District Judge Yet to Rule on Critical Procedural Motions
By Jake Arnold

Both the current Rio Arriba County Commission Chair, Alex Naranjo and former Rio Arriba County Manger, Tomás Campos have their respective trials set for May, 2024. They were indicted in July by a special grand jury on single counts of giving false testimony before that body. The special grand jury was investigating allegations of corruption and associated criminal conduct within the operations of the North Central Solid Waste Authority. As a county commissioner and county manager, both Naranjo and Campos served on the NCSWA governing body in past years. The indictments handed up against them do not address any NCSWA corruption or illegal activity, and only involve allegations of lying to the grand jury

Currently, the cases are on hold as their defense attorneys await action on motions by First Judicial District Matthew Wilson and/or the New Mexico Attorney General to deal with roadblocks impeding progress in adjudicating the cases.

Naranjo’s defense attorney, Justin Pennington, and Campos’ defense attorney, Tom Clark, in late August filed a joint motion in both cases claiming that district court staff have improperly blocked them from receiving transcripts of the grand jury proceedings leading up to the indictments. The motion seeks to have Wilson order production of the transcript so that the defense attorneys can proceed with preparing their defense on behalf of their clients. 
 
Additionally, a motion filed in late August by Clark, on behalf of Campos, seeks to have the First Judicial District Attorney removed from any continued involvement in prosecuting these cases.  District Attorney Mary Carmack-Altweis in early August filed a notice stating her office had a conflict of interest and could no longer continue as prosecutors in these cases. 
 
The conflict outlined by Carmack-Altweis involves her office's contentious relationship with the organizer of the successful petition effort to convene the special NCSWA  grand jury, Antonio (Ike) DeVargas.  The Carmack-Altweis notice requested that the NM Attorney General take over the cases or that a special prosecutor be appointed to handle these cases.
 
The toxic relationship involving DeVargas, the special grand jury, and the D.A.'s Office required the intervention of the district judge then-overseeing that special grand jury, Jason Lidyard, who later recused himself from the Naranjo/Campos perjury cases. 

As of today, however, court records continue to state that the D.A.'s Office remains the prosecutorial agency in these cases. The defense motion re: the Carmack-Altweis notice, seeks compliance with her interpretation of court rules requiring her office to hand the case over to another prosecutorial entity. In this instance, the defense and the prosecution appear to be in agreement: the D.A.'s office is ineligible to continue prosecuting these cases and some other prosecutorial agency (the A.G.) or a special prosecutor must take over.

These defense motions do not request a hearing on the merits of these motions and Judge Wilson has not scheduled such hearings on his own.  Consequently the cases are in limbo and cannot proceed with the normal series procedural pre-trial actions by either side that often transpire over the course of several months during the run-up to actual jury selection and trial. 

Meanwhile, it is unclear if any transfer of these perjury cases to the A.G. or a special prosecutor would concurrently result in continued investigation by one or the other of those entities into alleged corruption/criminal conduct within the NCSWA. In their report at the conclusion of the special grand jury's term, the jurors suggested that such an investigation should be conducted, as many allegations could not be fully considered by that grand jury before the required termination of that that body's term. 

​By Jake Arnold
 
(Fair disclosure/transparency disclaimer: Jake Arnold served on the Harold Ulibarri defense team as a paid investigator on behalf of the defendant. He assisted/advised Ulibarri's then-defense attorney on jury-selection, as well as strategic & evidentiary matters during the 2006 trial.)  
 
Both the prosecutor from the First Judicial District Attorney’s Office, Rebecca A. Ralph, and the defense attorney for convicted murderer Harold Ulibarri, Nick Sitterly, have submitted their final briefings to First Judicial District Judge T. Glenn Ellington.
 
The Rebecca Ralph prosecution briefing of just under five pages opposes the reversal of Ulibarri's murder conviction, and request for a new trial. The briefing relied solely on case precedents that the prosecutor stated should require the judge to deny the defense request..
 
Nick Sitterly's 11-page briefing centers on the matter of comprehensive DNA analysis conducted long after the trial, pursuant to a court order for such analysis, that was not conducted by the state police after Ulibarri's arrest. The Sitterly briefing also recounts the DNA-related statements at trial on the part of then-prosecutor David Foster.  
 
At trial Foster had argued that the state police laboratory DNA analysis, which only concluded that DNA material found under the victim's fingernails was "male" DNA, must belong to Ulibarri. The identity of the DNA donor, at the time, could not be determined. Foster's argument was that since the DNA was "male," Ulibarri was surely the donor since Ulibarri discovered Gutierrez' body at the home they had been sharing, no other individual could have been the donor. 
 
