Cheating to Win:

the pretense is justice, but the result is institutional corruption

Lady Justice: Source: Alamy.com

When I was growing-up there was a story about one of my ancestors that was re-told every time I complained about chores or anything difficult. Her name was Escolástica Francia and she lived during the Spanish Inquisition. She wasn't Catholic, and in those times to not be was considered a crime. To make matters worse my maternal ancestor was a Jew — but since she was forced to convert to Catholicism, she was a Crypto-Jew (someone who outwardly converts to avoid death or persecution but inwardly maintains their original faith). And as the story goes, she was given a choice by the Spanish government to either die, or set sail for the New World (Mexico).

Escolástica chose exile and that's how my maternal bloodline came from Europe to North America. And over the years, this woman who I have never seen or met has visited my thoughts many times; especially when I feel defeated by circumstances, or just tired from having to fight for every inch. I think of what it must have been like for her to have been persecuted and threatened with death and exile for nothing more than her religion. Then to be sent to another world where she didn't know anyone. I think about the ship she was aboard. Could she afford her own quarters, or was she steerage? Was someone waiting for her when she disembarked? Was she free or forced into servitude? And speaking of the ship, what was that like, being at sea for months in presumably squalid conditions? And these are just some of my questions.

When I was a boy Escolástica's story was an anecdote that we shared when times were hard, which, I admit, didn't mean much. But when I was wrongfully convicted, suddenly, we had something in common: we had both faced institutional corruption at such a level that lives were lost to its caprices — which brings me to the basis of this newsletter.

This exercise of speaking truth to power was initially meant to bring awareness to the reality of my wrongful conviction. I intended to attract advocates from organizations like the Innocent Project or The Center on Wrongful Convictions; or advocacy from justice-minded celebrities like Oprah, Kim Kardashian, Alexandria Ocasio-Cortez, Lady Gaga, or the talented María Hinojosa, to name but a few. But, as of yet, none of these outcomes have materialized, and I have had to confront some uncomfortable truths, such as, that most people either don't believe me; or, simply don't care.

That being said, the ability to live without succumbing to self-pity, cynicism, doubt, worry, or victimhood are just a few of the gems that prison has bestowed upon me. I'm not angry or distraught about the general cynicism of people. After all, I was once a person, too, so I understand.

Now, I’m what you would call self-aware, relentless, and, in general, well-apprised of the situation. The circumstance being that it has now been 18 years, one month, two weeks and six days that I have politely waited for justice, and I am still wrongfully convicted.

Tally Marks: Source: TallyMarks.com

This observation is neither a lament or a criticism, it's just a post-it note on the fridge, something to keep track of like birthdays and anniversaries. Like hearing from my tennis coach in college: Mario your love for the game is obvious, but your serve isn't developing as I had hoped, probably because you started playing too late in life, and I can't help or let you play. Things like this can be devastating to hear, but they lead us to that quintessential truth where we see that life is rarely fair when seen through the lenses our subjective opinions based on limited perceptions, clouded by ego, driven by notions of self-entitlement and desire. Which left me confronting two more uncomfortable truths: victimhood is a choice, like any other; and, the only question that really matters is, Who Am I?

An inquiry into self that I am grateful to have confronted in solitude.

A prison cell may not seem ideal for many things, but finding self amongst all the distractions and debris of ego is one of those times when I have given a heartfelt thanks for the adversity of my circumstances.

The challenge, however, that knowing thyself invites is that once the veil of ego has been pulled away it becomes progressively more difficult to disguise or hide who and what we are. If I write more about politics, the state of our Union, climate, or infringements of our rights as citizens and human beings it is because these issues sometimes feel more important than the predicament of being wrongfully convicted. And yet, for many, this seems counterintuitive, foreign, or maybe even dishonest.

BullShit Meter in the Red: Source: TCHTalk.com

Most of us pride ourselves on our bullshit meters. We like to think that more times than not, we’re right on the money when it comes to spotting the hoax, the fraud, or the con — especially when it comes to our first impressions. We like to think we get it right the first time because we are so damn good at reading people and situations. Then comes the truth, usually around mid life for most of us, that our perceptions are about as reliable as a compass that never points north. That, in actuality, our initial perceptions are usually based on such a limited amount of information that they can't withstand scrutiny when we find ourselves challenged and asked to defend them.

Some read this newsletter out of curiosity, somewhat impressed that someone incarcerated can form a coherent sentence, much less express sentiment; others, are open-minded and empathetic enough to see beyond the prison number to the individual beneath. Then there are those who dismiss anything that I have to say as part of a ruse to game the system on a legal technicality and win my freedom. Some have insecurities about reading or listening to what I have to say because they don't want to be perceived as “soft on crime,” or be someone who was duped by a convicted felon. All of which I understand because I remember what it was like sifting through the sediment of false claims, bogus media, and the poor pity-me stories that relentlessly demand our attention, action, and money from every angle imaginable. Either we block it all out or we become selective as to what gets in — hence, the bullshit meters. And for many, the public entreaties of a convicted murderer who claims innocence — someone not advocated for by an organization or institution like Oprah — tends to push the bullshit meter into the red.

