A Trying Case of Human Emotions Vs. Legal Motions

Some celebrated legal defense strategies (the Bobbitt and Menendez cases, for example) have many people wondering recently what juries are thinking about when it comes to personal responsibility for criminal acts. People seem to be getting away with, in the most dire cases, murder.

Given defense attorneys’ success, why should we be surprised that prosecutors want to get in on the act too?

So here comes the Orange County district attorney, wanting to convict Jose Garcia of murder. No, Garcia didn’t kill anyone in the conventional sense; the accusation is that, while drunk on May 22, 1992, he raped Mary Ward, a 79-year-old woman, who died a month later of complications from lung cancer and kidney failure.

The district attorney is trying Garcia for murder, on the theory that the rape so traumatized and devastated Mary Ward psychologically that it hastened her death.

The prosecution effort would turn the cult of victimology on its head--the D.A. would move us away from the position that argues in the extreme that no one is responsible for anything to the position that a person is responsible for everything .

Garcia, not yet 21 years old and not much over 5 feet tall and weighing about 130 pounds, is an unlikely looking criminal. He is some 50 to 60 pounds smaller than was his victim. There is no swagger or tough-guy look to him at all. For the two days I attended his trial this week, he entered the courtroom with head bowed (even though the jury was still out in the hallway) and sat almost motionless at the defense table, permanently hunched at the shoulders. Possessor of only minimal English understanding, he wears headphones as a court interpreter translates what’s being said into Spanish.

His attorney, Deputy Public Defender Leonard Gumlia, isn’t contesting that Garcia raped Mary Ward. Gumlia asked his own witness, a doctor from Cedars-Sinai Medical Center, what he thought of the crime of rape.

The doctor, Gregory Sarna, described rape as “unconscionable” and added, “I have absolutely no sympathy whatsoever for a rapist.”

Gumlia then asked Sarna, a cancer specialist, if the rape contributed to Ward’s death. Sarna, who testified he has treated between 4,000 and 5,000 cancer patients, said emphatically that it did not. “I’m surprised the issue is even being raised,” he said.

Sarna’s testimony followed that of Ward’s personal physician, cardiologist N.R. Devaraj, who first met her in 1982. He testified that the attack “affected her significantly” and that it “might have curtailed, somehow, her will to fight and (her) determination to live.”

But under Gumlia’s questioning, Devaraj conceded that he was expressing a personal opinion and not a medical one.

The jury of six women and six men, which can generally be characterized as white and middle-aged, shows signs of being numbed by the medical information. They have heard medical terms like “creatinine” and “brachiocephalic” and “superior vena cava.”

During a short recess the other day, one juror said jokingly to another outside the courtroom: “Anyone else falling asleep?”

Judge Francisco P. Briseno must have picked up on that in court, because upon the jury’s return, he gently and humorously reminded them that all evidence is potentially important and that their duty is to pay attention to everything that is said.

Sarna struck me as a strong witness, noting that Ward’s cancer had gone undetected for at least a couple months before her death, that the small-cell carcinoma she had was already incurable and that, after being hospitalized in the weeks following the rape, she was subjected to tests that contributed to her kidney failure. That renal failure, along with her advanced cancer, led to her death and within the time span normally expected for that diagnosis, Sarna testified.

But even while listening to Sarna, I found myself thinking about the jury. How much stock will they put in complicated medical evidence? Will their personal intuition or experience tell them that an elderly woman’s frame of mind must have been damaged by a brutal assault? Will they tell themselves that they know that a person’s outlook can improve a cancer prognosis, although Sarna took pains to tell them just the opposite? And perhaps most importantly, will the jury be so repulsed by Garcia’s assault that they decide to convict him of murder, even if they’re not certain of the legalese?

The answer is probably a week or more away, based on Gumlia’s witness timetable. As we’ve seen in other controversial cases, juries are impossible to read. Deputy Dist. Atty. David La Bahn seemed to be pounding away on the fact that Ward’s life was shortened by at least some unspecified number of days or weeks, and that Garcia must be held accountable for that.

For his part, Gumlia wants the jury to get past their feelings about Garcia and accept that Mary Ward died because cancer and kidney failure worked at their own lethal pace.

“The only thing that ever worried me about this case is the emotion and anger that could be directed at Mr. Garcia,” Gumlia said after court this week. “That’s always been my major concern. If the jury can keep that in perspective, they will understand there was no shortening of life in this case.”

Dana Parsons’ column appears Wednesday, Friday and Sunday. Readers may reach Parsons by writing to him at The Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, Calif. 92626, or calling (714) 966-7821.