In New Mexico v. Jimmy Garcia, criminal defense attorney Lelia “Lee” Hood was faced with the unnerving challenge of trying to save an innocent person from a zealous prosecutor—not an altogether unique mission for a veteran criminal defense attorney, but a perilous one still (Cause No. D-1314 CR 2007-00491, Thirteenth Judicial District Court Valencia County, New Mexico, June 15, 2009). Her client had shot and killed the wrong man to kill in New Mexico—a Bandido, a member of the notorious outlaw motorcycle gang dominant in that state. Because of the inferior investigative abilities of the local police and the precarious position in which it put the local prosecutor (trying Jimmy Garcia or being accused by the Bandidos of letting a killer go), Jimmy Garcia was facing a death sentence. Not an official death sentence: New Mexico had repealed the death penalty a year before. But the New Mexico state prisons were populated with cells of incarcerated Bandidos, and if Jimmy Garcia was sentenced to one, it would be tantamount to an execution.
Danger lurked at the courthouse for Jimmy Garcia and for his family too, even for Lee Hood and her defense team. The danger was made real to everyone both by death threats telephoned to the courthouse and by gang members showing up there with the deceased’s family. Extra security was brought in and sheriff’s deputies were assigned to escort the defendant, his family, and the defense team in and out of the courthouse and to their vehicles parked in the half-acre lot in front.
In brief, the State admitted that the deceased, Charles Diaz, aka Chucky Bandido, had struck Jimmy Garcia on the forearm with a large heavy flashlight; however, the State asserted that after Chucky Bandido stopped threatening and started to walk away, Jimmy Garcia pulled a gun and shot Chucky Bandido twice, resulting in his death. This scenario meant that Jimmy Garcia was not under assault when he drew the gun and therefore was not defending himself from an attack. His use of deadly force, according to the State, was not self-defense, but voluntary manslaughter. That he had time to reflect on what he was doing and that it was criminally intentional was supported by the assertion that there was a three-second delay between the shots. Thus there was time to carefully aim, think, and form the intent to murder, and, contrarily, time to retreat instead of shooting, or just let it go.
As crime scene analyst for the defense, my opinion was that Chucky Bandido did not strike Jimmy Garcia and start to walk away, but continued the attack and was attempting to strike Jimmy Garcia again at the instant he was shot. In my opinion, Jimmy Garcia had shot in self-defense to prevent himself from being bludgeoned in the head with a deadly weapon. Additionally, the shots came in rapid succession, just as the State’s main witness had said they had when she gave her first statement to the police at the scene. It wasn’t until later, after subsequent police interviews, that she came up with the three-second delay.
The facts of the case, as I saw them, were in favor of Hood’s client as far as they went, but we needed some conclusive piece that would convince the jury to set her client free—free to get out of New Mexico, that is. He’d shot and killed not just any Bandido, but Chucky Bandido, the secretary-treasurer of the state chapter, and being arrested may have saved him from being killed outright at the scene. If he went to prison, even for a year, it would end up the same. If he was found not guilty, he’d have to leave the state with his family by cover of darkness. The piece of evidence that we needed would come in the form of a gunshot wound that didn’t fit the trajectory of a bullet, but I hadn’t drawn that conclusion yet, so more on it later.
How It Began
The series of events that brought Jimmy Garcia into the courtroom began in November 2007, when his sister-in-law Rose Garcia brought Chucky Bandido home to meet her family. Rose, a 40-year-old divorcee, lived with her parents on the same small lot as Jimmy Garcia and his family. Her parents had a doublewide trailer in the center of the lot, and Jimmy Garcia and his family lived in two small trailers connected by a homemade plywood room behind the larger trailer.
Parked in front of Jimmy Garcia’s trailer was his “Trike,” a three-wheel motorcycle with an extended front fork that made it nearly 12 feet long. The space between the parked motorcycle and Jimmy Garcia’s trailer was 24 inches. It was just wide enough for someone to comfortably walk through.
Jimmy Garcia was intimidated by Chucky Bandido. That Thanksgiving, for the first time in 16 years, Jimmy refused to take his family to Thanksgiving dinner at his in-laws’ home because Rose had brought the outlaw gang leader.
