By Michael Roberts
By Melanie Asmar
By Michael Roberts
By Michael Roberts
By William Breathes
By Michael Roberts
By Michael Roberts
By Michael Roberts
She stepped quickly to the witness stand. She raised her right hand. She swore to tell the truth.
So began the main event in the murder trial of Krystal Voss -- the much-anticipated moment when the accused took the stand to tell her own story.
Wearing a lavender blouse and khaki pants, her hair pulled primly back, Voss looked nothing like the sexpot-seductress-femme fatale portrayed by the prosecution. She looked more like a nerdish Adams State student who'd wandered into the wrong room at the Alamosa County Courthouse. But then, little about the Voss case was quite as advertised.
Her lawyer, Ernest Marquez, got her settled in with a few simple questions: age, height, education, profession. Voss answered: Thirty. Five-four. Various diplomas from Boulder's School of Natural Medicine. Naturopath. "I'm essentially a glorified nutritionist," she explained.
"Did you have a son?" Marquez asked.
"I did," Voss said. "Kyran Leigh Gaston-Voss."
"How old was he?"
"About eighteen months."
"Was he a big baby?"
"Oh, yes," Voss said, laughing.
Marquez showed the jury a brief clip from a home video taken two years ago. Kyran, a chubby, fair-haired toddler, strutted his stuff across the screen. For a moment he seemed alive again, as if none of this had ever happened. As if Kyran hadn't been savagely attacked a few weeks after the video was taken, left sightless and badly brain-damaged, in a vegetative state from which he never recovered; as if Krystal Voss, doting mom and glorified nutritionist, wasn't on trial for killing Kyran.
Over the next hour, Voss would do her best to convince the jury that she did not, could not, have harmed her son. She would try to show the jurors how an innocent person can make seemingly damning statements. She would try to make them understand what it was like to be Krystal Voss, to lose your child in such a brutal way -- and then be blamed for his death.
It was a risky step to take on this, the sixth and final day of her trial. But it had come to this because Voss has always insisted on her innocence. As a rule, guilty people don't testify at their own murder trials. Guilty people don't tell their stories; they let their lawyers do that. Her trip to the stand may have been an act of desperation or one of supreme confidence, but Voss wouldn't have it any other way.
Maybe she didn't understand the way these things are supposed to work. She gave a lengthy interview to Westword about her case long before it went to trial ("The Death of Innocence," July 31, 2003), prompting a blustery request for a gag order from prosecutors. She sent e-mail updates to her supporters blasting a sheriff's investigator and the state's chief witness against her. And she turned down a plea-bargain offer from the district attorney that could have resulted in a prison term of less than five years.
"I am pissed off at the DA and Alamosa County for refusing to do a thorough investigation," Voss wrote supporters late last year. "This is WAR! My baby died and they let the killer go free, I am ready to push them as far as possible! I have a right to a jury trial, and I will get my day in court to show the world who I really am...I have no fear because a really powerful angel boy is helping on the other side."
As a rule, guilty people don't reject plea offers. Guilty people facing a life sentence don't balk at five years. They take the deal, unless they're guilty andderanged.
But the Voss case was the exception to many rules, from its strange beginnings to its stunning verdict two weeks ago. It grew and metastasized according to its own crazy logic, aided and abetted by sloppy police work and shifting witness accounts. In its topsy-turvy, counterintuitive world, the suspect who changed stories the most was deemed the most credible. When the official theory of how Voss injured her son was found to be medically unsound, it was quickly supplemented with an alternate theory for which there was no evidence at all. Yet Voss still expected to prevail, with an angel boy at her side.
When the video clip of Kyran ended, Marquez resumed the examination of his client. Her day in court had arrived.
"Okay," Marquez said. "Tell us, in your own words, what happened on January 31, 2003."
Back on January 31, 2003, it seemed obvious who had hurt Kyran. At least half a dozen witnesses could testify that someone admitted to injuring the boy that day, and it wasn't Krystal Voss.
Voss carried Kyran into an Alamosa emergency room around 2:30 that afternoon. The boy was limp in her arms, one eye dilated. Beside her was a man named Patrick Ramirez III, a 33-year-old friend from Denver.
Ramirez had arrived around noon at the double-wide trailer that Voss and her husband, Damien Gaston, rented on the outskirts of town. Voss had left Ramirez with Kyran while she went to her job at a local health-food store. She'd been at work only a few minutes, though, when Ramirez phoned and told her to come home, that something was wrong with Kyran.
Ramirez told the doctors that he'd been playing outside with Kyran. The boy had fallen off his shoulders and hit his head. So Ramirez had taken him inside, where Kyran became dizzy, unable to stand, and then passed out. He told the story over and over the next few days while apologizing tearfully -- to Voss, to her husband, to Kyran's grandparents.
He also told the story to Alamosa County Sheriff's Office investigator Harry Alejo. Ramirez had left the hospital by the time Alejo got there that afternoon; in fact, he was already headed back to Denver, by a back route he didn't usually take. Alejo reached him on Voss's cell phone. According to his report, Ramirez was "yelling and excited, and at times crying, telling me he is not sure where he is or what is going to happen to him." Alejo persuaded him to turn around and come back for an interview.
