Judge Finds DA Raul Torrez Reckless With Media Contact

On August 24, 2016, the dead body of ten-year-old Victoria Martens was found in a west side apartment building.

After responding to a 911 emergency call regarding a domestic dispute, APD police officers discovered the 10-year-old child’s dismembered remains partially wrapped in a burning blanket.

The child’s body had been dismembered and then burned in the apartment bathtub in an apparent attempt to dispose of her body.

Initially, Michelle Martens, Victoria’s mother, was arrested and charged along with her boyfriend Fabian Gonzales and her friend Jessica Kelly for the rape, murder and dismemberment of 10-year-old Victoria.

AN UNRAVELING CASE RESULTS IN A LENIENT PLEA

On June 29, 2018 District Attorney Raul Torrez announced during a press conference that he negotiated a plea agreement where Michelle Martens plead guilty to child abuse of her daughter Victoria Martens.

The plea agreement contained no murder charge.

Torrez also announced several charges against Fabian Gonzales were dismissed.

The plea agreement District Attorney Torrez negotiated was to one count of child abuse, recklessly caused, resulting in the death of a child under 12.

The plea agreement guaranteed a 12 to 15-year prison sentence and dropped the most egregious charges of murder and rape.

With the plea deal, Michelle Martens faces a possible sentence of 12-15 years, and with good time she could be out of jail within 6 to 7 years.

During the press conference, District Attorney Torrez said that much of the initial facts of the case were “simply not true”.

https://www.abqjournal.com/1191031/michelle-martens-pleads-guilty-to-child-abuse-faces-12-to-15-years.html

The initial APD police investigation and reports alleged that it was Jessica Kelley that stabbed 9-year-old Victoria Martens and that Fabian Gonzales strangled her while Michelle Martens watched the murder.

During his press conference, Torrez stated that his office’s investigation found Michelle Martens falsely admitted to committing the crimes when forensic evidence revealed she and her boyfriend Fabian Gonzales were not even in the apartment at the time of the murder and did not participate in the murder.

Cell phone data proved that Michelle Martens and Fabian Gonzales were not home at the time of Victoria’s murder.

During the June 29, 2018 press conference, Torrez made the stunning announcement that DNA and forensic evidence test results revealed a fourth and unidentified individual.

MEDIA POLITICAL DAMAGE CONTROL

There was tremendous public outcry over the leniency shown to Michelle Martens who many feel contributed and who was the most responsible for committing the most heinous crimes against her own child by putting her in harm’s way.

Within a 10-day time span, Raul Torrez held a press conference covered by all local media news organizations, followed by a meeting with the Journal Editors and reporters 6 days later, had three front page Journal stories and was interviewed by Chanel 4 on the “Eye on Albuquerque” Sunday program on the plea agreement he negotiated.

http://www.petedinelli.com/2018/07/09/da-torrez-political-damage-control-mission-accomplished/

District Attorney Raul Torrez in his various media interviews shared extensive details of the case and prosecution strategy on the pending criminal prosecution against two other defendants, two identified and one yet to be found.

The full story can be read here:

https://www.abqjournal.com/1193335/details-emerge-in-search-for-4th-martens-suspect.html

REJECTED JESSICA KELLY PLEA AGREEMENT

On September 14, 2018, Jessica Kelley agreed to plead guilty to multiple charges under a plea agreement that required her to testify at related trials and to offer statements to authorities.

The plea deal was that Jessica Kelly would plead guilty to six felony charges, including child abuse resulting in death

A sentence of up to 49 years could have been imposed under the plea agreement.

There was no charge of murder that was to be plead to by Jessica Kelly.

District Attorney Raúl Torrez told the media that Kelly’s cooperation was “critically important to the state’s investigation” into the well-dressed stranger that Jessica Kelley says killed the 10-year-old girl.

On September 14, 2018 Judge Charles Brown rejected the Jessica Kelly plea agreement, saying he was not presented with enough evidence that Kelley committed the crimes she was admitting to under the plea.

District Judge Brown asked one very simple question of defendant Jessica Kelley during the plea hearing:

“What happened that makes you guilty of recklessly causing or permitting something that resulted in the death of a child?”