A couple of weeks later, on December 1, 2007, Jimmy Garcia was expecting his son to arrive in a car he had just purchased. When Chucky Bandido pulled in, Jimmy Garcia thought it was his son and walked out to meet him. Jimmy Garcia was paying attention to what he thought was his son’s new car instead of the driver. He was at the driver’s window before he realized that it was not his son, but Chucky Bandido. Startled, Jimmy Garcia reacted fearfully and aggressively. He told Chucky Bandido to leave. Chucky Bandido snarled back that he would go wherever he f——ing wanted to go. Jimmy Garcia told Chucky Bandido that if he wanted to fight, he would fight him. The words, once blurted out of his mouth, couldn’t be taken back.
According to Jimmy Garcia, Chucky Bandido threw his car in gear and tried to run over him, so Jimmy fled behind a large tree in the yard. Chucky Bandido made another pass at Jimmy Garcia then sped off, spewing dirt from his tires and threatening that he would be back.
Chucky Bandido drove a few blocks then pulled over and called Rose at work. He told her that her brother-in-law had gone crazy, pulled a knife on him, and had thrown rocks at his car. Rose was furious at Jimmy. Chucky Bandido said he wanted to teach Jimmy a lesson. Rose later denied that they actually made any plan to do so.
Immediately, Rose left work. She talked to Chucky by cell phone as she drove to her parent’s property and went to Jimmy Garcia’s front door, where she began angrily screaming at him to come out. Jimmy Garcia was inside with his son, who, by then, had arrived. Jimmy Garcia was afraid that Rose had brought Chucky Bandido back with other Bandidos, so before opening the door he stuck his Taurus .357 revolver in the back of his jeans and pulled his shirt over it.
Jimmy Garcia opened the door of his trailer and looked around. The only person he saw was a red-faced Rose bent forward from the waist, gesticulating wildly and raging at him. He stepped out to appease her and told her that he didn’t know it was Chucky Bandido in the car when it pulled up. Rose accused him of lying, saying that he knew who Chucky Bandido was. She testified later that Jimmy Garcia was shaking and attributed it to his being angry. In his testimony, Jimmy Garcia attributed it to being scared.
What Jimmy Garcia didn’t know as his sister-in-law was screaming in his face was that Chucky Bandido had returned with her and had parked his car on the other side of the doublewide trailer where Jimmy couldn’t see it. He had circled around and came up on Jimmy Garcia’s left side and slightly behind him as Jimmy stood in front of his trailer trying to mollify Rose. Chucky Bandido walked quickly between the side of the trailer and the Trike and struck Jimmy Garcia full force with a 14-inch metal Maglite flashlight, the same as police officers used to carry before they were outlawed by most departments. Seeing Chucky at the last second, Jimmy Garcia raised his left arm reflexively to ward off a blow directed at his head. The resultant injury, according to paramedics, was a severe deformity to his left ulna bone near the wrist.
From that point, stories differed. According to Jimmy Garcia, when Chucky Bandido hit him Jimmy fell back in pain and fear. As Chucky Bandido reared to hit him again Jimmy drew the revolver from his waistband and quickly fired two or three times at Chucky Bandido, hitting him how many times he didn’t know.
But according to Rose, after Chucky Bandido hit Jimmy he just stood there. So she told Chucky Bandido they should leave. Chucky Bandido switched the flashlight to his left hand, and when he started to walk away with her, Rose saw Jimmy pull the gun and point it at Chucky Bandido. Rose said she cried out, and as Chucky Bandido turned, Jimmy Garcia fired and hit him somewhere in the front of his body. Rose yelled at Jimmy not to shoot again, but he aimed and fired again, this time hitting Chucky Bandido a second time as he lay on the ground. Rose insisted on the stand, though she had not mentioned it in two previous statements, that there was a three-second delay between the shots. Three seconds gives a person time to think—to decide.
When eyewitness testimony is in direct conflict, an analysis of the physical evidence is necessary to help the jury sort out what took place. The medical examiner who performs the autopsy is the person who can describe the wounds of the deceased and the effect they had on his body. The police criminalist would be the expert who explains what the physical evidence at the scene was, how far the muzzle of the revolver had been from the deceased when it was fired, and what kind of ammunition had been used. The crime scene analyst is the person who can put all the evidence together to explain what happened, how it happened, and in what sequence. The defense crime scene analyst may perform some of the same tests as the criminalist. Those three witnesses are the key players on the physical evidence. Lee Hood would bring in another key player, Tom Barker, PhD, a professor of sociology from the University of Kentucky, who would enlighten the jurors on who the ruthless Bandidos were and what kind of hostile men were members of their gang.
