From"Texoma Coalition"

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Child abusers are dodging prison

Web Posted: 10/07/2007 02:43 AM CDT

Karisa King and John Tedesco
Express-News

Dianna Moreno left her 2-year-old son alone with her boyfriend just long enough
to buy a Coke and check the mail. When she returned, the small apartment was
quiet, the bedroom door was locked, and her boyfriend, Matthew Zaner, refused to
open it.
After about 10 minutes, Zaner emerged from the room in a panic.

Moreno found her son limp on the closet floor, his blank eyes rolling back into
his head. He barely was breathing.

Zaner told her the boy fell off their waterbed. But emergency room doctors
didn't believe the story. It didn't mesh with the boy's injuries: dime-size
bruises on his face, legs and back, a fractured rib and blood pooling in his
brain.

Police charged Zaner with assaulting a child, a first-degree felony that might
have put him behind bars for up to 99 years.

Talk Back
? Most of the admitted Bexar County child abusers are cutting deals with
prosecutors to avoid prison. What do you think?



Although it seemed to doctors like a clear case of child abuse, Zaner cut a deal
with prosecutors that allowed him to avoid going to prison at all.

His case was not an anomaly.

Zaner was among hundreds of defendants who bargained their way to freedom after
being charged with a felony of assaulting, injuring, abandoning or endangering a
child.

A San Antonio Express-News analysis of 1,270 child abuse cases since 1991 shows
67 percent of defendants facing felony child abuse charges in Bexar County
eluded state prison.

In the most severe assaults, when children sometimes suffered broken bones or
brain injuries, one out of five defendants avoided prison.

In some cases, children were whipped, shaken, bitten, starved, scalded or
beaten. They suffered welts that covered their bodies, bruises, burns, broken
bones and life-threatening brain trauma.

At least 11 defendants like Zaner who bypassed prison went on to face charges of
harming another child. Many caregivers denied hurting the children and instead
told stories that doctors said didn't fit with the injuries.

In the most egregious cases, when children younger than 6 are murdered, Texas
law allows for the death penalty. Since 1993, when the law took effect,
prosecutors have charged 31 people with capital murder of a child. Yet not one
defendant has gone to death row.

A growing epidemic of child abuse deaths has forced attention on the way Texas
protects its young. In fiscal 2005, Bexar County broke a grim record, with 18
children killed from abuse or neglect. Last year, 14 children were killed.

Every year, about 1,000 children are removed from their homes because social
workers, physicians or police find enough evidence to believe they are in
danger. Only a fraction of cases ends up in criminal courts.

Because parents who neglect and abuse their children rarely face criminal
charges, advocates say what happens in courtrooms takes on even more importance.

Yet most of the scrutiny focuses on the failures of Child Protective Services,
usually after a gruesome killing, while hundreds of cases at the courthouse end
quietly with plea bargains.

"I think it's shameful, and I think these individuals should be prosecuted to
the full extent that's possible," said Janet Ketcham, executive director of
Child Advocates San Antonio.

Prosecutors say child abuse cases are among the most difficult to pursue. Often,
there are no witnesses. Family members who may have seen the attack don't want
to cooperate, or may even lie to protect the abuser. And frequently the victims
are too young or too scared to testify.

That leaves prosecutors to shape some cases around medical evidence ? a risky
move that opens the door for defendants to hire their own medical experts and
argue that the children could have been hurt by accident.

"In an ideal world, I wish that all child abusers would go to prison for the
rest of their lives, but, practically speaking, that's not going to happen,"
said Catherine Babbitt, who heads the district attorney's family justice unit.

She said prosecutors carefully weigh the strength of their evidence when
deciding whether to take a case to trial or offer a plea bargain.

"Let's say it's one of those cases where my proof is a little questionable,"
Babbitt said. "Rather than run the risk of losing it altogether and holding no
one accountable, we try to have at least some accountability for those actions."

Fears about taking cases in front of a judge or a jury appear to be
well-founded. When defendants charged with assault, endangerment, injury or
abandonment of a child push for a trial, they win acquittals 44 percent of the
time.

They fared better than defendants charged with other types of felonies: Only one
in four in that group were acquitted after rolling the dice in a trial.

