DA Raul Torrez Needs To Learn A Few Lessons About Pre Trial Publicity

Defendant Jessica Kelly has plead “no contest” to the charges of child abuse resulting in death, aggravated assault, conspiracy and three tampering with evidence charges for the August 24, 2016 brutal murder of 9-year-old Victoria Martins.

https://www.abqjournal.com/1265428/jessica-kelley-pleads-no-contest-to-child-abuse-in-martens-case.html

https://www.krqe.com/news/albuquerque-metro/jessica-kelley-pleads-no-contest-to-child-abuse-in-victoria-martens-case/1690355059

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, Jessica Kelly and Michelle Martens, Victoria’s mother, and Michell’s boyfriend Fabian Gonzales, were arrested and charged for the rape, murder and dismemberment of 10-year-old Victoria.

JESSICA KELLY’S PLEA AGREEMENT

Under the plea agreement, Kelly could be sentenced up to 50 years in prison for the crimes she plead no contest to, but with good behavior and with credit for the two years she has been in jail pending trial, she could cut her time in prison down to 20 to 23 years total.

Kelly has two prior felony convictions meaning she will be sentenced as a habitual offender, which will add 20 years in prison to her sentence.

The plea agreement is essentially the identical agreement to one Judge Charles Brown rejected on September 14, 2018, except for the fact that it is a “no contest plea” as opposed to a “guilty plea”.

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

During the September 14, 2018 “guilty plea” hearing, Jessica Kelley testified that an unidentified man had showed up to the apartment on the day of the killing, 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 Kelly’s guilty 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 … . ”

With the January 7, 2019 “no contest” plea, the judge could run the sentences concurrent or consecutive on each count plead to and the habitual offender charge which would increase the actual jail time served.

A “pre-sentence report” will now be prepared and Jessica Kelly will be sentenced at a later date by Judge Charles Brown.

Kelly also must cooperate and testify against Fabian Gonzalez and the unidentified indicted “John Doe” mystery defendant if ever that person is in fact apprehended.

“NO CONTEST PLEA” VERSUS “GUILTY PLEA”

A “no contest plea” is where the defendant does not dispute and acknowledges the facts and evidence outlined by the state to be presented at trial and that there is sufficient evidence to convict.

A “guilty” plea requires a defendant to recite facts of the crime and admit to the guilt of committing the crime with the necessary intent.

A “no contest” plea is not a “guilty plea” but under the law it is a conviction of a crime.

The three major benefits to Jessica Kelly with the “no contest plea” are:

1. The trial is avoided.
2. The disturbing facts and evidence of the brutal killing will not be aired in public.
3. The plea cannot be used against her in civil court like a “guilty” plea can.

The downside of the “no contest” plea for Jessica Kelly is that she has agreed to cooperate and testify against Fabian Gonzales, meaning she will be subject to cross examination by the defense and if she commits perjury she could be charged with further crimes.

MICHELLE MARTINS PLEA AGREEMENT

On June 29, 2018 District Attorney Raul Torrez announced a plea agreement where Michelle Martens, Victoria’s mother, plead guilty to child abuse of her daughter Victoria Martens.

Torrez also announced several charges against Fabian Gonzales were dismissed.

The plea agreement 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.

A BOTCHED INVESTIGATION

Originally Jessica Kelly had been charged along with Michelle Martens, Victoria’s mother, and Fabian Gonzales, the boyfriend of Michelle Martens, for the rape, murder and dismemberment of 10-year-old Victoria.

On June 29, 2018 District Attorney Raul Torrez announced the negotiated plea agreement where Michelle Martens plead guilty to child abuse of her daughter Victoria Martens.

Torrez also announced several charges against Fabian Gonzales were dismissed.

District Attorney Raul 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.

District Attorney’s office has said an unidentified man was retaliating against Fabian Gonzales when he went to Martens’ apartment and killed Victoria Martens.

According to reports, the unidentified man’s partial DNA sample was left on the little girl’s body and he has been indicted as a “John Doe” in order to toll the statute of limitations until the person is found and arrested for prosecution.

Part of the pretrial publicity that inflamed matters was the accusations that Victoria Martens had been raped, sexually assaulted and that the child had a communicable disease, all accusations that were proven false by further forensic investigation, the DNA evidence and the autopsy of the child.

Mark Earnest, Jessica Kelley’s defense attorney, announced that over the past two months experts determined that contrary to the findings in the initial autopsy report, there was no evidence that Victoria was raped the night she was killed and said:

“In totality … three experts [who have] … over 100 years [of experience] … determined that no sexual assault took place. Despite that, early on, the autopsy report in this case indicated that there was sexual assault.”

COMMENTARY AND ANALYSIS

During his January 7, 2019 press conference to outline and answer questions regarding the Jessica Kelly’s “no contest” plea agreement, District Attorney Raul Torrez said the case illustrated that all the major players in the criminal justice system “can do a much better job” and said:

“We do our very best to be professionals. … To examine the evidence, to look at every angle of the case, to work with law enforcement partners, our partners at the Office of the Medical Investigator and to examine specific cases, but also to learn important lessons for the future.”

Torrez made no mention of what lessons he himself has learned.

One important lesson for the future that District Attorney Raul Torrez should have learned is that he needs to stop it with his propensity to seek media coverage and to discuss pending cases with the news media.

Another lesson Torrez should have learned is that with his media attention seeking ways in pending cases and what he says, he could be easily making himself a witness in a case where a defendant seeks sanctions for unethical conduct.

Raul Torrez has held a press conference after press conference in this case, including private meeting with the Journal Editors and reporters at the Journal Center, he has had more than three front page Journal stories on the case and was interviewed by Chanel 4 on the “Eye on Albuquerque” Sunday program on plea agreements he has negotiated in the case.

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

District Attorney Raul Torrez in his various media interviews has 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.

During a January 4, 2019 pretrial motion 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 before her no contest plea.

Confidential sources have said that Raul Torrez resisted being called as a witness at the January 4, 2019 hearing before Judge Brown, which was the reason for his public information officer testifying instead.

Further, confidential sources are saying the defense counsel for Fabian Gonzalez intend to call Raul Torrez to the stand to testify regarding his public statements.

On January 4, 2018, 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 at the time and deferred the imposition of sanctions to a later date.

The fact that the Jessica Kelly plea agreement has now been approved by Judge Brown probably renders moot the need to impose sanctions and fines.

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.

What is very problematic is that District Attorney Raul Torrez never has had a problem with holding press conferences and being interviewed by reporters.

Torrez sharing details and prosecution strategy in the case that were later reported upon by the media may have resulted in a “clear and present danger of prejudicing the proceeding” which would be an ethical violation of the code of professional conduct for lawyers.

The New Mexico Code of Professional Responsibility has a very specific rule that governs attorneys conduct and pretrial publicity, Rule 16-306 Trial Publicity, that Torrez and his entire office of attorneys need to read and understand it fully.

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.

The publicity Raul Torrez generated himself in the case may have tainted the jury pool, but we will never know.

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.

Despite the plea agreements, 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 in a court of law and if there is not enough evidence then the investigating agency needs to be held accountable.

It is likely that Bernalillo County District Attorney Raul Torrez will seek to be elected to a second term in 2020.

In 2020, voters will decide if Torrez has in fact secured justice for 9 year old Victoria Martens especially against the child’s mother Michelle Martens who may serve as little as 6 years.

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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.