The Manufactured Consent of Complicity
The hole dug by depravity is not the same as the one dug by incompetence.
The New Mexico Supreme Court has exclusive jurisdiction over the appellate review of capital cases in the state for good reason: because capital cases carry the most sever punishments (to include death) and there must be assurances that any such conviction and sentence is in full compliance with the guarantees and rights afforded under the law. Accordingly, if the right to an appeal is infringed upon because the record of the proceedings can't be produced, according to legal precedents in this state, the conviction cannot stand. On the one hand, it's shocking the extent to which the State has been willing to trample on the treatise that affords Due Process so as to arrive at the desired objective of seeing my life end through imprisonment; while on the other, it's alarming to see what depravity is capable of. Especially since, as far as I can tell, I'm not a terrorist, a serial killer, a dictator with genocidal tendencies, a member of a drug cartel, a priest with a child fetish, or a CEO of a health insurance company. In fact, prior to my wrongful conviction I didn't even have a criminal record. Which makes me think that the challenges that I face are more systemic than anyone wants to admit, and the fact that I keep insisting is beginning to make certain people very uncomfortable.
The Due Process Clause is the basis for the many rights afforded to criminal defendants. It requires a certain fairness to proceedings where life, liberty and property are at stake; yet, surprisingly, the U.S. Constitution provides no right to an appeal, as counterintuitive as that may seem.¹ As Chief Justice Burger wrote in 1977, "[t]he right of appeal, as we presently know it in criminal cases, is purely a creature of statute[.]" Apparently, at common law once a trial court issued a conviction, what followed wasn't the appeal, but the sentence—yes, even in capital cases. Fortunately, the right to an appeal later came through federal statute (28 U.S.C., Sec. 1291); and, many states—recognizing that a right that is guaranteed without a legal mechanism for enforcing that right is a farce—adopted into their respective constitutions an absolute right to appeal (New Mexico being one of those states). As we now know it, the appeal is the legal mechanism or lever by which a convicted someone says, "I didn't receive a fair and impartial trial, so as to legitimately defend my innocence, and here is why…." Which is why I'm scratching my head, trying to piece together this colossal cluster-fuck of bureaucratic apathy that may actually be malice and depravity. Because it's one thing to dig yourself out of a hole dug by incompetence, and quite another to climb out of a hole dug by malice or hate.
As I discussed last week, there are many mechanisms in place that prevent the rabbit-hole reality of a defendant's trial record from mysteriously disappearing from the official record that must be reviewed in its entirety by the state supreme court before the conviction can be affirmed. The obvious question is, how was it possible that nobody noticed that the last five volumes of the transcripts (which equate to the last five days of the trial proceedings) were missing from the official record submitted to the New Mexico Supreme Court? The official procedure for missing transcripts is that (Rule 12-211 (H) NMRA) the appellant should motion the district court to hold a "reconstruction proceeding" where everyone who was present in the original proceedings can testify to what they remember to see if a reconstruction of the proceedings can be achieved. If so, the reconstruction becomes the official "transcript of proceedings" and the appellate court will review that; if not, however, the conviction has to be vacated and a retrial must occur. Of course, a reconstruction hearing isn't feasible when decades have elapsed: think of the improbability of asking a myriad of people to recreate from their memories, five days of a capital murder trial that took place over two decades ago.
It is not uncommon for logistical problems to occur with the recording and transcription efforts of court reporters diligently attempting to preserve the record. Of course, if there were technical difficulties present, it would stand to reason that those difficulties would have been reported to the clerk of the court, who would then have informed the appellate court and counsel of the reasons for which the entirety of the "transcript of proceedings" was not being submitted in accordance with the law. Appellate counsel could then have motioned the court to proceed with reconstruction efforts. But, since no such notice of a "deficient record" was ever documented on either the district or appellate court dockets there was no way for anyone to know; and, since the reviewing court didn't think to adhere to its own precedent on the matter, it almost appears that nobody acted in accordance with the law because they were complicit in achieving the unspoken objective. But, is that probable?
I can certainly conceive of someone like an embattled, corrupt politician like a district attorney being dishonest, misleading, or less than forthcoming with exculpatory evidence that would prove favorable to the defense. I can even fathom detectives lying under oath to a jury, intimidating witnesses, failing to record certain interviews, "losing" evidence, or otherwise just being complicit in efforts to pin a case on someone to make themselves or others look good. I can conceive all of these possibilities because there are hundreds of documented wrongful convictions and exonerations where occurrences like these have actually taken place. And where hundreds of documented instances have come to the light, there are undoubtedly countless more instances that are still in the dark. What I struggle with, isn't the reality that people are capable of some really awful things—I have seen plenty of those instances—it's the strained effort of trying to understand why people with no interest or stake in a particular judicial outcome (i.e., court reporters, clerks, defense attorneys, and the Justices of the Supreme Court) would knowingly make themselves complicit in something where there is nothing to be gained by them.
