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It was 2014, I was on a phone call with Lisa Schatz-Vance, the assistant public defender recently assigned to defend me in my state post-conviction habeas proceedings. My petition had been in judicial limbo for the past four years and she was at that point the second attorney assigned to my case.
As it was I had already been incarcerated for a decade. A harsh truth to conceptualize, a decade of my life gone, but it was not a decade that I had wasted. Because aside from the fact that the court kept insisting that I didn’t deserve a copy of my trial transcripts, it was a decade devoted to understanding the law. And that particular phone call represented the first opportunity I had had in the last three years to discuss my innocence and the issues of my case. Prior to Schatz-Vance was the attorney John Walker, assigned to my case in 2011, who did nothing more than file for time extensions for three years and wait for his retirement.
To say the least, I was annoyed for any number of valid reasons, but at the top of that list was the fact that I was in prison for a crime that I didn't commit and the lawyers being appointed to my case were about as indifferent to my predicament as most people are to the homeless on the street corners. Life had prepared me for many eventualities, but apparently a guilty verdict at a sham trial and the outright fiasco of my direct appeal were not part of what I was prepared to confront, and my blood was still relatively hot.
To begin with, my appointed attorney for my direct appeal intentionally omitted the main legal claim that made my conviction unconstitutional. Talk about a doozy. There is really no other term to aptly describe just how royally she fucked me without stepping into the world of the expletive. And fortunately for everyone in the state of New Mexico, Kathleen McGarry no longer practices law. She now works as a staff attorney for the First District Court in Santa Fe, New Mexico.
Essentially she had a direct hand in sentencing me to serve on an illegal conviction. Apart from my proclaimed innocence, which was impossible to prove based on the circumstantial nature of the state’s case, the case against me was built around a single accusation made by the first suspect in custody who had a history of blame shifting, Eloy Montano. At trial the jury was presented with the entirety of his testimonial statements for the truth of the matter asserted without me having the opportunity to pass his accusations through the crucible of cross-examination.
The Sixth Amendment to the Constitution says that the accused has the right to be confronted by his accuser. It's a relatively straight forward issue that's supported by a plethora of Supreme Court case law, in particular Crawford v. Washington, the holding case on this issue both then and now, that makes my conviction illegal. McGarry was aware of this issue as it was clearly presented in the Statement of Issues prepared by my trial attorney for direct appeal purposes.
Her and I spoke about this issue in person. She even wrote me a letter where she stated and confirmed that she had every intention of presenting the issue in my appeal brief. She even went so far as to petition the state supreme court for three time extensions and submitted a motion to supplement the record with the necessary transcript evidence that proved the Crawford violation. So imagine my surprise when months later I received a letter from her, dated the same date as the appeal brief that she filed without consulting me, where she informed me that she alone had decided that my appeal was to be filed without the winning issue.
When we talk about incompetence there are definitely shades to the color and levels to consider. A mechanic who installs new tires and forgets to put the lug nuts on the wheels is careless. I might go so far as to call him an idiot, but I most certainly wouldn't call him a criminal.
A lawyer, however, who goes through all the motions of making her client believe that the issues and relative evidence necessary to support those issues is going to be presented, writes this in a letter, signs her name to that letter, and then fails to do so, is, as far as I'm concerned, an accomplice to a wrongful conviction. And, I'll go so far as to add, an accomplice to my daughter not having a father, my wife not having a husband, my mother not having her son, and me not having my life.
Years later my family sent McGarry an email to inquire as to why she had omitted the one argument that without a doubt made my conviction illegal, and she had the audacity to respond with a bold face lie that she lacked space to include it. The record shows that her brief was thirty-one pages, the limit being thirty-five. Was her decision one of incompetence or was it intentional? I know for a fact that she represented at least one death penalty case in Ohio, and I certainly hope that she didn't assist the state with murder in that instance. And fortunately, like I said, it's a blessing to know that that she no longer practices law in the literal sense.