That evening, Ramirez gave Alejo an incredibly detailed account of Kyran's fall. He also said that the child had hit his head several more times as Ramirez, frantically trying to revive the boy, ended up shaking him, slapping him and dropping him in the bathtub. In a second interview two days later, Ramirez added other details, including an admission that he'd smoked a little marijuana earlier that day. At the end of that interview, Alejo arrested Ramirez on suspicion of child abuse.
But the story Ramirez told those first few days didn't match the injuries Kyran had suffered. The boy had multiple bruises on his chest and abdomen but no signs of external damage to the head, such as a skull fracture, that you would expect from a bad fall. The blown pupil was a sign of an acute subdural hematoma, a bleeding inside the skull that can be caused by a blunt impact, a severe shaking, or, in Kyran's case, probably a combination of both actions. The damage to his brain was so extensive that he was flown to Children's Hospital in Denver, where doctors labored for days to relieve the swelling and keep him breathing. They discovered a leg fracture that had probably occurred at the same time as the head injury.
Ramirez was lying about how Kyran got hurt, obviously. But was he trying to protect himself, Alejo wondered, or Krystal Voss?
The relationship between Voss and Ramirez had intrigued the investigator from the start. He soon learned that Voss and Gaston had moved from Denver to the San Luis Valley in the spring of 2002, with hopes of building a solar-powered home on property they'd bought near Blanca. They brought with them their baby, a keen interest in natural healing and herbalism -- and some big-city notions about open marriage. Voss had met Ramirez at a Labor Day barbecue and, with permission from her husband and Ramirez's wife, began a sexual relationship with him. Ramirez told Alejo that the affair had ended a few weeks before Kyran was hurt. Yet here was this grown man, with two daughters of his own, driving 230 miles from Denver to see his ex-lover and babysit her kid.
"My theory in all this," Alejo told Ramirez at the start of their second taped interview, "is that I think that possibly there's more to this story, as far as you trying to cover for her for whatever reason. Or possibly that the injuries happened a different way, and you are afraid to tell me."
At that point, Ramirez denied trying to protect Voss. But Alejo pursued his theory, and the entire direction of the investigation soon shifted. He visited Voss at Children's Hospital and obtained a written statement in which she admitted shaking a fussy Kyran the night before Ramirez arrived, "probably more violently than I meant to."
Then he had one more interview with Ramirez -- who, after several days in jail, had become eager to cooperate. He now claimed that Kyran was already hurt when he arrived at the house and that Voss had persuaded him to tell the doctors a yarn about an accidental fall.
Alejo arrested Voss for felony child abuse. The charge was raised to murder a few weeks later, after Kyran died in foster care of complications from his head injury.
You could say that the arrest of Ramirez, then Voss, less than a week after Kyran was hurt amounted to exceptionally fine police work. Or you could say it was a rush to judgment that clouded everything that followed. If you believed Ramirez's final story, you had to believe he was so infatuated with Voss that he readily agreed to take the fall for a horrendous crime he didn't commit, then cracked like a raw egg when he realized he might be sent up for life. Yet it seemed equally absurd to suggest that Ramirez -- who'd had some youthful, ill-tempered skirmishes with the law but was, by all accounts, a good father to his own daughters -- could have summoned the necessary rage to brutalize Kyran in the half-hour to 45 minutes he was alone with the child, before he called Voss at work.
The case against Voss had problems, too. The nighttime shaking she described in her statement didn't sound nearly severe enough to cause the massive injuries the doctors saw, and both Voss and her husband insisted that the child was fine when Gaston left for work the next morning. There was no prior record of abuse, and relatives uniformly described Voss as an overprotective and exceptionally patient mother.
Yet the prosecution's theory of the case had Kyran's mother shaking him within an inch of his life, leaving him struggling to breathe in his bed -- and then waiting calmly for her ex-lover to show up so they could work out a plan for getting him to the hospital later that day.
The task for both sides was formidable. The prosecutors had to get the jury to believe Ramirez, who'd overnight gone from prime suspect to the state's star witness. They had to portray Voss as a master of manipulation, caught in a web of her own self-incriminating statements. The defense would hinge on shredding Ramirez's credibility, exposing the problems with the medical evidence and challenging the integrity of the investigation and the so-called confession Voss had made.
Like plot points in a bad mystery novel, the themes were baldly outlined in the attorneys' opening statements. "In the early morning hours of January 31, 2003, Kyran Gaston-Voss was hurt," began Alamosa Chief Deputy District Attorney Mike Gonzales. "He was hurt badly. He was hurt by his mother, and those injuries ultimately led to his death. That's why we're here today."
"Krystal Voss is no murderer," retorted defense attorney Wayne Cole. "Patrick Ramirez, who at least seemed to be a friend, was anything but."
Although Ramirez at first denied Alejo's suggestion that he was covering for Voss, the idea "planted a seed in Patrick's mind," Cole said. "He blamed Krystal, and he was rewarded.... That is why we are here. We are all here because of Patrick Ramirez's lies."
The jurors didn't have to wait long to satisfy their curiosity about the man who, according to Cole, had dragged them all into the courtroom. Patrick Ramirez was the state's second witness.
