For Sale: Guilty Verdicts!
The tinsel-thin line between a reward and a bribe and the wrongful convictions that follow.
There is a particular question that has always lingered on the periphery of my thoughts as it relates to my wrongful conviction. It relates to something Eloy Montaño said in one of the numerous, testimonial statements he gave to police to save himself at my expense. The detective asked him about his sister-in-law Kerrie Upchurch and Eloy became notably nervous and stated that investigators shouldn't give credibility to what she might say, because, “she believes I'm guilty,” he said. Naturally, the detective asked Eloy why his sister-in-law would think that, to which Eloy answered, that it had something to do with a previous incident.
It stands to reason that even the most obtuse of detectives would have made it a point of questioning Kerry Upchurch. Especially since the chain of events, as they relate to the crime for which I was wrongfully convicted, originated from a principal lead that, first, led to Eloy's arrest, and then mine. I am referring to a phone call from either Kerrie Upchurch or someone associated with her attempting to exchange the aforementioned information for the reward being offered by New Mexico Crime-stoppers.
Given Upchurch’s proximity to the events in question her opinion on her brother-in-law's potential guilt was relevant. Yet, despite all of the discovery rules that obligate the prosecutor to disclose all evidence—inculpatory and exculpatory—to the defense, I never once saw or heard mention of her name in any of the discovery documents provided to the defense.
In fact, there was only one instance when my trial attorney Joseph Riggs mentioned her to me. It was during trial, just following a court recess when he returned and said something to the effect that, “the sister is the one who called Crime-stoppers to get the reward.”
He seemed annoyed by this revelation, and I wasn't in the best of mindsets to understand what that signaled to the structural integrity of the state's case. Recently I was listening to Beth Shelburne's podcast Ear-witness on the case of Toforest Johnson, a man in Alabama wrongfully convicted on the ear-witness testimony of Violet Ellison. Someone who received numerous “rewards” from the Jefferson County District Attorney Jeff Wallace for her testimony as a fact witness in no less than five criminal cases. A subsequent investigation and subpoena later revealed a secret file of receipts held by the District Attorney’s Office for payments to fact witnesses, all justified and categorized as rewards, but were more accurately bribes since payments were made in contingency to the outcomes of the legal proceedings.
There exists a tinsel-thin line between a reward and a bribe. The former is something of value (usually money) given in exchange for a deed, but when the reward serves as an inducement to dishonesty or some other form of illegality then the former becomes the latter and it's a bribe.
The thought that immediately came to mind as I listened to Shelburne relate the compelling tragedy of Toforest Johnson's wrongful conviction was, that if this is business as usual for one DA’s office in one state and jurisdiction then it's probable that this prosecutorial behavior is considered a normal practice for unethical prosecutors across the board.
Kari Brandenburg, the former DA who prosecuted my case, through her own deeds as an elected public official merits suspicion when considering whether she was capable of failing to disclose exculpatory evidence to the defense in a criminal case.
The witness in this instance was not Violet Ellison, it was Alexandra Dort. A German citizen who the state paid to bring from Germany to testify, not as a normal fact witness since she possessed no knowledge or involvement in the case. Alexa was an ex-girlfriend, embittered from rejection and eager to help anyone with anything that could potentially hurt me.
What is now relevant to Alexa’s testimony is what she said when asked under cross-examination on how she came to know about the case and whether or not she was being compensated for her testimony. She answered by saying she was contacted via email by Detective Hix (lead detective), and that she didn't remember the details of her compensatory arrangements.
There is an important prosecutorial rule that needs to be explained. The prosecution is obligated to disclose all evidence (inculpatory and exculpatory) to the defense.There might be exceptions to this rule in instances of national security, but in most instances and American jurisdictions this is the law.
Naturally, when my trial attorney learned from the witness that there existed emails disclosing elements of the case and a compensatory arrangement he began to object and question why the defense had never received copies of those correspondences. The judge then addressed the DA and ordered her to produce the emails immediately, but clarified “make a diligent effort to find them, but if you can't it's no big deal,” then called a recess so that “due diligence” could manifest itself.
To the surprise of no one Brandenburg returned hours later with the excuse that those emails could not be produced because they had already been permanently deleted. And let's be clear about what we are talking about: emails on a government server permanently deleted after only a matter of months.
First, for Brandenburg's contention to have been true that would have implied that the electronic retention requirements for government offices and officials were not being followed. Or, she decided that she didn't want the jury to see what was in those emails between Alexa and Detective Hix. Which seems more plausible?
Which brings us to the issue of Kerrie Upchurch and the statements that she must have given to the detectives. Why were those statements never disclosed to the defense?
Given the fact that Eloy believed that his sister-in-law believed in his guilt, it stands to reason that detectives would have questioned her regardless of what he said or thought just because of her close proximity and relationship to Eloy’s wife and her involvement with a collection of the reward. And the obvious question that would have been presented under cross-examination was why she believed that her brother-in-law had committed the murder in question. Did she collect the reward? And, if she had presumably learned about Eloy's involvement in the murder, days prior, why did she wait until after the reward was finally offered three days later to contact authorities?
As it related to the reward itself, was her payment contingent on anything? For instance, an agreement to not speak to the media, defense counsel, or in any other way to present herself to public discovery or knowledge.
Brandenburg would have known that a payment made to a fact witness on a contingency basis was prohibited because NMSA 1978 § 38-6-4 expressly states that fact witness “shall be allowed no fees for service,” and that to structure such an arrangement would violate Rule 16-304 (B), where case law has determined that payment to a fact witness under such circumstances constitutes professional misconduct as defined in rule 16-804 (H) of the Rules of Professional Conduct.
Of course, Kerrie Upchurch never testified, therefore there was no contingency on testimony to contend with. Nevertheless, there is still the pending issue of Brandenburg's professional conduct since the evidence related to the reward was never presented as part of the discovery to the defense.
Time and again we see repeated instances of wrongful convictions taking place precisely because prosecutors fail to disclose exculpatory evidence to the defense. Take the recent exoneration of Glynn Simmons a man in Oklahoma who finally had his case overturned after nearly 50 years precisely because of state’s failure to disclose favorable exculpatory evidence to the defense.
The prosecutor involved in hammering the nails into the coffin of Glynn Simmons wrongful conviction was Curtis Harris. And the consequences he will face for having deprived a man of five decades of his life is zilch, because prosecutors just like judges are protected by a nifty judicial invention of something called absolute immunity.
But, if there is no consequences for the kind of belligerent behavior that knowingly deprives someone a five decades of life and the potential and possibilities so implicated, then how are We the People expected to trust in the outcomes that our judicial system produces?
Time and again the names and tragic circumstances of someone's wrongful conviction fills our social media feeds. Collectively we lament these realities of individuals like Glynn Simmons, Marty Tankleff, Toforest Johnson, and so many others while unsure about how to respond. Advocates for criminal justice reform speak across the board about legislative efforts to prevent wrongful convictions, but every proposal falls short of the necessary mark of applying severe consequences to the actors (judges, prosecutors, and defense attorneys) who knowingly create these tragedies. How can we possibly expect anything different from DAs like Jeff Wallace, Kari Brandenburg, and Curtis Harris when the current system actually and factually rewards this kind of behavior?
It’s all so tragic how our judicial system works. They all have a their hand in it. Kerri was running for office she needed a win for her political gain. I’m so sorry you had to be the one she used. We can’t give up, someone somewhere is going to read your stories and want to help, I just know it 🙏🫶🏼