An American Minority Experience
The Planted seeds of our distrust in law enforcement
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Criticism is a crucial element in a free and fair republic and democracy. As a Latino, A Mexican, an educated heterosexual man who publicly voices and writes opinions on the state of our criminal justice system and other issues that impact the legitimacy of this nation, I expect criticism. Add to these qualifiers the fact that in 2006, I was convicted of first degree murder, and what you have is a slue of reasons for people to not qualify anything that I have to say as relevant or valid.
When I say, I am innocent of the crimes for which I was charged and convicted, there are people who smirk with derision and doubt. We have all done this, anytime someone makes a claim that challenges our belief structure our instinctual response is to defend what we believe, first and foremost. Primarily because our brains are programmed to organize our experiences into patterns as we age. And by adult hood, these patterns or tendencies of understanding are fully formed, making them difficult to unlearn.
Which explains why some people don’t recognize structural racism or injustice, they have been conditioned to believe that America is great and every extension of the word and it can be difficult to except a new truth on this matter.
For instance, someone recently told me that Russia was invading Ukraine to defeat Nazism, and this comment was so infuriating to me that I devoted five minutes of my life to verbally dismantling this person’s self esteem and intelligence. Mostly because I saw it as disrespectful to the memory of every man, woman and child who lost their lives to Hitler and the madness that came from his Nazi regime. But then it accrued to me, what’s the difference between this ludicrous statement regarding Nazism in Ukraine and my claim of innocence?
To someone that believes that police and prosecutors are inherently good, my claims related to the police and prosecutorial misconduct that resulted in my wrongful conviction probably seem as absurd as this statement comparing Ukraine to Nazi Germany under Hitler.
The difference, however, obviously has to do with the facts and whether or not we have the courage to challenge our beliefs with new evidence. Not just when it’s convenience to do so, but also when it’s necessary so as to live up to our ideals on fairness, justice, and what it means to be free.
Recently, some of my followers on Twitter challenged the legitimacy of my innocence claim by regurgitating the state’s “statement of facts” from their appellate briefs in the state courts. One follower stated that I exactly where I should be because according to the state’s arguments, either I was the shooter or the accomplice, and either way I deserve to be in prison. Another stated that if what I claim is true and Eloy Montano was the actual shooter and I was not an accomplice, then why didn’t I secretly record his confession? (he seemed to overlook the fact that it was 2004, smartphones were not yet invented, and a digital or tape recorder wasn’t something I carried around with me.)
I responded to these comments by directing them to some of my earlier podcast episodes, in particular episode three, since I felt that I had more throughly responded to this question from an earlier follower on a platform not restricted to 240 characters. I assume that the episode was pursued because a followup question ensued: how can you state your distrust in police as a factor when you have no criminal history?
I admit, I was shocked which the challenge on this particular point. Which is not to say that it’s not a valid point, it’s just that it had never occurred to me to challenge someone’s fears based on the fact that said fear has never been realized in their lifetime.
In the university our fraternity would volunteer us to walk coeds from the library or computer labs to their dormitories, not because all these women had been previously raped or assaulted, but because their fears were legitimate given the fact that assaults and rape had happened to others. Likewise, when my Black housekeeper told me that she was uncomfortable driving into the gated community where we lived because our neighbors would call security, even though she was always there with the same vehicle at the same house, I was sympathetic to her plight and immediately presented her issue to the Housing Board, and eventually had to personally speak to several of the neighbors.
APD Police Cruiser Source, Pinterest
The question related to my distrust towards police made me realize that throughout my entire life I have never contacted the police for help. Even when I was held at gunpoint and robbed by an adolescent for all the possession on my person — to include my shoes and belt — and left to walk several miles, barefoot, on a Caribbean Island, where I didn’t know a single person. Even then, I did not call the police.
When I eventually made it back to my hotel, I reported the incident to the manager and to American Express (and other credit card companies) and they contacted the police. And surprisingly it wasn’t long before the local authorities arrested an adolescent trying to sell my items to a tourist and most of my things were returned to me — which I was grateful for, naturally — but even then, I couldn’t bring myself to cooperate with the police. Not because I was in favor of being robbed at gunpoint, but because the idea of stepping into a small room in a police station for the purpose of writing a statement or making an identification was terrifying. I understand that this isn’t logical to most people, but for me it’s a reality based on the lived experiences of my life, and for many it is irrevocably a part of the American-minority experience that we live.
