Web Posted: 10/07/2007 02:43 AM CDT

Karisa King and John Tedesco
Express-News

Dianna Moreno left her 2-year-old son alone with her boyfriend just long enough to buy a Coke and check the mail. When she returned, the small apartment was quiet, the bedroom door was locked, and her boyfriend, Matthew Zaner, refused to open it.

After about 10 minutes, Zaner emerged from the room in a panic.

Moreno found her son limp on the closet floor, his blank eyes rolling back into his head. He barely was breathing.

Zaner told her the boy fell off their waterbed. But emergency room doctors didn't believe the story. It didn't mesh with the boy's injuries: dime-size bruises on his face, legs and back, a fractured rib and blood pooling in his brain.

Police charged Zaner with assaulting a child, a first-degree felony that might have put him behind bars for up to 99 years.

Although it seemed to doctors like a clear case of child abuse, Zaner cut a deal with prosecutors that allowed him to avoid going to prison at all.

His case was not an anomaly.

Zaner was among hundreds of defendants who bargained their way to freedom after being charged with a felony of assaulting, injuring, abandoning or endangering a child.

A San Antonio Express-News analysis of 1,270 child abuse cases since 1991 shows 67 percent of defendants facing felony child abuse charges in Bexar County eluded state prison.

In the most severe assaults, when children sometimes suffered broken bones or brain injuries, one out of five defendants avoided prison.

In some cases, children were whipped, shaken, bitten, starved, scalded or beaten. They suffered welts that covered their bodies, bruises, burns, broken bones and life-threatening brain trauma.

At least 11 defendants like Zaner who bypassed prison went on to face charges of harming another child. Many caregivers denied hurting the children and instead told stories that doctors said didn't fit with the injuries.

In the most egregious cases, when children younger than 6 are murdered, Texas law allows for the death penalty. Since 1993, when the law took effect, prosecutors have charged 31 people with capital murder of a child. Yet not one defendant has gone to death row.

A growing epidemic of child abuse deaths has forced attention on the way Texas protects its young. In fiscal 2005, Bexar County broke a grim record, with 18 children killed from abuse or neglect. Last year, 14 children were killed.

Every year, about 1,000 children are removed from their homes because social workers, physicians or police find enough evidence to believe they are in danger. Only a fraction of cases ends up in criminal courts.

Because parents who neglect and abuse their children rarely face criminal charges, advocates say what happens in courtrooms takes on even more importance.

Yet most of the scrutiny focuses on the failures of Child Protective Services, usually after a gruesome killing, while hundreds of cases at the courthouse end quietly with plea bargains.

"I think it's shameful, and I think these individuals should be prosecuted to the full extent that's possible," said Janet Ketcham, executive director of Child Advocates San Antonio.

Prosecutors say child abuse cases are among the most difficult to pursue. Often, there are no witnesses. Family members who may have seen the attack don't want to cooperate, or may even lie to protect the abuser. And frequently the victims are too young or too scared to testify.

That leaves prosecutors to shape some cases around medical evidence — a risky move that opens the door for defendants to hire their own medical experts and argue that the children could have been hurt by accident. {Link to the Restraint Deaths Webpage: http://www.hope4kidz.org/news/restraint.html}

"In an ideal world, I wish that all child abusers would go to prison for the rest of their lives, but, practically speaking, that's not going to happen," said Catherine Babbitt, who heads the district attorney's family justice unit.

She said prosecutors carefully weigh the strength of their evidence when deciding whether to take a case to trial or offer a plea bargain.

"Let's say it's one of those cases where my proof is a little questionable," Babbitt said. "Rather than run the risk of losing it altogether and holding no one accountable, we try to have at least some accountability for those actions."

Fears about taking cases in front of a judge or a jury appear to be well-founded. When defendants charged with assault, endangerment, injury or abandonment of a child push for a trial, they win acquittals 44 percent of the time.

They fared better than defendants charged with other types of felonies: Only one in four in that group were acquitted after rolling the dice in a trial.

