Liar Liar Pants on Fire!
a teary-eyed confession and temporary amnesia
Those who have followed the vicissitudes of this journey frequently ask what's next after the Supreme Court of the United States. As for the issue of not being permitted to confront my only accuser at trial, in accordance with the established guarantees of the Sixth Amendment, nothing happens. The Constitution simply becomes a little less relevant to the day-in and day-out of our everyday existences as another guarantee on our freedoms erodes away; and, maybe at some future date, in some future case, the right to confront our accusers will find itself worthy of the Court's attention and then find its way back to us as a constitutional guarantee, yet again. Which brings us to the much more important question of, what happens next? If the Supreme Court opts to ignore the question now placed before it, what I will need is new evidence that makes a "colorable showing" to the state trial court that I'm Innocent.
The next obvious question is, does new evidence in my case exist? And, if so, why have I waited until now to bring it out? In answering the first question, does new evidence exist? Yes, I believe it does, and, no I do not have it in my possession which is why I haven't come forth with it, obviously! All of which brings us back around to where we began with the question that requires some delineating efforts, a few words about "new evidence" in the context of exonerations and wrongful convictions.
New evidence is like the holy grail for achieving an exoneration from a wrongful conviction. It is by no means a sure fire weapon against the malaise of judicial indifference and apathy that plagues this nation's courts, but it is certainly a great place to start. Organizations like the Innocence Project usually pursue new evidence in the form of DNA. Something we are all familiar with but, something that is also very rare. DNA is collected in less than 10 percent of criminal cases, and for some reason the more serious the case the less likely it is that DNA evidence exists. But, fortunately, there is another kind of new evidence: testimony given at trial (usually against the defendant or individual fighting to prove his innocence) that is later recanted by the person who testified.
You might be thinking that recanted testimony is probably much more rare than the DNA evidence. Because, really, why would someone knowingly take the stand at trial, commit the crime of perjury by lying under oath, and then come forth and admit to the crime? Sure, there are undoubtedly rare instances where something like this happens, but on a large scale, really? Are there that many bad people? Yes, yes and no. Someone knowingly lying under oath happens pretty frequently, but when it comes down to whether or not they are bad people, I don't really think this is the right question to be asking. Since the much more relevant question is, what would compel a normal, moral someone who knows the difference between right and wrong, to knowingly commit perjury and contribute to someone being wrongfully convicted and sent away (sometimes to death!) for something they didn't do?
It usually comes down to a threat of punishment or a promise of reward that dangles over their heads. We have all heard of jailhouse informants who receive compensation in the form of more lenient sentences or an outright dismissal of their charges for offering helpful testimony on a case involving a much more serious crime. There are even documented instances where prosecutors have paid multiple "rewards" to the same witnesses who come forth and testify in multiple, unrelated cases, swearing under oath that so-and-so was the guilty party. Just recently, when Christopher Dunn was released after three decades, it was the knowingly false testimony of two minors, testimony later recanted that made his exoneration possible. Two minors that lied under oath because they were afraid of what the prosecutor and police would do to them if they didn't lie. It's an exhausting narrative that repeats itself time-and-again with no realistic solution in sight since no politicians or policymakers are even discussing applying consequences to belligerent prosecutors or district attorneys who knowingly pursue false testimony.
In my own case the state's entire case was built around the accusations of the first suspect in custody, someone who obviously saw the opportunity for what it was and opted to pursue it. But where the situation becomes belligerent isn't in the fact of one person accusing another, but in the fact that it wasn't the actual accuser who the prosecutor put on the stand--it was the accuser's spouse.
Is your curiosity piqued?
The man who accused me was the first suspect in custody, Eloy Michael Montano. But at trial the accusation was presented to the jury through his spouse, Dawn Renee Pollaro-Montano. But where this becomes super interesting is that allegedly she didn't remember what she was called on to testify about until nearly a year after the actual murder took place. It's called temporary amnesia, or liar-liar-pants-on-fire!
According to Eloy and Dawn's initial statements to police, given once Eloy was taken into custody, on the day of the murder Eloy arrives at their shared residence alone, calls Dawn who is seven months pregnant and at that moment visiting her big sister. He demands that she return home immediately. Two to three hours have elapsed since the murder, and when she finally arrives home she finds her husband pacing back and forth nervously in the living room of their residence. She has another infant in her arms (not a child with Eloy) and she proceeds to place the child in its crib before returning to the living room to ask why she was summoned so urgently from her sister's.
"What's going on?" she asks her husband who is still pacing back and forth where she first found him upon entering the residence.
Eloy turns to her, he's sweating profusely, his eyes are bloodshot and appears to have been crying, and he's shaking. "The fucker set me up!"
