June 01, 2013

Carrington Coleman and Rothgerber Johnson & Lyons Win New Trial for Texas Man

Victoria Edel

On April 2, 2013, a team of volunteer attorneys from Carrington, Coleman, Sloman & Blumenthal LLP and Rothgerber, Johnson & Lyons LLP won a major victory for their client, Manuel Velez, when a Texas district court judge reversed his conviction and ordered a new trial.

On October 31, 2005, Mr. Velez was caring for his girlfriend’s young son while she slept when the child suddenly stopped breathing. Mr. Velez and the child’s mother, Acela Moreno, rushed him to the hospital, where the boy was pronounced dead. Mr. Velez and Ms. Moreno were subsequently charged with murder.

At Mr. Velez’s trial, the prosecution presented expert witnesses who claimed that the boy died as the result of head injuries that were inflicted at some point during the two weeks before he died. This fact was key to the State’s case, since Mr. Velez had been working out of state and only returned home two weeks before the child’s death.

Mr. Velez’s court-appointed attorneys presented no experts of their own to challenge this evidence, simply accepting the State’s theory about the timing of the child’s injuries. The attorneys also failed to present evidence that Ms. Moreno had a history of physical violence and neglect of her children and that she received a plea deal in exchange for testifying against Mr. Velez. Pursuant to the plea, Ms. Moreno was sentenced to 10 years in prison; Mr. Velez was convicted of capital murder and sentenced to death.

In 2008, shortly after the conclusion of Mr. Velez’s trial, attorneys from Carrington and Rothgerber agreed to provide pro bono representation to Mr. Velez. They immediately began their own investigation into what occurred on Halloween of 2005 and in the weeks leading up to the child’s death. The team examined medical and social service records, interviewed the physicians and scientists who had already reviewed the case, and consulted their own experts. This new evidence demonstrated that the child’s injuries had occurred more than two weeks before his death. The State’s own neuropathologist examined the records and concluded that the hematoma that caused the child’s death was the result of an injury that had occurred 18 to36 days earlier when Mr. Velez was not in Texas.

The lengthy investigation conducted by the Carrington and Rothgerber team culminated in a 360-page petition for post-conviction relief filed in January 2012 and a five-day hearing in December. During the hearing, lawyers from Carrington and Rothgerber presented testimony and evidence that demonstrated the ineffectiveness of Mr. Velez’s trial counsel. They argued that the outcome of the trial might have been different if the jury had heard the available evidence that challenged the State’s theory about the timing of the child’s injuries. Trial counsel testified at the hearing, admitting that he felt his subpar performance had led to an innocent man’s death sentence.

In June 2012, the Texas Court of Criminal Appeals ruled on Mr. Velez’s direct appeal, which was pending at the same time as his post-conviction case. That court affirmed Mr. Velez’s murder conviction but overturned his death sentence, finding that it was based on the State’s use of false evidence. Though their client was no longer sentenced to death, Carrington and Rothgerber continued with their pursuit of full post-conviction relief for Mr. Velez based on his claim of innocence.

Less than one year later, in April 2013, the district court ruled on the post-conviction petition filed by Carrington and Rothgerber, granting relief based on a finding of ineffective assistance of counsel and ordering a new trial. Judge Elia Corenjo Lopez held that “Mr. Velez has now shown that, at the time of his 2008 trial, compelling medical evidence was available to refute the theory on which he was convicted . . . . [T]rial counsel . . . inexplicably failed to develop and present to the jury this exculpating evidence.” Judge Lopez rejected the State’s argument that South Texas has a lower standard for capital representation than other jurisdictions, saying, “A life in Cameron County [Texas] is worth just the same as a life in other parts of the United States.”

For their work on behalf of Mr. Velez and their commitment to pro bono death penalty representation, Carrington and Rothgerber will receive the Project’s 2013 Exceptional Service Award at the Project’s Volunteer Recognition & Awards event on September 26, 2013 in Washington, D.C.

Victoria Edel