A man who punched his 4-month-old baby girl hard enough to fracture bones on the other side of her skull
definitely showed a reckless indifference for human life, prosecutors argue.
Victor Gardea, 23, faces a charge of aggravated murder for the death of his baby, Jasmin, in September 2008.
Such a charge carries the potential of the death penalty, but attorneys disagree
on whether or not such a harsh punishment is warranted.
Their dispute is whether it could be proved that Gardea acted with "reckless indifference to human life,"
the new wording in the aggravated murder statute.
Prosecutors argue there's enough evidence to convict Gardea under the new statute, as well as the old statute, requiring proof that Gardea "knowingly or intentionally" caused Jasmin's death, according to their recently filed motion.
Defense attorney Richard Gale said Gardea had been helping his wife study all night. When the baby woke up crying, Gardea was worried she would wake their young son, and he lost control
, Gale said.
Gardea later told police he hit Jasmin in the abdomen and head with a closed fist, hard enough that it would have knocked a grown man unconscious
, according to court documents.
However, Gale argued that once Gardea knew how severely she was injured, he called 911 and started CPR until paramedics arrived. Jasmin was taken to Primary Children's Medical Center, where she died hours later.
But prosecutors argue that any attempt at lifesaving actions after the initial crime don't negate its reckless
, violent nature.
"Certainly the fact that the defendant hit his own baby with such extreme force either because he wouldn't be able to get anymore sleep, or for no particular reason at all, displays a reckless indifference to that baby's life," prosecutors wrote in the motion filed in 4th District Court.
Gale believes the new wording in the aggravated murder statute is unconstitutional,
because it broadens the category of those eligible for the death penalty.
Now someone can be prosecuted capitally without showing an "intent to kill" but instead showing "reckless indifference to human life," during certain crimes, including child abuse, according to court documents.
However, prosecutors reply that Gardea's reckless indifference was so severe that it deserves the capital charge and does not violate any constitutional rights.
They also argue that Gale is mixing the terms "recklessly" with "reckless indifference," and that reckless indifference is different and worse than recklessly. Because it is worse, fewer crimes would fall into that category, thus limiting the number of people eligible for the death penalty, according to their motion.