This should give an idea as to where I was in my level of frustration when seven years later I was finally speaking with a lawyer about the issues of my case. Lisa Schatz-Vance was not Kathleen McGarry, a fact that I had to remind myself of repeatedly as I listen to her admit that she had zero experience in criminal law. Minus the law degree on her wall, I quite possibly knew more about the legal issues of my case than she did. On the other hand, I was hopeful because she seemed intelligent, was circumspect in her responses and was seemingly appalled by the violations that I presented to her. And the simple fact of the matter was, she was what I had to work with.
So beginning with my trial attorney, Joseph Riggs, I proceeded to explain with great detail everything that he did and failed to do as my legal counsel. And it was clear to me that her experience as a civil attorney had not prepared her for what I was about to say.
“He didn't actually investigate anything?” she asked, her incredulity painted on her words.
And to the issue of Eloy Montano’s testimonial statements being presented in their entirety to the jury without being afforded cross-examination, “Why didn't he object?” He did, I told her, but the court proceeded even with my attorney clearly stating that he was not waiving my confrontation rights.
There are a series of bizarre issues of questionable decisions made by my trial counsel that have baffled attorneys for years. Primarily, how could Joseph Riggs expect to defend me without an investigation into the case, the witnesses, or the legal admissibility of the testimony to be given? Secondly, he built a defensive strategy around an inadmissible polygraph that addressed three questions Did I kill the victim? Did I shoot a gun on the day in question? And, Was I present at the time of the killing?
The test was inadmissible because it was technically inconclusive. The polygrapher said that I was truthful to the first two questions and inconclusive on the third, which made the entire test inconclusive. And, you might be asking why the last question if I knew that I was present at the house. It was because Riggs wanted to prove that I wasn't in the exact room to try and limit the state’s potential attack that I was an accessory. But, as I expressed to the polygrapher, Pete Pierangeli, despite the fact that I wasn't in the room when the murder took place, in my head I still understood that I was present in the vicinity, on the property, and I wasn’t sure how I was supposed to convince my mind of anything other than that.
Of course, little did I know at the time that there was an authoritative, scientific body that had thoroughly studied and published a damning report on the validity of polygraphs, called the National Academy of Sciences. Most of us understand polygraphs to be lie-detector tests, something that is “based on the presumptions that deception and truthfulness reliably elicit different psychological state across examinees and that physiological reactions differ reliably across examinees as a function of those psychological states.” Which is to say that when we lie our bodies react in a reliable way that can be measured by a polygrapher, which confirms what we've seen on television, movies, and spy novels. The reality, however, based on extensive studies performed by actual scientists is that the polygraph is a junk science. Because “[t]here is no unique physiological response that indicates deception.”
The study specifically states in its conclusion that “one cannot have strong confidence in polygraph testing or any other technique for the physiological detection of deception without an adequate theoretical and scientific base…” and then goes on to explain several reasons why one cannot trust these exams. “Research on the polygraph has not progressed over time in the manner of a typical scientific field. Polygraph research has failed to build and refine it's theoretical base, has preceded in relative isolation from related fields of basic science, and has not made use of many conceptual, theoretical, and technological advances in basic science that are relevant to the physiological detection of deception. As a consequence, the field has not accumulated knowledge overtime or strengthened its scientific under pinnings in any significant manner.”
Years after my trial a retired FBI agent special agent, Joe Navarro, published in Psychology Today on the topic of lie detection, and said, “As for the polygraph, what can I say? Here is a machine that is very precise, which is why polygraphers reverently refer to it as an ‘instrument’ and yet it does not detect deception… A polygraph machine is not a lie detector and the so-called ‘instrument’ does not and has never detected lies. It merely recognizes physiological changes in reaction to a cue (a question) but it doesn't detect lies and it can’t. I repeat, it can't. It is the polygrapher who interprets the instrument and your reactions to it and decides whether or not there is deception. It is human factor, not dissimilar from some of the activity noted above, that the courts have found wanting (this is why polygraph result[s] cannot be used against you in court) and why the American Academy of Sciences had less than choice words for the use of polygraph in its formal report on polygraph in 2002.” The one I cited above, that was published four years prior to my trial.
