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Politicians in Robes
The "rule of law," as we understand it, may not be for everyone
There are many aspects of modern society that America's constitutional framers didn't anticipate, and therefore couldn't have made allowances for in our Constitution or Bill of Rights. Naturally, it is easy to find ourselves frustrated by their failure to anticipate our diversities, that, one way or another, are all American. Which is why we gather, vote, legislate, and otherwise find ways to create the needed change that they couldn't have foreseen. But what about the problems they could foresee, and they did protect us from, but the powers that be will simply not enforce those protections? Which leads us to ask whether or not the “rule of law” actually exists.
A criminal trial is by no means a perfect, scientific enterprise of forensic evidence and the impartial application of the law. Add to these imperfections of jurisprudence an atrocious crime or a politically charged set of circumstances and the outcome will all too often not live up to the lofty ideals on which this great nation was founded. I am referring to wrongful convictions, yes; but more specifically, I am referring to the protective mechanisms that fail to be mechanize, thereby permitting the government to violate the sanctity of life and liberty without even a wayward glance at the due process of law.
I was convicted of murder in 2006, And the only direct evidence of my guilt was the testimony of another suspect who I was not permitted to cross-examine.
Whenever I explain this — in particular, to someone familiar with the Sixth Amendment — they always say a variation of the same: they can't do that!
I know that their intention is not to be insensitive to the lived reality of my predicament, it is just difficult to comprehend how such a clear and concise constitutional guarantee could be ignored. Somewhat like hearing that someone was prevented from voting, applying for a job, enrolling in school or the military, marrying someone, or speaking at a public forum, and the only reason they are given for being denied, whatever it is, is to say, “just because,” or a variation of the same, “it never happened.”
But, what about when it did actually happen?
In my particular case, it very much happened that my sole accuser’s “testimonial statements” were presented in their entirety to the jury and my trial attorney wasn't permitted to cross-examine him. All of which, remains an uncontested fact.
In the precise words of my trial attorney, Joseph Riggs III, filed in the Statement of Issues for direct appeal to the New Mexico Supreme Court directly following my conviction:
It was the Defendant’s theory of the case that Eloy Montaño killed Garland Taylor. Eloy Montaño had been taken into custody at about the same time Mario Chávez was originally arrested. Eventually, he gave three statements blaming the homicide on Mario Chavez. He admitted that he was present at the crime scene where Garland Taylor was killed… When it became clear that there would be no testimony from Eloy Montaño [to be presented by the State], the Defendant filed a Motion in Limine relating to the admissibility of questions about the statements of Eloy Montaño. In a pretrial hearing, the Defendant argued that certain statements by Eloy Montaño were lies and that the Defendant proposed to question Det. Hix [the lead detective] about those lies.
Defendant argued that this would be proper cross-examination of Det. Hix about his theory of the case, his decision to arrest Mario Chávez and not arrest Eloy Montaño and the overall competence or incompetence of the Sheriff’s Department investigation.
Defendant stated that because Eloy Montaño lied, the statements were not going to be offered for the truth of the matter asserted and were not hearsay… After extensive arguments by both sides, the court ruled that Defense Counsel could cross-examine Det. Hix about the lies of Eloy Montaño in support of the defense theory that Eloy Montaño was the real killer and that he had lied to cover up his participation.
In the early parts of the trial (voir dire, opening statement and preliminary cross-examination), the Defendant discussed the lies of Eloy Montaño and indicated that those would be proven through Det. Hix.
Upon [the] beginning of the cross-examination of Det. Hix, the counsel for the Defendant began a successful cross- examination and impeachment of Det. Hix using the lies of Eloy Montaño. Counsel began going from one lie to another, demonstrating the statement and the lie.
The Court stopped the cross-examination and called counsel to the bench. The Court [Honorable Richard Knowles] stated that it was going to reverse its ruling and denied the Defendant further cross-examination on the lies of Eloy Montaño.
This sparked a heated discussion between counsel for the Defendant and the Court. After some other cross-examination by counsel of Det. Hix, further arguments were had about the Defendant’s continued cross-examination on the lies of Eloy Montaño. The Court stated, and the State agreed, that it would permit the jury to view the three video taped statements of Eloy Montaño.