After the police officers who had been at the scene testified as to what time they arrived and what they saw, the State called a forensic pathologist. The State’s intention was to establish that Chucky Bandido was dead of gunshot wounds, and that they were not close-range wounds, supporting their theory that he was far enough away he didn’t need to be shot. The pathologist testified under direct examination that Chucky Bandido had suffered two gunshot wounds. One was a tangential flesh wound to his right chest. It entered just above his right nipple and traveled laterally and downward under the skin then emerged and created a three-inch-long laceration of the lower right side of his breast.
The pathologist testified that the second shot entered Chucky Bandido’s left chest, fracturing his sixth rib, puncturing his lung and diaphragm, transecting his aorta, ricocheting off his 12th vertebrae, and fracturing it then tearing a two-inch laceration in his right kidney before exiting his back. In spite of the huge disparity in the damage the two wounds caused, the pathologist would not commit to which shot was fatal or which came first and would not comment on the position of the parties or the timing of the shots other than to say that the gunshot wounds did not have the characteristics of close-range wounds.
In order to establish a foundation for my testimony, I needed Lee Hood to pin down certain things the prosecutor had glossed over. It was imperative that the state’s pathologist answer affirmatively a list of questions I provided to Hood. Amongst other things, the pathologist’s answers would establish that the shot to the right side of the chest would be less likely than the other to knock Chucky Bandido down. Based on that premise, I could testify that the shot to the right side came first—which is what the blood pattern and bullet trajectories told me.
Lee Hood skillfully took the pathologist through the list of questions in a matter-of-fact manner. The pathologist testified that the shot to the right side of the chest did not strike any deep tissues, bones, or organs and would not have been expected to be fatal by itself, and that it would not necessarily disable a person, send them into shock, or make them fall down.
The information had to be pried out, but the pathologist’s affirmative answers to those first three questions opened the door for me to assert that the wound to the right chest came first. Now Hood moved on to the questions and answers needed for my second premise—that the shot to the left chest was fatal and would have sent Chucky Bandido to the ground immediately.
She asked if a shot to the left chest that fractured a person’s ribs and punctured his lung and diaphragm would have collapsed his lung and interfered with his ability to breathe and would likely have caused that person to collapse. The pathologist answered that it could. Hood asked if a shot to the left chest that transected a person’s aorta would leave a person with seconds to live and would likely cause him to collapse, and the pathologist answered that it could. She asked if a shot that ricocheted off a person’s spinal column may well paralyze the person or cause the person to collapse. The pathologist answered that it could. She asked if a shot that tore a two-inch laceration in a person’s kidney would likely cause the person to collapse. The pathologist again answered that it could. Finally, she asked if a shot that did all those things at once would be likely to cause a person to go into shock, lose consciousness, and collapse. The pathologist answered that it could.
While the pathologist would not state which shot came first or which was fatal, she had answered all the questions affirmatively, and Hood had laid the premises for my testimony.
The criminalist for the state testified that the shots striking Chucky Bandido were fired at a distance of more than two feet. At first blush, the prosecutor thought the criminalist’s testimony was in his favor, as it indicated the parties were separated by at least two feet and not struggling hand to hand at the time the shots were fired. If Chucky Bandido was two feet or more away, the prosecutor reasoned, Jimmy Garcia would have been out of his grasp, thereby making Rose’s story credible.
What the prosecutor didn’t know was that I had already performed distance tests with a similar 14-inch Maglite flashlight by striking heavy clay flowerpots on a mannequin’s head. In those tests, which I had videotaped and would later play for the jury, I established that two to three feet is the ideal distance to be from a person you want to strike with such a weapon. At that range, a devastating blow can be delivered with the attacker’s full force, whereas being closer makes it harder to get a full swing. The video showed flowerpot shrapnel exploding 15 feet out from the mannequin when it was struck—an impressive sight. I would later state that the two- to three-foot distance is where Chucky Bandido would have wanted to be in order to get maximum leverage.
