How A Moldy Burrito Saved A Man From A Wrongful Conviction

In A Nutshell

On a September night in 1988, there was a gun battle in a central Los Angeles alley. When it was over, one man was dead, another wounded. Despite his claims that he was just a bystander, the wounded man was arrested for murder. For two years, the defendant asserted his innocence. Few believed him, especially after he signed a confession to the murder. And, during the trial, the jurors found it hard to swallow his story. But at the last minute, even as the jurors were about to decide his fate, a burrito was discovered that supported his story. When it was revealed to the jury, they acquitted him.

The Whole Bushel

In September 1988, a man in a white T-shirt began firing a semi-automatic into the air in an alley behind an LA liquor store. Across the alley, a 42-year-old security guard named Israel Martinez was protecting a canteen truck. Martinez approached the man and asked him to stop shooting. A gun battle ensued and Martinez was mortally wounded in the chest.

One other person—a 23-year-old Cal State student named Edward Vasquez—had also been shot. Despite his admonition that “I didn’t shoot no one; I don’t even own a gun,” Vasquez was arrested as the white-T-shirted killer. After hours of interrogation by the police, Vasquez signed a confession that he killed Martinez in self-defense.

At the trial two years later, Vasquez’s defense attorney, Jay Jaffe, claimed that his client was a bystander, purchasing a burrito at the canteen truck at the time of the shooting. Vasquez insisted that he wasn’t even wearing a white T-shirt, instead wearing a green jacket. The police had, indeed, picked up a green jacket at the crime scene and had kept it as evidence since. Finally, Jaffe claimed Vasquez’s confession was coerced. “He naively thought he would say what they wanted to hear and [would] straighten it all out later,” he said.

The prosecution countered by saying that Vasquez couldn’t have been wearing the green jacket. He was shot, after all, and there was no blood on the jacket. The defense pointed out that Vasquez had been shot in the butt and the jacket only reached his waist. To prove the point, Vasquez put on the green jacket in front of the jury.

There were problems with the prosecution’s case. For one, Vasquez’s hands were tested for gunpowder residue just an hour after the shooting and none was found. The jury would later admit there were several “inconsistencies” in the prosecution’s testimony.

Finally, the jury retired to deliberate and Vasquez spent a sleepless night thinking about the jacket. The next morning, he told his attorney that the jacket seemed too heavy when he put it on and he thought he knew why. After the Jaffe talked to the judge, the jury was summoned back to the courtroom.

Once the jury was seated, Jaffe held up the jacket. “He didn’t shoot the security guard,” the attorney shouted, “and this proves it.” He then dramatically pulled a foil-wrapped burrito from the right pocket. He gave it to the jury to examine, and they found it to be moldy and two years old.

It was clear that if Vasquez had been wearing the green jacket, he was, indeed, purchasing a burrito at the time of the shooting. Before the burrito revelation, the jury had been split 8 to 4 for acquittal. Afterward, the jury voted unanimously not guilty. “This [prosecution] should never have happened. It’s shameful,” Jaffe said.

The lawyer’s indignation may have been justified. After the burrito was found in the jacket, District Attorney Christine Gosney admitted that she found a photo of a small boy in another pocket of that same jacket. On the back of photograph was inscribed the words “To my cousin Eddie.”

Gosney admitted she destroyed the photograph because she worried it would elicit sympathy for the defendant. Really? Or was it because it might support Vasquez’s contention that the jacket belonged to him? If the existence of the photo had been divulged to the defense as it legally should have been, Jaffe could have brought Vasquez’s cousin into court and had him verify that the picture was of him.

It’s also hard to believe that if Gosney found the photo, she did not also find the burrito. Which means she not only knew Vasquez was telling the truth, she knew he was indeed wearing the jacket instead of the perp’s white T-shirt. And she still proceeded to prosecute the young man.

A month later, Gosney was allowed to resign to avoid dismissal. Martinez’s killer has never been found.

Show Me The Proof

The LA Times: Burrito Defense : It Helps Man Beat a Murder Charge
The LA Times: 2 Security Guards Killed, 1 Wounded in Rash of Shootings
The LA Times: Prosecutor Investigated for Allegedly Destroying Evidence
The LA Times: Prosecutor Who Threw Evidence Away Resigns