Monday, Feb. 16, 2004 | 9:29 a.m.
Prosecutors plan to seek the death penalty in a second trial of Pascual Lozano, 24, whose conviction in the shooting death of a 9-year-old girl has been overturned.
District Judge John McGroarty, because of new evidence in the case and juror misconduct, ruled Friday that Pascual Lozano, 24, deserved a new trial on charges that he killed Genesis Gonzales.
"There is a reasonable probability that either factor affected the verdict," McGroarty said in the ruling.
District Attorney David Roger said the state plans to appeal. But Chief Deputy District Attorney Ed Kane, who tried the case with Chief Deputy District Attorney Vickie Monroe, said prosecutors would seek the death penalty in a second trial if the appeal fails.
In overturning the first conviction, which brought the death penalty, McGroarty determined that a juror erred when she obtained an independent translation of a Spanish word used to identify the gunman's race.
The judge also questioned the credibility of a jailhouse informant who claimed Lozano confessed to the crime while the two were housed in the Clark County Detention Center.
The ruling pleased Lozano's attorneys, Deputy Special Public Defenders Bret Whipple and Ivette Maningo, who had filed a series of motions fighting for a new trial. The attorneys had maintained their client was not the gunman.
"I'm looking forward to new trial," Whipple said. "It's important that the process is fair because of the high stakes involved. I don't believe the process was fair last time."
McGroarty's decision came two days after a top investigator, Peter Baldonado, was arrested on bribery charges.
During the trial Gonzales' 14-year-old sister said she saw the shooter but was unsure of his ethnicity. Baldonado testified that the girl told him that the gunman was Hispanic. Lozano is Hispanic.
McGroarty's ruling does not mention Baldonado's arrest.
McGroarty did determine that prosecutors should have cross-examined Tannia Gonzales during the trial, instead of relying on Baldonado's testimony regarding her statements.
Gonzales was struck by a stray bullet as she played in the courtyard of her apartment complex near Civic Center Drive and Cheyenne Avenue with several other children.
Police say Gonzales was trying to protect a 10-month-old boy when she was shot. Gonzales' 8-year-old sister, Heidi, was shot in the leg but survived.
Prosecutors said Lozano was firing shots at a rival gang member when the girls were hit.
According to McGroarty's decision, several factors prevented Lozano from getting a fair trial.
McGroarty determined that a juror violated court rules when she asked her husband the meaning of the Spanish word "moreno" used by a witness to describe a black man she saw fleeing the scene in a getaway car moments after the shooting.
During deliberations, the woman told the other jurors that her husband told her "moreno" meant dark-skinned, not black. She surmised that the witness still could have seen a Hispanic man flee the scene.
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