapter 6.    Beyond The Five Tales

Epilogue.

Appendix A.    Bogus Cases

Appendix B.    Prosecutorial Discrimination Via Statutory Overlap

Appendix C.    A Word About Corrections Officers

Appendix D.    The Step I Grievance Of Andy Vance

Postscript

Credits

Endnotes

DEDICATION

On behalf of my beloved wife and ever supportive partner,

as we have known the men of these stories and

for the men themselves,

Gitano, Ted, Ken, Bobby and Ben,

whose letters and self-disclosure have made this work possible,

together we dedicate this book to the individuals and institutions

that possess the power to ensure that those under their care and control

in fact receive

the just judgment and treatment that is their due as human beings:

Members of the Court: Judges, Prosecutors, Defenders, Juries

Corrections Personnel: Executive Directors, Wardens, Officers, Health Care Services Staff, Ombudsmen,

Victims of Crime and Families of Offenders Wrongly Sentenced,

and, above all, the Volunteers who bring connection, a bit of sunlight, and, sometimes, hope to the hopeless.

PROLOGUE

FIVE MEN AMONG OVER TWO MILLION

THE UNITED STATES NOW IMPRISONS over two million men and women. They are incarcerated in Federal prisons, city, county and state jails. There are over 150,000 individuals confined in each of the states of California and Texas. The tales that follow are based on the narratives of five men housed in Swest (a name created to represent a state located in the southwest United States). Cumulatively these men have been prison residents for approximately seventy years. Two are white, two are black, and one is Hispanic.

Three of these men have claimed to be innocent. Their experiences have been tragic. Two admit their guilt and their crimes were such that they will almost certainly die in prison. At least one, as you will see, is innocent of the crimes with which he was charged—beyond any reasonable doubt.

While the events in this story are believed to be factual, all names, places and institutions, except those drawn from published materials, are fictional. The purpose of this work is not to place blame on individuals, but to call for accountability and transformation of a system, not only in Swest, but throughout the country. The abuses documented here are not unique to any particular state or institution.

The System which houses these men describes itself as a department of justice/corrections. Whether or not this is an apt depiction, we shall see. Without question the system does benefit some people: Those who construct it, the administrators and officials who run it, the legislators who write the rules, as well as the judges, prosecutors and court-appointed attorneys who work diligently to populate it. It definitely does not work for the benefit (rehabilitation) of the incarcerated or their families, and it is highly doubtful whether it helps many victims significantly.

The subjects of the accounts will be characterized as prisoners and at times as offenders (the term currently favored by the system), inmates, or some other jargon. Some of them are hardly offenders, since they are innocent. Inmate is a category that includes the mentally ill, yet someone who also has committed no crime. But all the men of whom I will write are certainly two things, if nothing else. They are indeed prisoners and very human persons.

Many of the experiences depicted in these stories, derived from court proceedings and personal letters from the men you are about to meet, could also be found at many, if not most of the prisons within our country. Having served as a volunteer with my wife, and in some cases as a Certified Volunteer Chaplain’s Assistant, in five units spread across the state of Swest, it is my judgment that the narrative of what has happened to them accurately depicts their experiences.

As you read the excerpts from these letters and trial transcripts, you will walk with these men through their years in prison, and share in some of their agony. You will experience the kind of justice they have received—at our hands.

CHAPTER ONE

GUILTY UNTIL PROVEN INNOCENT

THE PRELUDE

IN 1993 THREE TEENAGE BOYS in West Memphis, Damien Echols, Jason Baldwin, and Jessie Misskelley, Jr., were convicted of killing and mutilating three eight year-old boys. Echols was sentenced to death and the other two boys received life. After eighteen years of continual effort on the part of family and friends, DNA evidence showed that the crime had been committed by someone else.

