 Vicente Benavides and attorney Cristina Borde
The case began on the evening of November 17, 1991, when the 42-year-old Benavides and his girlfriend, Estella Medina, brought Medina’s 21-month-old daughter, Consuelo, to the Delano Regional Medical Center in Delano, California. They said they thought that Consuelo might have hit her head on a door while chasing her nine-year-old sister Cristina. Consuelo was initially not fully responsive, but she was awake and responded to stimuli.
Medical personnel focused a small bruise on her forehead and scrapes on her nose and lip. They initially believed she had a closed head injury. Several unsuccessful attempts were made to insert a catheter. When Consuelo’s stomach began to distend and her condition deteriorated, she was transferred to Kern Medical Center in Bakersfield, California. The receiving nurse there noted that she had “blown pupils,” which are often seen in victims of blunt force trauma from an auto accident.
Attention was immediately focused on the girl’s distended abdomen. A nurse attempting to insert a catheter noted a bruise on Consuelo’s external genitalia. Eventually, a small feeding tube was inserted instead of a catheter. Within 20 minutes of arrival, her abdomen had become even more distended. Diagnostic surgery revealed that her bowel, duodenum, and pancreas were “cracked in half,” with portions of each on either side of her spine.
A surgeon would later testify that those injuries could have been caused by a kick or punch to the abdomen. The surgeon also noted scars, which he said indicated injuries suffered two months earlier between her colon and liver.
The morning after the surgery, Dr. Jess Diamond, a pediatrician, examined Consuelo and found a tear in her hymen and bruises around her anus. There were also tears in her anus and damage to the sphincter muscles. He concluded that her injuries were not consistent with Consuelo being hit by or running into a door. He believed that she had been sodomized, that her vaginal area had been penetrated and the vaginal wall torn, and that she had been kicked or punched in the abdomen.
On November 19, 1991, Consuelo was transferred to UCLA Medical Center in Los Angeles. Her entire body was swollen and her kidneys had stopped functioning. A second surgery was performed. On November 20, Benavides was arrested. Six days later, on November 26, 1991, Consuelo died.
On December 12, 1991, Benavides was charged with first-degree murder, rape, sodomy, and lewd conduct with infliction of great bodily injury.
On March 15, 1993, Benavides went to trial in Kern County Superior Court. Medina testified that she changed Consuelo’s diaper and went to work at about 6:40 p.m. on the day of the incident. When she left, Cristina and Consuelo were eating hamburgers for dinner.
Medina said Cristina called her at 7:20 p.m. and reported that Consuelo was pale, sick, and could not breathe. Medina said she returned home and found Benavides sitting on a bed holding Consuelo in his arms. She drove them to the hospital in Delano.
Cristina testified that after the incident, state welfare officials removed her from the family, and police and social workers questioned her several times. Ultimately, in May 1992—six months later—she suddenly remembered a time when Benavides, who was caring for her and Consuelo alone overnight, took a crying Consuelo into his locked bedroom until morning. She admitted on cross-examination that the following day, Consuelo did not appear hurt or afraid of Benavides.
Cristina told the jury that on the night of the incident, she asked Benavides for permission to go outside to play with a friend. She said Benavides told her to be home in 30 minutes. She said she opened the door as she went out and closed it behind her. She said that she did not see Consuelo near the door. About 15 minutes later, Benavides came outside and told her to come home. When she got home, she said, Benavides was holding Consuelo and putting alcohol on her forehead. He told her to call Medina.
Cristina testified that on the way to the hospital, Benavides told Medina that Cristina had hit Consuelo with the door when she went outside. He said that he had found Consuelo outside and brought her back inside. Cristina told the jury that she did not hit Consuelo with the door.
A Delano detective testified that he interviewed Benavides on November 18, 1991—the day after the child was brought to the hospital. The detective said Benavides reported that when Cristina went outside, Consuelo followed her and Cristina brought her back. Benavides said he told Cristina to take Consuelo with her, but she refused and left, shutting the door hard.
Benavides said he had gone into the kitchen. After a minute, when he didn’t hear Consuelo, he came out and found the door ajar. He said he looked outside and found Consuelo on a grassy area adjacent to the carport. She was on her back with blood on her nose and mouth, and she was vomiting. The detective said Benavides said he brought the girl inside and cleaned her face with toilet tissues, but that he realized she was “injured bad” because her eyes were rolling.
Jeanne Spencer, a criminalist from the Kern County Regional Crime Laboratory, testified that she searched the apartment on November 20, 1991. She said that she did not find any blood or vomit or any indication that either had been cleaned up in the area near the door or outside. Spencer said she found paper towels soaked with vomit containing semi-digested food consistent with a hamburger bun and carpet fibers consistent with the rug in the apartment. She said she found no dirt, gravel, or any other substance she would have expected to find had the vomit been cleaned up outside.
