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Jessica Kelley asks court to dismiss charge

ALBUQUERQUE, N.M. — After a judge twice rejected an agreement in which Jessica Kelley would have pleaded guilty to child abuse resulting in death, her defense attorney is asking the court to dismiss the count altogether.

Jessica Kelley

Jessica Kelley

State District Judge Charles Brown rejected the agreement, finding there was insufficient evidence to support the charge. In one of several motions filed Tuesday, Mark Earnest, who is representing Kelley as she faces accusations in the death of Victoria Martens, argues that the evidence presented at that hearing is “as good as it gets.”

“At the conclusion of the September 14, 2018, hearing the court, in effect, found that ‘the undisputed facts do not make out the elements of the charged crime,’ ” Earnest wrote.

At that hearing, prosecutors and Kelley’s attorneys agreed on a set of facts intended to show her guilt. And in his motion, Earnest says when facts are undisputed and only questions of law are before the court, a judge has the authority “to decide the legal issues and dismiss the count as appropriate.” The rejection of the agreement, he argues, was essentially a legal determination that Kelley did not commit that crime.

Earnest has also filed a request asking the court to move the trial, which is scheduled for January, out of the Albuquerque area, citing what he characterized as unceasing, severe and misleading media coverage of the case.

“The cumulative prejudice from all of the media coverage in this case, almost every bit of it negative in reference to Ms. Kelley, is too deep and too widespread in Bernalillo County,” Earnest wrote. “Ms. Kelley deserves at least a chance at a fair and impartial jury untainted by the publicity that has constantly surrounded this case.”

He suggests the court move the case to Rio Arriba, McKinley or Taos counties.

In a separate motion, Earnest has asked to keep out of trial a series of statements secretly recorded on a device hidden near Kelley’s jail cell. The recordings, he writes, were made in violation of the Constitution, and the detective who arranged them never sought a warrant.

“The Fourth Amendment protects against surreptitious recording of private conversations where a speaker has a reasonable expectation of privacy,” Earnest wrote.

Earnest also filed a request seeking to use at Kelley’s trial a document prosecutors compiled that outlines Fabian Gonzales’ involvement in the case. Prosecutors say that Victoria was killed by an unknown man who may have been retaliating against Gonzales after a fight days before during Kelley’s prison homecoming barbecue, during which Gonzales was punched by a pregnant woman. Kelley was watching the 10-year-old when a stranger walked into the apartment and killed the child.

Prosecutors filed a request Tuesday asking a judge to let them tell jurors about Kelley’s drug use to help establish that she was aware of the effects of drug intoxication.

Kelley is set for an evidentiary hearing on Nov. 6.

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