He was preceded by Elizabeth Kinney, an emergency-room physician, who said that Voss seemed dazed when she brought her child to the San Luis Valley Regional Medical Center. "I remember thinking it was odd that she didn't understand that a dilated pupil was a sign of serious injury," Kinney recalled. "She didn't seem to understand that Kyran was at death's door."
Ramirez "seemed more agitated than she did," the doctor added.
Nearly two years later, Ramirez had lost little of his jumpiness. He moved tensely to the stand, spoke so softly at times that the jury could barely hear him, and missed obvious prompts from Deputy DA Gonzales. After the first few faint replies, Gonzales asked if he was nervous.
"Extremely, yes," Ramirez replied. He was "just a nervous person."
Ramirez wore a dark suit, close-cropped hair and a jailhouse pallor. Everything except the suit was courtesy of the deal he'd made with the district attorney. Last April, he was sentenced to a year in prison after pleading guilty to tampering with evidence and reckless endangerment of a child -- the feeblest felony and mildest misdemeanor the prosecution could offer in the case. With good behavior, he'd be back on the streets by New Year's. In return, all he had to do was repeat on the stand the story he'd told Alejo the third time around, about how his previous stories were all lies designed to protect Voss.
Still, there were a few nasty new wrinkles in the version Ramirez gave the jury. He'd told Alejo that his sexual relationship with Voss had ended months before the day Kyran was hurt, due in part to his wife's displeasure with the situation. He'd said much the same under oath at a preliminary hearing. But now he said he'd come all the way to Alamosa to bring Voss back to Denver for a possible threesome with his wife.
"We were going to party and hang out and see what happened," Ramirez explained. "This is embarrassing to say in front of everybody, but I was going to try to have sex with two women.... The three of us were well aware of what may happen."
Voss was outside the trailer as he pulled up, looking upset. She said she'd had a rough night with Kyran and "could have killed him." And she told him she shook Kyran -- not only the night before, but that morning, too, because he'd been acting "horrible."
She begged him to help her. It was Voss who came up with the story about Kyran falling off his shoulders, Ramirez testified, a story they could tell in the emergency room so that Voss wouldn't have her child taken away from her.
"I was pretty reluctant," he said. "I didn't think anyone would buy it. But she has a way of looking at me, a kind of gaze, and I guess I was a sucker for it."
"What was going through your mind?" Gonzales asked.
"I guess I thought I was in love with her. I believed in her. Looking back, I feel like a real idiot."
After Voss left for work, he said, he went into the bedroom to check on Kyran. The boy was making a gurgling sound, and blood mixed with saliva was bubbling in his mouth. Ramirez panicked, and rushed the boy to the bathroom so that he could splash water on him. When he took Kyran's clothes off, he saw large bruises and some kind of "rash" on his neck. He called Voss and screamed at her to "get your ass here right now."
"I didn't know what to do," he told the court. "I didn't react right. I didn't call 911."
In the days that followed, Voss led him to believe that Kyran was improving, he said. She persuaded him to leave the emergency room and take off for Denver. She urged him to stick to his story. She wanted to know what he was telling Alejo. She "coached" him on how to answer the questions, how to handle a polygraph test (which he ultimately declined to take). It was all Voss.
"How is the jury supposed to believe this version is the truth?" Gonzales asked.
"I don't know," Ramirez said, wincing. "I decided at a certain point that, regardless of what happened to me, I'm going to tell the truth. I'm going to give a little boy a voice."
Gonzales asked the witness if he saw the person in the courtroom who had hurt Kyran.
"I sure do," Ramirez said, furiously pointing a finger at Voss.
In more than nine hours of testimony, it was the one moment that Ramirez actually met the gaze of his ex-lover.
The two court-appointed defense attorneys, Cole and Marquez, were a study in contrasts. Cole, a veteran public defender from the Denver area, was lean, well-coiffed, dispassionate and efficient, in the manner of Law and Order's Jack McCoy. Marquez, a well-known attorney in the San Luis Valley, was broad-shouldered and balding, given to expansive gestures and pregnant pauses -- and more than a quiver of outrage.
It was Marquez who stood to cross-examine Ramirez, and the tone of the marathon inquisition that followed was established in the first few seconds.
"You said you want to give this little boy a voice?" he asked.
"Yes," Ramirez murmured.
"Speak up!" Marquez snapped, as if training a small animal.
"Yes," Ramirez repeated, a little louder.
Marquez brandished a copy of a letter Ramirez had written to prosecutors just two weeks earlier. The state's star witness was so concerned about being a voice for Kyran, Marquez observed, that he'd demanded "immunity from charges based on my testimony" and had threatened to stand mute at Voss's trial, invoking his Fifth Amendment right against self-incrimination if he didn't get it.
"That letter was written based on, unfortunately, influence from jailhouse lawyers," Ramirez said, his voice fading again. "I really just wanted to speak to my lawyer."
Marquez zeroed in on the deal that Ramirez had made with prosecutors. Didn't anyone explain to him that if he stuck to his story about covering for Voss, he already had immunity? "You have some concerns that if Ms. Voss is found not guilty, something will happen to you?" he asked.
