Diana Lumbrera was 31 when her four-year-old son, Jose Antonio, was carried dead into a hospital emergency room in Garden City, Kansas, on the night of May 1, 1990. Doctors concluded that he had been smothered. He was the seventh young child to die in her care. Five of her other children, and the infant daughter of a cousin she was looking after, had died in West Texas between 1976 and 1984, and none of those deaths had led to criminal charges.
A Kansas jury convicted her of her son's first-degree murder. The Kansas Supreme Court threw out that verdict in 1992 because of an accumulation of trial errors, and a second jury convicted her again in April 1993. The court upheld the second conviction in March 1995. By then, according to the court, she had also been convicted in Texas of the murders of two more of her children, Jose Lionel Garza and Melinda Garza, on pleas of no contest.
Lumbrera was a native of Texas. She married in 1974, when she was still a teenager, according to an account of the case published by the Garden City Police Department. She and her husband had three children in quick succession: Melissa, born in 1975, Joanna, born in 1976, and Jose Lionel, born in 1977. The family lived in Bovina, in Parmer County, and The Castro County News later described her as a former resident of both Parmer and Castro counties. She had a 10th grade education, the Kansas Supreme Court noted, and spoke English well.
Joanna was the first to die. She was barely three months old when her mother brought her to the community hospital in Bovina in 1976. A pathologist's report attributed her death to asphyxiation caused by a convulsive disorder, and no autopsy was done, the police department's account says.
Jose Lionel was brought to the Bovina emergency room on February 10, 1978, and was moved to a hospital in Lubbock. He died there on February 13, 1978, at about two and a half months old. His death certificate listed "multiple natural causes," according to the Kansas Supreme Court.
Melissa, three, was dead on arrival at the Bovina emergency room on October 2, 1978. An Amarillo pathologist attributed her death to asphyxia from aspirating the contents of her stomach. A second insurance policy on her life had been bought the day before she died, the police department's account says.
Ericka Aleman, the six-week-old daughter of one of Lumbrera's cousins, died on October 8, 1980, after Lumbrera took her to an emergency room.
Melinda Garza died on August 17, 1982, at two years and nine months. Her death certificate gave acute viral bronchopneumonitis and acute heart failure as the causes, according to the Kansas Supreme Court; the police department's account quotes the certificate as blaming heart failure linked to congenital heart disease.
Daniel, another son, was treated for an ear infection on March 25, 1984, and was dead on arrival at an emergency room three days later. His death was attributed to septicemia, a blood infection, although blood tests taken earlier had shown no sign of it, the police department's account says.
Each of the children had been insured, for sums of between $3,000 and $5,000, the police department's account says. In 1985 Lumbrera moved to Garden City, in southwest Kansas.
Jose Antonio was four in the spring of 1990. On April 30, 1990, Lumbrera took him to St. Catherine's Hospital in Garden City because he was vomiting. He was diagnosed with a bacterial infection, prescribed amoxicillin and sent home.
About 24 hours later she brought him back. Dr. Michael Shull, a pediatrician, pronounced him dead at 10:25 p.m. on May 1 after attempts to revive him failed. Dr. Lauren Welch, a surgeon, became suspicious that the death was not natural, and his observations pointed to asphyxia. The pathologist, Dr. Eva Vachal, performed the autopsy and concluded that the boy had been smothered. Her finding was recorded as "asphyxia due to smothering," and she found no illness that threatened his life, The Castro County News reported.
Hospital staff called the police. A Garden City detective, James Hawkins, who later became the city's chief of police, questioned Lumbrera and drew up a list of her children who had died, according to the department's account. Jose Antonio had been insured for $5,000.
Police talked to Lumbrera three times. On May 3, 1990, officers interviewed her at her home for about an hour, informally and without Miranda warnings. On May 5 she went to police headquarters, where she was questioned in a tape-recorded interview from about noon to 3:30 p.m. Near the end she was read her rights and asked for her lawyer. She could not reach him and was allowed to go home, and she was then arrested and charged with first-degree murder.
At about 6 p.m. that day a jailer told Detective Elliott that she wanted to talk. In an interview room at the jail, Detectives Elliott and Utz advised her of her rights again, and she signed a waiver. The court later described how the questioning went: Utz suggested that she might have had a blackout. Lumbrera said she had not done anything intentionally, and after the suggestion was repeated she agreed that a blackout was "probably what happened." She had been prescribed sleeping and anti-stress medication, but said she had not taken any for a couple of days.
She later challenged these statements as involuntary. The trial court admitted them, and the Kansas Supreme Court found substantial evidence that they had been given freely and voluntarily, pointing to her age, her schooling, her job and her command of English, and to the absence of any coercion.
