UPDATE: On April 2, 2013, state district judge Elia Cornejo Lopez ordered that Manuel Velez receive a new trial. The Cameron County judge agreed with Velez’s appellate attorneys, who have argued that Velez received a woefully poor defense at his 2008 capital murder trial.
Velez was accused of killing eleven-month-old Angel Moreno, who stopped breathing on October 31, 2005. Moreno was the son of Velez’s new girlfriend, Acela Moreno.
Lopez found that Velez’s trial attorneys erred by failing to present critical medical evidence pointing away from his guilt, and that they also failed to present evidence of Acela’s culpability in the crime. Lopez noted that the trial attorneys did not “adequately investigate and present evidence that Moreno had a history of abusing her children and that she admitted to striking Angel on the day in question.”
Lopez’s order (see PDF at the end of this story) must be approved by the Court of Criminal Appeals before Velez can receive a new trial. It’s unclear how long Texas’s highest criminal court may take to rule.
When a child dies from suspected abuse or assault, law enforcement officers typically focus their investigation on the last person who was with the victim. This is logical reasoning; but recent developments in forensics have shown that a child’s fatal injuries could actually have been inflicted hours, days, or even weeks before he or she is rushed to the emergency room. The evolving science of head trauma, for example, has upended long-held beliefs about “shaken baby syndrome” and has recently resulted in a number of exonerations of people convicted of murdering children.
At least three women in Texas have had their cases thrown out or convictions reversed when misinterpreted medical evidence was re-evaluated. And the case of Manuel Velez is now drawing attention for the same reasons.
Only two adults were home when eleven-month-old Angel Moreno stopped breathing on October 31, 2005, at his home in Brownsville. One was his mother, 25-year-old Acela Moreno, who had a troubled history with Angel, the youngest of her three children. She once admitted to her sister that she had bitten Angel on the face, and she would later tell police that she might have burned the baby with a cigarette. Her two older children would later tell CPS their mother had abused them. As recently as last year, a witness came forward to testify under oath that he once saw Acela, frustrated by Angel’s crying, throw the baby approximately five feet onto a couch.
The other adult at home that day was Acela’s new boyfriend, Manuel Velez, who moved in with her two weeks earlier. Velez, a 40-year-old construction worker with children of his own, had no history of violence, save for an arrest fourteen years earlier after a bar brawl, which had earned him a misdemeanor charge. He often looked after the children in his extended family, and relatives and neighbors recall that he was attentive and patient.
That afternoon Velez had been napping with his two-year-old son, Ismael, while Acela took care of the baby. At around 2:30 p.m., Acela came to the bedroom and lay down. Velez got up and took a shower. Afterward, Velez walked into the living room and noticed that Angel, who was sitting on the couch with his four-year-old sister, Emily, was having difficulty breathing. He immediately woke up Acela and went next door, where a neighbor called 911. Angel was nonresponsive when EMTs arrived. He was rushed to the hospital and the next day—the boy’s first birthday—he was declared brain dead.
Angel was taken off a ventilator on November 2; he died that same day. An autopsy would reveal that he had two skull fractures and a subdural hematoma, or blood on the brain, which had resulted from blunt force trauma to the head.
Velez and Acela were both arrested when Angel was hospitalized. During Acela’s interrogation, she insisted over and over again—despite investigators’ insistence that she tell them what Velez had done to the child—that she had never seen Velez mistreat her children. She said that she had seen him “playfully” throw Angel up in to the air and she demonstrated how he had gently shaken the baby to get him to smile. Velez had been “playing,” she insisted. “I never saw that he did that with malice.”
While Acela’s interview was videotaped, Velez’s was not. Instead, a written statement was taken from him in English, a language he could only read at a kindergarten level. (His first language is Spanish.) Several different versions of the statement exist, including one that includes self-incriminating statements that are attributed to him in which he says he threw, squeezed, and shook Angel. All the versions have him admitting to biting the baby. The statements—which were taken down by a sheriff’s sergeant in English—include curiously sophisticated language and have him repeatedly referring to Acela as “Rosalva,” a name he was unfamiliar with, though her middle name is the slightly different “Rosalba.” (Velez’s attorneys later disputed the authenticity of certain portions of the statements.)
