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Rodrigo Martinez

Other Orange County, California Exonerations
On Thursday, September 29, 2005, 22-year-old Rodrigo Martinez fell and twisted his ankle while carrying Diana Verdugo, the seven-month-old daughter of his girlfriend, in the garage apartment where the family lived in Garden Grove, California.

Elvia Gutierrez, the landlord, heard Martinez say “ouch” and saw him kneeling with Diana pressed very hard to his chest, although the baby was not crying and her coloring was normal.

Three days later, on Sunday, October 2, Martinez woke Elvia and her husband, Miguel Gutierrez, shortly before midnight and said that Diana was sick. She had vomited and was very pale and limp. Martinez’s girlfriend, Alma Hernandez, was at work tending bar.

When Elvia and Miguel told him to call paramedics, Martinez left, saying he was going to get his cell phone in his car. Instead, he drove to the bar, picked up Alma, and then both returned to take Diana to the hospital.

A few hours later, at 3 a.m., Diana died.

Miguel and Elvia Gutierrez came to the hospital as well. Martinez asked Miguel to lie and say that Elvia had been taking care of Diana, but Miguel refused. Miguel did agree to drive Martinez home to “get rid of something.” On the way back to the hospital, Miguel saw Martinez throw a gun out of the car. After dropping Martinez off at the hospital, Miguel retrieved the gun and gave it to police.

Dr. Anthony Juguilon, chief forensic pathologist at Juguilon Medical Corporation, a private company that performs autopsies for the Orange County Sheriff’s forensic unit, conducted an autopsy and concluded that Diana’s cause of death was severe blunt head trauma. She had a complex skull fracture that was less than a day old and most likely caused by one sharp blow, he said in his report. The injury likely would have resulted in immediate "neurologic dysfunction" such as lethargy or a decreased level of consciousness, and possibly loss of motor skills and difficulty breathing. Juguilon reported that Diana also had a rib fracture a few weeks old and other brain injuries ranging from under 24 hours to several weeks old.

After learning of Martinez’s attempt to discard the pistol, Juguilon concluded Diana's skull fracture could have been caused by being struck in the head with a gun.

When tests revealed the presence of DNA from Martinez, Alma, and Diana on the muzzle of the gun, police interviewed Martinez again. He denied hitting Diana with the gun. He said that he had fallen on Diana when his knee gave out while he was carrying her into the kitchen where Alma was preparing a bottle. Diana's head did not hit the ground, but he had squeezed her into his body to protect her, he said.

He told police that he and Alma took Diana to the hospital because she was vomiting. He also said that Diana’s arm had been placed in a cast three weeks earlier after she had hurt it when Alma had grabbed her arm to keep her from falling off of a bed where they were playing.

In a follow-up interview, Martinez changed his story. He insisted that he had fallen with Diana in his arms and squeezed her head, but now admitted that Alma had been at work at the time. He said that Diana had a three-inch bump on her head and although her color was not good, she had stopped crying. He said he told Alma what happened later that day, and they decided not to go to the hospital because they were afraid he would be accused of “doing something” to Diana. In yet a third interview, Martinez changed his account once more. He said he fell outside, not inside.

In October 2005, Martinez was charged with murder and assault on a child with force likely to produce great bodily injury. Alma was charged with child endangerment and being an accessory after the fact. In June 2007, Alma pled guilty to both charges and was sentenced to four years in prison.

That same year, Martinez, who had been represented by the Orange County public defender’s office, hired a private attorney for $5,000. That lawyer, Sherry Garrels, obtained the files from Michael Hill and James Appel, Martinez’s public defenders.

The files contained a report from Dr. John Andrews, who had performed a microscopic neuropathology report for the prosecution a few weeks after Dr. Juguilon completed the autopsy. Andrews concluded that Diana’s head injury occurred seven to 10 days before her death—which was at least four and as many as seven days prior to Martinez’s fall while carrying the baby.

