The Game of Proof and Persuasion
The truth still matters enough to make a difference.
A few weeks ago in, The Checks Against Corruption, I presented some of the more recent challenges I have faced in my ongoing efforts to acquire the trial record (i.e., "transcript of proceedings") from my 2006 capital murder trial in Albuquerque, New Mexico. Relevant is the fact that I have been asking for the transcripts for nearly two decades—which includes written and verbal requests to court appointed attorneys; a motion filed by me personally; requests made to the district court clerk's office; requests made through the IPRA statute to both of the clerks at the District and Supreme Courts; and finally, a Petition for Writ of Mandamus filed with the New Mexico Supreme Court earlier this month. The following week I wrote, The Manufactured Consent of Complicity, which was a continuation of the ongoing mystery and ubiquitous question of, why are the public records related to a capital murder conviction so unattainable?
Understandably, both posts generated a fair amount of interest from, you the readers, all of which I humbly accept with immense gratitude. But, one or several of you did something more than just click the "like" or "share" buttons on the app, because the day after the posting of the latter article, a letter was addressed to me from Elizabeth A. Garcia, Esq., Chief Clerk of the New Mexico Supreme Court, along with a CD-R with "Volumes 21-25" (the missing volumes) clearly written on the disc. Then, two days ago, I received an unexpected e-mail from Alison Orona, General Counsel to the Second Judicial District Court, informing me that she was sending me the entirety of my trial record divided into fifty messages (due to file size constraints) in compliance with my Petition for Writ of Mandamus. As to the latter, I think it's fair to say that since the State was ordered by the Supreme Court to respond to my petition, that the Attorney General Raúl Torres decided that it was better to just preempt the inevitable and comply with the Inspection of Public Records Act (IPRA)—which I will accept as a very small win in a very complex game of proof and persuasion.
Of course, there were no proffered explanations for why either party went to such great lengths to keep the records in the dark. There were no apologies, and I'm fairly certain I'll not be receiving good wishes from either of them for my upcoming birthday. It is curious, however, why either party had previously refused to permit inspection (as it pertained to the SJDC), or include those missing volumes—especially given the fact that the initial IPRA request had clearly indicated the "entirety" of what I was seeking—nor did the former indicate why my two previous email correspondences, inquiring as to the cause of the incomplete "transcript of proceedings" and questioning whether the trial and appellate courts had been in compliance with Rule 12-211 NMRA had been seemingly ignored for weeks. Obviously, I don't imagine that answers to these questions will be forthcoming; but, none of the answers are nearly as important as the satisfaction I feel for this very small win. For nearly two decades I have confronted a bureaucratic wall of concerted efforts to keep the trial record from reaching my hands, and for that to have suddenly changed means that persistence pays off and the truth still matters to enough people to still make a difference.
What do these previously missing volumes 21-25 contain? Well, given the fact that I don't exactly have access to a computer where I can review the transcripts, it will take a couple of weeks before I can review them in their entirety, but rest assured that I will be writing about it. From an elemental standpoint, however, these volumes contain the closing arguments, the jury instructions, the reading of the verdicts, any jury polling that may have taken place, the sentencing, and any post-conviction hearings that occurred. Moreover, they will show any objections made to any inappropriate statements made by the State or objections made to the inappropriateness of the sentence imposed by the trial court. All of which is extremely crucial for several reasons: (1) the record will establish which standard of review my pending constitutional claims will be held to, "reversible" or "fundamental" error; (2) it will establish how it was possible that I could be sentenced to both the predicate felony (felony murder) and the murder in direct contradiction to New Mexico's felony murder doctrine; (3) it will potentially help to better understand the State's reasoning—i.e., its undeniable malice—for pursuing a legally impossible armed-robbery theory to substantiate what is essentially an fictitious felony murder charge; (4) and, it will lend clarity to why the trial court permitted the well-established "linguistic abomination" of the "and/or" modifier to corrupt the statutory delineation between first- and second-degree murder when it instructed the jury that it could simultaneously find the defendant guilty under a multiple mens rea scenario of both having and not having the essential element of deliberation on a single crime.
Of course, if you have been following along, the likely question you have is, how does any of this demonstrate innocence of murder?
It doesn't.
Which brings us to the next obvious question, how do we know that despite all the supposed violations to the constitutional amendments that guarantee the right to confront one's accuser, due process, or any of the many protections meant to ensure a general fairness to the criminal proceedings where life and limb are at stake that the jury still didn't get the verdict right of guilty on all counts?
It is in addressing this latter question where the element of truth becomes so important. We are all familiar with the legal adage "presumed innocent until proven guilty." In fact, at the onset of every criminal jury trial, the judge will address the jury so as to explain that the defendant is presumed innocent; and then go on to explain the State's burden of proof standard: "beyond a reasonable doubt." Of course, whether this presumption actually exists is entirely dependent on whether certain rights related to due process are upheld, discarded, or temporarily overlooked; and, if overlooked, how willing the appellate court is to address the issue.