This explains why no other state in the country, to include the federal courts, permit polygraphs in criminal proceedings. Law enforcement uses them, according to the NAS report, as nothing more than an intimidation tactic. New Mexico permits them because the state Supreme Court ruled in State v. Martinez that essentially anything can be considered “science” so long as there are practitioners and standards. Which has me on pins and needles in anticipation for palm reading and astrology to be acknowledged in the state as scientific evidence, which, so long as they adhere to the rules in the NMRA 11-707, should not be a problem. At least then I could get some relevant evidence admitted on the record.
So, what was Lisa Schatz-Vance’s initial conclusion following all these factual revelations that I presented to her? You'll want to pay attention to this because it's another doozy.
“Mr. Chavez,” she began, “New Mexico is a small legal community.” She said this as though the number of lawyers in the state should somehow explain the price of tea in China and the phenomena of crop circles. I guessed she sensed that I was waiting for something more because after several moments of silence, she added, “The thing is that Joseph Riggs is a well-respected attorney who has practiced law in New Mexico for over 40 years and…”
And?
“Nobody is going to acknowledge that he intentionally did anything wrong.”
But the record shows what he did and said, I pointed out.
“Yes, but at that time his wife was really ill and he eventually lost her,” Schatz-Vance said. “And people in the legal community are going to be sympathetic to the fact that in those years he was dealing with a lot. And, another thing is that, due to how the law related to legal malpractice in the state is structured if the state court were to find him ‘ineffective,’ that ruling would present you with an opportunity to sue him for legal malpractice. And the court is going to be hesitant to give you that opportunity, because the judge is likely going to be sympathetic to Riggs’ predicament.”
It was difficult for me to remain composed as she spoke. Joseph Riggs had committed errors that were fatal to my case, to my daughter’s childhood, to my wife, and to my family. In no way was I happy to hear about the loss of his wife, but what about my loss? Regardless of his personal pain or emotionally overwhelming predicament he had a professional and ethical obligation to defend me, my innocence, and my Constitutional rights. In the moment that he realized that he was not going to be able to fulfill that duty he needed to inform the court so as to be relieved of his duties.
I clearly expressed to Schatz-Vance that I expected the totality of those issues to be investigated and presented in my amended petition. But despite numerous letters and dozens of attempts to schedule a call with her, she refused to speak with me after our first initial conversations. Fortunately, I saved copies of all those letters, because in the end she did exactly what Kathleen McGarry did by omitting the Confrontation Clause issue without consulting me.
After the fact we finally did speak and she informed me that she was trying to get removed from my case by saying that she felt threatened, but by who she didn't specify and her supervisor denied her request. And again, like Kathleen McGarry, Lisa Schatz-Vance no longer represents clients either, as she is likewise a staff attorney for the Second Judicial District Court. Which seems to be a pattern that I am creating with lawyers who, after refusing to present my constitutional violations to the court, refrain from representing further clients and instead become staff attorneys for the courts. And, honestly, I'm not sure which is more dangerous to the public.
Was Lisa Schatz-Vance in her claim of feeling threatened referring to my written insistence that my constitutional claims be included with my amended petition? Or was she referring to New Mexico's “small legal community” and the potential secondary consequences to her career if she presented the truth against one of its respective members? Or, was someone else threatening her?
She never explained it to me. And all I can say on the matter is that I hope the truth on this eventually reveals itself. But, as you can see, once again I was without an attorney.
Prior to her resignation from her career and my case, right at the moment when I realized that history was repeating itself, I was referred to a lawyer named John McCall who specialized in habeas corpus post -conviction proceedings. He visited me in person, listened to the entirety of my claims, and said that he wasn't afraid to go up against Joseph Riggs. He claimed that he had represented several ex-clients of Riggs, and that he was familiar with the man's personal loss and the lies that he typically used to defend himself from legal malpractice claims.
In regards to Lisa Schatz-Vance he assured me that he was well-acquainted with her and, since I was short on funds he recommended that for a few thousand dollars he could step into the case in an auxiliary capacity so as to present the Confrontation Clause issue as ineffective assistance against both the trial and the appellate counsel for permitting the violation and then ignoring it. And he further assured me that if it came down to an evidentiary hearing that he would be prepared to do what Lisa Schatz-Vance was unwilling to do–confront a respected member of the legal community with the truth.