From a young age, due to experiences on both sides of the border, the police were never the good guys. This statement may seem misplaced when considering that I’m a college graduate, a former business owner and cooperate executive. But aside from my educational and professional achievements, as a child I was chased down by both police and street gangs over fences and through yards. The former wanted to arrest and pin a crime on me, and the latter wanted me to join them. I preferred being caught by the street gang, because when I refused to join, the beatings to follow were swift and less painful than what I feared would come from the police. When the police caught me, they either wanted me to confess or rat — in many instances to crimes or offenses that I wasn’t even aware had been committed. And from this, you might ask, if you didn’t do anything, why run?
A very good question that has taken almost an entire lifetime to confront and answer.
The best way to explain this is to say that I ran because I was afraid, based on the machinations of mental projections from previous, imaginary, or the related experiences of others.
Police assaulting a Youth Source: The Forethought project.com
Once when I was an adolescent two officers arrested me in a parking lot of a shopping center for the crime of destruction of property. The Property in question was a blue handicapped parking sign. The “destruction” was a bolt from the sign that secured the bottom portion of the sign to the post. I was sitting on the parking block next to the sign, because it was near a tree and offered the only source of shade in the parking lot as I waited for someone to pick me up. Instead of the family member I was waiting on, a police cruiser approached, the lights were turned on and I was told that I fit the description of a teenager who had been stealing car stereos and other valuables from cars at the shopping center. The officer frisked me, found nothing, but still decided to handcuffed me and make me sit in the back of his cruiser in the sun with the car and air conditioner turned off.
Several times the officer came and asked me if I was ready to talk. When I insisted that I didn’t know anything, he would shut the door and leave me there to suffer longer in the heat. This game persisted for nearly three hours, and I was so nauseated from the heat, I vomited on the back seat of the police cruiser. When the officer discovered what I had done, he said, “I was going to let you go, but since you’ve decided to make a mess of my car I’m charging you with destruction of property.”
I actually thought the property he was referring to was the vomit on his back seat, until he informed me that the handicap sign was missing a bolt for which I was being arrested. I quickly explained to him that I was in possession of no tools or anything that could’ve removed that bolt, but he didn’t care.
“You should’ve thought about that before you vomited on my seat.”
I pleaded with him all the way to the youth detention center. My mother was called, I was released, and a hearing was set when the case was dropped because the officer never showed up to court.
Yes, I won my case, but I lost in so many other ways.
When police patrol a gentrified, suburb neighborhood they see taxpayers and community members. When they patrol a barrio or ghetto they see perps and suspects. I won’t bore anyone with the details of the blood and fear that accompanied a large part of my childhood, other than to say that even though education presented me with a doorway to a better life the scars and traumas of my previous life never left me.
And a decade later, I found myself standing before a man who I considered a trusted friend and he’s holding a gun, and inches from him on the floor was a man I had just met laying in a puddle what appeared to be his own blood, I admit, that calling the police was not the first thought to cross my mind.
Try to imagine that someone you have trusted for many years has just killed someone while you were momentarily out of the room. The idea that this individual could have led you to this residence under false pretenses is not even registering in your thought process, as of yet. Nor is the idea of betrayal or potential harm. This individual is a former Marine medically discharged for threatening to kill his commanding officer, among other things, and he’s talking to himself in a state of paranoia. From experience you know that he is both dangerous and unpredictable.
Eloy Montano Source: MDC
You don’t yet know that the victim was lured to this residence from a pay phone, or that victim’s wallet will eventually be found, following your arrest, in a men’s locker room at a Jewish community center in Tucson, Arizona, where less than a dozen men were signed in and Dennis Melin (your former father in law, principal business partner, and the man who had been openly threatening your life for weeks) was among them.
You are like wise unaware that your former lover’s husband has been meeting in secret for weeks with Dennis, other business partners, and a journalist who will manage to publish a smut piece on you literally hours after your arrest with white-collar criminal allegations that have absolutely nothing to do with the murder you are now being charged with. Allegations that local law enforcement will publicly substantiate, even though their statements are being made less than twenty-four hours after your arrest and no investigation has yet been performed. It’s a convenient narrative for the prosecution, but one that will be disproven by both time and fact.