A preliminary hearing in Garden City lasted two and a half days and ended on June 15, 1990. Magistrate Judge Claude Heath ruled that there was enough evidence for Lumbrera to stand trial for her son's death, The Castro County News reported on June 28, 1990. The paper, published in Dimmitt, Texas, described her as a former resident of Castro and Parmer counties.
The prosecutor, Richard Hodson, argued that her motive was "a combination of sympathy and money." Testimony at the hearing showed that she had applied for several loans, telling lenders she needed money for her son's cancer treatment and that her father had been killed in a car crash while driving the boy to Mexico for care. Her father was alive, and there was no sign that the boy had cancer.
A Castro County sheriff's deputy, Jerry Bailey, who followed the case, told the paper that investigators had found she "owed a little bit to everybody." A Garden City detective testified that Lumbrera believed her children had died because she had been cursed by a curandero, a folk healer she credited with magical powers. Another detective had asked her about lapses of consciousness, and testimony indicated that she had had at least one blackout before Jose Antonio died.
The defense, led by Michael Quint, had a second autopsy performed. It found a chronic viral infection in the boy's liver, lungs, heart and other organs. Bailey said three nationally known pathologists had been consulted. Capt. Charles Armentrout of the Garden City police headed the investigation.
Lumbrera had been held in the Finney County Jail since her arrest. Hodson opposed any reduction of her bond, and the paper reported that he feared she might flee to Mexico. On a Friday shortly before the paper's report, someone from Texas posted her $50,000 bail and she was released.
Her arrest led Texas authorities to reopen the six earlier deaths, two of them in Castro County, The Castro County News reported. According to the Garden City Police Department's account, a Parmer County grand jury indicted Lumbrera in July 1990 for murder in the deaths of Joanna, Melissa and Melinda. Lubbock County charged her in the death of Jose Lionel, who had died in a Lubbock hospital, and Castro County indicted her on September 10, 1990, in the death of Ericka Aleman. No charge was reported over Daniel's death.
The first trial was held in Garden City. Vachal testified that the boy had been deliberately suffocated. The defense's expert, Dr. William Eckert, blamed a viral infection; prosecutors pointed out that he had not examined the organs himself, since they had been removed at the autopsy, the police department's account says.
Lumbrera's employer and an officer of a credit union testified that she had obtained $850 in what the account calls "sympathy loans," using invented stories of misfortune that included leukemia for her son and a car crash that killed her father. The jury deliberated for less than an hour before convicting her of first-degree murder. She was sentenced to life in prison, with parole possible after a minimum of 15 years.
Lumbrera appealed. The Kansas Supreme Court reversed the conviction on December 11, 1992, in State v. Lumbrera, 252 Kan. 54. In its 1995 opinion the court summarized that decision in one line: the first conviction had been set aside for "cumulative trial errors having deprived defendant of a fair trial." The case was sent back for a new trial.
The retrial began in April 1993. Tamara S. Hicks, an assistant county attorney, and R. Lee McGowan, a deputy county attorney, handled the case for the state on appeal. The state's theory was that Lumbrera had smothered her son to collect on his life insurance.
The prosecution called a series of doctors. Welch described what had made him suspicious. Dr. Luther Frye, an ophthalmologist, concluded from his examination of the boy's eyes that the death could not have been natural. Dr. Michael Baden, a forensic pathologist, testified that Jose Antonio had been smothered. Vachal held to her finding.
The defense again called Eckert, who found a chronic infection and no evidence of smothering. It also called Dr. Charles Reiner, a pediatric pathologist from Columbus, Ohio. Reiner testified that the boy's widespread viral infection would not have killed him by itself, but might have inflamed the AV node, a part of the heart that controls its rhythm, and so caused sudden death from an irregular heartbeat. No slides of the AV node had been made at either autopsy.
When the state learned of that theory, Vachal went back to the heart, made slides of the AV node and ran further tests. Called in rebuttal, she said she had found no abnormality there and kept her conclusion that the boy had been smothered. The defense objected that it had been surprised. The Supreme Court disagreed, holding that the defense had raised the theory itself and could have expected the state to answer it.
This time the jury heard about Texas. The trial court admitted evidence of Lumbrera's two Texas murder convictions, for the deaths of Jose Lionel and Melinda, to show motive, intent and preparation. The trial court listed the similarities it found: each child was very young, each was her own child, each death was alleged to be a suffocation, she was present when each death occurred, she had sought medical care for each child shortly before the death, and each child was insured with her as the beneficiary. The 1995 opinion added that funeral costs in each case were less than the insurance paid.
Two pathologists testified about the Texas deaths. Dr. Robert Bux, a Texas forensic pathologist, reviewed the autopsy reports and slides for Melinda and Jose Lionel and said: "I believe they're asphyxial deaths of one type or another." He also described a rule of thumb for unexplained deaths of infants in one family, saying that "the third empirically I'd call a homicide," and at the court's request he based his opinions only on the two deaths covered by the convictions. Dr. Harry Wilson, a pediatric pathologist from Colorado, said that looked at one by one, each of the two deaths was "an unexpected and unexplained death" that he could not individually call a homicide. He had written that all seven deaths were homicides, but agreed that the argument rested on the pattern. He told the jury that Jose Antonio had died "from asphyxiation probably due to suffocation."