In an interview, Echols stated that he "didn’t have any faith in the justice system because I had seen how corrupt it was, all the way to the core, from the inside. He has produced a documentary, West of Memphis, relating his story.¹

In April of 1985, in Bedford County, Virginia, Derek and Nancy Haysom were found brutally murdered in their home. Although evidence suggested that the homicide was committed by their daughter, her boyfriend, Jens Soering, tried to help her avoid conviction and was himself convicted of the crime. Despite many weaknesses in the state’s case, numerous appeals and use of expert lawyers, Soering now never expects to be released from prison. He has documented his experience of justice system in his book The Way of the Prisoner.2

But these events were in West Memphis and Virginia. Could anything like that possibly happen in Swest? Of course. The press has recently been full of stories of wrongful conviction. (See Chapter Six for more details). Anthony Graves spent sixteen years on Death Row before it was found that prosecutors had elicited false statements and concealed evidence. He became the twelfth death row inmate in his state to be exonerated. More currently, in a county of Texas, an inmate was released after twenty-five years of imprisonment after a court of criminal appeals declared him actually innocent on the basis of DNA evidence. The District Attorney at the time subsequently became a judge in the county. He is being investigated for the wrongful murder conviction in 1987 and has recently resigned from the bench, as he awaits his civil trial. It appears that crucial evidence was withheld during the case.

Could such a miscarriage of justice have happened to an immigrant who made the mistake of coming to America?

This is the story of Gitano Cervantes as I have gleaned it from his letters written from a Swest prison. When we first met around 2004 he was fifty years old and had been locked up by Swest justice for five years. He was very slender and short, with a broad forehead descending to a pointed jaw, coal black hair (usually a bit disheveled) and a weathered, craggy, though not homely, face. It betrayed the stress of a hard life and the effects of his years of incarceration. He was born in Mexico, but became a world traveler. When he first came to the United States, he knew very little English. (Since his grammar is somewhat faulty, his letters have been edited slightly to make them more understandable, but I have also tried to preserve the impact of his struggle with English.) This biographical information is provided to help the reader appreciate the nature of this offender. In this letter from the spring of 2011 Gitano wrote:

April 27, 2011:

"In 1972 I finished my high school in Mexico and I couldn’t afford to go to College. I started working for a fishing company. That was a good job. I kept the accounts for the product. They had fishing boats to catch sharks. That company belonged to the government of Mexico.

"Then I heard of a College in Eagle Pass, Texas. Its name is ‘Colegio Biblico’. I would have been happy if they would have taught at least one thing useful. Despite all of the religious nonsense, at least the English language would have been great to learn. With the exception of the choir, that was the only thing worth remembering. We learned how to harmonize in three voices.

"When I realized that most of that was brain-washing and manipulation, I used a pretext to get out when the earthquake happened in Guatemala in 1976. I offered myself as a volunteer to go to help the people, but I went to help, not to brain-wash anyone.

"I met other people there who had also come to help, from Columbia. After a year I was working for IDES, International Disaster Emergency Service. Then I quit and worked for myself, building houses, concrete houses. I learned how to read plans prepared to scale.

"The most important thing I learned during that time was from a group of artisans who made cabinets and all kinds of furniture. They were made of solid wood and no one could tell where the pieces were joined. I worked almost two years with them, until I learned the secrets they used to make such beautiful furniture.

"I went to Columbia, Venezuela, and all of Central America. Then I found that in Cuba I could study for a career subsidized by the Cuban government. I came back to Mexico to renew my passport, then I went to the Cuban Embassy in Mexico City. The Cuban Consul told me I could go to Cuba and submit an application to the Ministry of Defense telling them that I wanted to do the obligatory military service if they would give me the opportunity to study for a career when I finished.

"After I finished my duty, they assigned me to the second largest city after Havana, Santiago de Cuba, a city located in the extreme east of the island. I did my first year, which I liked, but when I came to La Havana it was almost Christmas, 1983. A friend of mine took me to apply to go to the USSR. They were soliciting craftsmen of almost any kind. I didn’t expect they would consider me because my expertise was in cabinet making and I didn’t think they would need me. I was surprised when I was one of the first to be selected.