After finishing with the expert witnesses, the prosecutor put on Rose Garcia, Chucky Bandido’s girlfriend and Jimmy Garcia’s sister-in-law. On direct examination, Rose Garcia testified that she saw Chucky Bandido strike Jimmy Garcia on the arm, but made it sound as if Chucky considered that to be enough punishment. She said she told Chucky Bandido they should leave, and he put the flashlight in his left hand and turned to leave with her. When Jimmy Garcia came out with the gun and fired once, Chucky Bandido went down, then Jimmy Garcia took his time, aimed, and shot a second time. There were at least three seconds between the shots. During that time she yelled at him not to shoot, but he ignored her and fired anyway. She ran to Chucky Bandido’s side and held him while he died. She didn’t mention a third shot.
When Hood resumed cross, Rose Garcia admitted that she wanted to kill Jimmy Garcia for shooting Chucky Bandido. Hood pointed out that several Bandidos arrived on the scene at the same time as the police, implying that Chucky Bandido had called for backup before initiating the assault, a tactic the Bandidos learned from the police. Rose Garcia denied any knowledge of the backup bikers being called to the scene.
The questions remained as to how Chucky Bandido was shot, what position Jimmy Garcia and Chucky Bandido were in when the shots were fired, the timing of the shots, and which shot struck first. The answers to these questions fell to me.
Before putting me on the stand, Hood wanted the jury to know what kind of gang the Bandidos are and what kind of person Jimmy Garcia was facing that day. To accomplish that objective, she brought in Dr. Tom Barker, who was an expert on motorcycle gangs from the Criminal Justice Department at Eastern Kentucky University. The professor held the jury and court officers spellbound with his expansive knowledge of motorcycle gangs. He pointed out that the Bandidos were a largely Hispanic criminal gang, and that they had become the largest motorcycle gang and had a reputation of being one of the most dangerously violent criminal gangs on or off their bikes. He pointed out that the letters GFBD on Chucky Bandido’s belt buckle stood for “God Forgives. Bandidos Don’t.” Barker informed the jury that the Bandidos actively recruit from the notorious MS 13 and Mexican Mafia gangs in order to get the most violent and ruthless members they can. They support themselves through the sale of drugs and other criminal activities.
By the time he was dismissed, the jurors understood what kind of gang the Bandidos are and what kind of person Chucky Bandido had to be to claw his way to the top of such a gang. Thus, they knew that Chucky Bandido was the kind of person who could beat a man down with a heavy 14-inch metal flashlight, and they could better understand Jimmy Garcia’s state of mind when he drew his revolver.
I took the stand after lunch on Thursday afternoon and was on it for three hours. After being qualified, I explained my analysis of the incident to the jury. I began with the gunshot wounds to Chucky Bandido.
I explained that the first shot must have been the one to the right chest. I concluded that because the wound was tangential and had to strike Chucky Bandido at a very low angle of incidence, meaning that Chucky Bandido had to be positioned at an angle with his left shoulder facing Jimmy Garcia and his right shoulder pulled back. I called it the “batter’s stance.” In the angled batter’s stance, the bullet could miss the rest of his body and just “graze” his right breast. However, there was an aspect related to that position, too. If the bullet grazed Chucky Bandido’s chest in that position and his arm was hanging at his side as Rose testified, it would strike his upper right arm. It wouldn’t, I pointed out, if his right arm was raised above the path of the trajectory. With the flashlight in my hand, I demonstrated that Chucky Bandido’s arm had to be raised to be out of the way of the bullet. Of course, raising the right arm with the flashlight in it put me in a striking position, and the jury could plainly see that.
The blood pattern on Chucky Bandido was to the right side of his upper body, indicating that the blood flowed down from the wound to the right chest long enough to reach from his breast to his belt. Chucky Bandido was wearing leather work gloves and his right glove had blood stains on the inside and on the heel of the glove, which would be consistent with his grabbing his right chest reflexively when he was shot. The fact that the wound was tangential meant that it hurt immensely and bled profusely but would not necessarily put him down.
His reflex action would be to grab his right breast and twist to his right in pain, I told the jury, and in doing so he would immediately expose his rib cage under his left armpit—where the second shot struck. All he had to do was rotate his body on its central axis from a roughly 60-degree batter’s stance to his right about 10 to 20 degrees, an insignificant movement considering the human being can rotate on its central axis faster than any other animal. The movement would line up the second trajectory perfectly.