The Defendant objected to the presentation of all of the three statements because not all of the three statements were lies. The Defendant argued that the court would be forcing the Defendant to except the hearsay statements (the non-lies) of Eloy Montaño if the Defendant wanted to demonstrate and prove the lies. The Court stated that that was the only way that the Court would allow Defense counsel to continue the cross-examination of Det. Hix.
In the end, Defense counsel stated that the Defendant was not waiving its hearsay objections and specifically not waiving its Crawford objection in accepting the Court’s compromise.
The defendant argued that he was being forced to give up substantial constitutional rights (related to hearsay objections and Crawford objections), in order to exercise cross-examination rights. Because the Defendant did not waive his Crawford objection and hearsay objection, the Court allowed in all three video taped statements of Eloy Montaño.
A casual observer may read the above excerpt and think, well, the trial attorney made the decision to introduce Eloy’s lies and had he not done that the court would never have had a ruling to reverse and the testimonial statements against Mario would not have taken place.
Yes, your attorney did state that he wasn't waiving your Crawford (Confrontation Clause) rights, but, since he accepted the court’s court compromise, in a sense, that's exactly what he did.
Of course, what this casual observation lacks is the full context into why the presentation of Eloy's lies (non-hearsay statements) was so crucial to my defense and, therefore, why trial counsel was so adamant to cross-examine the lead detective on those very lies.
Consider the following: the court had already admitted Eloy’s inculpatory, hearsay accusations into the evidence through his spouse’s testimony under two exceptions to the hearsay rule — excited utterance; and, present sense impression — in direct contravention of the watershed U.S. Supreme Court decision, Crawford v. Washington (2004).
The Crawford Court determined, as it related to testimonial statements like those of Eloy accusing me of murder, “not that the evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross cross-examination.”
And as for the “inherently unreliable statements” of someone like Eloy — given his strong motivation to lie, especially considering that his proven lies had already caused him to be indicted as a co-defendant, and easily qualified him as the principal actor — the same Court reaffirmed what a previous Court had determined five years prior in Lilly v. Virginia, that “accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule.” Meaning, that the trial court violated federal law when it determined that the state’s trial strategy of introducing its only direct evidence (Eloy’s testimony) of a non-testifying co-defendant through his spouse not only violated the Sixth Amendment’s Confrontation Clause, that specifically states that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him,” it also violated prosecutorial standards for conduct and essentially made the court an accomplice to its actions of knowingly pursuing a prosecutorial strategy that would violate the Confrontation Clause of the Sixth Amendment.
The district attorney at that time, Kari Brandenburg, presented Eloy Montaño on every proposed witness list presented to the defense throughout the pretrial proceedings. Which made sense given the fact that the criminal investigation against, yours truly, was based on the testimonial statements he gave to detectives.
The problem for Brandenburg, from a prosecutorial political standpoint, was how to succeed in prosecuting the case where the only direct evidence was the testimony of a co-defendant who had lied on so many verified occasions to law enforcement that there was no way he would be seen as credible before a jury. Besides, what if Eloy were to change his story, yet again?
Brandenburg's solution: utilize a state-evidentiary exception to the hearsay rule to introduce the accusation without having to expose the accusation to the very “crucible of cross-examination” that the Constitution demands. In other words, use state evidentiary rules to introduce constitutionally infirm evidence. All she needed was a judge just as motivated by the same political and social influences as her administration, and a trial attorney who would conveniently fail to object and state the only legal precedent that mattered Crawford v. Washington.
Brandenburg was successful.
Which brings us to the precipice of why trial counsel felt it was so important to present Eloy’s non-hearsay statements to the jury through cross-examination of Det. Hix: the Defense needed to ameliorate the situation of having the jury deliberate on the direct evidence of Eloy’s self-serving accusations without being able to impeach said evidence through the constitutionally prescribed method of confrontation (“the crucible of cross-examination”).
