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FYI, You Don’t Want to be the First Guy
The cloaks of deception that hide the truth about our legal communities.
When I was first arrested and charged with an open count of murder in 2004 the second thought that crossed my mind was that I needed an attorney. I sought out the career criminals with fifty-plus arrests and half a dozen convictions and made inquiries. And surprisingly, the advice was consistent.
I heard things like, “don't waste your time with public pre-tenders, all they're doing is looking for experience and the first opportunity to jump ship. They'll let you sit here for two or three years then try to bully you into a plea deal.”
Or, “if you get a private attorney, make sure he doesn't horsetrade your ass!”
Or, there was, “when instead of answering your questions they tell you not to worry, that's about the time when you should worry, because they've most likely already fucked you.”
Experienced frequent flyers of the criminal justice system spoke a lot about horsetrading and side deals. I went to our resident pimp for clarification, as he seemed the most experienced of the group.
He said, “it's simple, imagine your attorney has two clients. One is paying $50,000 and the other is paying ten times that. When he approaches the DA for a potential deal, who is he more motivated to negotiate for? And by ‘negotiate’ I mean to say: take some of the money from his pocket and put it in someone else's. And when that's not enough to seal the deal, then that's when the horsetrading comes in. He'll offer an easy conviction to the DA on the first guy in exchange for a sweet deal on the second guy. FYI, you don't want to be the first guy.”
I have to admit that when I first met my trial attorney there was definitely something slimy about his persona—think Saul Goodman, the attorney from Breaking Bad, with cowboy boots, suits too big for his frame, and hair like Donald Trump. As a free man I wouldn't have hired him to notarize a document much less defend my life. But, he was the only attorney not asking for $500,000 up front and my first born child. And, he readily admitted that the system was corrupt, the prosecution would play dirty, the police would lie, and then closed by stating the obvious: “if you don't have someone who knows how to navigate the sewers of New Mexico law, then, it's real simple, you're fucked!”
I hired him on the spot knowing perfectly well that I was definitely a “first guy,” but hoping to negotiate myself into a “second guy” slot. And, obviously, after nearly two decades of pursuing exoneration from my wrongful conviction, I never made the transition.
It is a transactional transition between being a pawn that is readily sacrificed or a king that is defended with everything. And perhaps this reality is inevitable given that we live in a commerce based world where most things are priced, negotiated over and eventually sold. Should we then be surprised when this maxim holds true with our constitutional rights and liberties?
Many frequent flyers have said that it's “useless to pursue a claim unless you have pockets deep enough to buy your freedom.” And maybe they are right.
If I don't buy into their pessimism it's only because I am not able to accept their answer. Because I believe that wherever we may find ourselves we have both collective and individual responsibilities to our fellow man. Which means that we have to find the courage to speak up and out when we see something that shouldn't be because this is the premise on which this nation stands.
Is reforming a corrupted monolith of criminal justice going to be difficult? Yes. Careers, livelihood, families, ambitions, and in some instances even lives themselves will be lost. But this is no different than what is currently taking place.
How would you describe a surgeon who intentionally botches an operation? Or an architect or structural engineer who knowingly approves a building they know will not survive even a decade of weather and erosion? Would it matter if they had a good reason or financial incentive for violating their Hippocratic oaths or professional standards? Probably not. Yet when a lawyer intentionally dooms a client to death row or a prison sentence of life without the possibility of parole, he or she does so knowing there will be little to no recourse for their actions.
You might be reading this and thinking, these are very rare instances of derelict behavior that when discovered are punished so severely that such behavior is eradicated from the system—problem solved. And if we were discussing almost any other profession I might agree, but lawyers do it more frequently than you realize.
I am not suggesting that all lawyers are bad but I am suggesting that we deposit a lot of faith in the integrity of attorneys who represent clients who can't monitor their actions. And what aggravates a predicament of compromised professional integrity, as it relates to a lawyer, is that victims can quite literally go unseen and unheard for the remainder of their lives.
