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Should accused child torturer have been behind bars?

Copyright © 2018 Albuquerque Journal

SANTA FE – If a Santa Fe judge had been given correct information in 2016, Thomas Ferguson would most likely have been behind bars when he allegedly tortured and beat his girlfriend’s teenage son, Jeremiah Valencia, to death in November.

Thomas Ferguson

But miscommunication, or lack of communication, between prosecutors in Rio Rancho and Santa Fe helped Ferguson slide through the legal system and remain a free man.

In 2015, Ferguson pleaded guilty to kidnapping and aggravated battery charges after he was accused of beating and sexually assaulting a girlfriend over several days in 2014 at his Santa Fe house. After spending 16 months in jail awaiting trial, he was set free but faced as many as nine years in prison if he violated his probation terms set by a judge.

Violate them he did. Less than a year later, he was arrested for allegedly beating another woman in Rio Rancho. Based on those new charges, a Sante Fe prosecutor initially asked for revocation of Ferguson’s probation.

But that effort to put Ferguson back behind bars was dropped after the prosecutor, Natalie Perry, was told that the Rio Rancho case against Ferguson would not proceed, Perry said in an interview last week.

Santa Fe District Attorney Marco Serna, right, leaves the arraignment hearing for accused killer Thomas Ferguson on March 1 with his chief deputy Jennifer Padgett. Serna said Ferguson’s conviction in 2016 on a domestic violence charge while on probation doesn’t show up in an online data base. (Eddie Moore/Albuquerque Journal)

The staff at the Santa Fe District Attorney’s Office remained unaware that Ferguson eventually pleaded guilty in the Rio Rancho case, to a count of battery against a household member in Sandoval County Magistrate Court, in July 2016.

Officials express surprise and dismay that the true status of Ferguson’s Rio Rancho case fell through the cracks.

Even this week, Ferguson’s Rio Rancho guilty plea came as a shock to former prosecutor Perry. She learned about the guilty plea from a Journal reporter.

She says she was told by Rio Rancho prosecutors that they weren’t going to pursue Ferguson’s domestic violence charge there.

Perry said that, if she’d known the Rio Rancho case was moving forward, she could have asked Santa Fe District Judge T. Glenn Ellington for more time to build a probation violation case that could have landed Ferguson in prison until 2025.

“That is disturbing,” Perry said of the Rio Rancho conviction. “I don’t think people know that. I’m shocked.”

Sandoval County District Attorney Lemuel Martinez says he has no idea why prosecutors in his office would have told attorneys in Santa Fe that the Ferguson Rio Rancho case wasn’t going to move forward. The attorneys who worked on the case are no longer with his office, Martinez added.

“I don’t know who Santa Fe talked to in my office, or who in my office told them that, but it’s not true,” Martinez said. “I don’t know why they would say that if it went forward.”

Last month, Ferguson, 42, was indicted on 18 counts in the death of 13-year-old Jeremiah Valencia, son of his girlfriend Tracy Ann Pena. He has entered a not guilty plea.

He’s accused of torturing the boy over time with implements including a home-made spear and five-pound hammer, to the point that Jeremiah needed a cane to get around, before beating him to death and stuffing him in a dog kennel to die at the family group’s Nambé house on Nov. 26.

At the time of Jeremiah’s death, Ferguson was facing years in prison if he violated probation for his 2015 kidnapping and battery convictions in Santa Fe. Yet, despite the Rio Rancho charges, and the fact that he later failed to complete the program he was sentenced to in connection with the Rio Rancho case, he remained on the streets.

Rio Rancho case

According to a criminal complaint filed in Sandoval County Magistrate Court, a state probation and parole officer went to the Rio Rancho house where Ferguson was staying in February 2016 and saw that the woman who answered the door, Angelica Abeyta, had bruising around her eyes. She eventually told officers that Ferguson physically abused her.

The report caused Perry, then a Santa Fe prosecutor, to file a motion in District Court to revoke Ferguson’s probation from the 2015 case and send him to prison to serve the remainder of his sentence.

In a status conference for the probation violation on April 11, 2016, Ferguson showed up without a lawyer, according to audio recordings from the hearing. Judge Ellington first told Ferguson to apply for a public defender and rescheduled the hearing for a week later.