Trial counsel responded to the state’s illegal prosecutorial tactic of introducing its testimony without producing the actual witness by attempting to introduce non-hearsay statements — i.e., Eloy’s lies, since the Confrontation Clause protections of the Sixth Amendment only apply to actual hearsay (an out-of-court statement offered in court for the truth of the matter asserted). In fact, I am convinced that future jurists and legal scholars will one day refer to my case as a prime example of why the Confrontation Clause was written into the Constitution, and then provide a play-by-play reconstruction of how it was even possible for a Cascade Confrontation Violation of this magnitude to even occur:
First, the trial court illegally determines that it's perfectly acceptable for the prosecution to present its sole, inculpatory, direct evidence without actually having to produce its witness.
Second, the court then permits the Defense to challenge this evidence by introducing non-hearsay statements of the same co-defendant and witness that the state failed to produce, even given the fact that Eloy was under subpoena and directly outside the courtroom in the hallway.
Third, the Defense presents to the jury that it will challenge the state’s evidence through exposing Eloy’s lies (non-hearsay) through its cross- examination of Det. Hix and thereby demonstrate the incompetence of the Sheriff Department’s investigation.
Fourth, the court then decides, entirely under its own volition, to reverse its previous ruling that permitted the Defense to challenge the constitutionally infirm, inculpatory statements of a non-testifying co-defendant.
Fifth, trial court essentially says that even though it had already allowed the state to produce its testimony without having to produce its witness, as the Constitution demands, it also intends to take the Defendant’s right to present a defense, unless it accepts its “compromise”: stand by while the entirety of Eloy's testimonial statements (approximately 4 hours) be entered as evidence for the jury’s eventual deliberations and thereby be allowed to present a defense — even though it would not be a defense in the form of Confrontation as the Constitution demands.
Six, trial counsel confronts the dilemma of essentially being told by the court that his client is going to be beaten to death with a baseball bat, as that happens to be the ruling of the court. The only question to be decided is whether or not his client will have his hands securely tied behind his back, or whether he will be permitted to hold his arms up and defend himself. Trial counsel chooses the latter, but, clearly stipulates he is not waving his client’s right to Confrontation — not because said stipulation or objection would in any way change the court’s determination that said Defendant is to be killed with a baseball bat; no, counsel’s only hope is that some future court will one day recognize the Cascade Confrontation Violation for what it is and try to ameliorate the damage and the decades of life lost by reversing the conviction for not having respected the Constitution’s Confrontation Clause in the first instance.
One would think that given trial counsel’s submitted Statement of Issues to the state supreme court for the purpose of direct appeal, that this issue would long ago have been adjudicated by the New Mexico courts. But since direct appellate counsel Kathleen McGarry, decided to not include the Confrontation issue — yes, despite the fact that it was presented in the Statement of Issues; and despite both her verbal and written assurances to me prior to her filing of my Brief in Chief, that the confrontation violation would be presented, she decided at the eleventh hour, without consulting me, to not included it in the actual brief. No explanation was ever given, except in an email response to my family where she stated that my confrontation claim wasn't presented because of space constraints — however, it turns out that the brief she submitted was nearly 6 pages below the allotted page limit set by the New Mexico supreme court. Which left post-conviction habeas corpus proceedings as the only adjudication platform available for appealing the unconstitutionality of my conviction.
However, both appointed and contracted attorneys through the Public Defender’s Office were reluctant to present my Confrontation Clause claims. Lisa Schatz-Vance confessed over a privileged phone call that “New Mexico is a small legal community, and to present this issue will require calling into question the trial decisions of your attorney, Joseph Riggs, someone who is highly respected in the community.”
When I insisted that Schatz-Vance include my Confrontation Clause issue, going so far as to hire another attorney to assist her on the singular point of contention, she decided to resign rather than comply with my wishes.
The Public Defender’s Office then contracted the very attorney (John McCall) I had hired to assist Schatz-Vance; then, despite all his assurances that he had no qualms with calling Joseph Riggs out as “ineffective” he suddenly became recalcitrant and non-responsive to my inquires. That being said, despite the fact that he was reluctant to brief the issues, directly, he did place them into my written closing arguments. But the court (Hon. Jacqueline Flores) entirely ignored the Confrontation Clause claim in her decision. Naturally, we appealed her ruling through a Writ of Certiorari to the state supreme court, but it was summarily denied.