Unless, of course, there is something really compelling that grabs our attention like DNA, or a victim who admits he was lying, or witness who admits that she lied under oath because the prosecutor had threatened her freedom or her children or both. These are just some examples, some of the things we look for when checking boxes on the defacto, imaginary forms in our heads.

So here I am with none of the above making very loud vocal allegations about corrupt officials, violated constitutional rights, a wrongful conviction, and above all — innocence. It all seems very opportunistic, maybe even desperate, and, in general, not worth our time.

I get it.

Dr. Phil or Oprah aren't devoting an episode on their platforms to the wrongful conviction of Mario Chávez in New Mexico. And Jason Flom isn't devoting an episode on the Wrongful Conviction podcast to the merits of my claims, all of which leaves many doubting my legitimacy.

It is not as though I have not reached out to celebrities and organizations alike, I absolutely have. Whether my persistent petitions were read, or whether they died in some intern’s inbox, I will probably never know. And actually, I was on the precipice of discouragement when it occurred to me, based on who I am, that I don't need anyone to believe in my innocence to be a champion for justice. Yes, for many, absolute proof of innocence in their prerequisite for giving a shit; but, there are also those who are willing to listen without a fervent belief in my innocence. And it's to those who I speak.

So let us begin with the obvious: I was convicted by a jury of my peers of murder; my direct and post-conviction habeas appeals were emphatically denied by the New Mexico District and State Supreme Courts; and, there is zero new evidence (DNA or otherwise) now before the courts that even remotely suggests that I am innocent.

BullShit Meter in the Green: Source: Mandyoneill.com

Right about now is when I tend to lose my audience. Which, I perfectly understand because the last thing anyone wants to hear is a litany of excuses or a pitch for saving grace. Then it occurred to me that trying to convince someone of my innocence is as futile as it is unnecessary. Because there is only one question that anyone who believes in the Constitution and the rule of law needs to ask about Mario Chávez: if I am the guilty party of this crime, why was it necessary for state actors — both the elected District Attorney and local law enforcement — to utilize a prosecutorial tactic (previously deemed by SCOTUS as “prosecutorial misconduct” in other cases) by where I would be denied any and all opportunity to cross-examine my sole accuser?

In other words, if the narrative they were trying to sell the jury was so solid, the state should have had no problem producing my accuser at trial for both testimony under oath and cross-examination, as the Constitution and law demands. After all, it wasn't as though this accuser (Eloy Michael Montaño) was missing — in fact, he was sitting in the lobby of the courthouse for the duration of my trial.

The reason this prosecutorial belligerence was so detrimental to my case was because there was no physical evidence presented at trial that singled me out as the killer. What the prosecution had built their entire case on was an accusation from the first suspect they took into custody.

We can all visualize the dramatics of an accusation of guilt made in a courtroom. Most of us have read a John Grisham novel or watched an episode of Law and Order enough times to understand how testimony is supposed to go. The individual takes the stand, swears an oath to tell “the truth, the whole truth and nothing but the truth, so help me…”, then proceeds to answer questions, first from the prosecutor then from the defense.

Of course, there is another type of testimony that has not been seen by juries or jurists since about the time of the Spanish Inquisition, called an ex parte examination or affidavit.

Empty Court Room District Court: Source: NMCourts.Gov

Throughout the sixteenth and seventeenth centuries there were notorious instances where these ex parte examinations were used to condemn people to death throughout England. The most famous and analogous case to my own was one of treason against Sir Walter Raleigh.

Raleigh was accused of treason by his friend Lord Cobham when the latter was taken into custody by the King’s authorities for the same (just as Eloy Montaño accused me of murder when he was likewise taken into custody). Lord Cobham saved himself by writing an affidavit which accused Sir Walter Raleigh of treason (in my case Eloy’s statements to law enforcement were videotaped) and that affidavit was then presented to the jury in lieu of actual testimony as evidence in Raleigh’s trial (in my case the more than four hours of Eloy’s testimonial statements and accusations were played in entirety for the jury). Raleigh demanded, firmly believing that Cobham would recant the testimony of his affidavit, that the judges call his accuser to appear, arguing that “[t]he Proof of the Common Law is by the witness and jury: let Cobham be here, let him speak it. Call my accuser before my face…”

Sir Walter Raleigh: Source: History.com

The judges refused, despite Raleigh's objections and protestations that he was being tried “by the Spanish Inquisition,” and he was convicted and sentenced to death.

Following Raleigh's execution one of his trial judges reportedly said, “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.”

Fortunately, Raleigh's death wasn't entirely in vain, because statutory and judicial reforms followed to prevent this type of prosecutorial misconduct from repeating itself. In the US, confronting one's accuser was written into our Constitution under the Sixth Amendment: “[i]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.” Furthermore, the holding caselaw, then and now, remains Crawford v. Washington (2004), which clearly states that “[t]he right to confront one’s accuser is a concept that dates back to Roman times.”

First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh’s; that the Marion statutes invited; that English laws assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind.

