Convicted Baby Killer Loses Appeal to Overturn Death Penalty

HOUSTON – A federal appeals court has upheld the conviction of an El Paso man sent to death row for stomping his girlfriend's baby to death but reversed a lower court's ruling that could have resulted in a new sentence.

In a second case, the 5th U.S. Circuit Court of Appeals rejected an appeal from the convicted killer of two people in Montgomery County because the appeal was filed one day too late.

In the El Paso case, Rigoberto Avila, 36, was condemned for the slaying of 19-month-old Nicolas Macias. The child was one of two children Avila was baby-sitting the night of Feb. 29, 2000. He called 911 to report the child had stopped breathing and told authorities that Nicolas' 4-year-old brother had covered the baby's mouth while the two were playing.

Evidence, however, showed the child had been kicked in the stomach and the blow was equal to the force of someone jumping from a car traveling at 60 mph. A physician testified at Avila's trial in 2001 that the pressure from the kick ripped the organs of the child from his spine.

In a statement to police, Avila said he stomped on the child because he was jealous of the attention the mother was giving him.

In Avila's appeal, lawyers argued prosecutors switched pathologists to testify as experts at his trial and that an autopsy report from the original physician, whom they describe as a member of the prosecution team, wasn't used because it said the child could havehe Montgomery County case, the appeals court said lawyers for Keith Steven Thurmond missed a deadline by one day when filing his appeal of his conviction and death sentence for the fatal shootings of his estranged wife, Sharon, and a neighbor, Guy Sean Fernandez.

Sharon Thurmond, 32, had separated from her husband a few months before the shootings and moved across the street in Magnolia to live with Fernandez, 35. The day of the slayings in September 2001, deputies served Thurmond with a protective order and placed his 6-year-old son in the custody of his wife.

In his appeal, Thurmond, 50, said his attorney finished the district court appeal on Aug. 31, 2006, the last day it could be filed under court rules. An electronic timing box at the courthouse, however, wasn't working, and the petition was mailed, resulting in a Sept. 1 filing date. Thurmond argued because of the failure of the timing machine, his day-late petition should be allowed.

In its ruling, the appeals court said other electronic avenues were available to get the documents in on time and that Thurmond's lawyer knew the timing machine was broken because he'd tried to file something in another case earlier.

"In light of counsel's previous problems with the late filing machine, more than eight months to prepare the petition, and the availability of electronic filing, this court cannot find that Thurmond was diligently pursuing his rights by waiting until the last day, after business hours, to attempt to timely file his petition in the after hours filing machine," the court said.

Because they refused to accept the appeal, the ap from the tinkering of a few lawmakers inserting language in a must-pass appropriations bill without any opportunity for debate," said Nelson, who has agreed to vote for the bill.

Menendez and Nelson are key lawmakers on issues related to Cuba. Menendez is of Cuban descent and both come from states where Cuban-Americans are a key — and vocal — constituency.

A strict U.S. embargo on other exports to Cuba remains in place, as do restrictions on most travel.

Geithner wrote that the administration is "currently reviewing United States policy toward Cuba to determine the best way to foster democratic change in Cuba and improve the lives of the Cuban people."

Concerns about human rights and political freedom in Cuba and Cuba's support for leftist guerrilla movements have been the main reasons cited by American presidents since John F. Kennedy for attempting to isolate the Caribbean nation.