In response to the Judges question, Defendant Jessica Kelley testified she “let an unknown male come in, not knowing he was going to kill Victoria Martens”.

Jessica Kelley testified she had no indication the man intended to hurt anyone and thought the man might have been Victoria’s father or a “friend of the family … He did not look like a bad person, he was dressed well and he walked in like he knew the home.”

In rejecting Jessica Kellys plea agreement, Judge Brown said:

“There is no indication [nor evidence] she knew or should have known that the person intended to commit intentional murder. … You’re asking [or suggesting] … Ms. Kelley is somehow a mind reader … . ”

SEARCH FOR 4TH SUSPECT ESSENTIALLY SUSPENDED

Since the June 29, 2018 press conference, APD has been attempting to identify the fourth suspect in the Victoria Martens murder.

On December 10, 2018, District Attorney Raul Torrez announced that the two detectives assigned full time to the Victoria Martens homicide case would no longer work on the case exclusively and would work on unrelated investigations after attempts to identify an elusive fourth suspect stalled.

The DA’s statement read:

“In the absence of Jessica Kelley’s continued cooperation following the District Court’s rejection of her plea agreement, the investigation into the unidentified male has stalled. … Detectives will continue to work any new leads that are developed, but it is our understanding that they will also support other investigations.”

https://www.abqjournal.com/1256083/investigation-into-fourth-martens-suspect-has-stalled.html

Fabian Gonzales is also charged with child abuse resulting in death and tampering with evidence.

The trial of Fabian Gonzales has been delayed indefinitely pending an appeal.

The trial of Jessica Kelly is scheduled to begin on Tuesday, January 8, 2019.

A MOTION FOR SANCTIONS AGAINST DISTRICT ATTORNEY

On January 4, 2019, 4 days before her trial on murder charges is to begin, a hearing was held in the Jessica Kelly case where the District Attorney Raul Torrez dismissed the rape charges against Kelly.

The District Attorney’s Office voluntarily dismissed the rape charges, stating “after detailed forensic analysis by expert pathologists there is not sufficient evidence to connect Jessica Kelley to the charge of criminal sexual penetration.”

A defense Motion to Dismiss all charges against Jessica Kelly, including murder, and for sanctions against the District Attorney was also heard by the court.

The defense motion sought sanctions against District Attorney Raul Torrez for his accusation that there had been “an absence of cooperation from Kelly.”

https://www.abqjournal.com/1264630/da-dismisses-rape-charges-against-jessica-kelley.html

https://www.krqe.com/news/albuquerque-metro/prosecution-files-to-dismiss-rape-charges-against-jessica-kelley/1687198439

Normally, prosecutors and defense attorneys do whatever they can to keep pretrial publicity to a minimum so as not to influence any potential jury pool.

https://www.koat.com/article/new-documents-filed-in-case-against-jessica-kelley-could-affect-what-lawyers-say-in-public/25598475

Defense attorneys argued that the December 10, 2018 statement by the District Attorney cast Kelley in a bad light for not “cooperating”.

The defense correctly argued the law that as a defendant, Jessica Kelly has the constitutional right to remain silent and does not even have to take the stand to testify during her trial.

District Attorney spokesman testified that Torrez had drafted the statement in response to requests for comment from the Journal about the departure of the detectives who had been working with prosecutors on the case.

Jessica Kelley’s defense counsel argued that the DA’s statement was unnecessary and prejudicial and “yet another example of a pattern of behavior [of media contacts] by the District Attorney’s Office in this case.”

The prosecutors argued that Torrez’s statement referencing Kelley’s was factual and denied that there was any attempt to prejudice the public against Jessica Kelly.

DA TORREZ FOUND TO BE RECKLESS

During the January 4, 2019 hearing District Judge Charles Brown determined District Attorney Raúl Torrez had been “reckless” in his December 10, 2018 statement he made to the media about defendant Jessica Kelley’s absence of cooperation.

District Judge Brown said that Torrez should not have issued the December 10, 2018 statement at all.