Ramirez professed not to know the dire penalties for the charges he would have faced if he hadn't taken the deal. He didn't think he'd reaped the benefits of a generous plea bargain. "Prison is no benefit, sir," he huffed.
He didn't want to go over the lies he'd told the police before he decided to give a little boy a voice. But Marquez insisted on it. He played the tape of Ramirez's first interview with Alejo, so the jury could hear how fluent and inventive a liar the witness really was. When it was over, Marquez pointed out that mixed in with the ridiculous story of Kyran's accidental fall was a vivid account of dizziness, a seizure, limpness, a blown pupil -- all credible signs of a child succumbing to the effects of an abusive head trauma. Everyone agreed that Ramirez had fabricated the accident -- but perhaps, Marquez suggested, the symptoms he described were a true rendering of what he saw unfolding before his eyes.
"Somehow you were able to make up this entire story, and now you want this jury to believe it was all a lie," he said.
"I did make that up," Ramirez insisted. "A lot of it. I was making things up as I went."
"You said you were afraid you would get blamed for hurting this child. So you told everybody that you hurt this child, didn't you?"
"I was trying to help Ms. Voss," Ramirez said. "I was panicking. I'm not proud of it, sir."
Marquez hammered away at the contradictory statements Ramirez had made about why he didn't simply call 911 when he found out that Kyran was badly hurt, rather than waiting for Voss to arrive. "If Krystal had acted the way you acted, Kyran would never have gone to the hospital," he said.
Ramirez disagreed. "If it wasn't for me, he wouldn't have gone to the hospital," he said.
"If it wasn't for you, he wouldn't have hadto go to the hospital," Marquez bristled. "You're the one who hurt this child."
"No, sir," Ramirez said.
The mauling was interrupted by the evening break. The next day, Marquez kept Ramirez on the stand for another five hours. The big man paced and jabbed, patiently working the testimony, landing a surprise haymaker now and then.
On two occasions, when Marquez approached him, Ramirez actually flinched, as if the ordeal was about to turn physical. During breaks, he entered and left the courtroom with eyes downcast, friendless except for the sheriff's deputy escorting him. His path required him to squeeze past the defense table, inches from Voss, but the two kept their backs to each other.
Marquez played the tape of the second interview with Alejo, the one in which Ramirez admitted to smoking marijuana on the drive to Alamosa. After his arrest, he denied that he'd done any drugs that day, just as he denied so much else that he'd told the sergeant. Marquez wondered why Ramirez bothered to mention marijuana in the first place -- unless he was trying to come clean with a cop who was pressuring him to take a polygraph.
"Did you throw in the marijuana as a gift for Sergeant Alejo?" he asked. "Do you tell people you commit crimes just for the fun of it?"
"I don't know," Ramirez said. "I was just trying to keep my composure."
Marquez led Ramirez through his final account of what happened that day -- the version in which he discovered Kyran badly injured in his bed, tried to revive him and then called Voss. The entire sequence of events, Ramirez agreed, took about fifteen minutes. That left a substantial gap in the period he was alone with Kyran, as much as thirty minutes that Ramirez could not account for. Still, he again denied that he'd done anything to hurt Kyran.
But Marquez wasn't done yet. He waded through a concordance of Ramirez's various statements to Alejo, trying to persuade the jury that this final account had been crafted in response to suggestions Alejo had made in previous interviews. It was Alejo, after all, who'd first brought up the "theory" that Ramirez was covering for Voss. It was Alejo who hinted that Voss might have shaken her boy the night before, days before he ever obtained any corroboration on that point from Voss -- or Ramirez. And as his interviews with Ramirez progressed, seemingly innocuous details became more sinister.
For example, the first time Ramirez told the sergeant what Voss had said about a rough night with Kyran, "I could have killed him" was presented as a simple figure of speech. By the third interview, Ramirez was treating it as a literal threat: "She said that if it wasn't for Damien that prior night, she would have hurt Kyran."
Marquez asked Ramirez if he'd ever said he could kill someone and not meant it.
"That's not terminology I would use," Ramirez replied.
The exchange prompted a quick huddle of the lawyers in the judge's chambers. Ramirez's denial that he'd ever talked about killing someone had opened the door for the defense to introduce his criminal record, which included 1993 assault charges that had been pleaded down to a couple of misdemeanors -- and a 2001 summons issued by Denver police after Ramirez allegedly threatened to kill a doctor at Children's Hospital. Ramirez had pleaded guilty to disturbing the peace, and the threat charge had been dismissed.
But Judge John Kuenhold decided that Ramirez should be given a chance to close that door. When questioning resumed, the witness quickly corrected himself. "Yes, I've used that expression before," he said.
As the afternoon wore on, Marquez returned to the notion that Ramirez wanted to be a voice for Kyran. He'd testified that, after five days of lying, he decided to tell the truth because he finally realized how badly the child was hurt. But he'd known that all along, Marquez insisted. At the ER, Dr. Kinney had declared that the baby was not going to make it. Alejo had told him that Kyran might die. And Ramirez had told Alejo that, when he saw the dilated pupil, he "knew that baby was hurt, and hurt bad.... I thought he was possibly dead right there."