I then filed, pro se, a subsequent state habeas petition presenting my Confrontation claims. The court (Hon. Alisa Hart) in its denial was the first state court, after 13 years of failed attempts to get the issue presented for “adjudication on the merits” to actually address the issue. But in doing so, unfortunately, falsely concluded, that: (a) it was an issue that had already been adjudicated on direct appeal by the state supreme court; and, (b) concluded that “Petitioner is not entitled to relief as a matter of law regarding his ineffective assistance of counsel claims related to the Confrontation Clause because the files pleadings and records show that it was trial counsel who sought the admission of Eloy Montaño’s statements and argued against the admission of the entirety of those statements.” (emphasis added).
Then, as it related to the direct appellate counsel’s failure to present the Confrontation issue on direct appeal, the court stated, “it appears appellate counsel, after reviewing the transcripts of the trial, made a strategic decision not to present the confrontation argument.”
You may be thinking, as I was in 2019, did the judge just write “it appears”? The court repeats itself again, stating “It appears there were reasonable strategic decisions made regarding the use of Eloy Montaño’s statements and whether to present arguments regarding the Confrontation Clause challenges on appeal.”
Granted, English is not my first language, but regardless of the language, for a judge to write that something “appears” is to arrive at a supposition without proof and then pass that off as “adjudication on the merits.” The fact that the court refers to “files, pleadings, and records” is of little comfort since they aren't specifically identified, and no evidentiary hearing was had for the purpose of exploring the available evidence for clarity — i.e., actually having an evidentiary hearing where the trial and appellate attorneys could answer the obvious question — instead of just assuming.
“Adjudication on the merits” is the federal standard for a court that reviews a petitioner’s claim of constitutional infirmity in a criminal conviction. It requires that a decision be “reasoned” and “supported by the entirety of the facts” as they relate to a particular claim. And that never happened.
I suddenly realized that I needed an attorney who was willing to fight for the constitutional validity of my claims, and it was Jason Bowles who answered the call.
We appealed the state court’s ruling, once again to the state supreme court, and once again the writ was summarily denied. Obviously, the New Mexico courts were not interested in adjudicating the issue of my Confrontation Clause claim. It had taken more than 14 years to exhaust my appeals in the state courts just to meet the prerequisite threshold for presenting claims in the federal district court as violations of federally protected rights and laws.
Our hope was that a federal judge, appointed to the bench for life, would be someone who is not persuaded by political pressures or public discontent, someone willing to do what no state court had done before: adjudicate-my-constitutional-claims-on-their-merits.
On January 20, 2022, shortly after my attorney, Jason Bowles, filed our Reply to the state’s Response in our federal habeas corpus proceedings, the Supreme Court of the United States (SCOTUS) issued an opinion that reinforced the Confrontation Clause claims presented in our case.
The case in question is Hemphill v. New York, fortunately brought to our attention by an attorney and legal rights activist on Twitter.
Being that our case was currently pending, the ruling was relevant in the sense that it reaffirmed what had consistently been the SCOTUS opinion since the inception of its watershed decision in Crawford v. Washington (2004): where it clearly determined, not that all testimony be deemed reliable, “but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”
In the Hemphill decision, Justice Sotomayer reaffirmed that, “[o]ne of the bedrock constitutional protections afforded to criminal defendants is the Confrontation Clause of the Sixth Amendment, which states: ‘In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.’ ”
At that point almost 5 months had elapsed and the Federal Magistrate, Laura Fashing had still not issued her recommendations for the District Judge, Kea W. Riggs, to consider before issuing a final ruling. We were cautiously optimistic that our constitutional claims had finally reached a jurist who wasn't fearful of applying the law to a Cascade Constitutional Violation of this magnitude. So imagine our surprise when, days short of having waited 15 months for the Magistrate’s recommendations, they finally appeared in a twenty-four page document that finally answered our universal question: what was taking so long given the consistent and current legal precedents on this issue and given the recent ruling from SCOTUS in the Hemphill decision?