"We arrived in Moscow the day before Christmas, 1983, and on January 2nd we flew to Vladivostok, Kamchatka. None of us knew why they had taken us so far, we thought we would be working in Moscow.

"The reality was that with the deployment of 120 thousand soldiers in Afghanistan, they were short-handed. The jobs they had for us were dangerous and top secret. We would not be allowed to leave the Soviet Union at any time, once we entered the Pacific Fleet of Vladivostok. I was making furniture for the nuclear submarines. Others were welders and painters and electricians. There were 150 in all, all Cubans. I was Mexican, but they counted me as Cuban.

"I still remember very clearly all the structure of those terrible machines of war that I prayed would never be used against any nation. They had two nuclear reactors and carried hundreds of missiles capable of reaching any target in the world. The danger was that, besides the nuclear material, the submarines harbored liquid helium, a substance so cold that it can kill a human being in seconds. It could be released automatically in the area of the reactors in case of fire. Just imagine a false alarm!

"By the middle of 1992, the factory announced that it would be closed, out of business by the end of the year. The Pacific Fleet would be closed indefinitely. Of the rest of my fellow workers, no one wanted to return to Cuba.

"In Siberia there is an underground city, Zeika, about two hundred miles east of a city called Omks, which is the actual capital of Siberia. They offered us the chance to go there, but someone in our group knew that anyone who goes there never gets out again, dead or alive. That’s why no one knows what they may have there. That place is top secret.

"Since the Pacific Fleet was out of business, there were no more secrets to reveal. Besides, when the Soviet Union collapsed, it was a complete disaster and many people didn’t know what way that nation would go. I wandered in the streets of Moscow when Mikhail Gorbachev was kidnapped in Crimea. The supermarkets were empty, inflation rose to 500 percent. People feared that another civil war was on the way. Fortunately, it didn’t occur.

"Yes, I studied Russian and French, but after almost twenty years without hearing or writing anything in that language, I have forgotten a lot, but not all. Russian isn’t too hard to pronounce, but for writing they call its alphabet Cyrillic. I don’t know if it had something to do with Saints Cyril and Methodius. It has thirty-three letters, among them nineteen symbols completely unknown to the English alphabet.

"The hardest languages for me are Finnish, Chinese, Arabic and English. The latter for its broken rules and unwritten accents—that make it too hard for a stranger to learn and requires a lot of time to become acquainted.

"I left the Soviet Union in February, 1993, through Poland. I visited Auschwitz on June 27, a week after the Memorial Day of the Holocaust. My whole life I have been intrigued by the mere idea of the Holocaust. What evil instinct in human hearts could be capable of such barbarity? I arrived in Auschwitz on a cold day. Its sky was a steel gray, gray as the hearts of those who triggered the most heinous infamy in human history. I saw the hair, shoes, and the luggage of the victims who were transported to that place, not knowing the terrible fate that was waiting for them.

"I can never forget the date I saw written on one of the suitcases: November 25, 1943. I saw the gas chambers and the furnaces where the cadavers were disposed of. It’s uncertain how many millions of children, Christian and Jewish children, perished in the Holocaust.

"Then I reached Spain, through Belgium and France. I spent almost a year in Spain, then I found out that in Canada, precisely in Montreal, the government was giving the opportunity to study to anyone who requested political asylum, and I left for Montreal with two Spanish youngsters.

"In fact, the Canadian government was subsidizing anybody who requested political asylum, but only to study the French language, nothing else. I left for La Havana, Cuba, and my two friends went to Boston, Massachusetts, never to be seen again.

I arrived in time to start the 1994 school cycle of four years….It wasn’t history that I wanted to study, but [the course in] modern languages was not available and I had to be content with history.

Gitano eventually ended up in Swest, where he was brought to work as an auto mechanic. When I asked how he came to learn this type of work, he wrote:

June 12, 2011:

"I started working on cars in Cuba, firstly on weekends while I studied in Santiago. They still keep running the old American models from the fifty’s and sixty’s, the only models that can be sold from one person to another are from 1959 and back. Yet they still import new models (Lada) from Russia, but only the elite possess the right to buy a new car.

