“The case won’t be dismissed. I can tell you that,” says Amarillo District Attorney Randall Sims about the prosecution of Ernest Lopez II. Sims’ response follows a Jan. 25 Texas Court of Criminal Appeals decision in Ex Parte Ernest Lopez II granting Lopez’s application for writ of habeas corpus. In 2005, the 7th Court of Appeals in Amarillo upheld Lopez’s conviction in Potter County’s 181st District Court for aggravated sexual assault of a child and sentence of 60 years in prison, according to the per curiam opinion. The CCA noted that Lopez had alleged in his habeas application, among other things, that “his trial counsel provided ineffective assistance for failing to call medical expertsat the guilt or innocence stage of the trial to counter the testimony of the State’s medical experts that the physical evidence was indicative of sexual assault.” The CCA granted relief, based on the trial court’s determination “that trial counsel was deficient as alleged and that the deficient representation prejudiced Applicant” and recommendation that the CCA grant relief. The CCA ruling set aside Lopez’s conviction and sentencing and remanded him to the custody of Potter County to answer to the indictment. Asked if he expects to retry Lopez, Sims says that a decision about how to proceed will be made later and that the decision-making process is “fluid.” Heather Kirkwood, a Seattle solo who started representing Lopez after he lost his appeal to the 7th Court, welcomed the win for her client. She says the case “highlights some of the deficiencies in child abuse litigation. I think we should all recognize these are difficult cases with changing science."
-- Miriam Rozen