Well, once we read the Magistrate’s Recommended Disposition we had our answer: she was busy for 15 months trying to devise a way to avoid having to apply the guarantees and rights of the Constitution and federal law to the case of Mario Chávez. Her solution: twist, mangle, stretch, and if necessary, misrepresent, all to avoid having to acknowledge the apparent deprivation of my constitutional right to confrontation that took place in my trial.
A New Mexico attorney who researched the legality of a Magistrate’s Recommended Disposition and assisted in drafting the briefs, Renee Ashley, said it best in our filed Objections, but to me she also added that, “judges will do back flips to twist, mangle, and otherwise ignore certain parts of laws in favor of others so as to arrive at the outcome they want.”
But, if the outcome that judges want is to just reaffirm and rubber stamp whatever a previous court has determined, regardless of what the law actually says, or is, then, what about every other constitutional right that guarantees our freedoms? Is it fair to say that our constitutional rights are illusory at best and that if they do exist at all it's only because someone in authority or power has decided to bestow their benevolence upon us?
Recently, while the Federal Magistrate deliberated on how to creatively ignore — or respond without having to acknowledge — that a confrontation violation of this magnitude is even possible, given the constitutional guarantees in place to prevent something like this, I read an intriguing book by Richard A. Posner, “How Judges Think.” The Hon. Posner is a former Seventh Circuit Court of Appeals jurist that I hoped would help me to better appreciate the federal deliberation process.
One would think that such a center point to our democratic notions of freedom is the concept of the “rule of law,” which simply means that we are not governed by the whims of man: there are certain rules that we have codified into laws, and said laws are applicable to everyone — equally.
Posner takes the explanation even further:
Better (though still somewhat ambiguous, as we shall see here) is a “government of laws not men.” Objectivity, as distinguished from neutrality or impartiality, implies observer independence. If you ask someone what is 2+2, you will get the same answer whether he is a Democrat or a Republican, a theosophist, a libertarian, a Holocaust denier, or a cannibal. And if legal questions are similarly susceptible to being answered by methods of exact inquiry then it does not matter how different the “men” who administer the laws are, and it is really the “laws” that govern.
Posner's explanation fit perfectly with my understanding of what the “rule of law” means, but not with my lived experience. Especially, when considering the undeniable truth of wrongful convictions in the United States, and that they most egregiously affect individuals of color. The research of this is startling, troubling, and if you happen to be on the wrong side of it — frightening.
In fact, it occurred to me a few years ago when I was reading about the case of a certain Gitmo prisoner who was subjected to the torture of rectal refeeding for such an extended period of time that he was unable to sit normally in a chair, and suddenly I realized that the reason his attorney's efforts to have the “rule of law” applied to her client’s case and life was falling on deaf ears was because this country has quite possibly always considered certain categories of people outside the parameters of legality.
Historically speaking Blacks, women, immigrants, and most other minorities have all suffered similar and inequities of legality. At first, these inequities were legal, but as the nation progressed and became more universally educated and informed such inequities were scribbled away as relics. But the question now before us is whether the inequities were ever really scribbled away, or just relocated to some unwritten rules and practices section of jurisprudence.
In theory laws and rights apply to every individual, but what if there are also unwritten qualifiers that were never democratically legislated that essentially nullify whatever the law or right may be?
For instance, if the government places someone on any variation of a “terrorist” or “enemy of the state” list it then stands to reason that constitutional rights for certain categories and subsets of society will always be illusory. And though I have never knowingly associated myself with a terrorist, I do believe that I am on another “enemy of the state” defacto list because the victim’s family member is a presidentially appointed U.S. Marshal.
Recently, I was contacted via email by the victim’s grandson:
To: Mario Chavez,
From Jason Gould, firstname.lastname@example.org
Subject: No Subject, March 3rd, 2023
Richard Taylor is not my grandfather's brother!! I recommend you change your manufactured fact on your website
From: Mario Chavez, MyLifePlus25.com
To: Jason Gould,email@example.com
Thank you for reaching out to me. It's important to me that the
information on my site is accurate. Allow me to share with you how I arrived at this information.