Unfortunately, not in time to change the hearts and minds of those looking to permanently pin you down for a murder you didn’t commit.
Jewish Community Center in Tucson Arizona, Source: JCC AZ
You also don’t know that your private, well-respected attorney is going through a personal crisis and medical emergency with his wife. He’s collecting money from you and your family for legal fees and investigation purposes; he’s going through the motions of defending you; but unfortunately, years from now, you’ll learn that he only spent $50 dollars on investigation, was in no way going to be prepared to represent your defence, and when later questioned under oath about the shoddy decisions made on your behalf, he’ll claim, “there was no defense…” and admit he did what he did to protect himself from a “malpractice claim.
Attorney Joseph Riggs Source: Facebook
We could quite literally fill entire hard drives with the things that you will never know as you attempt to defend yourself from the self-serving accusations of your once friend Eloy Montano.
There are lots of things you could’ve done, or maybe even should’ve done, but all of that is irrelevant to your current predicament.
With the clarity of hindsight and the fact that I have almost two decades in prison for a crime I didn’t commit, I admit, I should have seen Eloy for what he was. But in the moment of adrenaline and the fight or flight response taking place within, I simply reacted. And my reaction wasn’t properly alined with the facts because I didn’t have them before me.
From the sterile and safe position of hindsight it’s easy to see that I could have ran to the nearest phone and dialled 911. But this would discount the fact that I was dealing with a mentally imbalanced former-Marine who was armed and proven dangerous. (Both by what I had just seen and witnessed in the past).
I desperately wanted to believe that somehow he too was a victim in all of it. And if that were the case, then the safest and easiest choice was to convince this individual that I was on his side.
Like I said, I didn’t at that time know that the victim’s wallet was going to be found and linked to my ex-father-in-law. I didn’t know what Eloy had done with the gun. I didn’t know that my ex-lover’s husband had been conspiring with the same former business partners who had likewise been threatening my life and five weeks prior had burglarized my residence in search of evidence of fraud (which they learned didn’t exist) in hopes of extorting me to help them recuperate their business losses at my expense.
As the minutes ticked us away from the murder I was likewise dealing with the rising fear levels within. Because the more Eloy talked, the more I realized that he had intentionally done this to me. Granted, it didn’t go as planned, but nevertheless he had done this. It suddenly occurred to me that he would’ve killed that man and his daughter who showed up at that residence unexpectedly had I not intervened. I even suspected that Eloy would have pointed that gun at me had it not been for the fortuitives arrival of that same neighbor and his daughter. But the question of whether he had arrived at that house prepared to kill me was a question I was still not yet prepared to confront.
Not Yet.
Instead, there were two options that appeared before me: (1) disarmed a trained marine; or, (2) convince him to do the right thing.
Obviously, I was doubtful about my potential for success given both his combat training as a Marine and his mental instability, not
to mention the fact that he was armed. When he mentioned suicide I was horrified on two fronts: the obvious, and the fact that I would be blamed for two deaths. Because if there was one truth I had learned about police, they always need to blame someone.
A realization that caused me to stumble upon all kinds of mental complications as I traversed the road of possibilities in my head. And I’m still not ashamed to say that I was afraid.
It took two days, countless heart to heart conversations, confessions of past shitty behavior for both of us and about
700 miles of highway to convince him that the only way forward was to return to Albuquerque, turn ourselves into the police, and tell them what happened.
When we arrived in Albuquerque it was after midnight and Eloy literally begged for an opportunity to spend one last night with his pregnant wife Dawn. We both knew that his arrest was Inevitable, and even though I wasn’t willing to voice this openly, I was confident that he wouldn’t see his unborn child grow.
A troubling thought that made me think of my own daughter. And as much as I hate to admit this, I felt sorry for him. But little did I know, I was committing the second biggest mistake of my life.
Obviously, I can’t know the exact conversation that took place between Dawn and Eloy that night, but this cold cell is a harsh reminder of the consequences of that conversation.
A call was made to NM Crimestoppers by someone associated or related to Dawn implicating myself and Eloy (apparently I was reported as the responsible party, Eloy was the unfortunate bystander).