Spencer also testified she found a towel that tested positive for blood and semen on the master bedroom floor. The blood was consistent with both Medina and Benavides, and the semen was consistent with Benavides. She found bloody tissues in the bathroom wastebasket, and vomit in a pattern indicating it came from a downward spray on the right leg of the pants Benavides was wearing when he came to the hospital.
Consuelo’s clothing was not torn and had no dirt or markings that would indicate she had landed on pavement. No semen was detected. No diaper was included in the bag of the girl’s clothes obtained from the hospital. A microscopic examination of her clothing revealed no signs of trauma.
A California Highway Patrol accident investigator testified that Consuelo would not have landed outside the apartment door on the grassy area between the building and the carport had she been hit by a car pulling into or backing into the carport. And even if she had been hit in that fashion, he said, her injuries would have been far less severe.
Dr. James Dibdin, the pathologist who conducted the autopsy, testified that Consuelo died of a blunt force penetrating injury of the anus that not only lacerated her anus, but also severely damaged her internal organs. The anus was expanded to seven or eight times its normal size. He concluded she had been anally sodomized. He said the vaginal tear was the reason for the difficulty in attempting to insert a catheter at the hospital.
Dibdin said there were several fractured ribs, which he attributed to Consuelo being gripped tightly around the chest from behind. He found bruises resulting from thumbs being pressed against her. He also found a subdural hematoma and brain swelling, which he said was evidence that Consuelo had been shaken violently during the sexual assault—such as occurred in cases diagnosed as Shaken Baby Syndrome (SBS).
Dibdin testified that the facial abrasions resulted from Benavides holding a hand over her mouth. He said her injuries were not consistent with a fall or running into something. Dibdin admitted that he had not written up his autopsy findings until two months after Consuelo’s death, and well after Benavides had been charged with her murder and sexual assault.
Dr. Diamond testified that although he learned of the tear in the rectum wall from Dibdin’s autopsy, he had concluded at the hospital while Consuelo was still alive that she had been sexually assaulted. Dr. John Bentson testified that Consuelo’s head injuries were consistent with receiving blows to the head.
The defense lawyers presented two medical experts who testified that Consuelo’s injuries were consistent with a fall or a car accident, as well as the effects of the various medical procedures that were employed during the eight days she was hospitalized before her death. The defense also presented evidence that some plant material was removed from Consuelo’s nasal passage at UCLA.
Benavides testified that he had been cooking eggs in the kitchen when he went to look for Consuelo. He said he found her outside on the ground, vomiting and bleeding from her nose and mouth. He brought her inside and put her on the couch, and then went back out to call Cristina inside. He told the jury he tried to clean up Consuelo’s face with toilet paper. He said he used kitchen towels to clean up the vomit outside, tossing the towels into the trash.
He admitted that the door to the apartment opened inward, and that a person leaving would pull the door shut behind them. He agreed that if Consuelo hit her head on the door, she would have been inside, not outside, of the apartment.
Benavides denied assaulting Consuelo in any fashion or inflicting any harm on her.
On April 20, 1993, the jury convicted Benavides of first-degree murder, rape, sodomy, and lewd conduct inflicting serious injuries. Two days later, the jury voted to impose the death penalty.
In 2005, the California Supreme Court upheld Benavides’s convictions and death sentence.
In 2007, attorneys for Benavides filed a 395-page petition for a writ of habeas corpus. The petition argued that the convictions were based upon false medical testimony, that the police and prosecution withheld evidence, and that the prosecution made improper arguments.
The petition also cited the failure of Benavides’s defense attorneys (both of whom were subsequently disbarred or suspended) to provide an adequate defense. Benavides was developmentally disabled—his mental capacity was that of a seven-year-old—the defense never brought that out at his trial.
The primary focus of the petition, however, was on the medical testimony.
“Virtually every medical observation and conclusion that the prosecution presented – from the cause of death to the ‘evidence’ of rape and sodomy – was manufactured and false,” the petition said. “The indisputable evidence presented in this petition—provided by world-renowned medical authorities, the medical personnel who observed Consuelo Verdugo immediately upon her arrival at the hospital, and the doctors who testified on behalf of the prosecution–disproves each and every element of the prosecution's case.”
“The jury did not learn or know that the pathologist's cause of death—anal penetration that severed her pancreas—is medically impossible,” the petition said. “The jury did not learn or know that the numerous medical personnel who administered Consuelo's care immediately upon her arrival at the hospital emphatically deny that she had such injuries. Indeed, the jury did not hear that the injuries used to support the charges resulted not from criminal conduct, but rather from the invasive and sustained medical efforts to address Consuelo's increasingly deteriorating medical condition.”
