When Judge William Mudd sentenced David Westerfield to death on January 3 of this year, Westerfield joined a special subset of San Diegans. Of the 616 inmates on California’s death row, 31, including Westerfield, were convicted and sentenced in America’s Finest City.
A Linda Vista man murdered the pretty young mother of two tiny boys, cut off her head and hands, and dumped her body near Pine Valley in 1979. A Chula Vista couple, the only husband and wife currently on death row, tortured their four-year-old niece in 1995, then burned her to death in a bathtub full of scalding water. A North County woman, angry about the men in her life, shot her four sons point-blank in the head in 1997, stopping once to reload. Who are these people in Mr. Westerfield’s new neighborhood?
It’s not easy to get to death row. According to California law, you have to commit first-degree murder to even be eligible for the death penalty. California Penal Code Section 190 defines first-degree murder as:
All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking…or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person, outside of the vehicle with the intent to inflict death.
California law also holds that to receive the death penalty, the defendant must be found guilty of at least one special circumstance. Penal Code Section 190.2 enumerates these circumstances. They include murder for financial gain, murder of a peace officer, murder by torture, murder during a kidnapping, and murder during a drive-by shooting.
Once a jury finds a defendant guilty of first-degree murder and finds the special circumstance allegation to be true, it has to decide which penalty to recommend to the judge: death or life in prison without the possibility of parole. During a separate penalty phase of the trial, the prosecution and defense present mitigating and aggravating circumstances with regard to the sentence. These circumstances include the nature of the present offense, the presence or absence of any prior felony conviction, whether the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance, and the age of the defendant at the time of the crime. The judge considers the jury’s recommendation, then pronounces the formal sentence.
After a defendant has been convicted and sentenced to death, a raft of appeals processes kicks in. First, every death-penalty sentence is automatically appealed to the California Supreme Court. This appeal, known as the direct appeal, can take five or more years to reach the court. After the California Supreme Court hears and decides the direct appeal, the defendant can make a direct appeal of that decision to the U.S. Supreme Court. In the meantime, defendants can file habeas appeals in both the state and federal courts. Habeas appeals challenge the constitutionality of the defendant’s conviction. Before an execution occurs, defendants have last-chance pleas to the U.S. Ninth Circuit Court of Appeals and the U.S. Supreme Court. If all these appeals fail, the defendant is executed by lethal injection at San Quentin.
BERNARD LEE HAMILTON
A lot of people think Bernard Lee Hamilton should die. Two San Diego juries, one in 1981 and another in 1996, sentenced Hamilton to death. Frank Sexton, the now-retired deputy district attorney who prosecuted Hamilton in 1979, thinks Hamilton should be dead. Pat Zahrapoulos, the assistant attorney general who opposed some of Hamilton’s many appeals, would like to see the case end before she retires. Only 20 of the over 600 inmates currently on death row have been there longer than Bernard Lee Hamilton. For death-penalty proponents, Hamilton represents a worst-case scenario: a cold-blooded murderer who has played the labyrinthine appeals process for almost 22 years.
On May 30, 1979, Eleanore Frances Buchanan left her Spring Valley apartment at around 6:30 to go to a math class at Mesa College. Mrs. Buchanan was 24 on that spring evening. Three weeks before, she had given birth to her second son. She and her 27-year-old husband Terry, a dental-supply salesman, had another son who was 14 months old at the time. Mrs. Buchanan took the family’s only car, a new light blue Dodge van that Terry Buchanan used for his work. The gas tank was almost empty. Terry Buchanan had discovered a leak in it and planned to take the van in for repairs the next day.
A little before 7:00, Mrs. Buchanan parked the van in a Mesa College lot. Her class ran from 7:00 to 10:00. During class, she collected class notes from some of her classmates who had taken them while she was absent for the birth of her son. At 9:30, the math instructor gave an optional quiz. Mrs. Buchanan left class early so she could get home to nurse her baby.
Later that evening, Terry Buchanan reported his wife missing. The next afternoon at around 1:00, a hunter who had been target shooting found a young woman’s decapitated and handless body beside Interstate 8 near the Pine Valley off-ramp. The body had stab wounds and blue fibers on the abdomen and was clad only in a bra, panties, and socks. The wrists had tie marks, and white cords tied the ankles. On June 2, the San Diego Union included a small mention of sheriff’s homicide detectives’ continuing efforts to identify the body.
The next day, June 3, the Union reported that the headless body was Eleanore Buchanan. Subsequent published sources revealed the body had been identified by “a number of distinctive features which included moles, toenail polish, scars, recent episiotomy, and the nursing bra.” In a picture accompanying the Union article, Eleanore smiled out at the camera. She had a round, pretty face, a squarish jaw. Her dark hair was parted in the middle, and her bangs curled out to the sides à la Farrah Fawcett. She wore a square-necked peasant blouse or dress with heavy embroidery around the neckline. The article said investigators had no leads on who might have killed Mrs. Buchanan but asked the public’s assistance in finding the missing vehicle.
Five days later, on June 8, Bernard Lee Hamilton was arrested in Marietta, Oklahoma. Sheriffs stopped him driving the Buchanans’ blue van. The van’s passenger wind wing was broken, and other parts of the car had been damaged. Heavy blood stains soaked the blue carpet in the van’s rear compartment. Subsequent testing showed the blood matched Eleanore Buchanan’s blood type and characteristics. The same blood was found on one of Hamilton’s shoes. Investigators theorized it could have been left by one of Eleanore Buchanan’s bloody stumps. Oklahoma sheriffs found Mrs. Buchanan’s class notes, math test, and other belongings alongside the road not far from where Hamilton had been stopped. Investigators learned that Hamilton had used credit cards in Terry and Eleanore Buchanan’s names to purchase gas, food, and other items in stores and gas stations in El Cajon, El Centro, and Tucson, Arizona, beginning early the morning after Eleanore Buchanan disappeared. Hamilton continued using the cards through Texas and into Oklahoma until he was arrested.