Unseen and unheard means that instances of intentional malfeasance don't attract the kind of corrective action that brings trust and stability to the system or legal profession. Behavior that goes unchecked becomes systemic, and once that happens there is a tendency for an unwritten code of conduct to be ratified and enforced by its members. It's no different than a Mafia's code of silence.
When Brandenburg, the elected District Attorney of Bernalillo County from 2001 to 2017, was finally pushed out of office she wrote a letter that was published by the Albuquerque Journal where she openly accused APD of being an “ongoing criminal enterprise.”
Obviously, that was an extremely brazen statement, but one substantiated by evidence. Evidence, that, when combined with other complaints and lawsuits eventually led to APD having to enter into a consent decree agreeing to federal oversight and reforms.
But what about the former DA’s role in the very same indecent behavior she lamented on her way out of the office? If APD was an “ongoing criminal enterprise,” did that make her the consigliere of said enterprise? And what about all the rest of the scandals that shadowed her tenure as District Attorney?
Kari Brandenburg: Courtesy of Google.com
Didn't Brandenburg use her position as a DA to shield her own son’s criminal exploits from prosecution? Didn't she admit to having shielded police officers prosecution in clear instances of police brutality? And these are not the only questions we should be asking, but all these questions lead us to the next obvious question: what else might she have been capable of doing?
Yet, despite her track record of dereliction of duty as an elected public official, not only do the criminal convictions that she prosecuted continue to stand, but she's permitted to practice law as an upstanding member of the New Mexico Bar Association. And it stands to reason that if she had been derelict in her duties in any other profession that holds sway over people’s lives she would not be practicing that profession today.
There are more than a million criminal convictions every year in the US, and recent studies show that 4% -10% of these are wrongful—the more severe the crime the higher the probability that the ensuing conviction is unjust. When we lament this reality we typically do so looking at the prosecutors and police who knowingly break the law to arrive at these illegal convictions. But in doing so, we fail to notice the defense and appellate attorneys who serve as accomplices to these very crimes. After all, they are the ones responsible for defending the rights and interests of their clients, and when they intentionally fail to do so the entire adversarial system of criminal law collapses.
Joseph Riggs: Courtesy of Google.com
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For nearly two years my trial attorney Joseph Riggs assured my family and I that we had nothing to worry about for three reasons: (1) there was no physical evidence of guilt; (2) the state’s entire case was built around the proven lies of Eloy Montaño (the first suspect in custody), and “for them to go to trial would mean putting him on the stand, and if they do that, then, we win”; and (3) “we have a polygraph that you passed with flying colors that clearly shows that you didn't kill anyone.”
Riggs commented on Kari Brandenburg's decision to remove ADA Gerald Byers from my case and assigned herself. He said, “she's a politician not a trial attorney. She has to have a political reasons for wanting to prosecute your case.”
“Is that good or bad?” I asked.
“Good,” he lied. “I know her personally and I'll be able to talk with her. She frequently invites me to her home for dinner.”
Whether Riggs was ever invited to dinner I can't know. What I can say is that that was about the time he started to demand that I arrange for cash payments at his office for the purpose of “investigation,” and in all honestly I wasn’t surprised.
The aforementioned frequent fliers of the criminal justice system had already prepared me for what was to come. “As you start approaching the trial date is about the time he’ll start asking for cash. But don’t worry, that’s how he works.”
His cash demands were never clarified or explained. He just insisted that “investigation” costs were running higher than expected, and that I need not worry because whatever I gave him, if he didn't need it, he would return the difference to me after the trial.
Did I suspect that he might be doing something illicit? Maybe shaking me down? Yes, I suspected all of that and more, but I also reasoned that if he had managed to successfully practice law for three decades then it made perfect sense that that was how the legal system in New Mexico operated. And, if I cooperated with the money then just maybe I could move from first to second guy status. What I had no way to account for was, what if he wasn't working for my interest at all?