"It’s amazing how necessity makes people invent things. In Cuba they cannot buy auto supplies because of the embargo; they make them, they make the rings and the metals to rebuild the engines. The transmissions are manual and they build the gears. But they don’t do it in a machine shop. Everything is rudimentary. They make the rings from an iron pipe, cutting on a turn vise and the metals from aluminum pipes. That way they have kept those old American cars from the fifty’s and sixty’s running till this day.

During the time I was in the Soviet Union I worked only on my friends’ cars. The kinds of car they had were Lada and Skodak. The latter is a car built in Czechoslovakia. I don’t know if they still make it.

In Spain was where I worked full time on cars. They make a little car named Sea—similar to the German cars. In 1998 when I came back to Mexico [from Cuba], I worked in Laredo [Nuevo Laredo] as a mechanic. It was there I met that man who invited me to Swest to come to work for him. He paid the smuggler for me. I lived in Laredo about seven months until I crossed and came to Swest in 1999.

THE CRIME

In early August of 2000, Gitano was arrested. With no money for bail and no legal assistance, he was taken to the local county jail. A formal complaint, with an illegible Assistant District Attorney’s signature, was filed on January 16, 2001, the same day a form in both English and Spanish that waived the right of the accused to notify consular officials of the arrest was apparently signed by Gitano. He denies ever signing such a form.

Gitano remained in the county jail with virtually no visitation until he was brought to trial February 5, 2002. (The actual date of indictment was March 2, 2001). He had a sister in New York and a half-sister (daughter of his father) in Swest. The sister in New York supposedly sent $3,000 to the half-sister in Swest to obtain an attorney. She gave the money to a lawyer and he disappeared, having given no legal help. The sisters judged that Gitano was to blame for this, and have not contacted him since. What follows is material drawn from the transcripts surrounding the trial.

PRE-TRIAL MOTIONS

On February 5 the trial process began with a motion brought by Gitano to dismiss his court-appointed lawyer, Fernando Somoza.. Gitano argued that Mr. Somoza had rarely visited him and was doing little to protect his rights. Mr. Somoza replied that Gitano had already dismissed his first court-appointed lawyer, intimating that he was a troublesome client. Gitano also stated that the attorney had told him that persons Gitano had asked to be contacted to come to his support had said they were not interested. In contradiction to this Gitano had received a letter from one of these individuals stating she did want to help:

One of the persons they contacted wrote me and tells me, say the opposite to what Mr. Castro [assistant to Gitano’s attorney, Fernando Somoza] told me. I have the letter here. And she (a Maria Nueces) says that she wants to help me. And he told me that she didn’t want to do anything.

Mr. Somoza added that this person had not been subpoenaed because Mr. Castro has informed me that the witnesses he had contacted were not interested in coming or were not able to come. Later it turned out that one of the possible witnesses was available at court, but was not called by Mr. Somoza, and Ms. Nueces did testify during the punishment phase as a character witness. The interesting thing about this exchange (not in front of the jury) is that Mr. Somoza is making out his own client to be a liar in front of the judge.

The request for appointment of a new attorney was denied by the Judge, June Carlson, and the trial proceeded.

Somoza then recounted that Gitano had been made several offers (forty-five years, then thirty-five years, then twenty years). Gitano admitted that he had rejected the twenty year offer because he wished to go to trial to demonstrate his innocence. Somoza then asked Cervantes to confirm that he had been instructed³ that later he could decide whether or not he wished to testify in his own defense, but was warned that if he did, all kinds of accusations, true or false, could be entered against him⁴ (Gitano is of a strong, fiery temperament with a keen sense of what is just. There is no way he would plead guilty to sexually assaulting two boys whom he had never seen. Also, at this point it seems he had the belief that surely in an American Court he would receive justice.)