I very much want to believe that the record was submitted in its entirety to the appellate court in accordance with the law, that the Justices made a judicious effort to review the legality of my conviction and sentence—again, in accordance with law—but, as the truth of the matter stands, had that happened the appellate review would have revealed the blatant illegality of both my conviction and sentence. Of course, had the entirety of the "transcript of proceedings" been filed that filing would still be there; and, a few weeks ago, when the Clerk's Office of the New Mexico Supreme Court burned a copy of those transcripts to a CD and sent them to me, the entirety of that record would have been reflected in what was sent to me. The fact that it wasn't, well, speaks for itself.
Granted, it strains credulity to believe that the Justices who affirmed my capital conviction (Charles W. Daniels; Edward L. Chavez; Patricio M. Serna; Petra Jimenez Mass; and, Richard C. Bosson) could have all been complicity blind to the legal impossibilities manifest in both my conviction and sentence. To begin with, that same Court had just made a landmark ruling in Frazier, a case "that continu[ed] [the Court's] historically close scrutiny of the New Mexico felony murder statute." A case that outlined its "historically close scrutiny" and pointed out the change of course it was making. In the Contreras case (1995), the Court had determined "that double jeopardy principles prohibit convicting a defendant of both felony murder and the predicate felony on which the felony murder is based, at least not when the underlying conduct is unitary." But, twelve years later, in Frazier, the Court amended its course and ruled "that the predicate felony is always subsumed into a felony murder conviction, and no defendant can be convicted of both."²
When I was sentenced in 2006, the law at that time permitted the trial court to rule and sentence me in accordance with Contreras to both the murder and the predicate felony if the state's theory was that the crimes (the predicate felony and the ensuing murder) were non-unitary. Which, was precisely what the trial court did when it overruled the defense's double jeopardy objection on the premise that the state's theory was that the armed robbery occurred as a subsequent event, separate from that of the murder, and therefore a separate conviction and sentence was not in violation of the Constitution that prohibits double jeopardy. What the trial court overlooked, however, was that a subsequent, non-unitary event cannot logically or legally simultaneously stand as a predicate felony for the purpose of felony murder, and subsequent for the purpose of sentencing, because that would invoke the constitutional prohibition against double jeopardy. Unless, of course, the court's intention was to violate the spacetime continuum by adopting wormhole and time travel theories, thereby making "subsequent" and "predicate" into interchangeable adjectives that are dependent on perspective.
The fact that the Frazier Court made a course change on felony murder, where "the predicate felony is always subsumed into the felony murder conviction" does not imply that a subsequent event can be used as a predicate felony for the purpose of felony murder. Which means, that even without Frazier, the trial court was still in error to sentence a defendant for armed robbery as a subsequent, non-unitary crime to arrive at felony murder, because: (a) the legal impossibility of committing armed-robbery against a dead person was well-established; and, (b) the felony murder statute required that the ensuing murder occur in the act of the qualifying predicate felony. In other words, if the qualifying felony actually happened to be a non-unitary, subsequent felony, then legally speaking, there was no felony murder. All of which, the trial court should have known and prevented, with or without an objection, because such an error was "fundamental."
But, even assuming the trial court failed to see the constitutional infirmity of the sentence it was about to impose, the five Justices sitting on direct review of that conviction and sentence, could not possibly have been so obtuse—at least, not given their ruling in Frazier (2007)—unless we are to assume their collective complicity in the matter. But, should we go that far?
Furthermore, from the point of realization that felony murder, as the state presented it to the jury, was a legal impossibility, we come to witness a domino-effect that seemingly topples the standalone first-degree, deliberate murder conviction, too. The jurors were instructed with the "unfortunate use of an inappropriate conjunctive term in the complex, essential elements instructions that set out the course of conduct the jury was required to find in order to return guilty verdicts."³ The then-discouraged use of the "and/or" connector in Instruction No. 26 allowed the jury to find the defendant simultaneously guilty of both first-degree deliberate murder and felony murder. The latter, of course, is statutorily speaking first-degree murder, too, so it would presumably seem that the defendant was convicted of two variations of the same crime, which the Court determined, in Fry, was not a problem. But, the "not a problem" finding didn't account for a predicate felony factually being a subsequent, non-unitary, non-existent (because armed-robbery can't legally occur against a dead person) felony. Because with that added to the complexity of an already tangled mess, what was left was the reality that because of the "and/or" connector between the primary and alternative counts, the jury didn't fulfill its due process obligation of making a determination on every element of every crime for which the defendant was accused.