Like I said, I had suspicions, but I didn't know how to address them other than to ask questions, which I did, and his answers seemed to make sense. I didn't always believe him, but from within a jail cell I had no way to verify if he was really meeting with an investigator, gathering witnesses for our defense at trial, or spending my money on something altogether unrelated to my case. And, I admit, I wasn't nearly as demanding as I would have been had I not been in a jail cell. It simply didn't seem like a good idea to antagonize my only advocate.
Of course, as with most things we don't actually know something until we do and by that time it's too late. And so it was with Joseph Riggs.
On the eve of trial just prior to the final status hearing he asks the guards to escort me into the jury room for a private discussion between myself and he and his co-counsel Natalie Bruce. A meeting where he immediately insisted that I sign the state’s plea bargain offer of 45 years.
My surprise shifted from incredulity to anger in a matter of seconds, because in that moment I knew that he had either horsetraded me— meaning, that at some point he had learned that Brandenburg’s political interests in my conviction were more valuable to him than my own interests of freedom and justice; or, he had taken the case in representation of someone else's interests.
However, you might be thinking that he was just professionally obligated to present me with the state’s offer. So allow me to give you the play-by-play:
After he presented me with the plea insisting that I sign it, I responded by pointing out that for nearly two years he’d told me and my family, numerous times, that we had nothing to worry about. Not only did the state have no physical evidence, but their star witness (Eloy Montaño) wasn’t credible. I demanded to know how it was that on the eve of trial he could be telling me something completely different.
“We can't win,” he said. “We believed that we could show the DA that she was wrong with the polygraph and all the other evidence that pointed to Eloy but…”
“Then, as you said from the beginning,” I interrupted, “we go to trial and win, because you're crazy if you think I'm giving them 45 years of my life for something I didn't do.”
“If we go to trial, he insisted,” we’ll lose. The judge has agreed to allow Eloy's wife to basically testify on his behalf, which means they don't have to put him on the stand, which means that we can't destroy him through cross-examination. And, yes, all their evidence is circumstantial but it's enough to get you convicted because juries are fickle.”
I began to ask him about the cash payments he had demanded for “investigative purposes,” but I don't recall that he answered the question other than to insist that if I really wanted to go to trial that he would need more money for witnesses.
“What about the polygraph?” I asked. “You said that with that alone you could change the DA’s mind. What happened to that?”
“I thought I could,” he admitted. “But I didn’t anticipate that she would get her own polygrapher to say the opposite of what our polygrapher was saying.”
“So what’s the point of a polygraph if the results can be read any which way they want?” I asked.
Of course, when I asked that question I hadn’t yet read the scathing, scientific report from the National Academy of Sciences on polygraphs that equated them to “guessing,” or “tossing a coin.” A report that was published and available long before my trial. Apparently my attorney had decided to place my defense in the hands of a polygrapher, which according to the NAS, was no different than placing my defense in the hands of an astrologer, tarot card or palm reader. Which explains why no other court system in the entire United States permits polygraphs as evidence in criminal trials, with the exception of New Mexico—a state that has determined that real scientific evidence be damned (such as the comprehensive report produced by the NAS), as New Mexico will consider anything whatsoever “scientific” so long as there are “professional standards and practices” related to the parlor tricks being performed for the audience of the jury.
I made it very clear that I wasn't going to sign a plea, voluntarily giving them 45 years of my life for something I didn't do was not an option. And it was painfully apparent that we were parting from that meeting as enemies, and not because of what he told me, but because it was painfully obvious that I never had a chance of becoming a second guy.
There was also no chance that he would refund me the money so that I could hire a better attorney, nor was it likely that the judge would even permit change in counsel on the eve of trial without some compelling evidence of malfeasance, which I didn't yet have. For that I would have needed to borrow my attorney’s testimony from 2019.
At a state court evidentiary hearing in 2019, trial counsel admitted that he only spent $50 on investigation. He also admitted that his trial strategy was “misdirection and confusion” and that the polygraph strategy that he selected wasn't suitable for a case such as mine, but that he did what he did because to have done nothing would have led to me suing him for “legal malpractice.”