Judge Brown admonished Raul Torrez for the statement by stating from the bench in open court:

“I don’t know if it was [intentionally done] to deprive the defendant of a fair trial, or if the goal was to shift the light away from the District Attorney’s Office or to move light to the Albuquerque Police Department … I find it to be woefully inaccurate in its ambiguity. It could be interpreted in many ways – all of them positive to the District Attorney’s office, some to the detriment of others. The District Attorney also has an obligation to protect the due process right of the defendant. … [The District Attorney] … represents the state, which is everyone including the defendant and the defendant’s families … The District Attorney’s obligation is to the system.”

Notwithstanding the harsh words, Judge Charles Brown opted not to sanction Torrez until he determines if the DA’s statement influenced potential jurors during jury selection before penalizing the state by imposing sanctions.

NEW MEXICO CODE OF PROFESSIONAL RESPONSIBILITY

Raul Torrez is not just another elected official, but is a licensed New Mexico Attorney, the Chief Law Enforcement official for Bernalillo County and a former federal Assistant United States Attorney and he should understand that contacts with the media have clear “rules of engagement” of the Code of Professional Conduct for attorneys.

As a licensed attorney and prosecutor, Torrez is held to strict standards of professional conduct, including being required to swear to and adhere to the Code of Professional Conduct.

The New Mexico Code of Professional Responsibility has a very specific rule that governs attorneys conduct and pretrial publicity:

“Rule 16-306 Trial Publicity

A. Extrajudicial Statements.

A lawyer shall not make any extrajudicial or out-of-forum [out of court] statement in a criminal proceeding that may be tried to a jury that the lawyer know or reasonably should know:

(1) is false; or
(2) creates a clear and present danger of prejudicing the proceeding.

B. Attorney’s Obligations With Respect to Other Persons.

A lawyer shall make reasonable efforts to insure compliance with this rule by associated attorneys, employees and members of law enforcement and investigative agencies.”

COMMENTARY AND ANALYSIS

The drugging, raping, murder, dismemberment and the burning of the body of 9-year-old Victoria Martens will go down as one of the most heinous crimes in Albuquerque history.

Even life imprisonment without the possibility of parole is not enough for crimes committed against this innocent child.

Whoever did kill Victoria Martens in such a brutal manner represents pure evil.

Notwithstanding the brutality of the killing, our criminal justice system and constitution presumes innocence until proven guilty beyond a reasonable doubt and demands due process of law, even for the most heinous of crimes such as the murder of Victoria Martens.

No one can fault District Attorney Raul Torrez for wanting to do what he can to secure a conviction in the case, but it must be done in a court of law and not in the court of public opinion and the media.

It is surprising that it took so long for the defense to raise the issue of pretrial publicity and the District Attorney’s comments and repeated contact with the media.

What is very problematic is that District Attorney Raul Torrez never has had a problem with holding press conferences and being interviewed by reporters sharing details and prosecution strategy in the case that may result in a “clear and present danger of prejudicing the proceeding”.

The extended media interviews that Torrez has done on the case no doubt ingratiated Torrez with the media but Torrez did not help his cause in seeking justice for 10-year-old Victoria Martens.

Another problem posed is that Torrez discussed with the media in his many interview’s conclusions based on the evidence that should be decided by a jury, not the prosecutor in the case.

Judge Charles Brown imposing sanctions against District Attorney Raul Torrez for his accusation that there had been an absence of cooperation from Kelly is the least thing Torrez needs to worry about.

District Court Judge Charles Brown could just as easily refer Raul Torrez to the New Mexico Disciplinary Board for violations of the Code of Professional Conduct relating to pretrial publicity.

Raul Torrez needs to take to heart the words of Judge Brown when he said:

“[DA Torrez] … represents the state, which is everyone including the defendant and the defendant’s families … The District Attorney’s obligation is to the system”.

Judge Brown essentially told District Attorney Raul Torrez his obligation is not just to inform the media that results in generating intense media coverage.

Judge Brown made it clear to Torrez that his ethical obligation is to the entire criminal justice system and not just to the media and his own political image and future.

Another obligation of any prosecutor is to have faith in the jury system and do the best you can to prove your case with the evidence you have and if there is not enough evidence then the investigating agency needs to be held accountable.

For a related blog articles see:

Martens Case Failures May End DA Torrez Political Career

DA Torrez Spreads Blame To APD In Martens Case

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About

Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.