At the time of Eleanore Buchanan’s disappearance, Hamilton lived with his parents in a house at 2542 Comstock Street, less than a mile from Mesa College. Twenty-eight years old, Hamilton already had a long criminal history. He had received felony convictions for a 1971 forgery, two 1972 burglaries, a 1976 auto theft, and a 1976 Louisiana burglary. Pleadings filed prior to Hamilton’s trial also revealed that one of the 1972 burglaries occurred in the same Mesa College parking lot where Eleanore Buchanan parked her van.
The day after Hamilton’s arrest, San Diego sheriff’s deputies interviewed Hamilton in Oklahoma. Hamilton told the deputies that he had gone on a road trip with a white woman named Fran and her friend Spider. According to Hamilton, Fran had left her husband for Spider. Hamilton claimed to have driven the couple to Shreveport, Louisiana, where he dropped them off and then proceeded to Oklahoma. In fact, “Fran” was Eleanore Buchanan’s nickname, something Hamilton could have learned from a birth announcement Buchanan had in her purse at the time she disappeared. Deputies also discovered that soon after Hamilton’s arrest in Oklahoma, he had seen a wanted poster offering a reward for a David L. Wall, alias “Spider.”
According to a June 12, 1979, San Diego Union article, Hamilton waived his right to contest extradition to California and arrived in San Diego on June 11. In the photograph published alongside the article, Hamilton walked with his hands presumably shackled behind his back. He frowned at the ground. His hair rose around his head in an Afro, and he had a dark mustache.
Frank Sexton worked for the district attorney’s office, first as an investigator and then as a trial deputy, from 1962 until he retired in 1983. During the course of his career, Sexton tried around 18 murder cases. “I did rape-murders, mostly robbery-murders,” Sexton said during an interview in the fall of 2002. “I only had two death-penalty cases. This and then a retrial of another case.” Sitting at his dining room table in a comfortable retirement condominium complex in Clairemont, Sexton remembered the Hamilton case.
“I’d already had a previous case with him,” Sexton said. “There was this elderly lady in Linda Vista, Mrs. Story, walking down the street. She’d been injured earlier in an automobile accident. He came by and smashed her in the mouth so hard she still can’t eat a hamburger. He took off to Louisiana, and he got caught ripping a TV out of a motel. So they put him on a work farm where the guy sits on a horse with a bullhorn and says, ‘Pick the cotton.’ He wrote a letter to a cop back here and said, ‘I’ll confess to Mrs. Story. Get me out of here.’ The cop brought the letter over to me, and we had a great laugh. The Louisiana Supreme Court threw the case out, and he got out. He was out on bail on Mrs. Story’s case after he got back to San Diego. I objected to the bail. But his parents put up the bail, and that’s when he committed the murder.
“The dad was a Baptist minister,” Sexton continued. “Mother was a stay-at-home mom. They had a bunch of kids. Some of them were bad. But one is a fine guy. So Hamilton doesn’t have that excuse. He was raised in Linda Vista. He kidnapped Mrs. Buchanan out of a Mesa College parking lot. And he’s down there ripping gas out of cars. There’s not a full tank in the lot. It’s a bunch of kids trying to make it. She came out of her math class early to nurse the baby, and that’s when he did it. He did a real number on her. He even stabbed her in the stomach. The pathologist told me it wasn’t fatal, just to have a laugh. So this is a bad dude.”
Soon after Hamilton’s preliminary hearing, he wrote and mailed a letter from jail to Terry Buchanan. At a time when Terry was reeling from his wife’s unspeakable murder, Hamilton told him, “You are probably full of grief when you should be highly pissed-off.” He told Terry that Fran was not dead but had left with Spider and was smoking “Sherman sticks,” a reference to cigarettes laced with angel dust. Terry Buchanan passed the letter along to the police.
Hamilton’s letter to Terry Buchanan was not the first time he had tried to exonerate himself by correspondence. In the Story case, Mrs. Story identified Hamilton in a photographic lineup, saying she was “about 80 percent certain” he was the man who assaulted her. After the preliminary hearing, Hamilton wrote a letter to the district attorney saying, “Your victim definitely knows me personally and intimately. Back in 1967–68 and ’69, when I was just a young buck, she used to pay me for my sexual services.… She is an alcoholic and sex freak, which is no crime, but the fact is, she knows me.” The district attorney found Hamilton’s claims about Mrs. Story unbelievable.
Bernard Lee Hamilton had a hard time getting along with his attorneys. The published opinion in one of Hamilton’s subsequent appeals summarized his attorney troubles as follows:
At arraignment on July 12, 1979, Patrick O’Connor was appointed to represent defendant. On September 25, 1979, on defendant’s motion O’Connor was relieved on the ground of incompatibility, and Jerome Wallingford was appointed in his place. On November 7, 1979, dissatisfied with the representation that Wallingford was providing, defendant again made a motion to relieve counsel; Wallingford joined in the motion; the court, however, denied the request. On November 26, 1979, apparently on defendant’s motion Wallingford was relieved and Thomas Ryan and Vivian Camberg were appointed in his place. On May 1, 1980, defendant filed a motion requesting that the court relieve Ryan and Camberg and permit him to represent himself. At a hearing on May 9, 1980, defendant withdrew his motion and made a new motion requesting that the court appoint him as co-counsel; the court granted this request. On May 20, 1980, defendant, complaining of their performance, again moved to have Ryan and Camberg relieved and to be permitted to represent himself. Finding inter alia that defendant did not have “a legitimate objection, but [was] only grasping at anything he can think of to delay the proceedings,” the court denied the motion.