I sat in the court room that day in 2019, and what came to mind as he spoke was, well, he is capable of telling the truth, at least partly. When ask why he had put me on the stand to be confronted with an untenable situation, he lied and said, “Mario was adamant about testifying, he wanted to tell his story.”
As I listened to him testify, I thought, he's definitely a sociopath. He'll say a little bit of the truth and the rest will be absolute bullshit. But what fascinated me about his testimony was how absolutely certain he was that there would be no consequences for what he was saying.
There he was admitting under oath that his defense of a client, who was on trial for first-degree murder, involved a $50 investigation and an “unsuitable defense strategy”—based on his own experience and estimation—for a case such as mine. He admitted his own
ineffectiveness, but did so knowing perfectly well that no court in New Mexico would rule him as “ineffective.” Therefore, it didn't matter what he said because he was facing zero liability for his actions because the ref on the field (that is to say, the judge) never intended to throw a flag on the play.
The trial itself was a fiasco. He wasn't prepared. It was painfully obvious that he hadn’t investigated. Essentially, he pinned my life to the testimony of a polygrapher and told me that I would need to testify. And the problem with the latter part wasn't that I had an issue with telling the jury what had really happened, it was that I had assumed that I would take the stand and testify truthfully.
As the trial progressed I kept asking when he planned to brief and prepare me for my testimony. I had seen trials in movies and knew that there was an art to answering questions. But despite all his assurances that he would come to the jail to help prepare me, he never did. Instead, he waited until the day of my testimony and spent all of 14 minutes with me.
He said, “what are you planning to say?”
“The truth,” I said.
“If you do that you'll spend the rest of your life in prison,” he said. “You're intelligent enough to know that trials aren't about telling the truth. All that matters is what can be proven.”
What Riggs was referring to was the fact that when I left the residence the victim was alive, and when I returned with Eloy was when the victim was killed. So, he argued, “it doesn't matter that you didn't pull the trigger because you drove the man who did kill him to the scene of the crime.”
“Unknowingly,” I said.
“That doesn't matter because we can't prove that. So if you tell the truth, then you might as well have signed the plea that I told you to sign. My advice is, think of something else to say.” And then he left me there in that holding cell to prepare myself for my testimony.
I had about six minutes to prepare and, I admit, I was terrified. Do I tell the truth or follow my attorney’s advice? In my opinion nobody should ever have to confront this dilemma. Not only did I have no way to know if what he was telling me was true, I had no way to even know that it would have been perfectly within my right to say, “I have a right to remain silent and I choose to exercise that right.” I didn't know that I had that right because Riggs had explained to me that in order for the polygraph testimony to be admitted I needed to testify, and since he had placed my entire defense on palm reading and tarot cards I believed that I was obligated to testify.
So, I took the stand and I lied.
Joseph Riggs came to visit me once following my conviction. I never imagined that he would have the gall to stand before me after what he had done. I couldn't measure whether it was conscience, greed, mental illness, or some combination of the three that had brought him there, but whatever it was, I was intrigued. By that time I was studying the law and the more I read and learned the more I understood that what had happened at my trial was by no means accidental. It was a struggle listening to what he had to say, because the more he spoke the more I realize the kind of person I have been dealing with all along. He was there to bring me a proposition.
Of course, he wrapped it in niceties, asking how I was holding up and encouraging me to not lose hope. But then he came to his pitch:
“I have a good friend on the State Supreme Court,” he said. “I have already spoken to him about your case. And if you can put together $200,000 I can assure you that your case will receive the kind of attention that it deserves.”
Translation: give me a lot more money and I'll make you a second guy after all.
But, was he telling me that his “friend” was selling verdicts? Or maybe he was just saying that if I hired him for my direct appeal that, based on a casual, uncompromising conversation that he had had with the state supreme court justice that he was confident that the injustice I had received at trial would be rectified. Or, there was another possibility: that he thought there might be a little more money than he hadn't already grafted from my family and me, and he wanted it.
