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.
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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 . By Jake Arnold
The Northern New Mexico College Board (NNMC) of Regents (BOR) are holding their monthly meeting today in El Rito beginning at 9:00 am. This is the second monthly BOR meeting in a row for the historic "home" campus of the college for El Rito. This meeting will be at the old Boardroom upstairs in Delgado Hall, the main administration building and oldest structure on the campus, rather than in Alumni Hall (North Dorm building), the site for most other NNMC events in El Rito over the past several years. One agenda item for this BOR meeting, in particular, is an "informational" staff report regarding the financial affairs of the NNMC Branch Community College and, specifically, disposition of the mill levy property tax receipts, collected since 2019, that provide virtually the sole funding for the NNMC Branch Community College, which is legally a separate governmental/educational entity distinct from NNMC, but closely associated with, and managed by, the "parent" NNMC. The geographic footprint of the NNMC Branch Community College "district," includes all territory within the boundaries of five area public school districts, Espanola Valley, Chama Valley, Jemez Mountains, Mesa Vista and Pojoaque. Voters residing in that geographic footprint approved the mill levy property tax assessments via a general election ballot "referendum" question put before them in 2019. By law, the president of NNMC (position currently held by Hector Balderas) is concurrently the president of the NNMC Branch Community College. A NNMC Branch Community College advisory board (mandated by he enabling 2019 legislation) is required to approve the annual budget (funded by the mill levy taxes) for that educational entity. Decisions regarding the instructional curriculum for the NNMC Branch Community College are the responsibility of the NNMC president and the NNMC BOR. Early on in the agenda for today's BOR is the customary "public comment" period. Several citizens, who have been closely following the affairs of both NNMC and the NNMC Branch Community College, intend to address the BOR during this public comment time period. One of the primary concerns of these friends of the college is the disposition of those mill levy funds since 2019 and the operations of the NNMC Branch Community College, which include "dual credit" technical/vocational instruction for high school senior from area high schools. Another concern to be articulated during the public comment period is the status of long-awaited completion of the promised "resurrection" of the campus in El Rito, restoring that campus to full use (classroom/laboratory space, dorms, restaurant, etc.). The 2019 legislation allowing the creation of the NNMC Branch Community College established the site of operations of that institution as either/or the two NNMC campuses in El Rito and Espanola. But the campus in El Rito may also be utilized for other NNMC educational programs as well as a site for education-related conferences and other El Rito community events such as those sponsored by the El Rito Arts Association. Others who may have an interest in these NNMC/NNMC Branch Community College/El Rito campus-related matters are encouraged to participate in the public comment period set forth in the 8/25/23 BOR agenda. Agenda Attached Planning Organization Recommends Major NM Department of Transportation Project for State Road 5548/11/2023 by Jake Arnold
The Northern Pueblos Regional Transportation Organization (NPRTPO), at their monthly meeting last week (8/2/23), issued a strong letter of recommendation to the NM Department of Transportation (NMDOT) endorsing citizen proposals for a major State Road 554 improvement/reconstruction project. The NPRTPO told the NMDOT that this contemplated project should gain "STIP" ( Statewide Transportation Improvement Program) status. NPRTPO's members listened to extensive commentary from numerous El Rito and Abiquiu area residents and other concerned individuals (advocating for the safety of the many bicyclists touring on the highway) at the July 12, 2023, meeting. Formal consideration of new NMDOT projects by that labyrinthine and many-layered cabinet-level department begins with such recommendations on the part of the several RTPOs operating throughout the state, which are designated as NMDOT affiliates Issuance of such a letter of recommendation and inclusion in the STIP are necessary steps along the way to possibly achieving the goal of making such a project, as proposed by citizens at the NPRTPO meeting in July, a reality. In that letter the NPRTPO also asked the NM DOT to conduct request that the NM DOT conduct at Road Safety Audit (RSA) of this highway corridor as part of its assessment of whether or not to grant the citizen proposals regarding a major State Road 554 project in the STIP. The NPRTPO chair, Vernon Lujan of Taos Pueblo, said at the 8/2/23 meeting, that he had spoken with several friends and associates in the Abiquiu area and those individuals agreed with the concerns raised by members of the public at the July NPRTPO meeting (the principal focus of those voiced concerns were opinions that State Road 554 is an extremely dangerous highway as it now exists). The NTRPO recommendation letter in question, describing those citizen concerns is available for perusal at this link: Click Here Judge Considering Reversal of 2006 Harold Ulibarri Murder Conviction & Order for a New Trial8/11/2023 by Jake Arnold