There followed some confusion about the cases filed against Gitano. The prosecutor, a Jenny Ware (first licensed to practice law after her graduation from law school in 1998), explained that an original complaint had come from an Antonio Luzan. However, the trial was about another victim who came forward later, a Jose Lunes. (Luzan was introduced as a second victim in the punishment phase of the trial.)

Mr. Somoza then asked Gitano if he had explained to him that there were three cases against him, to which Gitano replied No. It was repeated that there were three cases, and two of them involved the child [Lunes]. The pretrial motions ended here.

From this session it is evident that Gitano mistrusted his attorney, who continually presented his client in a bad light and was anything but diligent in attempting to secure witnesses who would help in Gitano’s defense. Gitano’s English was such that he had difficulty in understanding some of the process, and instructions were given that might later intimidate him with regard to testifying in his own defense. While an interpreter was provided, it is clear from the trial record that she was not helpful.

VOIR DIRE (JURY SELECTION)

The procedure, also on February 5, opened in a rather peculiar way as the judge noted one potential juror was missing. Mr. Somoza stated he would wait a few minutes, but did not want to be kept waiting a long time. The judge told the panel you-all are so tired we don’t want to keep you waiting here any longer and dismissed the fact a juror was missing. The impression is left that the court and attorneys want this affair to move along quickly, so everyone could get on with other business.

A jury panel of sixty-five individuals was assembled. After the usual questioning period, the jury of twelve was selected. Only one had an apparently Hispanic name, a Carmela Gerontes. In all there were seven women and five men.

In the midst of the Voir Dire, Ms. Ware instructed the panel about the date of the offense on or about July 12, 1997. She explained that on or about is very general. Anything within five years of that date would be sufficient. Why she belabored this point is rather mysterious, since in the course of the trial it is made clear that the assault occurred when the victim was in the third grade (1997). Perhaps if an alibi for 1997 somehow happened to surface during the trial, she would be prepared for a rebuttal.

The questioning of Ms. Gerontes is rather instructive: Her first statement to the Court was I just don’t believe in any kind of abuse, I guess.⁵ The judge asks Can you listen with an open mind? She starts to reply I can listen, but… then is cut off by the judge. He explains that Mr. Cervantes was entitled to the presumption of innocence and asks Does that work? Can you be fair. She answers Yeah. She goes on to add I don’t know if I can be really honest about it. I guess I’m just strong headed about stuff like that, you know.⁶ In spite of this she says she guesses she could give Mr. Cervantes the presumption of innocence.

Later she states If he is guilty, he deserves punishment. That is all I have to say.⁷ But on further questioning she notes that although the State has an advantage if Cervantes does not testify, she could find him innocent if the case is not proved beyond a reasonable doubt.

Mr. Somoza asked Ms. Gerontes if she would give a presumption of credibility to a police officer over a regular citizen, and she replied No.⁸ Subsequently he questioned her about why a child might lie. She replied Why would they make something up as farfetched as this since it’s like, yeah, he did this or he ate the cookie. But we’re not talking about cookies and apples here, no. So, why would they lie about something along those lines?⁹ To this, Mr. Somoza made the puzzling comment: Well, that would be for the State to prove.¹⁰ Would it not be up to him, as the defense attorney, to prove that the child was lying in his accusations against his client?

Mr. Somoza then questioned the panel as to whether they could consider probation or the low end of punishment if Cervantes was found guilty. Ms. Gerontes replied Yes to both.

It is interesting that while the judge had questioned Ms. Gerontes about her ability to be fair, Ms. Ware had no questions for this potential juror, and she was seated as a jury member. However, on the second day of the proceedings (February 6), Ms. Gerontes was excused by mutual agreement and replaced by an alternate juror. Thus there were no members of the jury with what appeared to be a Hispanic name.

An extremely significant element in the Voir Dire is the fact that immediately after introducing himself to the panel, Mr. Somoza stated "I know your tired. I know it’s cold and raining. I need your attention. I need your honesty. This man’s life is at stake here. Please be up front with me. Ladies and gentlemen, this is not a sexual assault case. It’s a case of mistaken identity. To have…" (emphasis added). Ms. Ware: Objection, improper argument. The Court: Sustained.¹¹ The possibility of mistaken identity or an alibi for Mr. Cervantes is never again mentioned at any point of the trial process.