Even after the trial began on October 2, 1980, Hamilton’s unhappiness with his attorneys continued. He filed motions on October 14, November 3, November 17, and December 8 seeking to fire his attorneys so he could represent himself. On December 9, 10, 12, and 15, he made various additional complaints about his attorneys’ performance. After the jury returned its guilty verdict on January 6, 1981, Hamilton again requested the court relieve counsel and allow him to represent himself. The court rejected all his motions and complaints.
Some of Hamilton’s unhappiness may have stemmed from the fact that, at his attorneys’ request, he was shackled during the trial. In another appeal, Hamilton claimed the shackling denied him due process because it deprived him of the presumption of innocence. Once again, an appellate court summarized the situation:
Hamilton was originally placed in restraints prior to trial at the request of his counsel. The request was based upon Hamilton’s sexual assault on counsel’s assistant and a physical assault on counsel himself. At Hamilton’s request, the shackles were removed, and the trial began with Hamilton in a restrictive leg brace under his trousers. At that point, Hamilton was on notice that future shackling depended upon Hamilton’s conduct both in and out of court.
The leg iron was subsequently removed after Hamilton complained of pain. The trial court…concluded that Hamilton should have a chance to start trial without restraints.
The episode that gave rise to further restraint was a verbal assault and violent behavior exhibited toward deputies who were to bring Hamilton from his cell to the courtroom on the third day after jury selection commenced. After a hearing that morning, the trial court found a pattern of increased agitation on the part of Hamilton and was concerned that he was “on the edge of losing control of himself at any time.”…
Hamilton was then placed in handcuffs attached to a chain around his waist. He had a chain placed around his legs. Although Hamilton was seated during trial, the jury was aware of the shackles because he took the stand to testify.
Frank Sexton remembered Hamilton’s conduct during trial. “The deputy who was bringing him in to the trial was a friend of my son’s,” Sexton said. “Hamilton was spitting on the deputy. A while later, the deputy and my son were out having a beer, and my son said, ‘Why didn’t you blend him into the carpet?’ And you know what the deputy said? He said, ‘I didn’t want to screw up your dad’s case.’ ”
He didn’t. After a two-and-a-half-month trial, the jury found Bernard Lee Hamilton guilty of murdering Eleanore Buchanan. During the trial, Hamilton testified that he had found the Buchanans’ van parked on a street in Linda Vista with the keys in the ignition. He said he had never seen Eleanore Buchanan alive or dead. He said he had told officers the story about driving cross-country with Spider and Fran because he didn’t want to be prosecuted for stealing the van.
Frank Sexton cross-examined Hamilton for about a day. “It was good,” Sexton remembered. Rifling through large black binders in his Clairemont apartment, Sexton reviewed page after page of trial notes. Reading words from long ago, Sexton recalled a line of questioning about the letter Hamilton wrote to Terry Buchanan. “ ‘So, in other words, there was another lie in that letter?’ ‘Yes, there was another lie.’ ” Sexton skipped ahead. “Here’s another one. ‘So you didn’t have any time to go to Shreveport, Louisiana, and drop off Spider and Fran?’ ‘No, I didn’t.’ ‘That was another lie, wasn’t it?’ ‘Yes, it was.’ ”
After the penalty phase, the jury returned a verdict of death on February 2, 1981. On March 2, 1981, Judge Franklin B. Orfield affirmed the jury’s recommendation and sentenced Bernard Lee Hamilton to death by lethal injection.
To say Bernard Lee Hamilton has pursued the appellate process vigorously would be a tremendous understatement. On his first round of appeals, the California Supreme Court in 1985 affirmed his conviction as to guilt but reversed his death sentence. Frank Sexton laughed ruefully when he remembered that reversal. “Rose Bird said that I hadn’t proven intent to kill,” Sexton said. “He only cut her head off. I suppose she could have throbbed around for a while.” Indeed, the California Supreme Court under then Chief Justice Rose Bird set aside the special circumstance finding necessary for a death sentence because the lower court failed to instruct the jury that it must find intent to kill in the felony-murder special circumstance.
In 1986, the U.S. Supreme Court vacated the California Supreme Court’s decision reversing the death sentence and sent the case back to the California Supreme Court to reconsider in light of new U.S. Supreme Court case law. Two years later, the California Supreme Court upheld the special circumstance finding and the death sentence.
After the California Supreme Court’s 1988 decision reinstating Hamilton’s death sentence, Hamilton filed four petitions for writs of habeas corpus in San Diego federal district court. In those petitions, Hamilton alleged various violations of his civil rights. After much convoluted litigation involving determining whether Hamilton had waived or exhausted all his habeas claims, the district court denied the petitions. Hamilton thereafter appealed the district court’s decision to the Ninth Circuit Court of Appeals. In 1994, the Ninth Circuit upheld the lower court’s decision denying Hamilton’s habeas petitions. The Ninth Circuit did, however, reverse the death penalty on the grounds of an improper jury instruction. They ordered the case remanded (sent back to the lower court) to retry the penalty phase.
Frank Sexton, who had since retired, testified at the retrial. “Tom McArdle [who assisted Sexton in the original trial] was the lead attorney on the retrial,” Sexton said. Before the retrial, Sexton reviewed the list of witnesses McArdle planned to call. “So McArdle has these two kids [the now-grown children of Terry and Eleanore Buchanan] down on the witness list. I said, ‘Tom, you’re not going to put these kids through this.’ He said, ‘You don’t understand. They called me, and they volunteered to do it.’ ”
Bernard Lee Hamilton was sentenced to death again on February 2, 1996. When Hamilton was led from the courtroom following the judge’s formal sentencing, he very obviously extended the middle finger of his left hand in the judge’s direction. When asked about his conduct in a telephone interview the next day, he said he had to flip off the judge to show his displeasure with the sentence. Hamilton’s case has been assigned to Jana Clark of the State Public Defenders Office. According to Clark, who will represent Hamilton in his direct appeal to the California Supreme Court, the court record was certified in August 2002. The opening brief (the first step in the direct appeal) is scheduled to be filed this fall. In the meantime, Hamilton has filed several additional habeas petitions in both state and federal courts.
