The image of an innocent-looking "Jane Doe" from her Gunn High School yearbook flashed on a video screen Tuesday during closing arguments in the trial of Todd Burpee, who is charged with seven counts, including attempted murder and assault with attempt to commit rape or sexual penetration by force.
"None of you ever got to see her that way," Santa Clara County Deputy District Attorney James Leonard said. "The last person who saw her (looking like this) is sitting right there in this courtroom."
"He changed the way she looked forever. You saw the way she looks now. She's not the same person now. The way she looked then is probably why he chose to do what he did to her then," Leonard said.
"He murdered her soul," Leonard said later.
In their closing statements in Santa Clara County Superior Court, the prosecution focused on the "preponderance of evidence," however circumstantial, against Burpee, while the defense tried to cast doubt on key DNA evidence linking Burpee to the Oct. 30, 2007, crimes.
Leonard said it does not matter that she has never identified Burpee as her attacker, given the evidence.
"We prove cases where the victim doesn't identify her attacker all the time … 20 to 40 times a year. We call those cases murders. A dead victim can't identify anyone. Look at the evidence of identity in this case as if it was a murder. He killed a piece of her that day. It's not that far a stretch. He murdered her soul," Leonard said.
Burpee is charged with seven counts on "Jane Doe": attempted murder; two counts of assault with attempt to commit rape or sexual penetration by force; two counts of assault with force likely to commit great bodily injury; kidnapping with intent to commit rape or sexual penetration; and sexual penetration by force.
Additional special allegations -- including if there was great bodily injury and aggravated kidnapping, which substantially increased harm -- must be considered for each count, which could result in a longer prison term if Burpee is convicted.
If jurors can't convict on the major counts, Burpee could be found guilty of lesser charges: for example, simple kidnapping, if not found guilty of kidnapping with intent to rape or simple battery – willfully touching Jane Doe in a harmful manner – without sexual penetration by force.
The prosecution argued that the evidence was proof Burpee should be convicted of the greater counts.
Burpee's acts and words proved his intent to kill Doe, Leonard said. Burpee told her to take off her pants or he would kill her and then acted upon the threat by strangling her and slamming her head into the ground, Leonard said. Everything that followed, ending with the sexual assault in the back seat of Burpee's car, pointed to his intention to commit the greater crimes, the deputy district attorney added.
In addition, blood and DNA evidence in Burpee's car and home were clearly Doe's; a police sketch based on her description looks like Burpee; Doe's testimony was corroborated through evidence found in his car and near his residence.
Doe's earring was found in the back seat of his car; and Burpee's own statements, including a comment he made to police at the time of his arrest, amounted to an admission of guilt: "My girlfriend didn't have anything to do with the kid."
But Defense Attorney Daniel Olmos hammered away at the prosecution's assertion that Burpee committed two separate acts of assault when he allegedly strangled Doe and slammed her head into the concrete. Olmos said Doe's own conflicting statements could cast doubt on whether the acts were done simultaneously or separately. If done simultaneously, they would constitute a single count, he argued.
Olmos asked jurors to see through the emotion presented during Doe's testimony and to consider the "gaping holes in the district attorney's case."
"The district attorney's burden is to prove each and every element of each of these crimes beyond a reasonable doubt," he said.
Doe has never identified Burpee as her attacker and Burpee's DNA was never found, Olmos said. But another male's DNA was found on evidence, including a blood sample of mixed DNA in the car, the zipper pulls on Doe's backpack, the belt buckle, pants button and zipper on her jeans.
"Somebody's DNA was on every single surface Jane Doe said her attacker touched but that person wasn't Todd Burpee," Olmos said. That leads to a reasonable conclusion of Burpee's innocence, he said.
During a recess and out of view of the jury, Olmos told Judge Griffin Bonini that he had been waiting since October 2008 for the court to grant funding to retest the DNA evidence, since his client is indigent, but that funding did not come through until April 30 this year and he didn't want the prosecution to make reference to the defense's ability to produce DNA testing during closing arguments.
But Bonini said Olmos could have asked for a continuance of the case. He said he would consider Olmos' objection.
Olmos is scheduled to conclude his closing argument today, after which the jury is scheduled to begin deliberations.