Fair disclose/transparency disclaimer: Jake Arnold served on the Harold Ulibarri defense team as a paid investigator on behalf of the defendant during the run-up to the trial after Ulibarri's 2005 arrest. He assisted/advised his defense attorney on jury-selection as well as strategic & evidentiary matters during the 2006 trial. Arnold also conducted a post-conviction investigation in matters related to the conduct of some of the jurors during the trial and possible misrepresentations about themselves/backgrounds during the "voir dire" jury-selection proceedings immediately prior to the commencement of that trial. Arnold's investigative report of his post-trial investigation was included in briefings associated with attempts to reverse that conviction 2008-2008, which did not meet with success. Last week (8/2/23) First Judicial Judge conducted a long-awaited/delayed evidentiary hearing, dismissing the objections of prosecutors, in the matter of a petition by Harold Ulibarri to overturn his 2006 conviction for murdering his onetime domestic partner or housemate and mother of his children, Rhonda Gutierrez, in Chama on Halloween weekend in October, 2005. A series of Ulibarri's post-conviction attorneys had initiated court filings seeking a conviction reversal and new trial, based on the emergence of new DNA analysis evidence after Ulibarri had exhausted his appeal of his conviction. Uilbarri has been incarcerated since his 2006 conviction. This sensational case captured the rapt attention of nearly everyone in Rio Arriba County back then. The murdered victim, Rhonda Gutierrez, was a well-respected and beloved county employee at the county offices in Tierra Amarilla. Ulibarri was a senior NM Department of Transportation highway crew chief and had a second job as elk-hunting guide during the autumn/winter season. New DNA evidence (pointing to another suspected perpetrator) is the focus of this matter. Ellington said he would render his decision (probably) in September. This case and a "new" DNA analysis supposedly fingering Rio Arriba resident Kenny Duran is the basis for Ulibarri's many repeated petitions for reversal of his conviction and a new trial filed the beginning of 2009. Since that time the matter has been under prolonged consideration by several successive judges assigned to the case post trial. The matter now before Ellington is not another appeal as far as criminal case procedures go, but a plea by Ulibarri to order a new trial based on evidence that only came to light after his conviction. Gutierrez had entered into a romantic relationship with Duran (married at the time). Duran had also been involved romantically with another county employee and her possible involvement in the murder and her activities in confronting Gutierrez over her relationship with Duran was one of the subjects of arguments in the case before the jury, as voiced by Ulibarri's trial defense attorney, Tony Scarborough. At the time of trial, DNA samples were collected at the murder scene of the Ulibarri/Gutierrez home in Chama by State Police laboratory technicians, and were found to contain Ulibarri's DNA. That DNA analysis also suggested that other DNA found at the scene may have come from other individuals--an unidentified male and perhaps (speculation based on the "partial" elements of DNA in the collected samples) from anther female, other than Gutierrez. During the investigation of the murder by the State Police, officers obtained a comparison sample of Ulibarri's DNA and also obtained a sample of Duran's DNA from him during that time period, since he was a potential suspect by virtue of his role as Gutierrez' date for the Halloween party and the two had spent the night together after the party at a Chama motel. Duran had told the State Police that he delivered Gutierrez to her residence (home owned by Ulibarri) early the Sunday morning when Ulibarri came upon her body later than morning. Ulibarri reported that he had discovered Gutierrez in the bedroom of that home when he visited early on a Sunday morning she and Duran had attended a Halloween Party together the previous Saturday evening. After their separation Ulibarri nonetheless spent substantial time at the home (which he owned), when he was visiting/looking after their children. After he discovered the body--according to Ulibarri's version of the events of that morning--he drove her