Based on Andrews’s report, Hill and Appel had consulted with medical experts. One of them, Dr. Michael R. Weinraub, reviewed the medical records and said there was evidence of physical abuse over weeks and possibly months, and that Diana would have been exhibiting symptoms for weeks prior to her death. The defense lawyers believed this evidence indicated that Alma was likely responsible for the baby’s fatal injury because she was the primary caretaker. Martinez had been babysitting the baby for only two weeks prior to her death because he was not working then after accidentally shooting himself in the knee with a nail gun while working construction.

Hill and Appel also consulted Dr. Janice J. Ophoven, a nationally recognized pediatric forensic pathologist. Dr. Ophoven concluded there “was no question” that Diana’s injuries were old and were sustained many days or even weeks before her death. Dr. Ophoven said Diana would have been symptomatic when the head injury occurred. Moreover, Dr. Ophoven reported that Diana’s head injuries could not have been caused by being hit with a gun. Dr. Ophoven concluded that Dr. Juguilon’s finding was clearly wrong as to when the injuries occurred, and that his report was misleading because it hid the fact that Diana’s injuries were old.

Martinez’s new lawyer, Garrels, however, did not consult with either Weinraub or Ophoven.

In January 2008, Martinez went to trial in Orange County Superior Court. The prosecution called Dr. Juguilon, who testified that Diana died from severe blunt head trauma.

A DNA analyst testified that Diana’s DNA—as well as the DNA of Martinez and Alma—was found on the gun.

Garrels presented no medical evidence to the jury. Dr. Andrews was not called by the prosecution and Garrels did not subpoena him to testify although his conclusion as at odds with Juguilon’s testimony.

Garrels did call Alma as a witness—later saying that she believed Alma would testify that she was responsible for the baby’s head injury. Garrels had not, however, interviewed Alma in depth before the trial. Garrels said she did speak to her for a few minutes just before Alma took the witness stand, but that brief interview was without a Spanish language interpreter. When Alma testified, with the assistance of an interpreter, she denied any involvement in the child’s injuries.

On January 9, 2008, the jury convicted Martinez of murder and assault on a child with force likely to produce great bodily injury. He was sentenced to 25 years to life in prison.

Attorney Marleigh Kopas filed a joint appeal and petition for a writ of habeas corpus. In November 2010, the Fourth District California Court of Appeal remanded the case back to Superior Court for a hearing on whether Martinez’s trial was constitutionally unfair due to Garrels’s failure to present the medical evidence.

Attorney Correen Ferrentino represented Martinez at the hearing. She called Garrels, who testified that she didn’t pursue expert medical testimony because Martinez’s family didn’t have any more money to pay her. Garrels admitted she could have asked the court to approve funding for experts, but she failed to do so.

In December 2011, Orange County Superior Court Judge Dan McNerney vacated Martinez’s convictions and ruled that Garrels had failed to provide an adequate legal defense.

In July 2014, Martinez went to trial a second time. Ferrentino called Ophoven to testify that the baby’s injuries were weeks old at the time of her death. She also called Dr. Terri Haddix, a forensic pathologist who also testified that the baby’s injuries were suffered well before Martinez fell holding the child. Both experts relied upon Dr. Andrew’s report indicating the injuries were seven to ten days old. Ophoven and Haddix testified the fall may have caused a rebleed of previous injuries, but it was not the cause of the child’s death. Both testified that there was no medical evidence the child was struck by a gun. Andrews was not called as a witness at the retrial.

On August 4, 2014—after 12 days of testimony—the jury acquitted Martinez and he was released nearly nine years after his arrest.

Martinez subsequently filed a claim for compensation from the state of California that was denied in 2019.

– Maurice Possley

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Posting Date: 3/31/2018
Last Updated: 1/8/2019
Most Serious Crime:Murder
Additional Convictions:Assault
Reported Crime Date:2005
Sentence:25 to life
Age at the date of reported crime:22
Contributing Factors:False or Misleading Forensic Evidence, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No