Both Velez and Acela were charged with capital murder. They spent more than a year in the county jail awaiting trial as the state prepared its case, which increasingly focused on Velez. It was Velez who had discovered Angel in distress while Acela slept, making Velez the last adult who had been with the boy.
In 2007, the Cameron County D.A.’s office offered Acela a plea deal. If she testified against Velez—and pleaded guilty to injury to a child, which carries a maximum ten-year sentence—the murder charges against her would be dropped. (Had she been convicted of capital murder, she would have faced either life without parole or a death sentence.) Acela took the deal. According to the wording of the plea, she agreed that she had struck Angel’s head—with her hand, an object, or against a hard surface—on or around October 31, 2005.
But jurors in Velez’s capital murder trial in 2008 never learned that Acela had pleaded guilty to striking and injuring Angel. During Velez’s capital murder trial the following year, Acela only told the jury that she was serving time in prison for having failed to report Velez’s alleged abuse to police. Velez’s defense attorneys, who knew of the plea deal, never attempted to correct the record.
Though Acela had agreed to be a witness for the state, her testimony was hardly a slam-dunk. The most incriminating accusation she made on the stand was that she had seen Velez throw Angel up in to the air and catch him, causing bruising to the baby’s ribs. She said that she had never seen Velez strike or beat her son. Similarly, Velez’s previous girlfriend, Maria Hernandez, testified that he had never hit her or their children. Velez was “just not that kind of person to hurt a kid,” she told the jury.
The state’s medical experts, however, asserted that Angel’s injuries had been inflicted during the two weeks preceding Angel’s death, when Velez was living with the family. The state’s case rested on the theory that Angel had been perfectly healthy until two weeks before he died, but then sustained major head injuries at two different times during that two-week period. This time frame was critically important, since Velez had been out of state before then. He had spent five weeks working construction in Memphis, Tennessee, before he moved in with Acela, and had no access to Angel.
Velez’s defense attorneys did not call a single medical expert to the stand, nor did they present any medical evidence of any kind. They never investigated how old the baby’s injuries were, nor did they challenge the opinion of the state’s experts who held that Angel’s skull fractures and subdural hematoma had occurred within two weeks of his death.
Jurors found Velez guilty of capital murder. They were then left to decide whether to sentence him to death or life in prison without the possibility of parole. During the sentencing phase of the trial, an expert witness for the state, A.P. Merillat, gave testimony that the Texas Court of Criminal Appeals would later deem misleading. A controversial figure whose work has since come under harsh scrutiny, Merillat stated that Velez would be afforded many liberties were he to be sentenced to life in prison, and that eventually, he would even be allowed to work outside the prison fence line. (That is inaccurate.) The jury subsequently sentenced him to death.
Velez was sent to death row in 2008. Acela was released from prison two years later. Because she was in the U.S. illegally, she was deported back to her native Mexico.
Shortly after Velez was sent to death row, a team of civil litigators working pro bono in conjunction with the ACLU’s Capital Punishment Project began a wholesale reinvestigation of the case. One of the more startling discoveries they made was that Angel’s head circumference had grown rapidly in the early summer of 2005, according to his pediatric records. The increase was just a few centimeters, but the growth was highly significant, statistically; his head circumference had grown from the fiftieth percentile to the ninety-fifth percentile in less than a month, a staggering jump that could only be explained, forensic pathologists told the attorneys, by internal swelling that had been caused by violent trauma. (Angel’s pediatrician would later testify at a hearing that this was a clerical mistake made by one of his medical assistants.) Angel had also suffered from multiple bouts of severe vomiting that June, which were so bad that he was hospitalized for two days. Vomiting frequently results after violent head trauma. This all took place before Velez and Acela moved in together.