The overall impression left by the process is that there was a determined effort to seat a jury that would be disposed to convict on the basis of the testimony of one witness alone, with no physical evidence, and to assess the maximum sentence of life.

THE TRIAL (VOLUME IV OF TRANSCRIPT)

Jury selection was completed in one day and the trial began on February 6, 2002. The trial opens with Ms. Ware’s request that the child victim services worker who had been working closely with the victim be allowed to stand next to him when he testified. Mr. Somoza objected that this came to him as a surprise and stated I think it’s improper bolstering. I think it gives the jury…it gives the child complainant an unfair legitimacy perception of the jury. The objection was overruled.

The trial continues before the jury with Ms. Ware charging that on or about July 12, 1997, Cervantes "did then and there intentionally and knowingly cause [all testimony of a graphic nature will be deleted, with empty space between brackets; the same procedure will be used for specific places]; the alleged sexual offense is described in detail]… Jose Lunes, a person younger than fourteen years of age and not the spouse of the defendant to [ ]…of Cervantes. The explicit sexual terminology used by Ms. Ware here [ ]… is not without its significance.

Ware notes that the victim, Jose Lunes, is now fourteen, but was nine when he was assaulted. The family met Cervantes because he was a mechanic, who offered to train Jose to work as a mechanic. Ware says the witness will testify that he was taken to the Cervantes home, a one room house near downtown, with a jail gate on the front of the house. Ware goes on to describe many details of what will be Jose’s testimony.

Mr. Somoza’s opening statement informs the jury that he will ask them to acquit Mr. Cervantes. He claims the witness will speak only in generalities (although he knows quite well the testimony, as already summarized by Ware, will be quite specific). He mentions there is no physical evidence, which is not in dispute, and brings his opening statement to an end. There is no mention of a problem of mistaken identity or of an alibi.

In his testimony¹² Jose states that he is now in the eighth grade and his family is from El Salvador. He is asked how old he was in 1997, but says he does not remember. He said he met Cervantes through his dad’s friend, a Jorge Santano. Jose said he was supposed to be learning mechanics with Cervantes, to work on car parts. He then said he was alone with Cervantes all the time. He went to the defendant’s house on various Saturdays. He testifies this happened in the summer after he had finished the Third Grade. Although he says he was alone with the defendant all the time and went to the house on Saturday, separate weeks, weekends¹³ , he alleges the first rape took place at the time of the first visit to Mr. Cervantes’ house.

He was asked how big the house was, but did not remember. He was asked how many rooms it had, but did not remember. When asked what he first saw when he got to the house, he said Saw a white door and it had like one of those jail door looking kind of doors. Asked Was that on the inside or outside of the house? he answered Inside. (One wonders how he could see the jail looking door on the inside of the house when he first approached it from the outside.)

Jose stated Cervantes locked the door and he immediately became afraid, thinking Gitano might kill him or do stuff to him. Then he said Cervantes said he was going to rape him. Then he said he was told not to be afraid, that rape was a good thing. Asked what furniture was in the room, he said only a table and chair. Ms. Ware then prompted him: Was there any sort of bed or sofa or anything like that? He replied He had a sofa—I mean, a bed on the corner.

Asked to describe what happened, Jose says Gitano made him [ ]. After this, he told Jose he was going to rape him. (Only a few statements earlier Jose said that Gitano had told him this as soon as they entered the room and he locked the door.)

Noting the inconsistency, Ware asked Was that the first time he told you that or the only time he told you that? Jose seems to have picked up the clue that he had not answered quite correctly and said He told me like three times that…when I was in his lap. This did not quite manage to correct the original statement, but who would notice?