"You are now saying you didn't think he was hurt very bad," Marquez said.
"I didn't realize the full extent of his injuries," Ramirez replied.
Marquez paused. He shrugged, an enormous shudder of disgust. "I have nothing further," he said.
On redirect, prosecutor Gonzales labored to patch Ramirez's credibility back together. He played the tape of the third interview, in which Ramirez gave Alejo an account of the crime that fit neatly with the investigator's theory. But by now the jury had heard so many versions of what happened the day Kyran was hurt, all from the same man, that there seemed little point in asking any more questions.
Harry Alejo fared much better than Patrick Ramirez.
An ex-Marine who's spent the last ten years as the only full-time investigator in the sheriff's office, Alejo is a veteran of the witness stand. He came across as affable but durable -- a Mike Mazurki type, capable of shrugging off jabs, haymakers and anything else the defense could throw at him.
Yes, he recalled his first conversation with Krystal Voss in the emergency room. It took some time to get her attention, to get her off her cell phone. He sounded slightly annoyed at the memory. He didn't bring a tape recorder or advise her of her rights when he questioned her a few days later in Denver because, he explained blandly, he hadn't come to arrest her.
As Alejo told it, the statement Voss made about shaking her baby just came out of nowhere. "I told her Patrick had been arrested," he recalled. "She was talking freely...within five to ten minutes, she kind of put her head down. She stopped talking. She looked back at me, and her eyes were watery. I said, 'Things happen.'
"She tells me that on the thirtieth, Kyran had had stomach problems.... She grabbed Kyran and shook him two to three times violently.... She told me she was not gentle with him," Alejo said.
"I just looked at her. To be honest, I didn't know what to say. I realized I just got a confession. I asked her if she could please put that in writing for me."
On cross, Cole established that Alejo often didn't tape interviews, relying instead on handwritten notes that were shredded after he wrote up his reports. His reports and prior testimony in the Voss case had numerous omissions and errors, the attorney noted. He'd mixed up statements given by Ramirez at different times, mischaracterized photos taken at the Voss home, misstated dates and events, failed to interview all relevant witnesses and generally conducted a less-than-ideal investigation.
"I'm not the brightest guy in the world," Alejo said disarmingly. "Sometimes I get confused."
But he was adamant that he hadn't coerced the miraculous confession from Voss.
From that point forward, the prosecution's case seemed to gather steam. The next witness was Kathryn Wells, a pediatrician and medical director of the Denver Family Crisis Center, who gave a lengthy PowerPoint show on shaken babies. Wells, who'd examined Kyran at Children's Hospital, testified that his injuries could have occurred hours before Ramirez arrived. She also believed that his bruises "seemed to be in different stages of evolution" -- another detail pointing at Voss.
Closely questioned by the defense, Wells conceded that there was no reliable way to date bruises unless they were already turning yellow; her report had described the bruises as purplish. But the defense's biggest hurdle wasn't the medical evidence -- which, CSI scripts to the contrary, didn't instantly identify the perpetrator -- or even the unflappable Alejo. It was a county social worker named Marcia Tuggle, who'd interviewed both Ramirez and Voss about what had happened to Kyran.
Tuggle was the case's October surprise. Alejo had been present at her meetings with both suspects but had failed to mention these events in his reports. Tuggle didn't file a report with Alejo on her interviews until almost eighteen months later. The defense didn't learn that Tuggle kept notes on the meetings until more than a year into the discovery process and didn't obtain access to her notes until October, three weeks before the trial began.
The notes were dynamite. Tuggle's meeting with Ramirez had taken place after his arrest but before his "change of heart" with Alejo. It was a transitional interview, with Ramirez still telling pieces of the old story about Kyran's accidental fall but trying out new bits of information. He told Tuggle he was upset that Voss hadn't asked about him since his arrest and said that he'd had time to think about things.
According to Tuggle's notes, Ramirez said he didn't think Kyran hit the ground "hard enough to hurt him." He wasn't thatcareless with the child and may not have dropped him inside the house at all: "He doesn't think he hurt the child enough" to cause such dire injuries, read one note. Maybe Krystal had done it the night before or earlier that day by shaking Kyran. He didn't want to take the rap for the parents, whom he considered "fake" and "deceitful."
That interview didn't help Ramirez's credibility, but Tuggle's notes on her encounter with Voss were even more damaging to the defense. The caseworker had met with her at Children's Hospital minutes after Voss had written her statement for Alejo. The ostensible purpose of the meeting was so Tuggle could explain that the county was seeking a temporary custody order for Kyran, as is common in abuse investigations. But within a few minutes, Voss was confessing again.
"Krystal stated that she was really afraid that she had hurt her child," Tuggle testified. "He was whiny and upset Thursday night late. She had shaken him really hard, then slammed him down on the bed and rubbed his stomach vigorously. She was afraid she caused bruises and left marks. She was also crying and saying she had no patience with her child."
The statement Alejo had obtained from Voss made no mention of "slamming" Kyran against anything. It was a troubling omission; according to Dr. Wells, the lopsided character of Kyran's head injury suggested an impact of some kind as well as shaking. Now here was a record, however belatedly presented, of a shaking and a slamming. Those were Voss's own words, Tuggle insisted. "I wrote down what she said."
