District Judge Ellington Expected to Rule Shortly on New Trial for Harold Ulibarri Defendant Convicted in 2005 Chama Murder of Rhonda Gutierrez

​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.