Sitterly's briefing centers on a new and comprehensive DNA analysis, which suggests Gutierrez' romantic partner at that time, Kenny Duran, as a possible donor. Duran had been with her the evening and early morning prior to her death.
 
(Clarification: a  previous account of this case, the DNA controversy, and the 2006 Ulibarri trial courtroom drama--written by this correspondent and appearing in this space on 8/11/23 suggested that a sample of Ulibarri's DNA was the "male" DNA obtained from under the victim's fingernails, but that another male DNA donor could just as likely be a suspect.  However, no such DNA sample from Ulibarri was ever obtained or analyzed by the state police.) 
 
Sitterly's arguments during an evidentiary hearing before Ellington on 8/2/23, and reiterated in his final briefing, argued that the identification of Duran (or a closely related male family member) as a likely donor to a statistically significant degree of certainty justifies reversal of Ulibarri's conviction and an order by Ellington for a new trial.
 
Ellington told Ulibarri defense attorney Sitterly and current prosecutor Ralph he would render a decision after reviewing their final briefings.  Ellington indicated he would announce his decision this month (September).  As of deadline time for this week's edition of the Abiquiu News, the judge has not yet announced that decision.   

By Jake Arnold
 
taxes over the past three years since the assessments were approved in a 2019 ballot referendum, Northern New Mexico College administrators released documents addressing, in part, those matters at a Board of Regents (BOR) meeting in El Rito 8/25/23.  According to law, the disposition of all mill levy funds should be dedicated solely to the operations of the NNMC Branch Community College, which is linked to the "parent" NNMC, but is a separate educational institution "district" and unit of state government created by the boards of education of five contiguous public-school districts authorized to do so by special enabling legislation in 2019.  Those five public school districts are Chama Valley, Española Valley, Mesa Vista, Pojoaque and Jemez Mountains. 

The geographic footprint of the NNMC Branch Community College covers the majority of Rio Arriba County, the northern part of Santa Fe County and a small sliver of Taos County.  Property owners in that NNMC Branch Community College district (the boundaries of which coincide with those of the five public school districts) pay the mill levy at a rate of two one-thousandths of assessed evaluation.  The mill levy assessments are collected by the treasurers of the three counties. This mill levy fund is effectively the sole source of financial support for the NNMC Branch Community College, which is administered by the "parent" NNMC, but the annual budget of which must, by law, be approved by an advisory board consisting of representatives from each of the five "enabling" public school district boards of education.

The handout of mill levy accounting documents at the 8/25/23 NNMV BOR, as well as in response to widespread dissatisfaction over the NNMC-sponsored "El Rito Grito" (question & answer) event conducted by NNMC President Hector Balderas, was immediately following the monthly NNMC BOR meeting in El Rito this past July.  At that event, numerous citizen attendees expressed frustration and disappointment over the lack of specific data related to mill levy matters as well as what they generally considered to be murky "progress reports" regarding the long-awaited and promised complete reopening of the campus in El Rito and what repairs. renovations and capital improvements are required to achieve that end.

While the campus in El Rito may host NNMC Branch Community College operations (and does so on a limited basis at the present for two union-affiliated "trades" programs for electricians and plumbers/pipefitters), this campus can also be the site for other instructional programs of the parent NNMC apart from NNMC Branch Community College programs, which by law must be "trades," "vo-tech" or "career education" in nature leading to two-year "associate" degrees or certificates.  The 2019 enabling legislation allowing the creation of the NNBMC Branch Community College expressly prohibits this institution from offering instruction leading to four-year "baccalaureate" degrees.

One program authorized for the NNMC Branch  Community College is "dual credit" instruction for area high school seniors (from the five "constituent" public school districts).  Promotional, ballot-question flyers distributed by proponents of the 2019 mill levy election, and pronouncements by then-NNMC President Ricky Bailey in addition to politicking by other citizen supporters of the mill levy proposal promised that the "dual credit" programs would be one function of the NNMC Branch Community College if the mill was to be approved by the voters.  Lack of such approval would have left the NNMC Branch Community College as an "empty shell" district with no funding as the 2019 enabling legislation prohibited any legislative appropriations for this institution.

But the operation of the "dual credit" program by the NNMC Branch Community College since 2019 has become a point of contention for those citizens who believe that any "dual credit" classes attended by the high school seniors must be 1.) held at one or the other of the two NNMC campuses and 2.) must be classes oriented towards the statutory "trades," vo-tech. "career education" mandate.  In other words, the NNMC Branch Community College dual-credit program classes must be held at NNMC facilities in Espanola or El Rito and cannot be held at the high schools. 

At the 8/25/23 BOR meeting college administrators confirmed what was suggested (revealed) re: the dual-credit classes are now being conducted at the high schools, not at the Espanola or El Rito NNMC campuses.

