Defense attorney Mark Earnest made the assertion after the state asked the court to consider a defense motion, even though it had been withdrawn.
“The state is looking for an opportunity to get a ruling from this court that it can appeal and therefore vacate the Jan. 7 trial setting,” Earnest said. “That’s what’s going on here.”
Kelley is facing charges in the August 2016 death of 10-year-old Victoria Martens, and a trial for her cousin and co-defendant Fabian Gonzales is on hold indefinitely after the state appealed a judge’s ruling blocking prosecutors from admitting certain pieces of evidence. Victoria’s mother, Michelle Martens, pleaded guilty over the summer to child abuse resulting in death.
“If the state’s not prepared after two years, after all the resources have been poured into this case … then the proper way to deal with this is to file with the court a motion to continue,” Earnest said.
But prosecutor Greer Rose disputed Earnest’s suggestion and said the state is ready for trial and has done nothing to cause a delay.
Judge Charles Brown went on to defer ruling on each motion before him Thursday. Those included requests to move the trial out of Bernalillo County, to take the jury to the crime scene, to admit evidence of Kelley’s drug use and to use prior statements by prosecutors.
Prosecutors have said they believe Victoria was killed by an unidentified man – as Kelley baby-sat her – in retaliation for threats Gonzales made toward rival gang members. Brown questioned whether anyone involved in that dispute would be testifying and, if so, whether they would be granted immunity. He also asked for a list of those witnesses so that attorneys can be assigned to represent them.