The questioning continues "After he had you lay down on the bed [sexual assault]…

When asked why he didn’t tell anyone later about what had happened,¹⁴ he said Gitano had threatened him. He thought Gitano meant he would be killed. Ware asks: were you afraid just for yourself or were you afraid for other people? Somoza: I object, that’s leading , Your Honor. Ware: Doesn’t imply the answer, just trying to clarify what his feelings were. The Court: Overruled on that particular question. (This was the only time Somoza objected during the testimony of the boy.) Ware: When he told you that, were you scared for yourself or for other people? Jose: For my mom, my dad.

Jose says he saw the defendant at least two more times and was alone with him one more time.¹⁵ Nothing is said here about a second sexual assault. (Previously he had testified that he had been alone with the defendant all the time.¹⁶ He went on to say that he finally told someone about these assaults before New Year’s on 2001, because some guy was talking about the coming of the end of the world. He went to the bedroom with his mom, and told her everything.

He then talked to the police and the officer took him to identify the house. Ware: Were you ever able to show where the house was that this defendant had hurt you in? Jose: Yes. But, like it wasn’t there no more. It was some other bigger house.¹⁷

He was asked if he was ever shown any photographs. Jose: His photo. The guy’s photo. She talked—she talked to me and she told me I’m going to show you a photo and tell me who it is. Amazingly, Jose, who can’t remember how old he was when the crime happened remembers the name of this officer some lady called Drummond.¹⁸ Ware prompts: Was there one photo or a lot of photos? Jose: There were a lot of photos. They were like in manila folders. Ware: Do you remember how many folders there were of photos? Jose: She showed me three, like—there were three folders but the first one, he was in there. Jose then identifies Gitano as the man in the photo he picked out.

The witness is passed and the cross-examination begins. Somoza asks Jose if he ever lies. Ware objects that the line of questioning is irrelevant. The judge sustains her objection. Somoza then gets Jose to agree that there is no physical evidence of the violation (which no one questions). Then Somoza: Now, I want you to understand, Mr. Cervantes is not taking a position whether you were violated or not, he is simply… Ware: Objection. Somoza: He is saying he didn’t do… Ware: Objection. That is not a question, judge. The Court: Sustained. Whatever line of questioning Somoza was attempting, he was again cut off and drops it.

Question by Somoza¹⁹: "How much time passed from the last time you’re saying that you were violated and you saw Mr. Cervantes again, more or less? [emphasis is in transcript]….A: Later. A year later. Q: During this one year, more or less, did you see any therapists? A: Huh-uh (negative). No sir. Q: Did you see any school counselor? A: Yes. Q: When you saw the counselor, what would you talk about? A: Like school and what’s happening in my house, my home. Q: You’re saying that you liked history. Correct? A: Yes, sir. Q: After this incident, were your grades still good in history? A: They were average. Q: Were they average before this incident? A: Yes. Q: So in history, nothing changed, correct? A: A little bit."

[The time sequence is significant here. According to the foregoing testimony, we are more than a year past the time of the incident. Since it was alleged to have happened in the summer after Jose completed the third grade, this places us around the summer after the fourth grade. At this point Jose says he has seen a school counselor, but does not mention a serious deterioration of his grades. Later his mother will testify that his grades fell sharply during the third grade, which would be before the incident.]²⁰

The defense attorney proceeds with a peculiar line of cross-examination that will be quoted in its entirety:

"Q: This New Years’ Eve service, when you told your mother, isn’t it true that you told her out of guilt and not fear? A: That was fear. Like I was…I was scared, like, to tell her, because she might do something to me. She might say, why didn’t you tell me all this stuff and ground me. Q: But, when you first told her, didn’t you tell her because you were confessing sin? A: Confessing? Q: So wasn’t that out of guilt and not fear? A: Yeah. Okay. Q: Didn’t you tell the DA investigators that you were saying it because of guilt and not fear? A: No, I didn’t tell them that. Q: What did you tell them? A: I just told them what happened, like why I told…why I told them. Q: Okay. Let me change my question. Didn’t you tell the police or DA investigators that you told your mother out of guilt and not fear? A: No, I didn’t told him that. Q: Okay. All right. That approximate year that passed that you said was the last time you saw Mr. Cervantes and this incident, how were you afraid? A: Can you repeat that, please? Q: That year that passed from the last incident…you’re saying it happened twice, correct (emphasis added)? A: Yes." ²¹