What happened to Terry Buchanan? Frank Sexton said, “He used to work for this dental company. He was a salesman. They thought very highly of him. But he couldn’t work San Diego anymore, because anytime he’d make a stop, they’d tell him how sorry they were for him. He couldn’t handle it. He moved to Las Cruces to be near his mom and dad because he had to take care of the kids. He used to call me every now and then. When he came back to town, I took him to a Charger game. And then one thing led to another; he started drinking. He died of a heart attack at a young age. If he walked in the door right now, you’d like him.”
IVAN AND VERONICA GONZALES
Nothing prepares you for the photos. Sitting outside a Starbucks on a clear December morning, Deputy District Attorney Dan Goldstein pulled an ordinary white envelope from the pocket of his blue jeans. Dressed for a day off, Goldstein squinted into the sun. “Are you ready?” he asked a reporter. “Our photographer shot over 2000 photos at the crime scene and the autopsy. These will give you an idea of what we saw.”
Goldstein pulled the first photo from the top of a stack of 20 or 30. “This is what Genny looked like when the paramedics arrived.” “Genny” is Genny Rojas, the deceased four-year-old niece of Ivan and Veronica Gonzales, both currently on California’s death row. When you think of a four-year-old named Genny, you might think of a chubby, angel-faced little girl with dark hair and dark eyes and a mischievous smile. That’s how Genny looked in one of the few photos taken of her before her death.
The photo in Dan Goldstein’s hands showed something else. Laid out on a neighbor’s dirty brown carpet, Genny looked asleep. She was naked from the waist down. One of Ivan’s black T-shirts covered her torso and most of her arms. Everything not covered by the T-shirt, Genny’s crotch and legs, almost glowed bright red and was mottled like a lobster that’s been cooked too long. Goldstein turned to the next photo. “This shows the back of the legs.” Behind Genny’s knees, two matching diamonds of unburned pink flesh contrasted with the scalded red skin. “That’s called ‘sparing.’ It’s where she bent her legs to keep them out of the hot water.”
The next photo showed Genny’s upper body with the T-shirt removed. A clear line, pink to red, demarcated the level on her torso where the water reached. “There are no burns on her upper body,” Goldstein pointed out. “That’s unusual in a case like this. In a scalding, you would expect her to put her arms down and try to stand up. But she didn’t splash. That’s how we know she must have been restrained. Someone was holding her in the water.”
The next few photos show close-ups of Genny’s head and face. She looks like something you might see on the evening news, a bombing victim or someone injured in wartime. Her face is covered with wounds — bruises, welts, open sores. Parallel burn lines on both sides of her face were caused by someone holding the end of a hot blow dryer against her chubby cheeks. Bleeding sores cover both ears and the bridge of Genny’s nose. “She was restrained with a hood of some sort,” Dan Goldstein explained. “We think it was a pair of pants that they put over her head. It rubbed and rubbed against her skin until it almost went through to the cartilage. You can see how this sore on her ear is at the same level as this sore on her nose.”
Where Genny’s hair should be, the photos show more open wounds. A tiny fringe of black hair clings to Genny’s neckline and her forehead where she once had bangs. The rest of her scalp oozes in bloody patches like some kind of hellish swamp.
Goldstein switched from pictures of Genny to pictures of Ivan and Veronica Gonzales’s Chula Vista apartment. A filthy gray blanket lies crumpled in the corner of a room. “That’s where she slept,” Goldstein explained. “If you look, you can see it’s covered with feces.” An empty rubbing alcohol bottle lies beside the blanket. “They poured rubbing alcohol on the burns on her head.” Goldstein moved through pictures of a closet. On the dowel where you would expect to see clothes hung, two metal hooks hang over a wooden box about the size of a laundry basket. “When we found Genny, she had ligature marks on her neck and handcuff marks on her arms. They hung her from these hooks with her hands cuffed behind her back. There is blood and feces on the box and little bloody footprints on the box and one here on the wall,” Goldstein pointed to a dull, reddish mark on the white closet wall. “She tried to balance herself on the wall and the side of the box. There was a peephole in the closet door. When you look through it, you can see the hooks where they hung her.
“This is the last photo,” Goldstein turned to a picture of what appeared to be a crumpled pair of flesh-colored knee-high stockings lying in the bottom of a filthy bathtub. “Our investigator found these in the drain. We didn’t know what they were at first. It turned out they were the skin from Genny’s feet and lower legs. The toenails are still attached.”
On July 21, 1995, at approximately 11:30 p.m., Chula Vista Police officers responded to a call at 1430 Hilltop Drive, apartment number one. There they found Genny Rojas, dead, lying on her back in the middle of the living room carpet. Since late January of that same year, Genny had been living with her aunt and uncle, Veronica and Ivan Gonzales, in apartment number seven of the complex. Ivan and Veronica had six children of their own — Ivan Jr., eight; Michael, seven; Vanessa, six; Anthony, three; Valerie, two; and Alex, one-month — who also lived with them.
When police detectives interviewed Ivan the next day, he told them he had no job. He said the reason Genny had come to live with them was because she had abusive parents. Her dad had gotten arrested and was in jail. The mom, Mary Rojas, Veronica Gonzales’s sister, was in rehab. Ivan’s mother-in-law had custody of Genny and her siblings but hadn’t been able to handle them all. When asked about their living arrangements, Ivan told detectives that they had no beds. Everyone in the two-bedroom apartment slept on the floor on blankets. The kids had the front bedroom, and he and his wife slept in the living room because the master bedroom was full of junk. Ivan said Genny had gotten some of her injuries when the kids ganged up on her. He also said he and Veronica had to discipline Genny because she wasn’t potty-trained.
At Veronica’s interview, she said she was on welfare and that Ivan hadn’t worked for three or four years. When asked why Genny’s mother was in rehab, she answered, “ ’Cause she’s a little bitch.”