The defense attempted to score some points with other entries in Tuggle's notes, which documented an acrimonious feud between Alejo, the Alamosa County Department of Social Services and the doctors at Children's Hospital. The doctors found Alejo's "lack of urgency" and his refusal to share information disturbing. Alejo, for his part, berated Tuggle for interfering in his investigation. In one phone call, he informed Tuggle that he was "not going to fit his investigation into some doctor's diagnosis of what happened.... He will decide what really happened. They are not going to dictate to him."
Alejo, it seemed, didn't want to be confused by medical facts. Flustered by the unflattering portrait of him revealed in her notes, Tuggle went up to him after her testimony to make amends. "I need a hug, Harry," she said. "I'm so sorry."
But prosecutor Gonzales and his boss, Alamosa District Attorney Peter Comar, had reason to be pleased with Tuggle's performance. How was Voss going to explain not one, but two confessions?
During the break, Comar turned to Alejo with a glint in his eye. "They've got to put her on," he said.
The defense called only two witnesses: Damien Gaston and Krystal Voss.
Gaston had stood by his wife since the day Kyran was hurt. He sat in the front row throughout the trial, hands clasped tightly in front of him, beaming prayers her way, blowing her kisses and embracing her during breaks. On the stand, he alternated between gazing intently at her, Wayne Cole and the jury.
"Do you love Krystal Voss?" Cole asked.
"Yes, yes, I do," Gaston said.
"If you believed Krystal Voss had inflicted injuries on your son, how would you have reacted?"
"I sure would not be here today," Gaston said.
He recalled how he'd met his wife when they were both working at Wild Oats in Denver, how they started dating and eventually married. A few weeks after they moved to the San Luis Valley, he'd found a job with a pump crew for an irrigation company. His routine remained the same up until the day Kyran was hurt.
The night before, Gaston said, Kyran was running around and playing. Everyone got to bed a little later than usual. Sometime in the night, he'd woken up to find Kyran whining beside his toddler bed, at the foot of his parents' bed. That wasn't unusual; Kyran was still waking them up several times a night. He put the boy in bed between himself and Voss. Later, Kyran's "wiggling" woke him up again, and Voss asked, "Damien, can you take him?"
Gaston cradled the child on his shoulder and went back to sleep. He got up at half past six, his wife and child still asleep. "I had to roll Kyran back off my shoulder," he said. "I gave him a kiss on the cheek. He looked like he was very happy and comfortable."
He left for work an hour later. He knew Ramirez was coming to give his wife a ride to Denver "so she could get some errands done," he said. That afternoon he received the phone call every parent dreads.
Over the next four days, he recalled, he and Voss scarcely left Kyran's side at Children's Hospital. They were both exhausted from lack of sleep when Alejo came to talk to them. Voss was gone a long time with the investigator, he recalled, and returned in an agitated state.
"Alejo guided her back to the ICU," he said. "She took two or three steps and fell into my arms, sobbing and crying profusely. She was shaking like a leaf. She said, 'I started it all; I started the trauma. I could have started the damage to his brain.' And I said, ŒWhat are you talking about?'"
DA Comar had only two questions for the witness. One involved whether Voss tried to flee the hospital when Alejo came to arrest her; contrary to Alejo's testimony, Gaston insisted that she didn't. The other question showed where the prosecution was heading with the case: Gaston didn't have any "personal knowledge" of what happened at his house between the time he left for work that morning and the time Ramirez showed up, did he?
Of course not. Only one person did: Krystal Voss. Perhaps Kyran was still "normal" when Gaston left, this theory seemed to suggest, but Voss might have shaken him again that morning, as Ramirez claimed. It was just a theory -- if a mother was going to confess to shaking her son the night before, why wouldn't she also admit what she had done that morning? -- but only Voss could refute it.
She tried. At Marquez's invitation, she told the jury what Kyran did that morning. In her own words, she described how he played with some of his Christmas toys. How he ate bananas. How he brought her books to read to him. When Ramirez arrived, she put him down for his nap. "He was getting real good about going to nap by himself," she said.
Ramirez had come to babysit Kyran. Yes, she was planning to go back to Denver and stay with him and his wife, but not for a threesome. The sex was over, she insisted. "They said I could sleep on their couch and borrow their car," she said.
Kyran was still napping when she left for work, shortly after one o'clock. Around two she got a call from Ramirez -- not what the hell did you do, get your ass here right now!More like, I need you to come home now, just come home now.
She drove fast. "Patrick was on the front porch with Kyran in his arms," she said, her voice shaking. "He held him out to me and said, 'He's hurt real bad, hon.'"
She burst into sobs. She'd been tearful at times throughout the trial, usually when Kyran's injuries were discussed. She'd dabbed her eyes with tissues and clutched a shawl tightly around her, seemingly freezing in a room that others complained was too warm. The jury had taken note; whether they thought it was grief or melodrama was anyone's guess.