The next morning instead of picking me up so we could go to the police together, he was taken into custody where he gave his first of many contradictory statements.The police arrested me without incident and though I had expected as much it still didn’t occur to me that my friend had hashed a hasty plan with his pregnant wife to save their family at the expense of me and mine. I expected a detective to step into the interrogation room and ask me to confirm what Eloy had said, not step into the room and say, “we already know that you did it, and it’s probably in your best interest to remain silent.”
Perhaps a different person with different experiences and beliefs would have chosen differently. But I am not that person.
I hoped that a thourale investigation would reveal that Eloy was lying and that I would be released. It did, but that didn’t matter to the elected prosecutor or the police because by that point too much time had elapsed, they already publicly backed Eloy’s accusation and developed a theory. To change course would have likely lead to no conviction, no reelection for the district attorney (given that the victim’s brother was a US Marshal), and a lot of uncomfortable questions going unanswered by respected members of law enforcement ( Darren White, Gregg Marcantel, and Kari Brandenburg). Questions like: weren’t you suspicious by the fact that Dennis Melin had fled the country when the victim’s wallet was discovered and linked to him?
Weren’t you concerned by the fact that Eloy later admitted to disposing of the murder weapon, or the fact that he was directly linked to it’s straw-man purchase?
Darren White
Gregg Marchantel
Kari Brandenburg
Source: COA and BC Dept
Weren’t you at all concerned about the documents that you found on Eloy’s computer showing that he had been planning something sinister for at least a year?
Weren’t you concerned by the fact that Eloy had to have independently lured the victim to the residence in question, since Mario’s digital alibi would have made that call impossible coming from him?
Weren’t you concerned by the fact that Mario’s behavior at the house on the morning in question (the fact that he openly presented himself to the neighbors) seemed to counter intuitive to someone about to commit a cold and calculative murder?
Why did you discount the fact that a man who had been openly threatening Mario’s life and demanding money from him, and seem to have had possession of the wallet, had left the country upon discovery of the wallet, and yet you didn’t investigate this?
Most importantly, why did you continue to believe Eloy even after your own lead detective knew (and later stated under oath) that thirty percent of Eloy’s statements were proven lies?
These are questions that would have upended careers, and the longer they went unanswered the better for all involved parties, except one — me and all those irrevocably a part of me through blood and love.
To throughly review the records is to see complicit behavior through nearly two decades of state appeals where my claims were either deliberately repressed or outright ignored. For over a decade I filed motions asking the court for copies of the complete investigative file for purposes of my appeal, and all motions were denied. The best way to explain these actions, is to say, a secret is only a secret if it’s kept under wraps.
Fast forward to the present and I finally have an attorney who not only believes in my innocence, he believes in the merits behind my claims and has presented them before the Hon. Kea Riggs in the Federal District Court of New Mexico.
The Sixth Amendment creates a responsibility for the state. In that, as part of the fair trial guaranteed to us all, I must be afforded the right to confront my only accuser Eloy Montano through cross examination, under oath at trial. And what the court is about to tell us is whether the Sixth Amendment is real in practice, or just a lofty concept in jurisprudence.
Many struggle with excepting that publicly elected and appointed officials could consciously and willingly send an innocent person to prison or execution for something they didn’t do. These are the people we have selectively charged with enforcing our laws and keeping our communities safe. It doesn’t then seem fausable at these same individuals would do this, and perhaps to do so requires that we take a closer look at the unrealistic expectations we have set for them.
Despite my experiences, like most of you, I prefer to believe that the majority of the law enforcement apparatus as individuals are law abiding and honest. The problem arises when we look at law enforcement in the aggregate. Because what we see is a fraternal brotherhood not so different from a mafia in its efforts to protect its image and well being against both internal and external threats. And in living up to its objective, it doesn’t think like an individual, it thinks more like a faceless corporation or a dictator.
Consequences be damned! We are right because we say we are right!
As dystopian as this seems we can’t afford to be defeated by this reality. Because what’s at stake are not just the lives of the innocent and wrongfully convicted, but our very legitimacy as a democratic republic ruled by our Constitution and laws — not the wims of man or shifting wins of political discourse.
Which is why I encourage and accept criticism, because ultimately it leads us to truth. And shouldn’t this be the collective objective of our cherished republic — truth?
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