The same day police interviewed Ivan and Veronica, forensic pathologist Dr. Eisele of the San Diego County medical examiner’s office performed an autopsy on Genny. Dr. Eisele concluded that the cause of death was thermal burns to approximately 50 percent of Genny’s body-surface area. He stated that he believed the burns were “non-accidental” and inflicted by another person. Court documents detail the extent of Genny’s injuries as set out in Dr. Eisele’s autopsy report:
In addition to the fatal thermal burns over 50% of her body, Dr. Eisele described, in detail, five injuries on Genny’s back and shoulders, twenty one injuries on her arms, hands, and feet, and thirteen injuries on her head and face. These injuries range from old, healed scars or injuries, to healing injuries, to ulcerations of the skin, to bruises, lacerations, and contusions, to areas of eroded skin, to superficial burns in parallel lines in various places on her body.… The evidence presented indicated the second and third degree burns on Genny’s head were anywhere from days to weeks old. The blunt force injury inside her mouth was several days old, possibly as much as a week or two. The subdural hematoma was caused within a few days of death. The ligature marks on her neck were healing injuries, days to weeks old as were the ligature marks on her wrists and arms.
On July 25, 1995, the district attorney filed a criminal complaint charging Ivan and Veronica with murder. They were both arraigned on that same day and both entered pleas of not guilty. Three months later, on November 7, the prosecution filed an amended complaint adding a special circumstance allegation of torture/murder. A preliminary examination was held in Municipal Court on November 7 and 8 to determine if sufficient evidence existed to try Veronica and Ivan on the murder and special circumstances charges. The court found the evidence sufficient. Ivan and Veronica’s oldest son, Ivan Jr., testified at this pretrial hearing. Later, during pretrial maneuvering, Veronica’s attorneys filed a pretrial motion to dismiss the special circumstances charge on the basis that the thermal burns didn’t qualify as torture.
In a tentative decision to reject Veronica’s requested dismissal, the court summarized Ivan Jr.’s testimony.
Defendant’s son Ivan Jr. testified that both his mom (defendant) and dad (co-defendant) subjected Genny to systematic physical abuse for an extended period of time.… Specifically as to the night Genny died Ivan testified he and his siblings had been locked in their bedroom, but could see through a hole in the door into defendant’s bedroom and bathroom. He said he could see Genny in the tub. Although he could not actually see his mom and dad, they were in the bathroom with Genny. He could hear his mother scream. His mom and dad were the ones who drew hot water for the tub. Genny screamed and cried and then Ivan heard nothing. Ivan’s brother Anthony cried to be let out of their locked room and their father came to the door and told them to stay in their room. Later, the door was unlocked and Ivan was let out and told Genny had died. His mom was crying and his dad was sad.
How do people with six children of their own turn into torturers? Dan Goldstein, who tried the Gonzales case, contemplated that question. “Ivan and Veronica didn’t start out as torturers,” Goldstein said. “There’s no way. They weren’t torturers. They became it through a calamity of events. There’s a kind of an inverse relationship between the initial event and the last event that occurred during a two- or three-month period. That initial event was Genny had lice, as all the Gonzales kids did. So Ivan and Veronica did something inappropriate. They’re methed out. They’re hunkered down. They have exactly the same behavior as in every methamphetamine case I’ve ever seen. And that is chaotic thought processes. In order to get the lice off Genny’s head, they put her head under a faucet. They used hot water and ended up burning her scalp. Was that intentional? I don’t know. Then she’s got this bloody mass on her head. It’s disgusting. She’s picking at it. She’s rubbing her head against the wall. The irony, of course, is that their house is a pigpen to begin with, so why would they care that she was rubbing her head against the wall. But they did because they were taking meth.
“So the more she was abused, the less human she was. The more they abused, the more powerful they felt. The less human she was, the more tragic and violent their behavior could be. You can just see it shooting up. The escalation of restraint starts out with captivating her behind the door, tying her hands together with clothing. It escalates to putting her in a box and tying her arms and legs together. It goes farther. It goes to her being hung and handcuffed. And again, Genny’s becoming less human and they’re becoming more aggressive and powerful and more and more intoxicated by methamphetamine. It’s the one time they became powerful in their meager, ugly little lives. They didn’t care about their children who had to witness this crap.”
Goldstein continued with his theories on how Genny’s injuries occurred. “Ivan and Veronica began to get into burning. Whether it’s a hot tub, a blow dryer. Mike [Popkins, Veronica’s defense attorney] disagrees with me on this. Veronica’s defense was she put the blow dryer on cool and didn’t know it was hot. It made marks on Genny’s cheeks. Genny had prior marks on her arms. There were unique triangular burns to her body. While I could never get an expert to commit to it, I think it was the hair clip on the curling iron. There was some type of DNA on the curling iron. Theoretically, it could have been from Veronica’s hair. It could have been skin, too, that had degraded. If you look at the totality of the burns on her body, those burns had to be the curling iron.”
When Goldstein prepared for trial, he learned Genny’s injuries inside and out. “I remember before I did the trial, I put the photos of Genny in her mutilated form all around my office. I just sat there quietly for a little bit of time and embraced it. When you start to come to grips with it, you think, ‘Holy shit. They worked her.’ I felt a tremendous amount of emotion for Genny. That’s what I needed to get me through it.
“The critical thing I saw in all those injuries was her torn frenulum,” Goldstein said. “That’s the frenulum, that little piece of skin there.” Goldstein pulled his lower lip down and pointed to the membrane where the lip and gum attach. “Her lip had been torn away from her gum, and she had a very large gash in her lip, obviously from getting hit. When I looked at that I said there is no possible way that what happened to her was an accident. The corruption and the violence and the lack of empathy that that person had who could make their hand into a weapon and hit Genny in the face. That’s the only way it could happen. It wasn’t from falling on a broomstick as Veronica tried to depict. That just told me that these people were so malevolent. That’s why capital punishment was appropriate.”