Judge Pope allowed me to demonstrate for the jury. Defense investigator Scott Kenna assisted in the demonstration using two three-foot-long dowel rods, as we had practiced the evening before. I stood two feet in front of Kenna with my arms at my side as Rose Garcia had described. Kenna quickly pointed one dowel rod at my right chest in a grazing or tangential wound trajectory. The jury could see that the bullet would strike my chest and my upper right arm, too.
Next, I assumed the batter’s stance and held the flashlight over my head in a striking position. Kenna snapped one rod up to my chest and said, “Boom!” I dropped the light, grabbed my chest with my right hand and twisted right exposing my left chest and ribs. “Boom!” Kenna said, snapping the second doll rod to my left ribs and I feigned collapsing. It pointed to the exact spot in the left chest where Chucky Bandido was hit.
I turned to the jurors and emphasized that the timing of the bullets was less than a second and a half—enough time to say quickly, “Boom! Boom! Boom!” There were three fired rounds in the revolver. I believed that one of the rounds, probably the last, missed Chucky Bandido and was not found. It could have gone anywhere.
For the coup de grâce, Hood asked if there was anything else that made me believe Chucky Bandido had his arm raised when he was shot in the right chest. We had saved the best for last—the final piece of evidence that would convince the jury to acquit the defendant.
I brought up a slide of the ugly wound to the right chest. Ordinarily, defense attorneys don’t like to show juries ugly pictures, especially of a gunshot wound that looks painful, but the graphics proved the theory in this case. Hood had calculated the risks of the photographs prejudicing the jury against those of enlightening them and decided to take the chance.
No doubt that a wound like that would cause a person to twist to his right and clamp his hand over it, I emphasized to the jury. Giving them a second to think about that, I told the jurors to note that the bullet entrance hole was above the right nipple, but that the exit trajectory pointed down when the body was in the anatomical position as the pathologist had described it. Then I put my hand on the outside of my right breast where the exit wound was located and raised my right arm above my head in the striking position. I directed the jurors to notice that as I raised my right hand the shirt on the lateral part of my right breast stretched upward just as the skin beneath my shirt did.
I pulled up the next slide, which showed me in a white T-shirt with my arm at my side and a black line drawn from my right nipple to my right armpit, the area of the wound. The line was straight. The next slide showed me with my arm raised. The black line now pointed up. The following slide showed a red line drawn from the nipple to his right armpit with my arm raised. It was straight while my arm was raised. The last slide showed the red line with my arm lowered. The end of it pointed down, just as the wound to Chucky Bandido’s right chest did. The jurors’ eyes told the story: It clicked, made sense, they understood what had happened. Chucky Bandido had to be in a striking position with his arm raised when he was shot. The first shot must have struck his right chest, and it had to hit him while he had his arm raised to deliver a second blow. He rotated slightly right and the second shot struck him on the left side of his chest. Boom! Boom! Boom! No pause, no thinking time, no three-second delay, just “bang, bang, bang”—Rose Garcia’s very words to the police in her first statement, given at the scene on the night of the shooting. Lee Hood reminded the jury of those words in her summation.
I put up a picture of the flashlight that had been found beneath the decedent when he was lifted from the scene. I pointed out to the jury that if the decedent had been holding the flashlight in his left hand, as had been described by Garcia, it would have fallen at his side. I raised the flashlight over my head in the striking position and let fall clattering loudly on the courtroom floor. It landed behind me.
The jury was dismissed for the night. They deliberated the next morning and before noon returned a “not guilty” verdict. Jimmy Garcia and his family went home to start packing to move to another state. I flew back to Austin. Dr. Barker returned to his classroom in Kentucky, and Lee Hood returned to her office.
In the Jimmy Garcia case, the wheels of justice had turned slowly enough for the jury to see that the machine was about to pull in an innocent man, and they threw the “off” switch. That does not always happen. Prisons and jails have innocent men in them. It takes the combined expertise and dedication of an experienced criminal defense lawyer, investigator, crime scene analyst, and sometimes other experts to assure that justice is done. Sadly, many court systems and state and county agencies pay only a portion of the experts’ fees. In this case, I, whom the jury credited with convincing them of the defendant’s innocence, was paid 40 percent of my fees. Sometimes, forensic experts turn down indigent cases because they lose money instead of making it. Often, they do cases out of a sense of civic responsibility, as I did in the Garcia case, but doing good doesn’t pay the rent. Jimmy Garcia never knew about that part of the system. He never knew how close he came.