Copyright © 2018 Albuquerque Journal
Jessica Kelley’s attorney says a statement by the District Attorney’s Office early this week sought to “shift blame for the mishandling” of the Victoria Martens homicide investigation from the state to his client.
In a motion filed Wednesday, defense attorney Mark Earnest asks a judge to impose sanctions – as severe as case dismissal – against the state for “once again purposefully generating pretrial publicity derogatory to Ms. Kelley and prejudicial to her right to a fair trial.”
Prosecutors in a response asked the court to deny the motion, which they say mischaracterizes the statement released by the DA’s Office.
Kelley is facing charges in the death of the 10-year-old girl who prosecutors now say was killed by an unknown man while Kelley baby-sat. She is set for trial Jan. 7 on charges including murder.
The motion comes after local media, including the Journal, published stories this week based on a statement by DA’s Office spokesman Michael Patrick. The spokesman wrote that the investigation into an unidentified fourth suspect in the case had stalled “in the absence of Jessica Kelley’s continued cooperation following the District Court’s rejection of her plea agreement.”
Kelley had been set to plead guilty in September to child abuse resulting in death and lesser charges, but the agreement was rejected by Judge Charles Brown, who determined there was not enough evidence that she was guilty of one of the crimes she had agreed to admit to.
Earnest also argued in Wednesday’s motion that the DA made comments to reporters around that time that were “calculated to shift blame to the court for his office’s failings.”
But the “carefully worded statement” released Monday, Earnest said, was intended “to imply that Ms. Kelley knows who John Doe is and that John Doe has not been apprehended, or perhaps never will, because Ms. Kelley is supposedly not cooperating with the state.”
Prosecutor Greer Rose wrote in a response that the DA’s Office released “a factual statement of the events in this case that led to a reduction in police resources dedicated to this investigation.” She said it was sent in response to a media inquiry and was not a comment on Kelley’s silence, “nor did it ‘blame’ her for any stall in investigation.” It instead shows that she tried to cooperate but was unable to “for reasons beyond her control.”
Earnest has requested a hearing on the motion, at which he said he intends to subpoena the spokesman “to testify about the creation and release to the press of the statement from the District Attorney’s Office.”
He wrote that New Mexico’s rules of professional conduct prohibit lawyers and their employees “from making extrajudicial statements such as this, particularly on the eve of a criminal trial.”
The “egregiousness of the state’s misconduct,” Earnest says, merits dismissal of the case.
Alternatively, he said, the court should consider monetary sanctions and an order blocking the state from speaking to reporters about the case through the trial, among other things.
Rose wrote that the DA’s Office’s comments “were limited and tailored to inform the public of developments in the investigation and nothing else.”
“The DA’s Office has not made any statements relating to the facts of defendant’s case and has specifically refrained from doing so during the course of this litigation,” she wrote.
A hearing has not been scheduled.