Charges May Be Filed in ’72 Death of Boy : Old crimes: Three-year-old Jon Gerrick died of head injuries. The death was listed as a possible homicide; the case was never closed.

Los Angeles County authorities are considering whether to file murder charges in a 1972 case but are wrestling with several legal barriers caused by the passage of time.

Jon Gerrick, 3, of San Fernando died Oct. 31, 1972, after he was left in the care of his mother’s live-in boyfriend. The cause of death was a head injury, medical authorities say.

Officials resumed an investigation into the death in 1986 after a state Department of Justice computer operator clearing old cases from his files came across a reference to the death as a possible homicide with no resolution. He called the San Fernando Police Department, which checked its records and discovered the case had never been closed.

“Somebody dropped the ball, that’s for sure,” said Chief Deputy Dist. Atty. Fred Klink, a supervisor in the district attorney’s child abuse unit.

Police officials, however, say it wasn’t that the original investigating officers made a mistake. They were stymied by conflicting testimony from child witnesses and an inconclusive autopsy, according to authorities involved in the investigation.

When the case resurfaced, a new team of San Fernando police investigators saw it as a challenge. “Kids can’t fight for themselves,” said Detective David Harvey, who led the new investigation. “I said, ‘I’ve got to try’ ” to solve it.

The investigation by Harvey and his partner, George Hughley, led them across the state in a search for old witnesses, one of whom now says he was pressured to lie to protect the suspect.

Bolstered by that information, the body of Jon Gerrick was exhumed at San Fernando Mission Cemetery last May and a new autopsy was performed. It found two skull fractures the original autopsy failed to note, and the medical examiner’s office concluded that the boy was murdered.

The suspect today, just as he was during a brief investigation 18 years ago, is David Macias, now 46, who lived with Jon’s mother, Phyllis Gerrick, at the time of the death, authorities said. Macias denies killing the boy and suggests that he died from a fall.

Detectives have presented the case to the district attorney’s office with a recommendation to file murder charges against Macias, according to several law enforcement sources.

But Klink, who is reviewing the case, said he is not sure whether charges will ever be filed. He said the age of the case and the legal problems involved will make any prosecution difficult. “It’s tough,” he said.

The problems include:

* The issue of a defendant’s right to a speedy trial. Macias was arrested in 1972 and released later the same day for lack of evidence. The prosecution will have to persuade a judge that the delay between the date of Macias’ arrest and the start of any trial was unavoidable. Bureaucratic mistakes are not an excuse, Klink said.

* Uncertain medical evidence. Klink said it is likely that the injury the boy received on the night of Oct. 30, 1972, only exacerbated a previous head injury. If so, Klink said, prosecutors would have to prove that Macias was aware of the earlier injury on the night of Jon’s death and knew that his alleged actions could lead to Jon’s death.

The cause of the previous injury is unknown, and two doctors reviewing the evidence have not yet agreed when it occurred.

“You can infer that Macias did it, but there is no hard evidence he did it,” Klink said.

* Statute of limitations. The passage of time has severely limited the options available to prosecutors. Although Klink said there is good evidence for a charge of felony child abuse, the statute of limitations has expired on every crime except murder, for which there is no time limit.

Klink is waiting for the two doctors reviewing the medical evidence to meet and try to reach a conclusion on the earlier head injury. A final decision on the case could be weeks away, Klink said.

Macias denies abusing Jon Gerrick, a scrappy little blond boy who loved rough-and-tumble games. “He had a problem with his legs, he was always falling,” Macias said in a recent telephone interview. The second autopsy turned up no evidence of leg problems that would have caused the boy to fall.

Jon’s mother said she believes that Macias, who now lives in Lancaster and works at a San Fernando Valley lingerie manufacturing plant, is innocent. “I don’t believe that when I left the house that he turned into a monster,” she said of Macias during an interview. “I never suspected him at any time.”

She insists that her son died as a delayed reaction to falling and hitting his head during a harmless game of “airplane” with Macias a month before he succumbed.

An important witness in any trial would be Jon’s older brother, Chris Gerrick, 22, who says he saw Macias hitting his brother on the night he died. Chris Gerrick’s insistence on this point has caused such a rupture in his relationship with his mother that she no longer talks to him, he said.

On the night of Jon’s death, Chris, who was 5, said his mother went out for the evening to have her hair done. She left her sons alone with Macias, with whom she shared an apartment after the breakup of her marriage to the boys’ natural father, Mike Gerrick.

Jon began to cry and Macias took the boy into a room, Gerrick said he told detectives conducting the new investigation. Gerrick told police that Macias hit the boy on the head and knocked him to the floor.

When Phyllis Gerrick returned that night, she drove her son to Valley Emergency Hospital. He died hours later.

A medical examiner’s report issued at the time showed the cause of death as a brain injury due to a blow to the head. It said the injury could have resulted from an accident or a deliberate blow.

Macias was arrested on suspicion of homicide, Harvey said. Police reports at the time show that Chris Gerrick told police the morning after the death that Macias had been hitting Jon the night before. And Macias’ natural daughter, Lisa Macias, also told police that David Macias had hit Jon in the head the day before he died.

Several hours later, however, they were brought back to the police station, where they recanted, Harvey said.

Gerrick now says he was pressured to change his story by Macias’ children, of which there were four. He said his mother tried to convince him he was mistaken. “My mom said none of it ever happened,” he said.

His mother, whose last name has been changed to Arcari, insists that her son’s memory has been influenced by her ex-husband’s family’s antagonism toward her and Macias.

Lisa Macias has told investigators that she no longer remembers what happened the night Jon died.