In deciding whether to offer a deal to someone accused of child abuse, prosecutors also look at the criminal history of a defendant. Many have no serious record, which makes them more likely candidates for staying out of prison. But records show 87 of the 847 defendants who were spared from prison had prior felony charges in Bexar County .

Most often, the accused received deferred adjudication, a form of probation. It allows defendants to avoid not only prison, but also a conviction if they follow the rules of supervision and don't commit any more crimes.

In the eyes of prosecutors, deferred adjudication can be a heavy hammer. Defendants who break the rules can be thrown in prison for the maximum number of years allowed under the law, 99 for a first-degree felony.

"Although it certainly has some advantages for the offender, it also has some big disadvantages should they mess up," Babbitt said.

Defendants who avoid prison still are required to take parenting and anger-management classes. Babbitt said that supervision gives people tools to improve their lives.

"Even though we're in the prosecution business, I would like to end child abuse," Babbitt said. "I don't want to see these people back here again. And if we don't try to give them some tools with which to live by, we're going to see them time and time again."

But giving defendants a second chance can backfire. It keeps someone on the street after they admitted their guilt or didn't contest a charge of hurting a child.

In the case of Matthew Zaner, who said his girlfriend's son fell off the waterbed, the second victim was an infant.

About two weeks after Dianna Moreno moved into Zaner's Northwest Side apartment in May 1998, she noticed the first bruises on her son.

He wasn't yet 2, and after the move he started throwing tantrums. From what Moreno told police, Zaner was bent on breaking the boy's fits, and when he disciplined her son it usually was in the bedroom with the door locked.

After the bruises started showing up on the boy's face and buttocks, Moreno suspected Zaner was hitting her son, according to her police statement. Moreno, who was 21, confided in her mother, but continued living with Zaner.

The marks and the discipline continued, too. Two days before she found her son unconscious and paramedics rushed him to the emergency room, Moreno said she found small bruises on his chest.

"They looked like fingerprint marks," she told detectives.

The day Zaner emerged in a panic from the bedroom, with the boy barely breathing, Moreno cooperated with investigators. She told them Zaner had urged her to tell "anybody that asked" that she had been in the living room with him when they heard the boy fall. Doctors who treated the toddler said he had been shaken.

Zaner declined to be interviewed, but his mother, Elaine Zaner, said her son stuck to his story and held out for a trial.

Meanwhile, a prosecutor occasionally called the boy's aunt Lisa Straiton, who took her nephew home from the hospital and later adopted him. Straiton kept the prosecutor up to date about the child's ongoing recovery. That first year, he had suffered so much bleeding in his brain that he had to wear a patch over his eye and doctors couldn't tell if his tiny retinas were still attached.

Straiton said she pushed for the stiffest punishment possible. She didn't like the way the case was going.

"Nobody could prove anything. Nobody saw anything. That's what they told (the family)," she said.

Eventually, in 2001, Zaner struck an agreement with prosecutors. He pleaded no contest to recklessly injuring a child, a lesser offense. In return, prosecutors recommended he receive five years of deferred adjudication and take parenting classes, and District Judge Juanita Vasquez-Gardner signed off on the deal.

"I was furious," Straiton said. "I told them: 'What's it going to take? Is it going to take some child dying before you put him in jail?'"

Her words were prescient.

Less than a year after Zaner started serving his deferred adjudication, he hurt another child.

This time, it was a 6-week-old boy. The circumstances and the injuries bore eerie similarities to the first case. Again, Zaner was taking care of his girlfriend's son. Again, he emerged from the bedroom after the child had stopped breathing.

The infant spent nearly two weeks in the hospital with bleeding in his brain. The baby slowly recovered, but with damaged eyesight.

Doctors said the child had been shaken.

Zaner told police that while he was giving the baby a bath he started choking and coughing up milk. But a family friend who was at the home that day said Zaner told her a different story, according to the police report. The friend said Zaner told her he was giving the baby a bath when he dropped the child on the side of the tub.