Ivan and Veronica Gonzales were tried separately. Ivan was tried first. Robert P. Isaacson represented him. Jury selection commenced March 31, 1997, and concluded April 10. The trial itself began Monday, April 14. “Ivan was a real difficult individual,” Goldstein remembered. “He appeared so meek. Both juries had that impression of him.” The first jury convicted Ivan of first-degree murder with the special circumstance but hung in the penalty phase. “With the first jury going 9-3, my belief was if the next jury hung up on Ivan, even 11-1, we’d give them both life without possibility of parole and not even try for death,” Goldstein said. The second jury heard the penalty phase only and recommended Ivan be sentenced to death. The judge agreed, and Ivan received his death sentence January 13, 1998.
Veronica’s trial started March 11, 1998. Dan Goldstein compared the two trials. “Both Ivan and Veronica claimed they were battered spouses,” Goldstein said. “The people’s case in chief is usually what happened, the murder. Then the defense puts on their case. In this case, the defense in both cases put up a series of defenses, one of which was the battered spouse syndrome. Not that ‘the other spouse made me do it,’ but ‘the other spouse was such a villain that I couldn’t come to Genny’s aid.’ Truth be told, it doesn’t surprise me that both Ivan and Veronica hit each other. They’re violent people. The juries didn’t buy that either one was battered. There’s a difference between being hit and suffering psychological dilemmas from being hit. That was a fairly important issue.”
Mike Popkins, who, along with Susan Clemens, defended Veronica, agreed that the battered women’s syndrome played a key role in the trial. “We strongly felt that our client was a victim herself,” Popkins said in his office overlooking C Street downtown. “She had been abused over the years by her husband. And he basically controlled the whole situation. Based on what we found out from the battered women’s syndrome, Veronica was somewhat helpless to do anything.
“What was ironic is the other side raised that defense for the husband,” Popkins said. “I thought it was ludicrous. To think this buff guy is going to be controlled by this woman was just ridiculous. Physically, heightwise, they were probably about the same size. Bottom line, he was a man and she was a woman. I know he was stronger than her. Plus, factor in that there was heavy methamphetamine use in that house. We had experts who talked about how that affects your judgment. Even to the point where you don’t perceive things that are dangerous. Conceivably, you could see the child being abused by the husband and not really appreciate what’s going on because the meth has so messed up your brain. We also argued that Veronica was not in the bathroom at the time Ivan put Genny in the hot water. She was in the kitchen at the time. All that went for naught because the juries didn’t believe that.”
Dan Goldstein commented on Veronica’s defense. “Mike Popkins is by far the best defense attorney in town. No question. To this day, I think if Veronica had been a little more honest, she could have helped herself out. Instead, she got up and hid behind the battered-woman-syndrome defense. I talked to a couple of the jurors after the case. Several of them said that when Veronica was testifying, their impression was she was lying. And in their minds they kept thinking, ‘Don’t lie to me. If you lie to me, I’m going to have to vote death.’ ”
Where was Genny’s mother, Mary Rojas, in all this? “Testifying for the defendant.” Dan Goldstein nearly spat when he said Mary Rojas’s name. “Mary Rojas and Pete Rojas were Genny’s parents. Pete Rojas went to prison for molesting Genny’s sister. Mary Rojas was a meth freak too. Genny went to her grandmother, Tilly, who was a very abusive person in her own right. She had abused Veronica. She had abused Mary. So Genny ends up down here with Ivan and Veronica, another set of meth abusers. We knew from discovery that Mary had hooked up again with Pete when he was out of prison. They had another baby after Genny died. They named it Genny. You don’t name your new dog after your dead dog. It just showed the utter lack of feeling and empathy these people had toward the rest of the world, toward their own children.” During the penalty phase of Veronica’s trial, Mary Rojas testified that Veronica’s death would cause more heartache for her family.
On July 20, 1998, the judge followed the jury’s recommendation and sentenced Veronica Gonzales to death. “Veronica’s jury did something that no other jury has ever done. Although they announced that they had a verdict on Friday, we didn’t take it until Monday because they wanted the detective and the paramedic to be there for the verdict. It was just a wonderful statement that the jury made. They said not only do we care about Genny, we care about the people who investigated it and the paramedic who responded. Out of evil and tragedy, good things can come.”
At the time of this writing, Ivan and Veronica Gonzales have not yet been appointed appellate lawyers for their direct appeals to the California Supreme Court.
Sunday, October 26, 1997, was a bad day for Susan Eubanks. The 33-year-old unemployed nursing assistant had spent the day drinking at a bar in Escondido with her boyfriend Rene Dobson, a construction worker. The couple watched football on the bar’s television and had an argument. Dobson told Susan Eubanks he wanted to end the relationship. In midafternoon, Dobson drove Eubanks home to the ramshackle house at 226 South Twin Oaks Valley Road in San Marcos that Eubanks shared with her four sons — Brandon, 14; Austin, 7; Brigham, 6; and Matthew, 4. When the couple arrived at the house, Eubanks took Dobson’s car keys and refused to let him leave. Dobson tried to remove some clothes and construction tools from the house. Eubanks smashed Dobson’s car, and the two nearly got into a fistfight. After walking to a nearby gas station, Dobson called San Diego sheriff’s deputies. When the deputies arrived at Eubanks’s house, they found she had slashed the tires on Dobson’s car. Dobson removed items from the home and from his car and left. Deputies left soon after.
During the time Dobson was at the house that October afternoon, Eubanks’s estranged husband, Eric Eubanks, stopped by as well. Eric Eubanks, a cabinetmaker, was the father of Susan Eubanks’s three youngest boys. He and Susan had been married for nine years. In June 1997, Eric Eubanks had been convicted of beating Susan. He was sentenced to attend Alcoholics Anonymous meetings. Susan Eubanks had obtained a restraining order against Eric and filed for divorce. While Eric was at the house, Dobson told him, “She’s a little whacked, and I want you to know that she’s talked about killing herself and the boys.”