Whatever the true answer was, the reality remains that Joseph Riggs and attorneys like him are far from being anomalies. My direct appellate counsel Kathleen McGarry likewise violated her professional oath.
Kathleen McGarry-Ellenwood: Courtesy of NM Courts.gov
Or, perhaps I'm wrong. Perhaps when a highly qualified and experienced attorney, who at that time defended clients sentenced to death row, decided to intentionally ignore a client’s direct appellate wishes by discarding his strongest constitutional claim, that too, was normal.
McGarry likewise visited me in person shortly following my conviction. She was as engaging as she was intelligent and proved to be well-versed in the constitutional violations that had caused my wrongful conviction. We spoke for hours and I was completely honest as it came to my trial attorney’s actions.
She agreed that my strongest and most urgent constitutional claim for direct appellate purposes was in fact the confrontation clause violations related to my sole accuser’s accusations being admitted without his testimony, thereby denying me any and all opportunity to test the truthfulness of said testimony through the “crucible of cross- examination.” She even went so far as to send me a letter detailing her explicit intentions to incorporate said constitutional claim in my appellate brief. So imagine my surprise when I received a letter dated the same day as the brief she filed on my behalf where she explained that she left out my strongest claim with no explanation. And when questioned via email, years later by my family, as to why she neglected to include my strongest claim, she brazenly lied in a response citing that she didn't have space in the brief—even though the brief she submitted was nearly five pages short of the state supreme court limit. All of which leads us to having to ask a very troubling question.
Why would an intelligent and gifted appellate attorney, someone who has devoted her career to defending the lives of those on death row— and therefore not presumably someone corrupted by greed or power— choose to sandbag a client’s direct appeal?
We had mutually agreed on what issues would be in my direct appeal, she confirmed what those issues were in her letter to me. Yet, despite our agreement she decided to file an alternate brief not sanctioned by me, only informing me of such decision after her dirty deed had been done. Why?
McGarry remained in private practice for nearly a decade following her debacle of an appellate brief, until 2018 when she became staff attorney for the First Judicial District Court in Santa Fe, New Mexico. Then, two years later, lo and behold, her loyalty to the “community” was rewarded and she became the “Honorable” McGarry-Ellenwood in the same court.
I have met and known several attorneys throughout my life and they are some of the most intelligent and driven individuals on the planet—only to be surpassed by a handful of medical doctors I have had the pleasure of knowing. My point being, lawyers don't typically stumble across their professions, and they don't see what they do as a job. It's a calling that requires an immense amount of personal sacrifice and dedication.
What stands out as even more bizarre is that Kathleen McGarry wasn't the only appellate attorney to represent me, fail and refuse to present a complete brief on the entirety of my constitutional claims to the courts. Lisa Schatz-Vance, the attorney assigned to my first habeas appeal in the state courts, did the same. Though, in her defense she was more forthcoming in her reasoning for not wanting to present the entirety of my claims: “New Mexico is a small legal community and Joseph Riggs is very well respected. To present the entirety of your issues would mean attacking him professionally—I'm not willing to do that.”
She too filed a shit brief that once again didn't represent the entirety of my constitutional claims, and instead of answering for what she had done, she resigned and took a staff attorney job with the Second Judicial District Court, where she does a broad array of work for adults with disabilities. Which, without a doubt, is as noble as it is needed.
But there is something disconcerting about the veil of respectability that cloaks the darker deeds of attorneys. To look at their résumés online one would think they were contending with the very founders of peace, justice, and equality for all.
It would almost be easier to attack the character of the Dalai Lama, that is, if we accept how they portray themselves.
Kathleen McGarry's loyalty to the “community” has certainly paid off. And as a district court judge she handles habeas corpus petitions submitted by inmates (and the wrongfully convicted). But for someone who knows what she's done and capable of, seeing her as a judge is like seeing a pedophile operate a daycare.