He proceeds to explain to her that a man had been killed, that he was involved, but that it was Mario who was the actual killer--someone who she has never spoken to or met. He's frantic and he insists that he needs her help and wants to borrow her car because he's afraid the police might already be looking for his truck and he desperately needs a clean vehicle. She agrees.
Of course, what Dawn probably didn't realize was that in the moment that she was made aware of the crime and her husband's involvement in said crime she committed a crime just by lending him her vehicle. An important detail which we will come back to shortly.
Eloy then uses his wife's vehicle to dispose of evidence. He later returns home and informs her that he intends to flee the state to avoid capture. And in doing so he intends to empty their bank account. Somehow she accepts this narrative, even though she's, like I said, seven months pregnant, unemployed, and, let's not forget, he's supposedly telling her that he's not the murderer.
Two days later he returns home after midnight and a long conversation with his wife ensues. Based on this conversation, instead of spending one last night with her before accompanying me to turn ourselves into the police the next morning (as we had agreed) where he would accept responsibility for the murder and clear me of any prior knowledge or involvement, another choice is made. Whether the new choice is made cohesively between husband and wife or is simply another narrative he convinces her of, there is no way to know.
What we do know is that shortly after their conversation, a new choice was made. New Mexico Crime-stoppers was called by Dawn's big sister offering information in exchange for the reward being offered. The information offered in exchange for the reward was that two men were involved, Eloy Montano and Mario Chavez, but with the added caveat that it was the latter who was really guilty.
A few hours later after the sun was up on a new day, Eloy contacted me to say that he was leaving his residence to come for me so that we could go to the police as agreed. He said, "I just need to stop by my work to get my pay check so that I can leave my wife with something."
We never spoke again. Eloy was taken into custody at his place of employment and immediately blamed me for his actions. Later the same day, after having provided his initial statements, Dawn arrived at the police station to retrieve her husband and likewise provide anything helpful that could potentially aid their investigation. And here is where it's important to pay very close attention.
Dawn is providing a statement in an obvious attempt to try and take her husband home with her. Yet, in doing so doesn't mention a single word about her husband's alleged state when he summoned her from her sister's. Even more interesting is that she doesn't mention a thing about her husband's utterance of, "the fucker set me up!"
In fact, it wasn't until approximately a year later when she miraculously remembered her husband's verbal accusation against me. Coincidentally, right about the time when the official investigation concluded and the prosecution determined that Eloy's testimony wasn't helpful because, according to Detective Timothy Hix, "Eloy was lying about 30 percent of the time" throughout the three testimonial statements he gave to the detectives. In other words, the prosecution understood that since Eloy had lied to them about: (a) his connection to the murder weapon (its purchase and by his own later admission the disposal of said weapon); (b) his involvement in the planning stage of the murder, since his home computer revealed the very book that he tried to tell the detectives belonged to me ("How to be a Hitman") downloaded to his computer a year before I ever appeared in New Mexico,; and, according to handwriting analysis performed by the prosecution's expert it was his writing on a tablet that clearly wrote a robbery script that was discovered by the detectives in his vehicle; and (c) his proximity to the payphone used to lure the victim to his death, in that he initially told the detectives that he had never spoken to the victim, which was obviously a lie since he was admittedly standing alone within twenty feet of the payphone at the time the victim was called; and last but certainly not least, (d) though he insisted time and again that he had no knowledge of the victim's missing wallet, since he was the only one of us not in custody he was the only person who could have helped the wallet to arrive with my ex-father-in-law Dennis Melin in Tucson, Arizona, where it was eventually discovered (coincidentally with the very man who had been openly threatening my life because of a business dispute between us) after I had already been in police custody for weeks.
At that time the prosecution was realizing that its case against me was falling apart at the seams. Its case very much needed a pinch-hitter to come forth and save its case. Which was precisely what took place when Dawn came forward with her sudden remembrance of her husband's teary-eyed, excited utterance and accusation against me. Suddenly the prosecution didn't need Eloy; in fact, what it needed was to keep Eloy from testifying altogether because his statements had shifted so many times he was more of a liability than an asset to the prosecution's case. So the prosecution charged him with a fourth degree felony, not a serious enough charge to keep him or his wife from cooperating, but just enough to get him a public defender who would obviously advise Eloy to plead the Fifth and refuse to testify altogether. Which was exactly what happened.
Dawn's sudden remembrance of her husband's teary-eyed confession when he was trying to get her to lend him her vehicle on the day of the murder wasn't just a lucky break for the state's case. I have reviewed countless wrongful conviction cases where prosecutors knowingly seek out testimony at the eleventh hour of a case, on the eve of trial, using any and all means necessary to acquire it. Keep in mind that it's not illegal for the prosecutor to sit down with a potential witness who already finds themselves in a very compromised position due to crimes currently dangling over their heads and say something like, "if you can't help us in prosecuting Mario then we will have no choice but to prosecute your husband and the father of your newborn child. And, we may even have to prosecute you!"