All of this begs the question, when were these injuries sustained? It’s still unclear, but as Velez’s attorneys spoke with more medical experts, a pattern began to emerge: the experts all believed that the skull fractures and subdural hematoma had occurred before the two week window when Velez lived with Acela, the time frame prosecutors zeroed in on during Velez’s 2008 trial.
In 2011, Velez’s attorneys approached Dr. Daniel Brown, the neuropathologist who had originally autopsied Angel’s brain on behalf of the state, and asked if he could determine when the subdural hematoma had taken place. After he examined slides of the boy’s brain tissue, he stated that the injury had likely occurred 18 to 36 days before Angel’s death—when Velez was in Tennessee.
Velez’s attorneys won the right to hold an evidentiary hearing, which took place last December. During the weeklong proceeding, not one of the seven medical experts who testified supported the state’s theory of the case. The state’s own expert witness, Dr. Norma Farley—who conducted the autopsy back in 2005—backed away from much of her original trial testimony, in which she stated that all of Angel’s injuries had taken place within two weeks of his death. Some, she allowed, could be 20 to 36 days old. Two forensic pathologists and a neurological surgeon testified that Angel’s skull fractures were more than two weeks old, and perhaps months old. Forensic pathologist Dr. Janice Ophoven explained that not much trauma was needed to push Angel into a critical state on October 31, 2005, if his brain was already swollen from head trauma. A rapid increase in head circumference is evidence of “increased intracranial pressure,” she said, which made the boy “a time bomb.”
“I can’t imagine a jury hearing the evidence that was presented in December and determining that it was Manuel Velez who killed this child,” Tami Goodlette, of the Denver firm Rothgerber, Johnson & Lyons, told me. Goodlette—along with attorneys at the Dallas firm Carrington, Coleman, Sloman & Blumenthal—has been working on the Velez case for four years now. Cameron County D.A. Luis Saenz, who prosecuted the case, was more dismissive. Of the December hearing, he wrote to me, there was little new information. “Frankly, their evidence was nothing more than regurgitated and repackaged old evidence. Their point that the defendant was in Tennessee at the time the injuries were inflicted was presented to the trial jury. The jury chose not to believe it and the Court of Criminal Appeals affirmed on that point. The nature of the injuries inflicted on the baby was such that the injuries and death are contemporaneous. One does not suffer those kind of injuries and days later die as a result of them.”
But Goodlette strongly took issue with Saenz’s statement. At Velez’s trial, she explained, “the state’s medical experts testified that the child suffered two episodes of injuries within 14 days of his death, and acknowledged that the older episode was not contemporaneous with death. Nor did any of the medical experts who testified in December, including two of the state’s medical experts, opine that all the injuries to the child were contemporaneous with death. Mr. Saenz’s statement simply is not supported by the medical testimony. All the experts agree that the chronic subdural hematoma and two linear skull fractures were in the process of healing when Angel died. The issue is how long before the child’s death were these injuries inflicted.” Further, she added, “Mr. Velez’s trial counsel never discovered or presented the evidence that the first episode of injury occurred when Mr. Velez was in Tennessee. His attorneys’ failure to present such evidence is an injustice that must be remedied by a new trial for Mr. Velez.”
Velez’s case warranted caution, Goodlette said, not a rush to judgment. “In a case like this where the medical evidence indicates the child died as a result of a combination of older injuries with the new—and there is no eyewitness evidence as to what happened or how the injuries were caused—we must be especially cautious to ensure that we don’t rush to judge the person who found the child not breathing.”
WHAT COMES NEXT
Judge Elia Lopez, who presided over the evidentiary hearing, must submit her findings to the Court of Criminal Appeals by March 12. Then the court will have to decide whether or not to uphold Velez’s conviction or grant him a new trial.
In the meantime, Velez sits in the Cameron County jail, where he was transferred last year after the Court of Criminal Appeals threw out his death sentence because of Merillat’s faulty testimony. (The court affirmed his conviction; it only overturned his punishment.) If Velez is given a new trial, all of the scientific evidence that his attorneys have found will be presented in open court. If he is not given a new trial, a resentencing hearing will be held before a jury, who will have to determine whether he receives life without parole or is returned to death row.