June 24, 2013 elpasotimes.com

The execution date for an El Paso man convicted in the 2000 death of his then-girlfriend’s 19-month-old son has been rescheduled again.

The request was made by his attorneys who wanted more time to explore the possibility he may be innocent.

Rigoberto “Robert” Avila Jr., 40, has been on Texas’ death row since 2001 after his capital murder conviction in the Feb. 29, 2000, death of Nicolas Macias.

In 2001, a state district court jury sentenced Avila to death after convicting him in Nicolas’ death. Prosecutors had alleged Avila fatally beat Nicolas while Avila was baby-sitting Nicolas and his sibling.

At the time, Avila was dating the children’s mother, who was attending classes when Nicolas was injured. Nicolas’ mother, Marcelina Macias, has declined interview requests from the El Paso Times.

Avila was initially scheduled to be executed on Dec. 12 — which happened to be the Catholic Church’s feast day for Our Lady of Guadalupe — but was rescheduled for April 10. After defense attorneys asked for more time to explore scientific evidence in the case, Avila‘s execution was rescheduled again for July 10.

Cathryn Crawford and Kathryn Kase, attorneys with the Texas Defender Service who are representing Avila in his appeals, requested that Avila’s July 10 execution date be withdrawn to allow them to explore the possibility Avila may be innocent, based on a scientific study that Nicolas was injured by a sibling.

District Attorney Jaime

Esparza did not oppose the request, which was granted by 41st District Judge Anna Perez last week. Perez also scheduled a new execution date in January 2014.

Avila’s attorneys commended Esparza for not opposing their request for more time. Esparza declined to comment on the request, but said he allowed prosecutors to seek the death penalty against Avila based on Nicolas’ brutal death. At the time, jurors did not have the option of sentencing Avila to life in prison without parole.

According to testimony by two medical experts at Avila’s trial, Nicolas had severe internal injuries, including a severed pancreas, that were caused by the same amount of force seen in high-speed traffic crashes. They also testified Nicolas’ injuries could not have been caused by an accident.

One witness, pediatric surgeon Dr. George Raschbaum, testified the only way a 4-year-old child could have caused Nicolas’ injuries was if he had jumped on Nicolas from a height of 20 feet.

During an El Paso Times editorial board meeting last week, Crawford said testing by their defense expert indicates Nicolas’ injuries could have been caused by a 4-year-old child jumping from a height of 16 to 24 inches. The bed in the bedroom Nicolas and his sibling were playing in was 18 inches high.

“It is very clear that physically, this is a very possible scenario,” Crawford said. “We’re hoping to present the evidence to the court to determine if the jury had heard this, would they have possibly found him not guilty. That’s all we’re asking for.”

Crawford and Kase stopped short of saying Avila is innocent, but said they are exploring the possibility Nicolas was fatally injured by his 4-year-old sibling, who was mimicking wrestling moves both had seen on pay-per-view a few days earlier.

According to preliminary biomechanical testing conducted by a defense expert, Crawford and Kase said, it is possible Nicolas could have suffered his injuries after his sibling leaped from a bed onto the boy, who was lying on the floor.

However, the biomechanical testing was not available to Avila’s defense attorneys at the time of his 2001 trial, and according to Senate Bill 344, a state law that will take effect Sept. 1, a defendant is entitled to a court hearing based on “relevant scientific evidence” not available at the time of the defendant’s trial.

Crawford said she and Kase are also looking into the possibility that Avila unknowingly signed a confession where he admitted to hitting Nicolas.

Avila had initially told then-El Paso police homicide Detective Tony Tabullo that Nicolas and his sibling were playing in a bedroom while Avila was watching television in a different room when Nicolas’ sibling told Avila the boy was not breathing.

Crawford said in the first statement, Avila initialed each paragraph indicating he had read them. She said Avila’s first statement was consistent with what he told police and paramedics at the scene and what Nicolas’ sibling described during an initial interview with a police investigator.

During the early morning hours of March 1, 2000, while Avila was still at police headquarters, Tabullo learned of a bruise on Nicolas’ abdomen that paramedics interpreted as a shoe mark, Crawford said.

Crawford said Tabullo, who retired from the police department in 2003, had Avila sign a second statement that said Avila confessed to beating Nicolas. Avila signed the second statement because he trusted it was the same as the first.

Kase and Crawford also noted Avila had no previous criminal or violent history and was a Navy veteran.

Crawford and Kase said they expect to file more extensive documents once the new law becomes effective in September. Kase said Avila’s case will very likely be the first case heard under the new law.