After the deputies left, Susan Eubanks asked her oldest son Brandon to lie for her if he were questioned about the afternoon’s activities. Brandon called his dad John Armstrong, Eubanks’s first husband, who lived in Texas. “I’m not going to lie for her anymore,” Brandon told his dad. “She gets herself into these things, and I am not lying for her anymore to get her out of it.” John Armstrong offered to send Brandon an airplane ticket so he could come to Texas. Brandon refused. He said he had to stay in California to take care of his younger brothers.
Susan Eubanks wrote five suicide notes. One, which she addressed to Eric Eubanks, said, “I’ve lost everything I’ve ever loved. Now it’s time for you to do the same.” She left a message on Eric’s answering machine. “Say good-bye.” When Eric heard the message around 7:00, he called the sheriff’s department. Court documents and newspaper accounts detail what deputies found when they returned to Susan Eubanks’s house. Brandon was found lying facedown on the living room floor with his half-eaten cereal spilled around him. He had one gunshot wound in the left temple and another in the back of the neck. Susan Eubanks shot the other three boys in their beds, where they were playing Nintendo with a five-year-old cousin. Austin was found sitting upright on his top bunk. He suffered a penetrating gunshot wound to the head between the bridge of the nose and his left eye. Brigham and Matthew were on the bottom bunk. Brigham suffered two gunshot wounds to the head — one to the right side of the head, by the ear, and the other on the left side of the back of his head. Matthew suffered a penetrating gunshot wound to the top of the head. He didn’t die immediately but was pronounced brain-dead soon after he was admitted to the hospital. He died 23 hours after he and his brothers were discovered. The five-year-old nephew was unharmed.
Deputies found Susan Eubanks in the master bedroom, lying on her back on her bed. A small, black .38-caliber pistol was on the bed to her right, and many expended and unexpended rounds of ammunition surrounded her. Deputies also found the five hand-written notes saying what she’d done and why. Susan Eubanks clutched a bloody towel to her abdomen. When one of the deputies removed the towel, he found a self-inflicted gunshot wound to Eubanks’s stomach.
At the hospital, Eubanks denied the murders and the self-inflicted gunshot wound. She said all of it had been done by a man. She said she would never have shot herself in the abdomen since she had gone through extensive plastic surgery and liposuction in that area.
Bonnie Howard-Regan is the kind of woman you could tell your secrets to. During Howard-Regan’s almost 18 years as a deputy district attorney, lots of children have done just that. “I’ve spent most of my career specializing in child-molest and child-abuse cases,” Howard-Regan said on a clear day this past November. Sitting in her office on the fifth floor of the new North County Courthouse, Howard-Regan looked chic but approachable in a tailored burgundy pantsuit. “I like those types of cases because I like working with the children. I like to empower them, get them ready to testify. They’ve been in a very powerless situation. And, ultimately, we get to put away the bad guys.”
In 1997, Howard-Regan got assigned to prosecute the Susan Eubanks murder trial. “I was in trial on a molest case, a three-striker, when this happened,” Howard-Regan remembered. “It happened on a Sunday. I heard the news in the morning. I remember thinking, ‘Please don’t let me get that case. Please don’t let me get that case.’ Even though I believe in the death penalty, I always hoped I would never have one because I know it takes a good chunk of your life. I’m a mother. I was not looking forward to taking all that time away from my family. So I came to work Monday morning. I had a trial. My supervisor told me he’d gotten the word from downtown that I was getting this case. I’d never done a death-penalty case before.”
Because of the self-inflicted gunshot wound, Susan Eubanks had a hospital arraignment. “I was still in trial,” Howard-Regan said. “So my supervisor, Jack Bucci, handled the arraignment for me. Then Thursday of that week, I was still in trial. The police were going to go back into the Eubanks residence with another search warrant. That was going to be the only opportunity for me to go to the residence. It was the day before Halloween. I was able to have the judge in my trial break early that day. I went out to the house. And the experience I had at that house forever changed me. I was there for four hours. It was a very small house. The first thing I saw when I walked into the living room was Brandon’s brain matter on the carpeting. I had never at that point done any adult homicide cases. I had never done anything involving gunshot wounds. All the baby deaths that I had prosecuted were shaken-baby cases, where you look at the picture of the child and it looks like he’s sleeping. Suffocation cases are the same thing. Then I went into the bedroom and saw the mattresses. They had taken all the linen off, but I saw the blood on the mattresses. I couldn’t believe it. I said, ‘This is clearly going to be an insanity defense because who could do this? Who could do this?’ ”
Howard-Regan lived with the Eubanks case for two years before taking it to trial. She discussed the district attorney’s decision-making process regarding the death penalty. “Whether or not to seek the death penalty is something ultimately that the district attorney decides,” Howard-Regan said. “The person assigned the case has to prepare a memo setting forth the facts of the case and any mitigating circumstances. For example, let’s say somebody has an extensive history of mental illness or something like that.” The deputy district attorney preparing the memo also has to set forth any aggravating circumstances. “At the end of this memo, you write down your recommendation, death or life without possibility of parole. I was going on and on and on typing, and it came to that portion of the memo, and it was a very frightening moment. I thought, ‘Oh my gosh, we have so much power to be able to type out the words, “I recommend death.” ’ The whole case was unlike any other case I’d ever tried. But nonetheless, I had no doubts that that’s what I felt should happen.
“Then that memo goes to a committee called the Major Case Review Committee,” Howard-Regan continued. “They read the memo, and you go and meet with them. They ask you questions. Ultimately, they make their recommendation to the D.A. And they can all be unanimous in recommending that it should be death. But if the district attorney feels that it shouldn’t, he can overrule them because it’s ultimately up to him or her. In the Eubanks case, the decision was made that it should be death. Although, the defense attorneys do have an opportunity to go and talk to the district attorney and present reasons why it shouldn’t be death. That happened in this case. But it didn’t change anything.”
