Alejandro Benitez.JPG
February 7, 2015
DA to weigh death penalty in baby murder case
SAN JOSE -- At 17 months old, Baby K was still in diapers when police say his babysitter's boyfriend pinned him down hard enough to leave bruises and forced him into a sex act so brutal that it tore up his lips and throat before suffocating him.
It was every parent's nightmare. And now District Attorney Jeff Rosen is weighing whether to seek the death penalty against the boyfriend, 40-year-old Alejandro Benitez, who has pleaded not guilty to charges of murder in the commission of a serious and dangerous felony, which in this case is a lewd act on a child. Since taking office, Rosen has decided to seek the ultimate punishment in just one of more than half a dozen eligible cases.
Rosen and other senior prosecutors in the office who on are on his special death penalty advisory committee declined to comment on the Benitez case. He has said he supports the death penalty on "moral" grounds, telling the San Jose Police Officers' Association in July: "I think that allowing someone to continue to live after having committed certain heinous crimes pollutes the rest of society. They haven't acted like a human being and have forfeited the privilege of being alive."
But Rosen also has said that "because I'm living in the real world, not a perfect world, I am very cautious about seeking the death penalty." California has effectively had a moratorium on executions since 2006 as a result of legal challenges to lethal injection that have left about 745 defendants in limbo at San Quentin.
Rosen's decision is expected later this year, after he weighs the strength of the evidence against the Benitez, any history of other crimes, the wishes of the victim's family and even pragmatic factors such as staffing and costs, since capital-case appeals drag on for decades. He also is expected to invite defense attorneys to present their case against execution.
In this case, defense experts say key factors are likely to be conflicting accounts by the babysitter of what happened that day, and whether Benitez understood the alleged abuse could cause the child to die.
The toddler boy's death has so traumatized his mother -- she ran wailing from the witness stand during Benitez's preliminary hearing -- that prosecutors are referring to him only as "Baby K" to ease her suffering.
The toddler's ordeal began the morning of April 11, 2012, when his mother dropped him off at the East San Jose home of babysitter Juana Ayala. That afternoon, Ayala called police to report that the child had choked while drinking the bottle of milk his mother had left for him.
Paramedics arrived and found his body on a couch.
Ayala, who has not been charged with a crime, has told investigators several versions of what took place. She neglected to mention Benitez for several months -- and claims she had her eye on the baby the whole time, even when she went into the kitchen to prepare his bottle.
But police found semen consistent with Benitez' DNA profile on the boy's clothing, and prosecutor Dan Fehderau suggested during the preliminary hearing this fall that Ayala, who still visits Benitez in jail every weekend, is trying to protect him.
Judging from the preliminary hearing, Benitez' defense is poised to argue that his DNA was transferred to the clothing from the bedroom where he and the babysitter had sex. The defense is also expected to question the cause of death. Sources familiar with the case say Benitez also has no significant criminal history, another factor that can make a death conviction difficult.
Rosen has declined to seek the ultimate punishment in six eligible cases since he took office in 2011, though in two of them the penalty had been reversed on appeal. In May, he announced he was seeking the death penalty against Antolin Garcia-Torres, the 23-year-old charged with kidnapping and killing 15-year-old Sierra LaMar, who disappeared about three years ago while walking to a bus stop north of Morgan Hill.
Though her body never was found, making it challenging even to win a conviction, Garcia-Torres' alleged history of attacking other women contributed to Rosen's decision, he said in May. Garcia-Torres is also charged with attempting to kidnap and carjack three other women in separate instances four years earlier.
One of Benitez' lawyers, Brian Matthews, declined to comment other than to note that death penalty cases are extremely costly. Benitez is being represented by a county agency known as the Alternate Public Defender's Office, which automatically assigns two attorneys to any potential death penalty case.
"Given the likelihood the death penalty will never be imposed, one has to question if seeking it is the best use of our limited resources," Matthews said.
Rosen decided in 2011 against seeking the death penalty in another case involving a child, despite strong support in his office for it. Instead, Samuel Corona, 37, who punched and stomped Oscar Jimenez Jr. to death in front of the boy's mother in 2007, was sentenced to life without parole.
One of the problems in that case was that the mother had been sentenced to one year in county jail and probation for endangering her son. A judge had deemed her to be an extremely battered woman who had been subject to "unceasing and ferocious violence" at the hands of Corona. However, Corona's lawyers later unearthed photographs of Corona and the woman after Oscar died looking happy together. At the time he announced his decision, Rosen said he was concerned about whether a jury would return a death penalty, given the relative culpability of the mother and the low sentence she received.
In Benitez' case, some sources familiar with the case have said the lack of specific intent to kill Baby K could make it more challenging to convince a jury in a liberal jurisdiction like Santa Clara County to return the death penalty.
But under California law, prosecutors do not have to prove Benitez wanted to kill the child. Only 12 states require proof of intent to kill, said Steven F. Shatz, a death penalty expert at the University of San Francisco's law school. California, on the other hand, is one of only five states that make a negligent or even wholly accidental killing during a felony a death-eligible crime. The other four are Florida, Georgia, Idaho and Mississippi, Shatz said.
Given the depravity of the alleged crime, including physical evidence that the toddler may have been sodomized at some point, Benitez's state of mind may not matter to a jury, another expert said.
"This is a case at the margins in one sense because of lack of intent," said Douglas A. Berman, an Ohio State law professor who has a sentencing law and policy blog. "But then if you throw in this sense that child rape is our second-worst crime, then jeez, what else do you need?"
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