In all actuality, the game begins in the trial, where the burden of both proof and persuasion is on the State who attempts to prove "beyond a reasonable doubt" the guilt of the defendant(s). Truth would be ideal, of course, but some cases require the State to step around the elements of proof and truth, focusing instead on the element of persuasion in an attempt to convince a jury to convict based on little more than presumptions arrived at through persuasion. Which, in all fairness to the State, is the only real option when law enforcement investigators—through inexperience, ineptitude, or a general inclination towards injustice—conduct less than ideal investigations. Granted, the State could just throw the cases out and refuse to prosecute where the lack of proof is apparent, and though that does occasionally happen, in most instances—especially where a case has already been presented to the media as a "sure thing" by law enforcement—the political reality for many an elected district attorney is to ignore the elements of proof and truth and attempt to prevail through persuasion.
Case in point, my case, where the already politically-embattled district attorney was saddled with the unfortunate reality of a murder case where the victim was well connected (law enforcement family, church, and professionally) to the community; and the investigation was lead by a rookie detective on his first murder case who essentially swallowed, hook-line-and-sinker, everything the first suspect in custody told him to save himself from arrest and prosecution. By the time the rookie figured out that he had been duped by the first suspect, pursuing other avenues of investigation, when his boss the elected sheriff had already made public statements about the primary suspect's supposed guilt, would likely have proven fatal to the desired longevity of the rookie detective's law enforcement career.
All of which, helps to better understand how it came to pass that the district attorney stood before the jury in her closing arguments and stated that she couldn't prove specific elements of the crimes for which she was accusing the defendant, but nevertheless insisted that he was guilty—i.e., persuasion over proof—because the State had demonstrated that the defendant had consistently cheated on his wife, lied about his profession to certain individuals, had an affinity for The Godfather and other crime movies, and enjoyed a luxurious lifestyle that, according to an ex-girlfriend, "he couldn't afford…and used to impress people." As to the actual evidence to prove the more serious crimes of murder and armed-robbery, that was to be intuited by all the other non-criminal "bad acts" admitted by the trial court as relevant because they supposedly demonstrated a pattern of behavior—dishonesty to women; and an affinity for crime movies and nice things. Which then brings us to the crux of the ongoing game where the burden of proof and persuasion shifts from the State to the Defendant.
As established, in the trial setting (i.e., round one of the Game) the State owns the burden of either proving guilt or persuading the jury of the defendant's guilt "beyond a reasonable doubt." And, more often than not, it's through the process of persuasion where a defendant's established rights sometimes get trampled and other times ignored. Because persuasion alone doesn't always get the jury to where it needs to be when there's an absence of proof, which is typically where the defendant's trampling of rights occurs.
The State's case against me was plagued by two diametrically opposed problems: (1) the investigative theory of the case came from a witness/participant who lied to detectives so consistently that the State charged him just to keep him off the witness stand, then refused to offer him immunity to testify to very narrative he gave birth to, and then, shortly after the trial conveniently dropped all the charges against him; and (2) even if the State could persuade the jury to adopt its proffered equation that a "bad" person equals a killer, that alone would only produce a conviction for second-degree murder, and given the victim's ties to the community, and the District Attorney's embattled political career, the State needed a conviction for first-degree murder. The only problem was, there was no identifiable evidence of deliberation or malice to present to the jury; and the only other route to first-degree murder was through the doorway of felony murder—a slippery slope of legislative and judicial hoopla where second-degree murder gets upgraded to first-degree because it occurs in the commission of an otherwise dangerous felony. Which brings us to what these missing records and trial transcripts will prove: that the predicate felony of armed-robbery was fictitiously manufactured by the State; they will also prove that the jury reached verdicts without establishing the essential elements (mens rea) necessary under due process to convict; and, they will establish juror confusion through the court's use of the "and/or" modifier that instructed the jury that it could simultaneously reach contradictory guilty verdicts.
What follows is another appeal, where the burden of proof and persuasion is now on me. Meaning, the issue to be both presented and addressed by the appellate courts isn't a question of guilt or innocence; accordingly, that question has already been determined by the successful proof and persuasion dance of the State in the trial setting. What matters now is whether the reviewing courts are persuaded that: (a) if not for the violations, the State's game performance of proof and persuasion would not have proven guilt "beyond a reasonable doubt" because the defendant's innocence was otherwise apparent; or (b) enough rights were violated that it's unconscionable to uphold a conviction where no confidence can be had in the conclusions of fact and law reached by the jury.
Let it be known that I am under no false illusions as to how difficult the task before me is. But let it also be known, that if recent events have demonstrated nothing else they have demonstrated that with persistence truth prevails. I am presenting the truth and therefore it must prevail so long as my persistence does not perish. Currently, I am so far down the proverbial rabbit-hole of legal conjecture and double-talk that even the light of day seems illusory. All I do is follow the truth, one legal case after another as I research legal cases, draft arguments, and continue to press onward; not exactly confident that I'll find the entrance by which I entered, but confident that the farther in I go the more likely it becomes that the doorway out will one day find me.
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