The day I spoke to your grandfather, while he was giving me a tour of the residence, he spoke about two things that were important to him: His grandchildren and a brother who was a U.S. Marshal. I could have misheard him, but that's what I remember.
My Trial attorney told me that the victim's brother would be an influence in my proceedings.
Then, in 2019 at State evidentiary hearing my post conviction attorney John McCall informed me that the victims brother Richard T. Taylor, who was present in the court room was an "external influence" in the proceeding and was the reason that I was being denied justice.
Any information that you are willing to provide to make my site more accurate, I welcome. And, I am sorry that my fight for justice and exoneration is opening a painful wound for you and your family.
See More from Jason Gould
Jason Gould, firstname.lastname@example.org Responded to Mario 3/30/23
Hey dipshit, you still haven't changed your lies on your website.
I believe that if a member of law enforcement or his family is murdered that an elected prosecutor and judge will both be politically-sympathetic to the horrific loss of life, to such an extent, that certain constitutional mechanisms will be de-mechanized for the limited purpose of conviction and perceived “justice.”
Precisely because the unfortunate reality of violent crime in America is that the vast majority of the perpetrators are never arrested or prosecuted, and every district attorney has been confronted with some variation of this factual consensus in their own jurisdictions. Which explains why the same elected officials, when confronted with, not only a grieving family, but also a federal marshal, will make certain politically-minded assurances that leniency or investigative and prosecutorial ineptitudes will not come into play — or for that matter, even the Law itself — when prosecuting a case such as this.
Granted, I have no way of knowing if any conversation ever took place between the former district attorney and a certain federal marshal related to the victim. But, if we are trying to understand why a district attorney would knowingly pursue a prosecutorial strategy that had every intent of violating the Confrontation Clause (instead of just producing its witness who was under subpoena and physically present in the courthouse); and then explain how a state judge could somehow fail to see the catastrophic, cascade confrontation violation that his rulings were precipitating; and similarly explain why the courts have uniformly decided to “do back flips to twist, mangle, and otherwise ignore certain parts of laws in favor of others so as to arrive at the outcome they want,” it leaves us with an even more egregious conundrum to confront, if no such meeting ever took place and no confidential, side-agreement was ever reached.
Add to all this the reality of the current Federal Magistrate's Recommended Disposition that shows a general disregard for the basic principles of liberty, and we are left with an uncomfortable truth: the “rule of law,” as we understand it, is not for everyone.
As Hamilton wrote in the Federalist Papers: “Laws are a dead letter without courts to expound and define their true meaning in operation.”
Which is why I am asking for help from organizations like The Center on Wrongful Convictions, The Innocent Project, and any and every lawyer or advocate who chooses the law as their profession to take notice of what is happening in the federal district court in New Mexico. My federal case number is: 19-CV-01151-KWR-LF.
This appeal, this case, is about more than my constitutional rights to confront my accuser, it's about the “rule of law” and whether or not it actually exists. It is not enough for us to just say that we are free or equal or even righteous, we have to demonstrate it every single day, and when we fail to live up to our highest ideals — as we inevitably will — we must possess an inherent willingness to remedy the wrongs that we create.
I am not demanding retribution against the trial court (Richard Knowles), or the former District Attorney (Kari Brandenburg), or the trial or appellate attorneys who have all had a hand in the facade of justice that I have received. What I demand is only what the law affords me: the “adjudication on the merits” of the claims presented in my federal habeas corpus petition, where the facts on record clearly show that I have never been afforded the right to confront my only accuser.
For those unfamiliar with habeas corpus, it’s Latin legalese for “bring the person before the court” where a legal determination of whether or not said person’s liberty has been deprived in violation of the Constitution or other applicable treaties or laws can be made.
Lawyer, author, legal activist, and founding-director of the Innocence Project in West Virginia, Valena E. Beety, explained in her recent book, “Manifesting Justice,” that guilt or innocence isn’t at the foundation of habeas corpus doctrine:
Historically, habeas review is not about guilt or innocence, it is about liberty and legality. Habeas is such a powerful remedy that the writ of habeas corpus is enshrined in our Constitution: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when the Cases of Rebellion or Invasion the public Safety may require it.” This power to review a conviction is in the hands of federal courts through the U.S. Constitution, and also state courts through every state constitution.