lifeless body to the clinic in Tierra Amarilla, where she was pronounced dead. No murder weapon was ever located by the State Police, who believed Ulibarri had disposed it elsewhere that morning. An autopsy determined that the weapon used to kill Gutierrez was a .22 caliber gun--likely a handgun--based on the slugs recovered during the post post mortem by the Office of the state Medical and a slug that did not penetrate her body, but was found on the gurney on which her body rested at the clinic. According to testimony at the 8/2/23 evidentiary hearing, the State Police laboratory did not send the DNA sample to another laboratory that had the capacity to conduct more sophisticated/comprehensive DNA analysis that could have determined the profile of a male contributor of the other of DNA. The contention of Ulibarri's post-conviction attorneys was that the State Police were remiss on this count. During the tortuous saga of court filings and counter-filings in this matter since 2009 a judge did order that the state Police laboratory-preserved DNA sample, indicating a second male was a contributor, be sent to a different laboratory retained by Ulibarri's legal team. That independent laboratory analyzed that DNA sample using those more sophisticated, comprehensive techniques lacking on the part of the State Police back in 2006. According to testimony by that laboratory owner on 8/2/23, the profile of the second male contributor was that of Duran or a closely-related male relative (such as his father/male child/male sibling). Nick Sitterly, Ulibarri's current attorney, is attempting to have Judge Ellington accept this newly available DNA analysis to justify a new trial. If Ulibarri does obtain a new trial, his line of defense would include a supposition that Duran is just as much a likely perpetrator of the murder as Ulibarri himself and that this proposition establishes sufficient reasonable doubt of his guilt that a jury should hand up a not guilty verdict nearly 20 years after the initial trial jury found him guilty in 2006. Any new trial would probably not commence until sometime in 2025 or 2026. If Ellington doses reverse, and order a new trial, Ulibarri may well be released from prison during the interim, given the court rules in place since the old bail bond system ended. By Jake Arnold
First Judicial District Judge Jason Lidyard has scheduled the arraignment of Kevin Martinez, charged with murdering Elmer Sanchez Jr. in Hernandez in October, 2022. This case against Martinez is proceeding after Lidyard bound over Martinez for trial at the conclusion of a preliminary hearing the judge conducted last week in Tierra Amarilla. Preliminary hearings are conducted when defendants are charged when a "criminal information" (a type of complaint) is filed against them, rather than the charges being brought via grand jury indictments. Binding over a defendant for trial does not indicate a judge has come to a conclusion regarding the defendant's guilt or innocence, but is rather a determination that the judge believes sufficient evidence is at hand to justify a trial at which a jury would render a verdict. Most felony cases in New Mexico district courts are now prosecuted on the basis of a criminal information. Often defendants waive their right to a preliminary hearing, but in this matter Martinez' attorney vigorously questioned witnesses in a failed attempt have Lidyard dismiss the case at this stage based on conflicting/contradictory testimony from those witnesses. The trial date in this case will be set by the judge at Martinez' arraignment in Lidyard's Tierra Amarilla courtroom on August 15, 2023. Martinez is also facing trial in three additional felony cases in which Lidyard is the pressing judge. Those other cases are all set for trial later this year. The charges in those other cases are: • 23 counts of rape and kidnapping in a long-delayed case dating back to 2020. Martinez is being held without bond pending trial in this case after he failed to appeared for several routine pre-trial hearings in this matter since 2020 • Burglary of facilities at Northern New Mexico College in El Rito earlier this year (that alleged crime occurring the same day that Martinez was suspected of stealing a catalytic converter from a car in El Rito). • Aggravated assault with a deadly weapon (a motor vehicle) and associated charges stemming from an incident at the Dollar General Store in Hernandez earlier this year when Martinez allegedly tried to run over law enforcement officers seeking to apprehend him as a fugitive in the murder and burglary cases. According to police reports, Martinez successfully evaded those officers and was later apprehended several weeks later by a SWAT team at hideout near Española that they had under surveillance. The recent non-bond hold in the rape/kidnapping case effectively means Martinez must remain in custody while the other three felony cases are pending concurrently. |
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