Attorney: Gomez plea deal possible because of defense expert’s work

The defense attorney representing the man in jail for the death of baby Nevaeh Martinez in 2012 said the work of a defense expert allowed his client to reach a plea deal with prosecutors.

Irving Aaron Gomez, 26, was originally charged with Capital Murder. He made a deal with prosecutors and was sentenced Wednesday to seven years in prison on a lesser charge of “Reckless Injury to a Child.”

Gomez, jailed since his arrest in 2012, will be given credit for time served, a spokeswoman with the district attorney’s office told ABC-7. He is already eligible for parole.

Joe Spencer, the defense attorney representing Gomez, told ABC-7 his client is not a U.S. Citizen and could be subject to deportation when he is released on parole. Spencer could not confirm Gomez’s legal status. “All I can tell you is he’s been here since the age of three,” Spencer said.

Police said the baby died the morning of September 7, 2012 after Gomez stuck his finger down her throat to keep her from crying. This happened at a home in the 2600 block of Nations, police said. Gomez was the baby’s mother’s boyfriend at the time.

Spencer said when Gomez checked on the baby, she wasn’t breathing. “He did do that (sticking his fingers down her throat) for the purposes of determining whether there was anything blocking the child’s airway and that’s what he said he admitted to doing,” Spencer said.

Spencer told ABC-7 the defense hired a forensic pediatric pathologist, whose work resulted in a change in the baby’s cause of death.

“There are very few in the country. The doctor reviewed the slides that were in the medical examiner’s office, reviewed the autopsy report, reviewed many of the other evidentiary issues in the case,” Spencer said. “He made a report, conferred with medical examiners here in El Paso, and then subsequent to that, the medical examiners here in El Paso changed their opinion on the cause of death.”

The original cause of death was listed as a homicide, according to ABC-7 archives.

“The cause of death in the amended autopsy report is undetermined,” Spencer said, adding he thought of blindsiding prosecutors with his expert’s testimony in court.

“We do not have to give our defensive theories to prosecution, but in this case, I believe there was a mistake made by the pathologist here in El Paso and I thought it would be fair. The fair thing to do was give the district attorney’s office an opportunity to re-evaluate, let (Medical Examiner) Dr. Rascon visit with our expert and let the experts talk and see if there is a mistake here, because the last thing we want is a tragedy.”

“We could have gone to trial two to three years ago and they decided to take it longer, and it didn’t benefit us, it just benefited the defendant,” said Carlos Flores, the victim’s father. “I’m still very angry with the (district attorney), the DA is the one I blame.”

Flores told ABC-7 Gomez did not seem remorseful during the plea hearing. “He didn’t cry, he didn’t shed a tear, he didn’t look down, he just looked like nothing was happening,” Flores said, “That’s what got me very angry, I mean no remorse at all. That’s why I was angry and crying.”

“Has taken responsibility for what he did. His conduct may have been reckless, it was reckless, that’s what he said, but it certainly wasn’t intentional,” Spencer added, “It didn’t rise to the level of a Capital Murder offense.”

“We already have one tragedy with the loss of a child, we certainly don’t need a tragedy of convicting someone of capital murder when they’re not guilty of that,” Spencer said.

ABC-7 reached out to District Attorney Jaime Esparza for comment. He sent the following statement: “The new charge is based on the current opinion of the medical examiner.”