Vehicular homicide convict Carlos Fierro, now out of prison and living in California on parole, still wants a new trial and on Monday raised a new issue, alleging that the jury foreman during his 2009 trial should have been excused.
A court filing by Ray Twohig, Fierro’s attorney, says the jury foreman had a pending criminal charge that he failed to disclose on his jury questionnaire and also during attorneys’ pre-trial questioning of potential jurors called voir dire.
After the foreman “guided the jury to a guilty verdict” against Fierro, the foreman’s own criminal charge or charges were dismissed by the Santa Fe District Attorney’s Office, Twohig’s petition states.
Also, the filing says the jury foreman’s “former or current girlfriend had a sister who was or had recently been a sister-in-law” to a jury consultant hired by prosecutors for Fierro’s trial.
Fierro, a lawyer and lobbyist who once worked for U.S. Senators Tom Udall and John McCain and was named in 2007 as Outstanding Young Attorney of the Year by the New Mexico Bar Association, was driving the BMW that struck and killed pedestrian William Tenorio in downtown Santa Fe in November 2008. Fierro’s passenger the night he ran over Tenorio was Alfred Lovato, at the time a State Police officer and member of then-Gov. Bill Richardson’s security team.
Fierro was drunk behind the wheel but his defense argued that the accident wasn’t his fault and that Tenorio, who also had been drinking, wasn’t paying attention as he crossed the street in dark clothes on a dark night.
Fierro was convicted and was sentenced to seven years in prison. But he was released in August based on credit for pre-trial time behind bars and for “good time” sentence reductions earned while in prison.
In December 2011, Fierro filed a petition seeking dismissal of his convictions and a new trial, claiming his high-profile defense lawyers — including Jason Bowles and Robert Gorence — had failed to provide him with effective representation.
The amended petition filed Monday, before a hearing in the case scheduled for today, says Fierro’s lawyers should have discovered the jury foreman’s criminal case and filed a motion to have him excused “out of concern he (the foreman) would rule against Mr. Fierro in order to curry favor in his own pending criminal case.”
The amended petition goes on to say that the District Attorney Office’s failure to disclose that it had a jury consultant and that the consultant had a “relationship with the eventual jury foreman” constituted prosecutorial misconduct.
“The failure to discover and explore this relationship, and to seek to exclude that juror from the jury, had a major impact on the verdict in this case,” Fierro’s new petition states. “Post-trial interviews with jurors revealed his influence on the final verdict.”
No comment from DA
District Attorney Angela “Spence” Pacheco had no comment on Fierro’s latest court effort. Fierro’s petition to seek a new trial is being handled from the state’s side by the Attorney General’s Office. Its spokesman Phil Sisneros also had no comment Monday.
Monday’s court filing says Fierro could have raised issues about the jury foreman in an appeal of his vehicular homicide conviction, but that a plea agreement on a second charge — leaving the scene of an accident — prevented him from doing so.
The jury at his trial convicted Fierro of vehicular homicide, but was hung with an 11-1 vote on the charge of leaving. Fierro resolved that matter before sentencing by pleading no contest to leaving the scene in a deal he reached with prosecutors. Fierro now argues the plea was coerced by his trial attorneys.