Burpee 'murdered her soul,' DA tells jurors

Defense tries to cast doubt in as Palo Alto assault case nears end

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.


Posted by JustMe, a resident of Duveneck/St. Francis
on May 27, 2009 at 10:00 am

I am troubled by the lack of Burpee's DNA on so many critical locations related to the crime. How could it not be there? How could it have been missed? Why is there another unknown male's DNA in all those locations and how did it get there? Who is that unknown male and was he involved in this crime somehow?

I cannot help but feel reasonable doubt about this, like some major part of the story has not been told. I am uncomfortable with the way this is playing out. I cannot accept Burpee's total innocence, but I think there is something more involved here.

Posted by joe, a resident of College Terrace
on May 27, 2009 at 11:00 am

I am troubled by how truth are not anymore spoken by pople who should speaks. Didn't we teach our children at school and at home, to admit when they stole money or say sorry when he pushed his sister down ?. Where's the honesty?.

Posted by Ned, a resident of Downtown North
on May 27, 2009 at 11:19 am

There is no honor among criminals...hence they are criminals...

Posted by Janice, a resident of South of Midtown
on May 27, 2009 at 4:50 pm

The whole thing is just so tragic.

Posted by Nora Charles, a resident of Stanford
on May 27, 2009 at 8:09 pm

No reasonable doubt in my mind. Jane Doe's DNA and blood was found in his car and his home. Clearly, he is the culprit and may he be put away forever.

Posted by Val, a resident of Old Palo Alto
on May 27, 2009 at 9:12 pm

It seems like there may have been more than one perpetrator. But based on Burpee's admission and the victim's DNA evidence in his car, Burpee was at least one of the perpetrators. He needs to do some serious time for his involvement in a violent and vicious attack on an innocent child just because "he was having a bad day with his girlfriend."

Posted by bru, a resident of Crescent Park
on May 28, 2009 at 5:51 pm

bru is a registered user.

Did I read this right ... the max he can be sentenced for it 48 years?
Wow, that seems like nothing compared to the crime he perpetrated ande the magitude of the disrespect he showed for us all.

The DA called this man a monster, what do we think he is going to be when he gets out in maybe 24 years?

This leniency is an insult to justice, the victim, and all of us. The correct thing to do if he is found guilty it to put him away so he can never hurt anyone again - period.

Posted by Anthony, a resident of Mountain View
on Jun 8, 2009 at 2:27 am

It seems like there is more than one person involved. They should make this deal with him, if he will identify who the other perpetrator is then lessen his sentence. If he doesn't then give him the full 48 year sentence.

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