"Me? Why me, what did I do?" she would most likely say.
Which was right about the time when the prosecutor would reveal some of the hidden cards up her sleave. Like the fact that Dawn wasn't Eloy's legal spouse and thereby not eligible for the spousal privilege which would normally prevent her from having to testify against her husband if he were to be prosecuted. According to public records the couple acquired a marriage license on March 10, 2004, followed by a ceremony on March 12th, but the license was never filed with the County Clerk within the ninety days as mandated by the state legislature (NMSA 1978, Sec. 40-1-15 (1905)). Their license was eventually filed on January 11, 2005, but was done so in direct violation of state law, a law that the County Clerk did not possess the authority to supersede, alter, or otherwise ignore. Either way, since the murder took place on August 16, 2004, by that time the ninety days to file their marriage license with the clerk had already expired so they couldn't have been legally married at the time that she handed over her car keys to her "husband" after being made aware of the crime that had taken place. And, in fact, that would have been the lesser of the charges she would have faced: because the real stick she was being threatened with was Criminal Conspiracy (NMSA 1978, Sec. 30-28-2 (1979)) which would have exposed her to multiple second and third-degree felonies; not to mention a little something codified into the law books as Harboring or Aiding a Felon (NMSA, 1978, Sec. 30-22-4), a fourth degree felony. The prosecutor really wouldn't have needed to reveal the fact that she was also receiving governmental welfare benefits while claiming to be single, something codified under Section 30-40-1 Failing to Disclose Facts or Change of Circumstances to Obtain Public Assistance.
Basically, the prosecutor had any number of sticks of all different sizes and textures to help Dawn remember a teary-eyed confession from her husband on the day of the murder. What's curious is that despite her willingness to commit multiple crimes on the day of the murder to help keep him from getting arrested. When he was finally taken into custody--which was, of course, planned since it was her sister who called to collect the reward money in exchange for information leading to an arrest--somehow she doesn't remember her husband's teary-eyed confession only two days after it happened. How bizarre that somehow when she voluntarily goes to the police headquarters to offer her first voluntary statement, a statement that will help determine whether or not her husband gets to go home with her, she somehow forgets to mention a very dramatic episode in which she's summoned home in the middle of the day, finds her husband pacing back and forth, teary-eyed and shaking, and when she questioned him, he blurted out, "the fucker set me up!"
Obviously, for anyone who isn't naturally naïve or born yesterday, the reason she didn't share her husband's teary-eyed incident with the police was because it didn't happen. At least, not in the way that she remembered it happening a year later on the eve of my trial. I don't call into question that he summoned her from her sister's, nor do I call into question that he was pacing back and forth nervously when she entered the house. What I do call into question was him initially blaming me for the murder. And here's why: if he's as innocent as she claimed a year after the murder, then, why would she accept that he needs her car to dispose of evidence? And, even more importantly, why would she accept that he needed to flee the state at his expense, in his vehicle, leaving her pregnant and without a penny in the bank? And, even more curiously, why do so with the person who presumably set him up?
I'm sorry, but credulity can only be stretched so far!
The new evidence that is out there and needs to be presented to the trial court is the truth surrounding her miraculous recovery from the temporary amnesia that prevented her from initially remembering her husband's dramatic, teary-eyed confession only hours after the murder for which she herself committed no less than six felonies for which she was never charged. Hmm. . . I wonder why?
You might be thinking, okay, for the sake of argument let's say you're right and she did lie under oath at trial to save herself, her husband, and her children's environment and household. Even so, why would she come forth and tell the truth now after all these years? As far as we can tell she isn't exactly being offered a reward for being a good Samaritan and telling the truth. In fact, she would only be exposing herself to criminal liability and nobody presumably wants to spend any amount of time in prison for doing the right thing. All of which are very good points, but unless she's a straight sociopath it might bother her to know that she was manipulated to help send an innocent man to prison. It might bother her to know that while Eloy was avoiding his responsibilities as a father, I on the other hand was prevented from even being a father to my daughter. And, it might also bother her to know that the victim's family hasn't received justice for the life that was taken from it.
Yes, it's quite possible that she sleeps just fine at night knowing that she lied under oath and sent an innocent man to prison. That being said, I'm optimistic that she's not a sociopath. I'm also optimistic that somehow I will manage to convince an attorney with the investigative backing of an organization like the Center on Wrongful Convictions or the New Mexico Innocence and Justice Project to come forward and lend its investigative expertise to help unravel the quagmire that is my wrongful conviction. Because I believe that most people inherently want to do the right thing even when there is no reward being offered. So, please, if you have contacts within any of the above named organizations (or maybe one that I didn't mention) take a moment to forward this post to them directly.