Zaner pleaded guilty to reckless injury of a child and was sentenced in 2003 to 17 years in prison.

His mother, who is hoping he'll win parole next year, still is adamant that her son never meant to hurt either child.

"Both of these were accidents," Elaine Zaner said.

But in other cases defendants openly admitted they had abused the children and still sidestepped prison.

When Jenae Lukachik brought her 2-month-old son to the doctor in June 1999 with a broken upper leg and old fractures on his ribs, she was at a loss to describe how he'd been hurt. Six days later, she called police to tell them what happened.

She told a detective she'd become so frustrated by her son's constant crying, she shoved his little foot into his mouth.

She pleaded no contest and, at the recommendation of prosecutors, received six years of deferred adjudication.

In 2005, Brooke Pizana avoided prison with seven years' deferred adjudication after she admitted she threw her baby against a wall in a nger. The impact fractured the 9-month-old boy's skull.

District Judge Bert Richardson imposed the sentence. He did not return messages from the San Antonio Express-News.

Pizana's current lawyer, Mark Benavides, said Pizana admitted to the crime to grab a good offer from prosecutors.

Benavides said investigators are under so much pressure to protect kids that they're too quick to believe the worst fears of emergency room doctors.

"They jump to conclusions about what happens," he said.

Deferred adjudication isn't always a free pass from jail. In a handful of first-degree felonies, judges imposed sentences of up to 180 days in county jail — not state prison — as a condition of probation. Some critics of the system say that punishment is too light.

In November 1997, a mother brought her 9-month-old son to Methodist Hospital with a bruise above his eye and a scrape on his forehead. Doctors found that the child's right shoulder had been dislocated and fractured, and that he had suffered earlier fractures to his skull and left arm.

The woman's boyfriend, Armando Martinez Alfaro, told police he shook the boy so hard his head flopped back and forth and he "looked like a doll."

Alfaro said it was possible that while he was shaking the boy he hit his head on a door frame.

District Judge Richardson sentenced Alfaro to 10 years of deferred adjudication. The judge also sent him to Bexar County Jail for 180 days on a work-release program.

After defendant Mario Flores admitted to whipping his 3-year-old daughter so severely she had to be hospitalized, prosecutors recommended a sentence of seven years' deferred adjudication. Presiding Judge C.W. Duncan also ordered Flores to serve three months in the Bexar County Jail.

Flores thought he got off easy, said Jeanette Santos, who was married to him at the time and filed for divorce after his arrest.

"He thought it was just a slap on the hand," she said. Flores frequently called her from jail, Santos said, taunting her. Flores made a point to remind her he was getting out soon.

"He laughed about it," Santos said.

District Attorney Susan Reed talks about aggressively punishing child abusers. As a former state district judge, she burnished her reputation as one of the toughest jurists in the courthouse. That reputation has followed her into the district attorney's office, where she has pushed some cases to trial despite big obstacles.

In the case of Nicholas Plaza , a 5-year-old who vanished in 2001, Reed pursued a murder charge against 33-year-old Ruben Zavala Jr., who lived with the boy and his mother. Although it had been six years since Nicholas disappeared and police never found his body, a jury in July sentenced Zavala to 67 years in prison for injuring a child.

In the case of Jovonie Ochoa, a 4-year-old who was starved to death and died Christmas Day 2003, Reed won a life sentence for the boy's grandmother and 10-year prison sentences for each of three other family members who lived in the house, saying they all were responsible. Reed also prosecuted Jovonie's mother, who sent the child to live with his father's family and was sentenced by Richardson to two years in state prison.

"We are committed to prosecuting them to the fullest," Reed said in an interview earlier this year.

Since she came into office in 1999, Reed, a Republican, has more than doubled the number of prosecutors dedicated to the cause. The result has been a marked increase in the number of child abusers who face criminal charges.

She has prosecuted 21/2 times more defendants than her predecessor, Republican Steve Hilbig, who served for about the same number of years Reed has been in office. Nearly twice as many child abusers have gone to prison on Reed's watch.

