PRESCOTT - A judge on Thursday denied a defense motion to dismiss the death penalty in a fatal child abuse trial because, the defense attorney argued, it is unsafe to go to the defendant's hometown in Mexico to find evidence that would help his case.
Cesar Garcia-Soto, now 29, was arrested in February 2008 and charged with first- and second-degree murder and two counts of child abuse in connection with the death of his 3-month-old son.
Sedona firefighters were called to his apartment on Sugarloaf in the Village of Oak Creek the night of Jan. 23, 2008, and discovered the child, Edwin Alejandro Garcia, was unconscious and not breathing. Garcia-Soto was the only adult at the apartment.
Edwin was taken to St. Joseph's hospital in Phoenix, where he died three weeks later.
Doctors said he had "highly suspicious" injuries: a fractured skull and pelvis, according to YCSO investigators, and a broken arm and several broken ribs that appeared to be a result of older incidents.
Deputies also arrested the child's mother, Gladys Yamileth Rodriguez-Paz, who was not home at the time of the 911 call, saying she could have acted to stop the abuse.
The couple's other two young children were placed in the custody of Child Protective Services.
Rodriguez-Paz pleaded guilty to one count of child abuse in 2008 and was sentenced to a year in prison.
The motion addressed Thursday was filed in May 2009. In it, Garcia-Soto's attorney, John Napper, argues that, because this is a death-penalty case, he is obligated to undertake "an exhaustive investigation into the history and life of Mr. Garcia-Soto," but the fact that Garcia-Soto is a Mexican citizen means that would have to take place in Mexico.
"The United States State Department has issued a warning asking all American citizens not to travel to the portion of Mexico (Cuidad Juarez in Chihuahua) where Mr. Garcia-Soto was raised," Napper wrote.
He quoted American Bar Association guidelines stating that defense teams "must conduct in-person, face-to-face interviews" with key witnesses in capital cases.
Since the defense team cannot travel to Cuidad Juarez to accomplish those interviews, Napper said, he asked the court to preclude the state from seeking the death penalty or to delay the penalty phase of a trial if his client is found guilty.
In September, Deputy County Attorney Steve Young filed a response in which he said "counsel for the defendant is merely required to discover all reasonably available mitigating evidence," and that Napper did not cite any law that gives Yavapai County Superior Court Judge Celé Hancock the authority to dismiss the death penalty. Therefore, Young argued, the motion should be denied.
Thursday, in Hancock's court, Napper argued that they "have conducted as much of a mitigation investigation as we can within the confines of the U.S.," but that "the overwhelming majority needs to be done in the Republic of Mexico."
"Mr. Garcia-Soto's family is in the crosshairs of a cartel," he said, claiming that at least three members of the family have been kidnapped or killed.
"We are now on year four of this case, and by your logic, we may never get the mitigation from Juarez," Hancock said. "The problem we have here is that, in Arizona, the penalty phase (of a trial) shall begin immediately after the guilt phase.
"What you are asking is for the penalty phase to be indefinitely stayed. I don't see that as acceptable," she said.
Hancock did acknowledge that the theoretical discussion did assume Garcia-Soto would be found guilty, "but we haven't even gone to trial yet."
She said Napper's argument that his team could not collect all the mitigating evidence possible was a slippery slope: "Who is to say that if we don't have the money to travel somewhere" that wouldn't also be used in a similar argument, she asked.
"We must go forward with this case," she said, and denied both the motion to dismiss the death penalty and the motion to delay the penalty phase if Garcia-Soto is found guilty.
With that in mind, Napper said, he had informed his client that "I intend to call no witnesses during the penalty phase of this trial. None. The penalty phase will be non-existent because I refuse to participate in a farce."
Hancock adjourned court without commenting.