However, the NNMC administrators responding to citizen queries at the 8/25/23 meeting could not pinpoint how many dual credit NNMC Branch Community College students are enrolled and whether those students are taking classes consistent with the "trades," vo-tech," or "career education" mandate.

One of the hand-out documents distributed at the 8/25/23 BOR meeting was a fiscal year 2022 (ending 6/30/22, but the figures included only cover transactions/usage through March 10, 2022) report on mill levy monies received by the college and how the "parent" NNMC administrations used them for supposed NNMC Branch Community College purposes.
The other BOR 8/25/23 meeting hand-out document is a somewhat more detailed account of all mill levy monies received from the county treasurers by NNMC on behalf of the NNMC Branch Community College since 2019 and through the end of fiscal year 2023 (ending June 30, 2023) and the utilization of those funds.  Noteworthy re: the "mill levy" fund administered by the parent NNMC (and subject usage in accordance with the statute-required budget approval by the advisory board) is that past NNMC administrators never opened a separate bank account for mill levy funds and instead deposited all of those funds in the "parent" NNMC's own bank account.  The advisory board has not posted any public notices of any past meetings since 2019 and (as the parent NNMC BOR is required to do) and apparently no minutes of any such meetings exist.

What the second 8/25/23 BOR handout does reveal, in part, as concerned citizens (friends/supporters of the college) have been requesting these past three years, is that NNMC (on behalf of the NNMC Branch Community College) has received $10,499,000.90 in mill levy funding since 2019 and that over the course of the same period, total expenditures in support of the NNMC Branch Community College by three different "parent" NNMC administrations through 6/30/23 are in the amount of $5,409,582.46.

Within the various graphs and line-item entries presented in this handout is an unexplained and curious set of listings for mill levy "revenues” accruing to the "parent" NNMC as generated by four different counties collecting those assessed taxes. The curious aspect of this section of the handout is that Bernalillo County (Albuquerque) is included, but this county does not assess or collect any mill levy taxes for any NNMC-related institution.

Overall, this handout is at best, a limited synopsis of the NNMC Branch Community College mill levy situation.  

Responding to "public comment" citizen presentations re: the mill levy and other NNMC Branch Community College/El Rito campus issues. Balderas suggested that prior use of the mill levy funds by prior administrations may, in retrospect, not have occurred in accordance with statutory requirements or the presumptions held by legislators when the enabling 2019 special legislation authorizing creation of the NNMC Branch Community College was debated at the Roundhouse (this legislation did pass both houses unanimously). 

Charts in the second 8/25/23 BOR meeting handout compare Balderas' role in the mill levy expenditures, since he took over as NNMC President in January, 2023, in comparison to the roles of former NNMC President Bailey and former interim NNMC President Barbara Medina.  By the inclusion of this comparison, Balderas is distancing himself from responsibility for any past mill levy expenditure problems and in his comments at the July "El Rito Grito" event and at the 8/25/23 BOR meeting he proposed that the task before him now is for him to ensure that all future mill levy expenditure issues moving forward will be resolved in accordance with statutory mandates.

A continuing issue of some importance is whether any mill levy funds may be dedicated to capital improvements at either NNMC campus if those facilities are occupied by or used for NNMC Branch Community College purposes.  This issue dovetails with the status of any plans or intentions of NNMC administrations since the campus in El Rito was effectively shuttered over 10 years ago.  Statutory requirements would allow mill levy funds to be used for maintenance of any NNMC facilities dedicated to the NNMC Branch Community College, but not for the construction of any significant capital facilities or major improvements (such as new climate-control systems. Such construction must be financed by monies other than those generated by the mill levy taxes.

In June 2022, a consultant submitted a comprehensive "strategic plan" for NNMC El Rito that incorporated detailed proposals for the "resurrection" of the campus in El Rito and the use of that campus by the NNMC Branch Community College.  During the public comment period at the 8/25/23 BOR meeting a former NNMC faculty member and longtime friend/supporter of NNMC El Rito, Bruce Smith observed that apparently neither the BOR nor NNMC administrations have taken any substantial steps to implement this voluminous strategic plan.

The strategic plan document is contained as one of several items in a BOR "packet" prepared for the BOR and submitted to them by the administration prior to each regular BOR meeting.  This “packet” with the strategic plan is available for public inspection at a page within the NNMC website (nnmc.edu) that gives a visitor access to past NNMC BOR minutes and BOR packets.  This packet in question for the June 2022, BR meeting is over 100 pages long, but that strategic plan document is included and can be viewed by patiently scrolling down and down and down.
Click for documentchrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://nnmc.edu/wp-content/uploads/2022/06/6-23-22-NNMC-Board-Packet-2.pdf


 
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