In deciding whether to offer a deal to someone accused of child abuse,
prosecutors also look at the criminal history of a defendant. Many have no
serious record, which makes them more likely candidates for staying out of
prison. But records show 87 of the 847 defendants who were spared from prison
had prior felony charges in Bexar County.

Most often, the accused received deferred adjudication, a form of probation. It
allows defendants to avoid not only prison, but also a conviction if they follow
the rules of supervision and don't commit any more crimes.

In the eyes of prosecutors, deferred adjudication can be a heavy hammer.
Defendants who break the rules can be thrown in prison for the maximum number of
years allowed under the law, 99 for a first-degree felony.

"Although it certainly has some advantages for the offender, it also has some
big disadvantages should they mess up," Babbitt said.

Defendants who avoid prison still are required to take parenting and
anger-management classes. Babbitt said that supervision gives people tools to
improve their lives.

"Even though we're in the prosecution business, I would like to end child
abuse," Babbitt said. "I don't want to see these people back here again. And if
we don't try to give them some tools with which to live by, we're going to see
them time and time again."

But giving defendants a second chance can backfire. It keeps someone on the
street after they admitted their guilt or didn't contest a charge of hurting a
child.

In the case of Matthew Zaner, who said his girlfriend's son fell off the
waterbed, the second victim was an infant.

About two weeks after Dianna Moreno moved into Zaner's Northwest Side apartment
in May 1998, she noticed the first bruises on her son.

He wasn't yet 2, and after the move he started throwing tantrums. From what
Moreno told police, Zaner was bent on breaking the boy's fits, and when he
disciplined her son it usually was in the bedroom with the door locked.

After the bruises started showing up on the boy's face and buttocks, Moreno
suspected Zaner was hitting her son, according to her police statement. Moreno,
who was 21, confided in her mother, but continued living with Zaner.

The marks and the discipline continued, too. Two days before she found her son
unconscious and paramedics rushed him to the emergency room, Moreno said she
found small bruises on his chest.

"They looked like fingerprint marks," she told detectives.

The day Zaner emerged in a panic from the bedroom, with the boy barely
breathing, Moreno cooperated with investigators. She told them Zaner had urged
her to tell "anybody that asked" that she had been in the living room with him
when they heard the boy fall. Doctors who treated the toddler said he had been
shaken.

Zaner declined to be interviewed, but his mother, Elaine Zaner, said her son
stuck to his story and held out for a trial.

Meanwhile, a prosecutor occasionally called the boy's aunt Lisa Straiton, who
took her nephew home from the hospital and later adopted him. Straiton kept the
prosecutor up to date about the child's ongoing recovery. That first year, he
had suffered so much bleeding in his brain that he had to wear a patch over his
eye and doctors couldn't tell if his tiny retinas were still attached.

Straiton said she pushed for the stiffest punishment possible. She didn't like
the way the case was going.

"Nobody could prove anything. Nobody saw anything. That's what they told (the
family)," she said.

Eventually, in 2001, Zaner struck an agreement with prosecutors. He pleaded no
contest to recklessly injuring a child, a lesser offense. In return, prosecutors
recommended he receive five years of deferred adjudication and take parenting
classes, and District Judge Juanita Vasquez-Gardner signed off on the deal.

"I was furious," Straiton said. "I told them: 'What's it going to take? Is it
going to take some child dying before you put him in jail?'"

Her words were prescient.

Less than a year after Zaner started serving his deferred adjudication, he hurt
another child.

This time, it was a 6-week-old boy. The circumstances and the injuries bore
eerie similarities to the first case. Again, Zaner was taking care of his
girlfriend's son. Again, he emerged from the bedroom after the child had stopped
breathing.

The infant spent nearly two weeks in the hospital with bleeding in his brain.
The baby slowly recovered, but with damaged eyesight.

Doctors said the child had been shaken.

Zaner told police that while he was giving the baby a bath he started choking
and coughing up milk. But a family friend who was at the home that day said
Zaner told her a different story, according to the police report. The friend
said Zaner told her he was giving the baby a bath when he dropped the child on
the side of the tub.