The only medical witness who did not recant his trial testimony was Dibdin, the pathologist. The habeas petition noted that Dibdin had been fired or his contract was terminated from medical examiner offices in Oklahoma City; Brown County, Wisconsin; Tasmania, Australia; San Bernardino County, California; Nevada County, California, and, some time after Benavides’s conviction, his contract with the Kern County Coroner’s Office was not renewed.
In the early 2000s, Dibdin was hired as a pathologist at a hospital in South Shields, England, analyzing tissue samples to diagnose illnesses. In 2007, the General Medical Council found he had made numerous errors, some of which resulted in belated diagnoses of cancer in patients. The Council suspended Dibdin’s medical license. Subsequently, he returned to California and resumed practicing.
The petition also said that the initial x-ray of Consuelo’s body showed no rib fractures, but the report of the x-ray was amended to state that the fractures were visible after detectives claimed they spotted fractures in the x-rays. The police report documenting the change in the original report of the x-rays was not disclosed to the defense.
In addition, the two experts presented by Benavides’s attorneys were provided with only some of the medical evidence. Moreover, what they were given came too late to fully inform their testimony.
Among evidence that was not disclosed, according to the petition, were the lab reports of Spencer, the crime lab criminalist. Despite her testimony that there was no evidence that Consuelo was outside, the lab report documented that plant material was found on the girl’s sweatshirt and that there was dirt and blood on the sole of her shoe.
The petition said that after Cristina was removed from the home by state child protective services, she was subjected to numerous interviews by social workers and detectives. During these interviews, she was threatened that unless she provided testimony favorable to the state, she would never go home.
Moreover, the prosecution failed to disclose that the state paid benefits to the family members who took temporary custody of Cristina. Both had testified at Benavides’s sentencing hearing that they wanted “justice” for Consuelo.
The prosecution, according to the petition, threatened Medina that if she continued to support Benavides’s innocence, she would never regain custody of Cristina. After repeated interviews and threats relating to Cristina, Medina ultimately testified—falsely, according to the petition—that she had warned Benavides not to harm her children and that if he did, “I would have you locked up.”
The prosecution also failed to disclose that Dr. Diamond conducted an examination of Cristina and determined that she had never been molested. The report was significant, the defense contended, because the prosecution suggested that Cristina “was lucky to get out alive.”
The Supreme Court ordered the prosecution to respond to the petition. In August 2010, the prosecution filed a 501-page response, conceding that the convictions were based on false medical evidence. However, the prosecution argued that while the charges relating to sexual assault should be dismissed, Benavides’s first-degree murder conviction should be reduced to second-degree murder.
In March 2018, the California Supreme Court vacated all of the convictions, noting that the defense medical experts were virtually unanimous in concluding that Consuelo was not sexually assaulted. At least 10 physicians or treating personnel recanted their trial testimony, the court noted.
The court concluded that the injuries were caused by the numerous medical interventions and “bodywide swelling.”
“A comparison between witnesses’ trial testimony and their later declarations is striking,” the court said.
Two doctors who treated Consuelo at UCLA, the final hospital to which she was admitted, reviewed all of the medical records and declared that anal penetration could not have been the cause of death because the organs between the anus and upper abdomen were not injured. “Dr. Rick Harrison, the physician in charge of Consuelo’s care at UCLA, believed that the cause of death given by Dr. Dibdin was anatomically impossible,” the court said.
The court pointed out that Dr. Diamond, the child abuse expert who evaluated Consuelo at Kern Medical Center and testified at trial that the appearance of Consuelo’s anal region was consistent with penetration had recanted, saying “it is now my opinion to a high degree of medical certainty that Consuelo was not raped or sodomized.”
Dr. Nat Baumer, a medical expert who testified for the defense, subsequently declared that he had not been given Consuelo’s complete medical record before testifying and “[c]onsequently, [his] testimony supported the prosecution’s allegations that Consuelo had been anally penetrated with a penis which, based on [his] own observations, [he] could not support.”
The court specifically noted that Dr. Tracey Corey, a forensic pathologist who reviewed the case in post-conviction, stated that she was “embarrassed about the pathologist because what he says isn’t even . . . anatomically possible.” She added, “I’m embarrassed that . . . a pathologist didn’t know better, didn’t know anatomy better.”
On April 19, 2018, Kern County District Attorney Lisa Green moved to dismiss the charges and Benavides was released.
In June 2019, Benavides filed a lawsuit seeking compensation from Kern County.
– Maurice Possley
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