But under her administration, defendants are no more likely to go to prison. Since Reed took office, 31 percent of defendants go to prison, compared with 38 percent of defendants prosecuted by Hilbig.

Now a justice of the Fourth Court of Appeals in San Antonio , Hilbig said he had little control over the number of prosecutions his office handled. Hilbig said his administration, like Reed's, depends on law enforcement agencies to investigate cases and bring them to prosecutors.

No one has accused Reed of being shy about pursuing the death penalty. But when it comes to defendants accused of murdering children — a capital offense — no one convicted during Reed's or Hilbig's administrations has been sent to death row.

Since 1993, 10 defendants from Dallas and Houston have been sentenced to death after being convicted of murdering a child. Even jurisdictions with smaller populations, such as Nueces County , have successfully argued that defendants deserved the death penalty.

"These are probably the most difficult cases to prove," said Nueces County District Attorney Carlos Valdez in Corpus Christi, where two defendants have been sentenced to death. "It always happens in secret."

In Bexar County , Babbitt said prosecutors face an uphill battle to seek the death penalty in a child-murder case. For one thing, they have to prove the defendant intended to kill the victim. And jurors find it difficult to believe that someone would intentionally hurt a child.

Rafael Rodriguez Jr. confessed to beating his 5-month-old daughter to death in 2001 by slamming her into the headboard of his bed. Rodriguez said he flew into a rage because the girl wouldn't stop crying. Prosecutors sought a life sentence against him and presented evidence that in the weeks before the killing he broke the baby's leg and five of her ribs.

Rodriguez argued he didn't intend to kill the baby. Jurors convicted him of manslaughter and sentenced him to 16 years in prison.

Another potential difficulty: proving the defendant is a continuing danger to society.

"If you have somebody who's never been in trouble before, and they act out and hurt a child, that may be a horrible crime, but maybe it doesn't merit the death penalty," said Lyndee Bordini, a former assistant district attorney who headed the family violence unit under Hilbig's administration.

Child advocates say they know prosecutors have a tough job. But too many abusers are getting off easy in the court system, they say.

"I don't think anybody, prosecutors included, are completely satisfied with what occurs in many of these cases," said Dr. Nancy Kellogg, medical director for the Center for Miracles at Christus Santa Rosa Children's Hospital, which treats abused children.

Patricia Castillo, executive director of the PEACE Initiative, fears that without stiffer penalties, the courts are sending an inadvertent message to child abusers — that it's easy to stay out of prison.

"You can see why this stuff is rampant," she said. "There are no consequences, really. People are getting away with a lot."

Records show that about one of every three first-degree felony cases are reduced to a lesser charge. In about half the cases, prosecutors recommended deferred adjudication.

One district judge who asked not to be identified said judges are limited to either accepting or rejecting the terms of plea deals worked out between prosecutors and defense attorneys.

In some cases, prosecutors said they're hamstrung by a lack of evidence and must strike plea agreements that victims' families don't like.

After Krystal Gonzalez's 3-month-old daughter spent five days in the hospital with bruises on her chest and stomach, a skull fracture and bleeding on her brain, police charged her boyfriend, Roland Alvarado, with serious bodily injury to a child, a first-degree felony.

Gonzalez's mother spotted the bruises after Alvarado had been taking care of the girl. The grandmother told police she confronted Alvarado and he gave her three different stories. In the first version, he said the baby's older sister had hit her. Then he said the infant fell off a sofa, and later said the baby fell off a bed.

Prosecutors offered Alvarado a plea deal with deferred adjudication. Gonzalez adamantly opposed it.

At the last minute, a dispute erupted over whether Alvarado would agree to also serve 180 days in county jail, and lawyers on both sides scuttled the deal.

Now, a hearing in the case has been set for November.

Gonzalez said she will be there.

"I want to make sure everything's done by the book so he pays for what he did," she said. "But it doesn't look like that's going to happen."

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Emphasis added by H4K Editor