Zaner pleaded guilty to reckless injury of a child and was sentenced in 2003 to
17 years in prison.

His mother, who is hoping he'll win parole next year, still is adamant that her
son never meant to hurt either child.

"Both of these were accidents," Elaine Zaner said.

But in other cases defendants openly admitted they had abused the children and
still sidestepped prison.

When Jenae Lukachik brought her 2-month-old son to the doctor in June 1999 with
a broken upper leg and old fractures on his ribs, she was at a loss to describe
how he'd been hurt. Six days later, she called police to tell them what
happened.

She told a detective she'd become so frustrated by her son's constant crying,
she shoved his little foot into his mouth.

She pleaded no contest and, at the recommendation of prosecutors, received six
years of deferred adjudication.

In 2005, Brooke Pizana avoided prison with seven years' deferred adjudication
after she admitted she threw her baby against a wall in anger. The impact
fractured the 9-month-old boy's skull.

District Judge Bert Richardson imposed the sentence. He did not return messages
from the San Antonio Express-News.

Pizana's current lawyer, Mark Benavides, said Pizana admitted to the crime to
grab a good offer from prosecutors.

Benavides said investigators are under so much pressure to protect kids that
they're too quick to believe the worst fears of emergency room doctors.

"They jump to conclusions about what happens," he said.

Deferred adjudication isn't always a free pass from jail. In a handful of
first-degree felonies, judges imposed sentences of up to 180 days in county jail
? not state prison ? as a condition of probation. Some critics of the system say
that punishment is too light.

In November 1997, a mother brought her 9-month-old son to Methodist Hospital
with a bruise above his eye and a scrape on his forehead. Doctors found that the
child's right shoulder had been dislocated and fractured, and that he had
suffered earlier fractures to his skull and left arm.

The woman's boyfriend, Armando Martinez Alfaro, told police he shook the boy so
hard his head flopped back and forth and he "looked like a doll."

Alfaro said it was possible that while he was shaking the boy he hit his head on
a door frame.

District Judge Richardson sentenced Alfaro to 10 years of deferred adjudication.
The judge also sent him to Bexar County Jail for 180 days on a work-release
program.

After defendant Mario Flores admitted to whipping his 3-year-old daughter so
severely she had to be hospitalized, prosecutors recommended a sentence of seven
years' deferred adjudication. Presiding Judge C.W. Duncan also ordered Flores to
serve three months in the Bexar County Jail.

Flores thought he got off easy, said Jeanette Santos, who was married to him at
the time and filed for divorce after his arrest.

"He thought it was just a slap on the hand," she said. Flores frequently called
her from jail, Santos said, taunting her. Flores made a point to remind her he
was getting out soon.

"He laughed about it," Santos said.

District Attorney Susan Reed talks about aggressively punishing child abusers.
As a former state district judge, she burnished her reputation as one of the
toughest jurists in the courthouse. That reputation has followed her into the
district attorney's office, where she has pushed some cases to trial despite big
obstacles.

In the case of Nicholas Plaza, a 5-year-old who vanished in 2001, Reed pursued a
murder charge against 33-year-old Ruben Zavala Jr., who lived with the boy and
his mother. Although it had been six years since Nicholas disappeared and police
never found his body, a jury in July sentenced Zavala to 67 years in prison for
injuring a child.

In the case of Jovonie Ochoa, a 4-year-old who was starved to death and died
Christmas Day 2003, Reed won a life sentence for the boy's grandmother and
10-year prison sentences for each of three other family members who lived in the
house, saying they all were responsible. Reed also prosecuted Jovonie's mother,
who sent the child to live with his father's family and was sentenced by
Richardson to two years in state prison.

"We are committed to prosecuting them to the fullest," Reed said in an interview
earlier this year.

Since she came into office in 1999, Reed, a Republican, has more than doubled
the number of prosecutors dedicated to the cause. The result has been a marked
increase in the number of child abusers who face criminal charges.

She has prosecuted 21/2 times more defendants than her predecessor, Republican
Steve Hilbig, who served for about the same number of years Reed has been in
office. Nearly twice as many child abusers have gone to prison on Reed's watch.