Marquez gently led her forward to other scenes. Ramirez on his knees, apologizing to her at the hospital. Kyran hooked up to all those tubes and machines. A cop telling her to stay out of the doctors' way. The flight to Denver. Asking Ramirez why the doctors were saying it looked like a shaking, not a fall, and his strange reply: "I probably hurt him more by trying to help him."
"Patrick Ramirez has said this was all your idea," Marquez said.
"That is an absolute lie," she said.
As she described her fateful interview with Alejo, her voice began to rise. It was "the most horrible ninety minutes" of her life. Alejo was insisting that she hadn't told him the truth. He wanted herto explain why the injuries didn't match Ramirez's story.
"Are you angry about that interview?" Marquez asked.
"I am," she said. "I was not capable of logical thought. Sergeant Alejo told me specific things to write down. I thought he was going to take me away from my child.... I did what he told me to do because I wanted to leave that room and get back to Kyran."
She told Alejo that she'd "jostled" Kyran in bed the night before Ramirez arrived. He seized on that admission and gave a little unscientific lecture, complete with diagrams, on how "it could take hours and hours for the brain to swell." He told her to write that she'd shaken him "probably more violently than I meant to," that she may have started "the trauma to my son's brain that happened the next day." Not satisfied with the finished statement, he had her squeeze in one more line between two completed paragraphs: "In looking back he'd already been hurt."
The interview with Tuggle had come minutes after Alejo was done. Voss denied telling Tuggle that she'd shaken Kyran or slammed him into the bed.
Comar then embarked on an incredulous and sarcastic cross-examination. Why would Tuggle lie? Why would any mother let a police officer dictate a confession to her about scrambling her own son's brains?
He waved Voss's words in front of her. "That's a three-page handwritten statement," he bellowed. "And you wrote it. Did he stand over you as you wrote it?"
Voss said he did, then corrected herself: Alejo was out of the room for ten minutes. But she wasn't sure if she was under arrest at the time. "He told me to sit there and keep writing," she said.
Alejo madeher write that she started the trauma to her son's brain? Did Alejo tell her to write that she was "angry at Kyran" that night? Weren't those her words?
"I would call it 'frustrated' if I was choosing the words," Voss replied.
"This is your language, is it not?" Comar demanded.
"I didn't know the mechanics and forces required to cause that sort of damage," she replied. "I thought I may have started something.... I didn't believe so, but here was this policeman telling me things. I felt like I was walking on the bottom of the ocean, and nothing seemed real. I know now anything is possible when a mother hasn't slept and her baby is dying."
Incensed, Comar got even louder, several degrees more belligerent than Marquez had been with Ramirez. Finally, Judge Kuenhold told him to "tone it down," but the DA had made his point.
Marquez limited his redirect to exploring the mystery of why a mother might blame herself in such circumstances, even if she'd committed no crime.
"When your child was lying dying in the hospital, who was responsible?" he asked.
"Patrick Ramirez," Voss said.
"How did you feel about your role?"
"I felt bad about leaving my son there with him," she said, convulsing again in sobs. "It was the worst mistake I ever made, going to work that day."
"You feel guilty."
"Yes, because I left him there."
In murder trials, the prosecution's closing argument is often a relentlessly logical march through the evidence, while the defense mounts an appeal to emotion, gut instincts, so-called common sense or alternate theories of the crime, however flimsy. In the Voss case, already the exception to so many rules, the roles were largely reversed.
With the aid of a laptop and a big screen, Marquez walked the jury through a ninety-minute review of testimony and exhibits, focusing on the many dubious statements of Patrick Ramirez. Among the lies were some incontrovertible truths, Marquez argued, including the detailed description of Kyran's declining condition.
"How could someone who did not see these things happen give you these symptoms of a serious, abusive head injury?" he asked. "This is textbook. Patrick saw this happen, and he doesn't want to accept it."
Even the state's own expert witness, Dr. Wells, had provided the defense with some ammunition. She'd said that many of the symptoms would have been immediate, not hours in the making, yet there was evidence that Kyran was behaving normally that morning. Wells had also agreed that perpetrators of child abuse often minimize their actions; often attribute the injury to a short fall; blame someone else; and change stories to fit the information they're getting about the injuries.
As for Voss's statement, Marquez insisted that a mother's stricken conscience didn't amount to literal guilt. "Did she feel responsible for Kyran's injuries? Absolutely," he said. "As parents, aren't we responsible for everything that happens to our children?
"This is a case about tragedies," he continued. "The first is Kyran, who will never be the man he was supposed to be. Kyran's family will never see him grow up. Patrick Ramirez will not be punished for what he did. There's one more tragedy out there. Only you can prevent that from happening."
There was only one kind of guilt at issue, prosecutor Gonzales responded. Voss said she shook and slammed her child because that's what she did. "No parent is going to make up a story that they violently shook their child unless that parent has guilt for what they've done," he said.
Since there seemed to be some doubts about the injuries caused by the nighttime shaking, Gonzales proposed a second shaking the next morning. The scenario: Voss was packing, getting ready for her trip to Denver with Ramirez, her kid was fussy, whining...
Marquez objected. Judge Kuenhold overruled him.
Gonzales plunged ahead. "You're packing. You lose your cool. One moment in time. You shake that child. No more crying."