I explained to him that she was refusing to return my calls or letters, to which he responded, “Don't worry, I know her well, and I'll take care of everything once you make the payment.”
The payment was handed over and Lisa Schatz-Vance was irate. She refused to work with him, threatened to report him for an ethics violation to the bar, and then resigned. The court then appointed John McCall to represent me entirely.
By that point my case has been lingering on the court’s docket for the upper part of nine years. No investigation had been performed, no witnesses interviewed, and no experts lined up. But I was encouraged because I finally had a lawyer that was going to present the necessary issues so that fifteen years later the constitutionality of my conviction could be addressed. Of course, little did I know that McCall was not in a position, health or staff-wise, to investigate and capably present my constitutional issues to the court.
He wrote a supplemental brief to the amended petition by copying and pasting arguments and cited law from other briefs to mine without even changing the name. He went so far as to present me to the state supreme court as a rapist because obviously he had copied someone else's charges onto my brief. And, there was something else missing, in that he wasn't presenting the Confrontation issue when he himself had said that it was my strongest issue. Why?
He started to say that it wasn’t allowed because Lisa Schatz-Vance had already submitted the amended petition, omitting the claim. But thankfully I had been studying the law for fifteen years and was able to confront him with the error of his supposition. He then said that he intended to present it during oral arguments at the evidentiary hearing because he didn't want to tip off Joseph Riggs to what was coming.
He said, “I have lots of experience with Riggs and I know how he lies, and I don't want him to see this coming. And per the rules of the court there is nothing to prevent me from presenting this argument in the court during oral arguments.”
What he didn't think to tell me was that there was no guarantee that there would be oral arguments. Nevertheless, we were set for an evidentiary hearing and for months I insisted that he arrange for a trial expert to testify on the effects of Riggs’ errors. He assured me on numerous occasions that he was on top of that, but as the date of the evidentiary hearing approached, so did the profundity of his excuses for why he hadn't done so.
First, it was that the funding for the expert had been denied by the public defender’s office. So I demanded copies of those denials for federal appeal purposes and that's when the story changed. He was mistaken, the truth was that nobody in New Mexico was willing to testify against Riggs at an evidentiary hearing.
Why?
“Because New Mexico is a small legal community,” he said.
I wish I could say that this was all made up. Because at the time I was beginning to think that this must have been a slogan for the New Mexico Bar Association. But, from the moment that Riggs stepped into the courtroom I was able to observe and internalize exactly what the slogan meant. The honorable Jacqueline Flores halted the proceedings and devoted more than five minutes to expressing just how great it was to have Riggs in her courtroom. She expressed her sympathies for the loss of his wife, allowing him to go on and on about his efforts to publish his wife's work, and about he how he runs an art gallery in Tesuque, New Mexico. And from that point on the hearing took on attributes that bordered on the surreality of a Dickens novel.
To begin with, McCall wasn’t prepared and seemed intimidated by the prospect of questioning Riggs or presenting him with the truth. He avoided the tough questions and at several points was actually asking me what he should ask. Are you kidding me? There I was in shackles with no access to my legal notes and he wanted me to tell him what to say.
The hearing wasn’t an entire fiasco as McCall did get my trial attorney to admit that he hadn't been prepared to make the necessary objections to Eloy Montano’s supposed “excited utterance,” which was easy enough to prove since the transcripts were crystal clear on the matter. And when McCall confronted him with what his reasoning had been for having constructed a legal defense on what was technically an inconclusive polygraph, to include his reasoning for having blatantly lied in open court about the polygraph results (as Riggs was asked to read his own lies from the transcripts) it seemed like we were making progress with the court. But when Riggs was asked as to why he had only spent fifty dollars on investigation, that was when all semblance of morals, ethics or conscience went out the window for him.
I recall that it was at that juncture in the proceedings when McCall returned from the podium to the defense table and whispered to me in frustration, whether feigned or real I don't know, saying, “this is what [Riggs] always does when he's up against the wall. He lies!”
First, Riggs admitted that a polygraph was not a suitable defense tool for a case like mine. So why did he use it? According to him, because it was an impossible case to defend due to there being so much damning evidence. And, he admitted, that the reason he used an unsuitable tool was because he was afraid that if he didn't at least present something that I would have sued him for legal malpractice.