The following week, on April 18, Deputy District Attorney Susan Stinson, who was standing in for Perry, told Ellington that the defense and the state had reached an agreement in which Ferguson didn’t have to acknowledge facing a new criminal charge.

“The agreement is that the defendant would admit having negative contact with police and be reinstated on probation under the conditions originally ordered,” Stinson said. “That is after Ms. Perry had a discussion with the attorney handling the new charges down in Sandoval County, and I don’t know that those are going forward at this point.”

Ferguson admitted that he violated terms of his probation. “And what did you do to violate?” Ellington asked.

“Negative contact with law enforcement, sir,” Ferguson responded.

Ellington reinstated him to probation under the original terms.

The guilty plea

But records show that, during the time between the first and second hearing in Santa Fe, actions taken in Sandoval County Magistrate Court made it clear that the Ferguson case was going forward.

According to documents from Sandoval County, Ferguson waived a trial by jury in the Rio Rancho domestic violence case on April 15, 2016, three days before he was reinstated to probation in Santa Fe District Court.

On July 15 of that year, Ferguson pleaded guilty to battery on a household member, according to the court documents. He was sentenced to 364 days in the Sandoval County jail, but he was given credit for the 60 days he had already spent in jail awaiting trial on this case and was required to serve the remaining 304 days under the Sandoval County Misdemeanor Compliance Program. Sandoval County court personnel were aware of Ferguson’s prior criminal case in Santa Fe. A court order, signed by Sandoval Magistrate Judge Richard Zanotti, says Ferguson’s requirement of participating in a 52-week domestic violence program was to run concurrently with his pre-existing Santa Fe County probation.

Perry said this week that she couldn’t recall the name of the Rio Rancho prosecutor who told her that the domestic violence charge from Rio Rancho would be dropped. She speculates that the victim, Abeyta, decided not to cooperate at first, but later changed her mind.

But Abeyta said in a recent Facebook message to the Journal that she was cooperating with law enforcement and prosecutors in Sandoval County throughout the case.

“I was willing to testify and he pled guilty, but I didn’t change my mind at all,” Abeyta wrote. “I even have a restraining order on him and everything. I totally cooperated with them!”

Sandoval County District Attorney Martinez identified two lawyers who worked on the Rio Rancho case who no longer work in the office. “I’m not going to talk to them,” Martinez said. “They’re gone. It should be on Santa Fe’s notes. This doesn’t jive with the outcome of the case.”

Current Santa Fe District Attorney Marco Serna, who took office in January 2017, said he also couldn’t find an explanation in the case notes, which are not available to the public, and added that Stinson – who filled in for Perry at the crucial probation hearing in 2016 – told him that she doesn’t recall the finer details of the case.

But Serna, too, was surprised to hear from the Journal that Ferguson was convicted of a crime while out on probation.

“Really? We even looked in Odyssey (an online court management system) and couldn’t find it,” Serna said of recent check of Ferguson’s court record.

That may have been because Ferguson’s last name is spelled “Furgeson” on the Sandoval County charging documents. The case can be seen by typing the misspelled name into the database. But it doesn’t appear at all, under either spelling, on a more secure site that attorneys and reporters can use to access court documents.

‘All obligations met?’

Roughly a year after that conviction, a report from the Sandoval County Misdemeanor Compliance Program dated July 14, 2017 – still several months before Jeremiah was killed – says Ferguson received an “unsatisfactory discharge” from the program for failing to complete required treatment along with a 52-week domestic violence program.

Despite those failures, the case was closed and a note on online records says “all obligations met.” Sandoval County spokeswoman Melissa Perez could not provide an explanation as to how the case was closed, even though Ferguson failed to meet the requirements of the compliance program.

“The Sandoval County Misdemeanor Compliance Program does not have the ability to close out a court case; that can only be done by the courts,” Perez said in an email. “Therefore, we are unable to address questions about why the case was closed in Magistrate Court.”

Now, Ferguson will remain in jail while awaiting trial for Jeremiah’s death and faces life plus 168 years in prison if he’s convicted on all the counts.

Abeyta, the woman Ferguson pleaded guilty to beating in Rio Rancho, wrote on Facebook to the Journal that Ferguson busted her nasal area and broke bones near her eye as well as her finger. She said she feels safe now, knowing he’s in jail.

“Thank God he will never be free again,” Abeyta wrote. “I didn’t feel justice was served for what I went through, and now look what happened to that little boy. That is so sad.”