Jury selection commenced July 21, 1999. Opening statements were made August 5. William Rafael and Vincent Garcia of the Alternative Public Defenders Office represented Susan Eubanks. During the trial, Rafael argued that Eubanks could not form a conscious intent to murder as required for first-degree murder because her mind was so foggy with alcohol and drugs. At the time of the murders, Eubanks had a blood-alcohol level of 0.19 percent and had taken more than her daily dose of Valium. In his opening statement, Rafael said Eubanks was a good mother until she became addicted to painkillers after a work-related injury. He said emotional pain caused by her bad relationships with men led her to drink heavily. According to Rafael, Eubanks “blacked out” emotionally and mentally the day she killed her sons. “It was while she was in this state that Susan stopped being a good mother and became a robot, giving in to her suicidal and homicidal fantasy of ending her pain.”
Bonnie Howard-Regan disagreed. At trial, she argued that Susan Eubanks killed the boys to get back at the men in her life. “She was probably the most narcissistic, selfish person to walk this earth,” Howard-Regan said, remembering the trial. “She never seemed remorseful at all. During the sentencing, she was still blaming the system. She never accepted responsibility. She was about as cold as they come. When I first walked into that residence and I saw the pictures of the children all over the walls, I remember thinking, ‘Oh my God, this is the mother of the year. Look at how much she cares about her children.’ I remember looking through albums and seeing the way she would have a caption underneath all the pictures. But then I realized, they were beautiful children, and she saw them as a reflection of her. She would brag about these children and have pictures of her children in her locker at the hospital where she worked. But she was a very neglectful mom. What mattered to her most was to have a good time. Susan Eubanks was the center of her universe. These children were little trophies for her because they were good children. And Brandon was someone to be proud of. Still, you just don’t talk to children the way these children were talked to if you truly love them.” At the trial, witnesses testified that Susan Eubanks told her sons on more than one occasion, “I brought you into this world. I can take you out of it.”
The jury agreed with the prosecution. On August 18, 1999, the jury took only two hours to return a guilty verdict. Two months later, after the penalty phase, Judge Joan P. Weber upheld the jury’s recommendation and sentenced Susan Eubanks to death. In her statement of reasons for upholding the jury’s recommendation, Judge Weber stated, “It is impossible to imagine the terror these young boys must have felt as their own mother stuck the muzzle of her .38 to each of their heads and repeatedly pulled the trigger. In a civilized society every child has a right to expect that his parents will protect him from the dangers of the outside world. These four tragic boys were, therefore, victims of the ultimate betrayal — their own mother not only failed to protect them, she was in fact their executioner. Mrs. Eubanks apparently committed these murders in a vicious, calculated attempt to lash out at the men in her life as evidenced by her angry, vindictive letters found at the scene. In my opinion, given the number of victims and their complete vulnerability, Mrs. Eubanks committed the single most horrific criminal episode in the history of this county.”
In her office on a November day, Bonnie Howard-Regan pulled an oversized frame from her wall. Four pictures — Susan Eubanks’s sons — smile out side-by-side. Brandon kneels on the field in his football uniform. “This child right here, Brandon, he’s just starting his freshman year of high school, and he had already written to a college in Texas inquiring about financial aid.” Howard-Regan explained, “Because he knew four years were going to go by very quickly. His family didn’t have money. He was already looking ahead. I remember reading the letter. It said, ‘I’d be very much obliged if you would provide some financial aid information because I want to go to college.’ At 14, Brandon was just a child filled with potential. He had such a bright future ahead of him.
“He was a saint. One of his friends, I guess you could call her his first girlfriend — someone he had met in Texas when he would visit his dad — she said she was talking to him on the phone one time, and he said, ‘Oh, just a minute. I have to go tuck my brothers in.’ She could hear him kissing the boys, saying, ‘I love you.’ He became a parent. He filled the void left by this mother, who was so self-consumed and selfish and just cared about herself. He was just a good child. His father had just told him that day, ‘I’ll come and get you. I’ll send you the airline ticket.’ And Brandon said, ‘I can’t leave my brothers.’ He was there to protect his brothers. I’m sure she killed him first because she knew he could overpower her.”
Howard-Regan moved on. “This is Austin. He was seven. Brigham, also known as Reno, was six. And then little Matthew was four. These are just angels. They became my children. It’s absolutely unspeakable. She wasn’t even a mother. She gave birth to these children. But to use these children just to get back at men who had upset her — to me, that woman does not deserve to live.
“The day that she was sentenced formally by the judge I thought was going to be a very uncomfortable, odd day, hearing the judgment of death. But most of the jurors, all but two of them who couldn’t get off work, came to the sentencing. It had become a very cohesive group, probably friendships that will last forever. They wanted to go out to lunch. They invited me to go with them. After lunch, they went to the location where the murders occurred. The house had been burned down. The owner had let the fire department burn it down. But Brandon’s father was able to guess where the living room would have been and where the bedroom would have been. The jurors just had this need to do something. So they brought rosebushes, and they planted one in the living room where Brandon was found and one in the bedroom where the other children were found. We all held hands. Some of the jurors said things. I remember one of them, I think it was the foreperson — and I can’t remember if she said this at the site or if she said it to a reporter — she said, ‘I came into this trial single without children, and I left with four children.’ They all had such moving things to say. One of them broke out in song, singing ‘Amazing Grace,’ and she had a beautiful voice. A day that I thought was going to be horrible turned out to be very uplifting, to see how these people came together to do something for these boys. I think about the boys daily. They all touched our lives.”
Like Ivan and Veronica Gonzales, Susan Eubanks has not yet been assigned an appellate lawyer.