Marquez objected again. Kuenhold nodded sympathetically.
"There is no evidence of a shaking the next morning," the judge said. "The jury knows that."
His theory of the case in ruins, trashed by the judge himself, Gonzales kept his cool. Okay, there was no evidence. "But you can make reasonable inferences," he told the jury.
He held up an oversized photo of a smiling toddler that Alejo had seized from the Voss home. "This is Kyran before his injuries," Gonzales said.
More photos, blow-ups of pictures taken of the boy at Children's Hospital. "This is what he looked like after his mother shook him and slammed him on the bed."
And with those images thrust in their faces, the jury got the case.
On Tuesday, November 9, Voss was feeling confident enough to visit the Alamosa public library and fire off an e-mail to her supporters.
"The jury went into deliberations at 9 am this morning," she wrote. "The judge let us go eat and we have the cell phone on waiting for a verdict. My attorneys believe that this case has gone better than they could have ever hoped it to. It is currently 1 pm as I write this, and I am giving thanks for being able to go home tonight, sleep in our own bed, and cuddle with our kitten."
Her thanks were misplaced. Ninety minutes later Voss was back in court. The jury brought in its verdict: guilty of knowing and reckless child abuse resulting in death, a Class 2 felony that carries a sentence of up to 48 years in prison.
Voss broke down as the deputies led her away.
Judge Kuenhold scheduled her sentencing for January 4.
There were things the jurors didn't know. There always are.
They didn't know about Ramirez's criminal record. They also didn't know about Ramirez's claim that Voss had told him, months before Kyran got hurt, that she'd shaken the child before. Both items were considered too prejudicial, and they knocked out other testimony as well; the defense decided not to put on any character witnesses to support Voss's claim of being a good mother, for fear the prosecution would be allowed to bring Ramirez back to rebut them.
They didn't hear from Damien's father, Steve Gaston, who was prepared to testify that he'd called Voss at 10:30 that morning and heard Kyran laughing and playing in the background. If that was true, the head injury must have occurred later. But the elder Gaston had had some shrill conversations with Alejo about the investigator's "persecution" of Voss and may have been considered too volatile to put on the stand. Moments after the verdict was announced, he confronted Alejo in the courtroom. "I guarantee you will go to hell for what you have done," he said.
They didn't hear about the feces-flecked bathtub and the dirty diaper on the floor. Damien Gaston had found both at his home after Alejo had collected all the evidence that interested him. In four different interviews, Ramirez had told Alejo, Tuggle and a victims' advocate that he'd changed a whiny Kyran's diaper before his "fall." But that event was omitted in the final version, in which he said he'd found Kyran already unconscious.
And the defense didn't put on medical experts of its own, witnesses who might have explained that a dirty diaper or crying have been known to trigger what child-abuse researchers call "impulse homicides."
Would any of this have made a difference? The jury did have Voss's statement about shaking her son, and "that was a major portion of it," says one juror, who asked to remain anonymous. "I didn't feel her testimony that the statement was coerced was accurate."
They also had the blown-up pictures of Kyran in the hospital. "We just had a difficult time looking at the pictures and seeing the amount of bruises and thinking that it could have happened in the time span that Patrick Ramirez had the baby," the juror says. "It's just, to me, unfathomable that he could have done that much damage to that baby in that period of time."
The jury didn't entirely believe Ramirez; they agreed there was no evidence of a shaking that morning. In fact, the juror says, there was "a lot of room for reasonable doubt." But they believed Dr. Wells, and she'd allowed a generous window of time as to when the injuries might have occurred. Still, the juror's interpretation of Wells's testimony is medically improbable, if not impossible, given the kind of severe brain injury Kyran suffered. "He could have been somewhat normal for a while," the juror says. "Then abnormalities start popping up before the herniation of the brain."
District Attorney Comar didn't respond to an interview request. Defense attorney Marquez says he's loath to comment on a case before sentencing. "I'm just very disappointed," he says. "I know the jury saw things differently, but I continue to believe in my client."
Damien Gaston is pondering appeals and asking strangers for their prayers. The verdict was not what he considers justice for his wife -- or his son. "I'm scared in one sense, but I'm really more empowered and pissed off," he says. "I've got to fight. I've got to figure out how."
He wonders how much his wife's lifestyle might have influenced the verdict, whether the jury saw how "naíve" she really was in her dealings with Ramirez and the police. "I could question everything about this case," he says. "I've asked myself if there was any way she might have unintentionally hurt Kyran. I've thought about that possibility. But when I hear Patrick, all doubt fades. I know these two people."
Krystal Voss marks time in the Alamosa County jail. "If I could die this moment to bring Kyran back, I would," she wrote last week in a letter to Westword. "I want to find some way to push for better legislation on procedures for criminal investigation, such as mandatory audio and video taping and Miranda rights for all suspects.... More family members need to be spoken to when children are victims. That was not done in this case."
Still proclaiming her innocence, she insists that her sin was trusting her son to Patrick Ramirez. "I never would have walked out that door on January 31, 2003, if I could have known that Kyran would be killed," she wrote. "I am tortured and punished each day by his absence."