The jury again convicted Lumbrera of first-degree murder.
Represented by Stephen C. Moss of the state appellate defender's office, Lumbrera raised five main issues: the rebuttal testimony, the Texas evidence, the testimony of Bux and Wilson, the admission of her statements to police, and the judge's refusal of two jury instructions she had asked for, one defining reasonable doubt and one on how to weigh expert testimony.
The Kansas Supreme Court rejected every claim and affirmed the conviction on March 10, 1995, in an opinion by Justice McFarland. It found no abuse of discretion in admitting the Texas convictions or the testimony of the two pathologists, and held that defense lawyers who had chosen to question Bux about the other children's deaths could not then complain about his answers. On the instructions, it held that the pattern instructions given were enough. In setting out the background, the court wrote that "five other young children of defendant's had inexplicably died at tender ages" in Texas, and that she "had obtained life insurance on each of the children and financially benefitted from their deaths."
The Kansas Supreme Court's 1995 opinion states that Lumbrera had pleaded no contest in Texas to two murders, those of Jose Lionel Garza and Melinda Garza, and was convicted of both. The court did not give the dates or the sentences.
The Garden City Police Department's account tells it differently. It says she pleaded guilty in Parmer County to Melissa's murder, that the charges over Melinda and Joanna were dropped, that she pleaded no contest in Lubbock County over Jose Lionel's death and received a third life sentence, and that Castro County dropped its case over Ericka Aleman to save an estimated $50,000 in court costs. The court record and the police account agree on Jose Lionel but name different daughters for the second Texas conviction.
According to the department's account, Lumbrera was back in Kansas by June 1991 to begin serving her sentence there, and if released by Kansas she was to be sent to Texas to serve the Texas terms.
Only three of the seven deaths ended in convictions: Jose Antonio's in Kansas, and two in Texas that the Kansas Supreme Court identifies as Jose Lionel's and Melinda's. The deaths of Joanna, Melissa and Ericka Aleman led to murder charges in Texas. The Kansas court record does not say how those charges ended; the police department's account says that the cases over Joanna and Ericka Aleman were dropped and that she pleaded guilty over Melissa, which the court record does not mention. No charge over Daniel's death was reported.
The causes recorded at the time pointed away from a crime: a convulsive disorder for Joanna, multiple natural causes for Jose Lionel, aspiration for Melissa, heart failure and infection for Melinda, and septicemia for Daniel. The view that the seven deaths formed one pattern of homicide came later and rested, as Wilson acknowledged in court, on the pattern rather than on the medical findings in each case.
The defense maintained throughout the Kansas case that Jose Antonio died of natural causes, a viral infection that might have disturbed his heart rhythm. Two juries rejected that, and the state's pathologist found no sign of it when she examined the heart again.
Lumbrera's own explanation, as described at the 1990 preliminary hearing, was that a curandero had cursed her.
1974: Diana marries.
1975 to 1977: her children Melissa, Joanna and Jose Lionel are born.
1976: Joanna dies at about three months in Bovina, Texas.
February 13, 1978: Jose Lionel Garza dies in a Lubbock hospital, three days after being brought to the Bovina emergency room.
October 2, 1978: Melissa, three, is dead on arrival at the Bovina emergency room.
October 8, 1980: Ericka Aleman, a cousin's six-week-old daughter, dies.
August 17, 1982: Melinda Garza dies at two years and nine months.
March 28, 1984: Daniel is dead on arrival at an emergency room three days after treatment for an ear infection.
1985: Lumbrera moves to Garden City, Kansas.
April 30, 1990: Jose Antonio is treated at St. Catherine's Hospital and sent home.
May 1, 1990: Jose Antonio is pronounced dead at 10:25 p.m.
May 3, 1990: police interview Lumbrera at home.
May 5, 1990: she is questioned at police headquarters, arrested and charged with first-degree murder.
June 15, 1990: preliminary hearing ends; she is ordered to stand trial and later released on $50,000 bail.
July 1990: Parmer County grand jury indictment, as reported by the Garden City police.
September 10, 1990: Castro County indictment in the death of Ericka Aleman, as reported by the Garden City police.
Before June 1991: convicted at her first trial of first-degree murder; life, with a 15-year minimum.
By June 1991: back in Kansas to serve her sentence, according to the Garden City police.
December 11, 1992: Kansas Supreme Court reverses the conviction for cumulative trial errors.
April 1993: convicted again on retrial.
March 10, 1995: Kansas Supreme Court affirms the second conviction.