In New Mexico, the delineation between first- and second-degree murder is the essential element of deliberation. Both degrees of murder are considered "intentional" in New Mexico, but only one becomes a capital crime when the jury makes a unanimous determination of deliberation as an essential element present in the crime. But, according to New Mexico law, reiterated in Duffey, "for the felony murder doctrine to apply, the killing must be second-degree murder, apart from any consideration of the underlying felony[.]" Which brings us, once again, to the doorstep of Due Process, in that, the jury must make a determination on every element of the crime for which the defendant is accused. When the jury adhered to the "and/or" element of the trial court's instructions, it deferred from making a finding on the element of deliberation when it voted guilty for both the primary and alternative counts. Which declared that the defendant acted with multiple mens rea (with deliberation and without) for a single crime—not possible under New Mexico jurisprudence; and, for that matter, not possible under virtually every other jurisdiction across the nation.
When a jury reaches a verdict that stipulates that an essential element is and is not present, it's impossible to know what the jury was trying to say. Did they arrive at a stalemate and make a juror compromise between themselves? Were they confused? Or, did the trial court fail to explain the state's burden of proof? All that's really known from inconsistent guilty verdicts is that for a conviction to be issued is to violate a defendant's sacrosanct right to due process. Any attorney and judge would inherently know all of this, which brings us back to the looming question—could all of this have really been intentional?
I'm the one wrongfully convicted, and even for me it's difficult to conceive of a moral depravity so engrained into our justice system that a wrongful conviction could quite literally be manufactured without any public official, attorney, or appellate court able or willing to stop a manifest injustice when they see it. Perhaps if I was a terrorist, a serial killer, a dictator with genocidal tendencies, a member of a drug cartel, a priest with a child fetish, or a CEO of a health insurance company, though I may not agree with the outcome, I would at least understand why the rule of law was being ignored—the ends justifying the means, etc. But when something like this happens to someone who is seemingly nobody, the only question that leaves us with is, just how systemic is this reality of judicial depravity? For years I wondered why the appellate courts had universally declined to address even the most consequential claims of constitutional infirmity to my conviction. But, I didn't know that the "transcript of proceedings" was incomplete, which would obviously make a review of the record impossible.
Naturally, when the above issues are presented to the courts the predictable response will be that the appellant carries the burden of producing the record to establish the validity of the errors he presents. They will also comment on the fact that my appointed appellate counsel (Kathleen McGarry) motioned the supreme court to make a supplemental filing of additional transcripts (April 9, 2009) two years after the initial, incomplete transcripts were filed (April 5, 2007). Therefore, she was aware that the transcripts were incomplete and that's why she motioned for a supplemental filing; hence, she (and by extension the appellant) knew of the error and did nothing to rectify the problem. Their response will ignore the facts that (a) I personally motioned the supreme court to allow me to represent myself in appellate proceedings because I understood that the assigned attorney wasn't interested in defending my life or interests in justice or liberty, a request that was denied; and, (b) appellate incompetence doesn't cancel the district court's statutory responsibility to produce the record in its entirety to the appellate court, nor does it detract from the appellate court's statutory and judicial responsibilities to review a capital case's conviction and sentence, which cannot be done without a complete "transcript of proceedings." In all actuality, the only question the courts should be asking is, how was it possible that a capital conviction could be affirmed without the appellate court having access to the record? And, since the right to appeal is guaranteed under the New Mexico constitution, and since that right was obviously infringed upon by the State, will the appellant's due process right to an appeal be upheld? And, if not, what does that say about the legitimacy of constitutional rights in New Mexico?
FOOTNOTES: 1. McKane v. Durston, 153 U.S. 684, 14 S.Ct 913, 38 L.Ed. 87 (1894); Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L.Ed.2d 651 (1977)
2. State v. Frazier, 164 P.3d 1, 2007 NMSC 32, 142 N.M. 120 (N.M. 2007); State v. Contreras, 120 N.M. 486, 903 P.2d 228 (N.M. 1995); State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991); and, State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977).
3. State v. Taylor, 2024-NMSC-011, ¶1, 548 P.3d 82 (N.M. 2024); State v. Smith, 1947-NMSC-048, ¶¶7-8, 51 N.M. 328, 184 P.2d 301.
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