Crawford was clear in its dictate, holding then and now, where testimonial statements like Cobham's against Raleigh and Eloy’s against me, the “only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

The reasons for this are quite obvious: your accuser could be an enemy or otherwise have motives to lie and cross-examination is where these ulterior motives can be placed before the jury as they deliberate and give weight to the testimony. Or, the witness could be implicated, in this or any other crime, and the testimony could be part of a deal for leniency from the state, a pertinent fact relevant to the jury’s deliberations.

Without a doubt there are cynics saying something like, here's a guy who killed someone and didn't get away with it and now he's trying to take advantage of a technicality to save himself from the sentence he deserves. Nothing he says can be trusted!

That's a fair point.

Which is precisely why I am not asking for blind faith in my innocence. What I am asking for is the same constitutional guarantee everyone else is afforded: the right to prove my innocence through cross-examining my accuser.

Like every New Mexico court throughout this ordeal, thus far, the dismissive responses seem to imply that the courts believe that the integrity of the former District Attorney, the judge, and law enforcement carry more weight than the Constitution and four thousand years of precedent. The courts seem to be saying: they feared being humiliated by your acquittal at trial so much so that they weren't about to permit you to cross-examine your sole accuser; and maybe they believed in your guilt. Which, is like saying, since the accused is obviously guilty we might as well forego the trial process altogether.

The lunacy of this logic is as clear as it is unconstitutional, illegal, immoral, and, basically, the epitome of injustice.

Does the law sometimes permit guilty parties to go free? Sure. Are we happy about this ? Absolutely not! But we tolerate it because other wise justice would be nothing more than a sham sideshow of pretence and best wishes, where officials accuse and condemn whomever they choose without Due Process (Spanish Inquisition). Which is precisely why we tolerate the possibility that a guilty person goes free, because otherwise we would find ourselves ruled by the whims of man.

Which brings us back to the original question: if I am as guilty as the State claims, then why was it necessary to desecrate the Constitution so as to arrive at a guilty verdict? Why was it necessary to cheat?

Answering this question requires going beneath the surface to the crux of the crucible: state officials, either elected or appointed, who take oaths for the roles they fulfill are permitted to ignore the Constitution if it suits their stated agenda of achieving justice. Of course, when laws and rights are ignored to achieve any agenda there is a more appropriate term: state-sanctioned corruption.

The underlying problem is not any particular District Attorney, judge, or even the detectives and law enforcement — all of which co-author these tragedies — who regularly take the law into their own hands. The problem is that there is no legitimate oversight or method for challenging their findings, or to even know to what extent their findings are based on actual evidence. Charging them with Dereliction of Duty, if such a crime actually existed, and placing them in prison would not change or prevent this from happening to the next Sir Walter Raleigh, Michael Crawford, or Mario Chávez. Because, when corruption goes unchecked for so long, as it obviously has in New Mexico, it becomes institutional.

The reason the former District Attorney Kari Brandenburg knowingly chose a prosecutorial tactic that would violate a defendant’s constitutional right to confrontation is because she had mentally weighed the pros and cons and felt comfortable that there would be no consequences to her life or career for the choice she was about to make. She was confident that she had enough political clout that any indiscretion on her part would be ignored by the state courts. And since it took seventeen years to exhaust all remedies in the New Mexico courts, she wasn’t wrong (it’s yet to be seen whether that clout will carry over to the Federal courts).

Friends who are privy to the facts of my life and the case against me often ask if it bothers me that people doubt my innocence.

But I say, this belief, skepticism, and doubt are good things. Because they encourage us to ask questions and seek answers, and that can never be a bad thing. What bothers me is an institutional unwillingness to challenge assumptions that can’t be defended by facts or the rule of law. If I were sitting on the other side of the table — without the benefit of having lived what I’ve lived — I would probably disregard Mario Chávez, like so many others.

Jason Bowles: Source: JasonBowles.com

But, having lived what I’ve lived, I know that organizations and celebrities, that is to say, advocates, can be cowards. They are often so worried about their pristine reputations that they’re unwilling to help where help is most needed because they are afraid of making a mistake. And what they either don’t realize or care to notice is that their inaction is action, nefarious action at that. Because it fosters a perception that if someone’s injustice isn’t advocated for by the right organizations or celebrities then there must not be merit to the claims being made. Which is why when a respected attorney like Jason Bowles stand up and says, “I will defend you” institutions and organizations devoted to justice should follow the example of courage on display — because that is advocacy!

I am perfectly aware that, like Sir Walter Raleigh, the federal courts, despite the Constitution and legal precedent, may not rule in my favor just as the Crown didn’t rule in his. But the truth is, their crime had introduced me to knowing who and what I am. And in knowing who I am, I know that one voice can make a difference — even posthumously.

This outcome of my life is that by speaking truth to institutional indifference and corruption the state prevails in destroying my physical life, well, if nothing else, maybe next time someone will succeed where I have failed in achieving justice and reform. Because nobody should be condemned without confronting their accuser.

This newsletter is but one of many voices standing firm against institutional injustice and corruption that everyday threatens our democratic liberties and freedoms. Your support is encouragement, and your encouragement fosters hope. And as far as media and advocacy is concerned, let us be brave, because the alternative is cowardice, and that’s not the best of any of us.