I still remember that when I heard him confess that his defense strategy was to protect himself from a lawsuit, that I immediately looked around the court room so as to gauge by everyone else's reactions as to whether or not I was the only one hearing him confess to malpractice. As far as I understood the lawyer’s code of ethics he couldn't put his personal interests above those of his client’s. Riggs, of course, immediately realized his mistake of sincerity and continued on with his frontal attack on how impossible my case was to defend.
McCall reminded him that “the entirety of the state’s case was circumstantial,” and even added that Eloy had openly lied to the authorities about his involvement. Riggs had no choice other than to agree as McCall proceeded to list off the majority of the inconclusive and circumstantial evidence, and even went as far as to state that he, Riggs, had always believed in my innocence, but from the totality of Riggs’ testimony it was clear that he was still very much concerned about a legal malpractice claim.
At a certain point in the proceedings the judge called a bench conference and she turned on the white noise so as to prevent me or anyone else from hearing. Up until that point, I admit that I was feeling cautiously optimistic because Riggs had finally been impeached by the record, had admitted self-preservation over duty to client, and had been unable to explain why he had only spent fifty dollars on investigation. But the optimism was short-lived because when McCall returned to the defense table he was outwardly angry when he said, point blank, “she [the judge] is not going to give you justice.”
I quickly reminded him that he himself had assured me on several occasions that she was one of the “most honest judges.” He agreed, but said, “in this case there's an external factor and she won't rule in your favor.”
What external factor?
McCall then directed my attention to the tall middle-aged man seated directly behind the A.D.A Treich, it was none other than Richard T. Taylor a Trump appointed U.S. Marshall, and the victim’s brother. I already knew that he had the power to influence the elected district attorney who prosecuted me. And I also knew that he was able to call in favors with the DOC to keep me in solitary confinement for almost three years without cause. I also knew that he could manufacture a federal warrant to ensure that if my case had been overturned on direct appeal that I would have been released to his custody (a warrant that miraculously disappeared from CMIS in 2014). What I didn't at that point know was that he could walk into a court room and rewrite the Constitution with nothing more than a whispered word and his presence.
And as for the oral arguments where McCall had assured me that my Confrontation Clause violation would finally be presented after fifteen years of being wrongfully convicted and incarcerated. Well, on that score the judge conveniently decided that it was getting late and she didn't want to hear anything else. If anything else needed to be submitted it was to be done in writing, in the closing arguments.
I will probably never know the totality of what took place in those few minutes of bench conference blocked by white noise. But, I am still living the consequences of it. Over my objections of the proposed closing arguments that McCall intended to file, he filed them, finally presenting the Confrontation issue as vaguely and succinctly as possible, which was followed nine months later by a decision that ignored the issues, the law, and the facts. Actually, Flores’ decision attempted on several points to rewrite the record, whether to protect Riggs, appease Richard T. Taylor, or a general sentiment of spite, I don't know. But as I read her decision I couldn't help but hear in the back of my mind what was quickly becoming a mantra for me, New Mexico is a small legal community.
We appealed to the New Mexico Supreme Court, but they, too, were not interested in upholding the U.S. Constitution.
To find yourself in a position of both knowing that you're innocent and being unable to even present your issues is both a desperate and frustrating position to be in. Especially because the public response on such consequential realities, such as wrongful convictions, a broken justice system, corruption, and blatant defiance to the law and Constitution is at best blasé. On occasion I receive questions from followers on social media, but for the most part they're never asking the real questions that they want answers to. How do I know that you're really innocent? And, why should I care about you and your problems when there are bigger issues to confront?
Every week I address messages to journalists and media companies asking them to interview me so as to probe into the veracity of my claims. And for the most part they don't respond. Are they not interested in me as a Mexican, Latino, a man, or a person? Are they not interested in the reality of 40,000 wrongful convictions every year?
Or maybe it's just too painful or difficult to confront. I wish I knew. I wish I knew what to say for people to care, because maybe if enough people cared thousands of lives wouldn't be systematically erased by the general apathy of the justice system and the nation at large. If I only knew what to say, I would say it.
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