But under her administration, defendants are no more likely to go to prison.
Since Reed took office, 31 percent of defendants go to prison, compared with 38
percent of defendants prosecuted by Hilbig.

Now a justice of the Fourth Court of Appeals in San Antonio, Hilbig said he had
little control over the number of prosecutions his office handled. Hilbig said
his administration, like Reed's, depends on law enforcement agencies to
investigate cases and bring them to prosecutors.

No one has accused Reed of being shy about pursuing the death penalty. But when
it comes to defendants accused of murdering children ? a capital offense ? no
one convicted during Reed's or Hilbig's administrations has been sent to death
row.

Since 1993, 10 defendants from Dallas and Houston have been sentenced to death
after being convicted of murdering a child. Even jurisdictions with smaller
populations, such as Nueces County, have successfully argued that defendants
deserved the death penalty.

"These are probably the most difficult cases to prove," said Nueces County
District Attorney Carlos Valdez in Corpus Christi, where two defendants have
been sentenced to death. "It always happens in secret."

In Bexar County, Babbitt said prosecutors face an uphill battle to seek the
death penalty in a child-murder case. For one thing, they have to prove the
defendant intended to kill the victim. And jurors find it difficult to believe
that someone would intentionally hurt a child.

Rafael Rodriguez Jr. confessed to beating his 5-month-old daughter to death in
2001 by slamming her into the headboard of his bed. Rodriguez said he flew into
a rage because the girl wouldn't stop crying. Prosecutors sought a life sentence
against him and presented evidence that in the weeks before the killing he broke
the baby's leg and five of her ribs.

Rodriguez argued he didn't intend to kill the baby. Jurors convicted him of
manslaughter and sentenced him to 16 years in prison.

Another potential difficulty: proving the defendant is a continuing danger to
society.

"If you have somebody who's never been in trouble before, and they act out and
hurt a child, that may be a horrible crime, but maybe it doesn't merit the death
penalty," said Lyndee Bordini, a former assistant district attorney who headed
the family violence unit under Hilbig's administration.

Child advocates say they know prosecutors have a tough job. But too many abusers
are getting off easy in the court system, they say.

"I don't think anybody, prosecutors included, are completely satisfied with what
occurs in many of these cases," said Dr. Nancy Kellogg, medical director for the
Center for Miracles at Christus Santa Rosa Children's Hospital, which treats
abused children.

Patricia Castillo, executive director of the PEACE Initiative, fears that
without stiffer penalties, the courts are sending an inadvertent message to
child abusers ? that it's easy to stay out of prison.

"You can see why this stuff is rampant," she said. "There are no consequences,
really. People are getting away with a lot."

Records show that about one of every three first-degree felony cases are reduced
to a lesser charge. In about half the cases, prosecutors recommended deferred
adjudication.

One district judge who asked not to be identified said judges are limited to
either accepting or rejecting the terms of plea deals worked out between
prosecutors and defense attorneys.

In some cases, prosecutors said they're hamstrung by a lack of evidence and must
strike plea agreements that victims' families don't like.

After Krystal Gonzalez's 3-month-old daughter spent five days in the hospital
with bruises on her chest and stomach, a skull fracture and bleeding on her
brain, police charged her boyfriend, Roland Alvarado, with serious bodily injury
to a child, a first-degree felony.

Gonzalez's mother spotted the bruises after Alvarado had been taking care of the
girl. The grandmother told police she confronted Alvarado and he gave her three
different stories. In the first version, he said the baby's older sister had hit
her. Then he said the infant fell off a sofa, and later said the baby fell off a
bed.

Prosecutors offered Alvarado a plea deal with deferred adjudication. Gonzalez
adamantly opposed it.

At the last minute, a dispute erupted over whether Alvarado would agree to also
serve 180 days in county jail, and lawyers on both sides scuttled the deal.

Now, a hearing in the case has been set for November.

Gonzalez said she will be there.

"I want to make sure everything's done by the book so he pays for what he did,"
she said. "But it doesn't look like that's going to happen."

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kking@...
Database Editor Kelly Guckian contributed to this report.

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Online at:
http://www.mysanantonio.com/news/crime/stories/MYSA100707.01A.Childabuse.347b441\
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