So if this is true, why have judges in New Mexico refused to uphold the law? And, why is a Federal Magistrate doing proverbial “back flips” to avoid having to apply the law to such an egregious instance of constitutional negligence?
Both are crucially relevant questions when delving into whether or not we live in a country where legality and equality are more than just comforting phrases or taglines for freedom that we repeat to ourselves ad nauseum. If the freedoms that we hold up to the world, are, in fact, not real, then, the narratives that we promote on democracy, equality, and justice are nothing more than propaganda. And I, for one, refuse to believe that the constitutional pillars upon which this nation stands are a bag of lies.
What I believe is that we as a nation have been permissive and negligent in our care of the collective responsibilities that democracy and freedom places upon us. We take for granted that our Constitution protects us from certain human tendencies like racism, greed, malice, or even the hegemony of the haves versus the have nots. When, in truth, laws are just written words, and what matters is the due regard bestowed upon them — nothing more.
If we permit judges to behave as politicians in robes, then that is all they will ever be. And if that is what we permit, then the “rule of law” is nothing more than a conceptual idea, and will forever be so, so long as there is no due regard for the integrity of the words in which every law, statute, contract, or treaty is written.
Unfortunately, if factors like truth (facts) and legality have little to do with the state judicial system, because there happens to be an unwritten understanding or code where members of one of its elite clubs — white; Christian; wealthy; or, law enforcement — are afforded preferential treatment, in the sense that, the more boxes checked then the more aggressive the prosecution tactics become when a crime has been committed against a member of any of these preferential groups, then how do we possibly stand before the world and call ourselves free?
Where aggression in prosecution translates into the unwritten but well understood “exceptions” to legality — i.e., “we do what we want and answer to nobody” — then freedom is no longer a universal right, it is a privilege of benevolence bestowed on a few at the expense of the many.
Though personal integrity is not a prerequisite for political efficacy, it is a necessary and desired trait for a public official operating under the shield of qualified immunity for the public good. A necessary observation when looking at a formally-elected district attorney, such as Kari Brandenburg, who knowingly chose a prosecutorial strategy that afforded her a political win, in the form of a criminal conviction — where all the boxes on her mental, victim checklist were marked in red — at the expense of an illegal conviction, decades lost, and all the secondary consequences that have emanated from that.
There is no oversight in New Mexico, and in many other states, to prevent or discourage a district attorney of shoddy integrity or low moral character from pursuing a conviction outside the confines of legality and constitutional law. Do we except this?
I am in this predicament because the legal system of New Mexico has never had more than a circumstantial case of “he said,” where “he” was intentionally never produced at trial. And now, nearly two decades later, rather than acknowledge the truth — that the state judiciary has quite literally performed judicial back flips to avoid acknowledging what really took place — the Federal Magistrate is toeing the line and likewise refusing to acknowledge the constitutional violations plainly before her.
In other words, the Federal Magistrate has decided to forego her duties and ignore the Constitution to pursue the two-pronged agenda of finality for the victim’s law enforcement family; and, zero accountability for the legal actors of the court (judge, district attorney, and defense attorneys) who permitted this cascade constitutional fiasco to happen in the first instance.
My current attorneys summed up the situation perfectly in our filed Objections to the Proposed Findings and Recommended Disposition:
Mr. Chávez is serving a life sentence, plus additional years, for his conviction in a State of New Mexico murder trial that violated his fundamental Constitutional guarantee of confrontation. Mr. Chávez was never able to cross examine the primary witness against him in the trial — his co-defendant and the only other suspect in the murder investigation, Eloy Montaño, who not only stood the most to gain from Mr. Chávez' conviction, but whose statements were the only direct evidence of Mr. Chávez’ guilt admitted at trial… Mr. Chávez seeks only a fair opportunity at a new trial… to exercise his Constitutional rights to confront and cross-examine his primary witness. To hold otherwise would result in continuing the NM court’ failure to adequately review the substance of his claims and permit the resulting manifest injustice to remain uncorrected. (emphasize added).