With regard to this part of the cross-examination, if Mr. Somoza was trying to assist the prosecution, he could not have done a better job. By stressing guilt rather than fear (in itself the motive for the victim to have told his mother about the crime is irrelevant to the defense of the accused), the attorney plants in the jury’s mind the perception that a sexual assault must have happened. And by prompting the witness to clarify that the assault had happened twice (which up to this time the prosecution had not done), the defense attorney further indicts his client.

In subsequent cross-examination, Somoza helps the alleged victim to explain how he was able to pick out the photo of Cervantes, why the house of Cervantes was no longer there, and how he wanted someone to pay for the guilt he felt because of Cervantes, all of which helped strengthen the case of the prosecution.

Questioned about the date of the incident, Jose states I remember what grade was it like after—like what grade I finished when this happened. I just remember that. I don’t know what year was it. I don’t know the year and the month and the date, exactly, I just remember what year, what grade I finished, what—I just know I finished third grade when this happened, in the summer.

Mr. Somoza passes the witness.

Ms. Ware conducts a re-direct in order to clean up the testimony about the photos, to make sure no one thinks Jose was led to pick a particular photo.

Mr. Somoza in his re-cross:

Mr. Lunes, while ago [sic] when I asked you when you were looking at the photo spreads, didn’t you tell me you were led to believe the bad guy was in there? …While ago [sic] when I asked you this, you said you were led to believe that. Are you changing your story now? Jose: No. Somoza: Okay. So you were not led to believe … Jose: I just recognized him.

Somoza has thus helped to establish in the mind of the jury that the victim was not led, and passes the witness.

Flora Rodriguez, the mother of Jose Lunes, is called to the stand.

Q: Was there ever a period of time where Jose was having problems in school? A: Yes. Q: Do you remember when that was? A: He started from ’97 forward. Q: When did Jose first meet the defendant in this case? A: It was at the beginning of ’97.²²

…Mrs. Rodriguez explained that they had met Cervantes through Jorge Santano, a friend of the family. She said she told Mr. Cervantes he could teach Jose because he was on vacation.

Q: Why did you agree to let Jose learn the trade of mechanics? A: Well, for starters, I said it was okay because to begin with, he was from our country. Q: What country is that? A: From El Salvador. Q: What about that made you trust him? A: Precisely because we come from the place I felt—I trusted him.

[In point of fact, Mr. Cervantes is a citizen of Mexico. Mrs. Rodriguez has supposedly known Cervantes for months, trusts him to be alone with her son, but does not know his last name or that he is a native of Mexico? Subsequently we shall see an affidavit from Mr. Santano stating clearly that Cervantes is from Mexico and never laid eyes on Jose until the day of the trial!]

…Q: "What year did the defendant start to teach your son mechanics? A: In that year, ‘97. Q: Do you remember what month it was they started to spend time together away from your house? A: From July forward. Q: How many times do you remember Jose going off alone with the defendant? A: About four or five times.

…Q: When did the defendant stop seeing Jose alone? A: Until some point my husband heard at a parts shop that this man was a raper or rapist. Q: When did you hear that? A: I didn’t hear that, my husband heard that."

[Since this testimony reflects very negatively on the defendant, one might expect an objection of Hearsay, but no such objection was raised.]

…Q: After Jose stopped seeing the defendant, how did Jose’s behavior change? [The question should have been: Did Jose’s behavior change?, and an objection could have been raised here, as many other places, Leading question, but there was no objection] A: "Very rebellious, very aggressive. Q: Did he ever get in trouble after that time, that summer? A: He gave me a lot of trouble at school. …Q: How was Jose doing in school in third grade? A: Very badly. His grades were dropping."

Mrs. Rodriguez is asked when Jose began to see the school counselor. A: "He began to see the counselor at the