Lisa Schatz-Vance: Courtesy of Law office of Matthew Vance
As for Lisa Schatz-Vance, she appears to have devoted her career to defending the less fortunate. She has helped people with disabilities and done a lot of great work with New Mexico Legal Aid for senior citizens, and now finds herself in private practice where she's safe from having to attack the professional reputations of others in the “community.”
Which leads us to an important question. If an attorney violates her oath with a handful of clients and by doing so helps to shield and protect other bad actors, but then, throughout the remaining years of her career uses her skills as an attorney to help dozens of others whose rights are likewise being infringe upon, do the scales balance? Meaning, are we able to disregard and forget the ones she intentionally failed? Or should we instead judge her by the entirety of her career trajectory?
Obviously, life is more than just a single action. Moreover, it is often the things that we do wrong that inspire us to do right down the road. I believe that we have all compromised our integrity at some point, and because we are not proud of that failure it can't be found on our online bios and profiles—but it exists. It exists in the living, breathing experience of those who remember the blow that was dealt to their lives by the compromised integrity of someone who decided not to live up to their integrity or professional oaths.
At least three attorneys who have looked at my case have called it an anomaly, but I disagree. An anomaly suggests something unexplainable, but this isn't that. It is explainable, it's just that to do so would be to expose the corruption for what it is, and nobody who is in a position to do so, wants to.
Because to do so would be interpreted, by those in the legal community, as betrayal of the same. Leading to the question, is one client worth the systematic dismantling of their careers? The answer we want is an emphatic YES, but unfortunately this isn't the reality.
The reality is that lawyers are uniquely gifted in many ways, but they are also mothers and fathers, husbands and wives just like the rest of us. Which means, it's understandable for them to have priorities that run deeper and extend further than the ethical demands of their professions. But just because we understand it doesn't mean that we can permit it.
If the question becomes whether someone's career is more important than someone else's life or liberty, and it's answered in the affirmative, then that person has no business in that profession. In the same way that we would never tolerate a surgeon, airline pilot, chef, or nanny to trade their interests for the lives of those who we regularly place in their hands.
I wake up every morning to the sounds of a prison that are as consistent as the sun on the horizon—keys jangling; radio chirping; doors buzzing —but what makes my experience so unique is that I also wake up every morning knowing that I'm here because several of the attorneys charged with my defense decided that their careers and interests were more important than my own. And perhaps what followed in their careers was a form of atonement.
In answering the question as to whether or not our respective legal communities are nothing more than conglomerates of corruption, the answer isn't definitive. What is definitive, however, is that the choices and actions of defense and appellate attorneys like Joseph Riggs, Kathleen McGarry-Ellenwood, and Lisa Schatz-Vance are more common than we care to realize.
Where they all miscalculated, however, is that one day these articles, video post, podcast episodes and tweets will reach enough of the right individuals who will help give momentum and impetus to the avalanche coming with righteous fury for their “community.” Even though, as it stands, the courts have thus far proven to be compromised by the men and women who sit on these benches as judges—because despite the black robes and deference shown to them in the courtroom they are still expendable members of the very legal community and conglomerate that made them what they are. But this too will change.
My trial attorney Joseph Riggs took my case for reasons that had nothing to do with defending my innocence, rights or interests. Other attorneys have done the same. And all of them thought that I would do nothing more than sit quietly with my hooks and memories in the cell that they helped weld shut, but what they never accounted for was the day when a talented director comes along to make this cautionary tale into a film that challenges and recreates our preconceived notions of justice in America.
And if he or she doesn't come forward then the story will still make its way to the world through shares and likes just as it has up until this point. Because optimism isn't just looking at the glass as half full, it's also knowing with absolute certainty that good will prevail, and then, choosing to act in accordance with that belief.
#Justice #KariBrandenburg #JosephRiggs #WrongfulConvictions #CJReform #Explore #Innocence #MYLIFEplus25 #MarioChavez #Corruption #Truth
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