A perfect example of why we cannot expect the state courts to effectively review their own decisions, especially not if they are forced to wear the two hats of both a politician and a judge. Because, as politicians they are exposed to the “small legal community” that threatens retributions against the careers of any individuals who happen to disagree with the previous decisions or actions of those already within the community.
Which is why we need legislative action to create a statewide conviction review unit that is both transparent and independent to help keep all judiciary officials — judges, prosecutors, and defense attorneys — functioning within the lines of legality as they fulfill their duties.
The state legislature must take notice of what has happened in my case to now bring us before the federal district court. This is not an instance of begging the federal judiciary for a ruling that creates a new legal precedent or law. We are simply asking that the Constitution be upheld. And we believe that, in doing so, it will help us to answer certain questions:
How was it possible for a trial court, a district attorney, and a defense attorney to all simultaneously fail to know that SCOTUS, four years prior, had issued a watershed decision that completely altered two decades of legal precedent as it related to how the Confrontation Clause of the Sixth Amendment was to be interpreted and applied?
And, why have such extraordinary measures been used in preventing these legitimate constitutional claims from being “adjudicated on the merits” in both the state and federal judiciary?
These questions need answers because their implications are disastrous for our concepts of legalism, freedom, and equality. The Fourteenth Amendment specifically prohibits states from denying any person the “equal protection of the laws,” but when our state and federal judiciaries fail to demonstrate due regard for these written words then we must demand accountability.
In this particular case the trial transcripts show the judge making references to the very Crawford decision that, he, moments later, ignored. Which means that he knew the SCOTUS had eliminated his judicial ability of discretion as it related to the determination of reliability for testimonial evidence, and still he sided with the shared political exigencies and presumed pressures of the District Attorney’s need to deliver “justice” to a grieving family of law enforcement.
Conviction Review Units are becoming more and more popular, nationwide, and cases like mine are prime examples of why transparency and independent oversight are irrevocably tied to our bedrock principles of truth, justice and equality. Because too many state judiciaries are controlled by nepotism, cronyism, and above all, institutional corruption, to such an extent, that it is just not possible for a judiciary already infected by these nefariously corrosive influences to live up to its mandate.
In larger metropolitan areas like Philadelphia, Brooklyn, and San Francisco there are elected district attorneys actively initiating criminal conviction reviews because they are being held accountable to their constituents who demand that the “rule of law” be more substantial than just empty rhetoric and false promises.
New Mexico seems oblivious to these national trends — and not because wrongful convictions in this state don't exist — because the state judicial system has effectively managed to silence, ignore and outright disenfranchise all who are affected by these wrongful convictions. Which is why New Mexico desperately needs legislation to create a statewide Conviction Review Unit that is both independently funded and answers only to the state legislature and thereby the people. Because when future, criminal atrocities occur — and they most certainly will — we need current and future jurists, prosecutors, and defense attorneys to know that their actions and decisions will be reviewed when certain egregious claims of unconstitutionality and law are called into question. These actors need to know that there will be consequences to their careers, when, and if, shortcuts are taken in the pursuit of justice. The “rule of law” doesn’t permit extra-constitutional means to achieve the perception of justice, anymore than it permits law enforcement to torture, or altogether bypass the trial or jury process so as to declare guilt on its own accord.
Our constitutional framers failed to anticipate the countless points of contention that would one day politically divide us. But, I do not for a moment believe that they ever imagined us accepting anything other than the “rule of law” as a guiding principle that would unite us.
State judiciaries like New Mexico persist in their behaviors precisely because they inherently believe that they will not be challenged in any way that matters. Which is why I'm asking for your help in bringing this case into the limelight of national and international awareness. Our constitutional rights cannot be based on selective benevolence, anymore than freedom can exist where political pandering or judicial “back flips” replace the “rule of law.” Our judiciaries must be pulled from the shadows and into the light, and we accomplish this by showing the judiciary that we are neither ignorant or indifferent to their decisions.