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Judge: DA reckless with Kelley statement


Jessica Kelly looks to members of her legal team during the pre-trial hearing Thursday afternoon. (Jim Thompson/Albuquerque Journal)

Copyright © 2019 Albuquerque Journal

In an unusual hearing Friday afternoon – days before the first trial in the Victoria Martens case is set to begin – a judge determined District Attorney Raúl Torrez had been “reckless” in a statement he made to the media about defendant Jessica Kelley last month.

But state District Judge Charles Brown opted not to sanction Torrez – at least for now.

Kelley is charged with murder, child abuse resulting in death and tampering with evidence in the high-profile death of 10-year-old Victoria Martens.

She had been charged with rape as well, but on Friday prosecutors dismissed those counts, stating “after detailed forensic analysis by expert pathologists there is not sufficient evidence to connect Jessica Kelley to the charge of criminal sexual penetration.”

The trial is slated to begin on Tuesday.

Friday’s hearing was called to deal with a motion to sanction the DA’s office over a statement it made to the Journal in December.

“In the absence of Jessica Kelley’s continued cooperation following the District Court’s rejection of her plea agreement, the investigation into the unidentified male has stalled,” the statement read. “Detectives will continue to work any new leads that are developed, but it is our understanding that they will also support other investigations.”

Defense attorneys argued that the statement cast Kelley in a bad light for not “cooperating,” when, as a defendant, she has the right to remain silent.

During the hearing, DA spokesman Michael Patrick – who had been subpoenaed to testify – said Torrez had drafted the statement in response to requests for comment from the Journal about the departure of the detectives who had been working with prosecutors on the case.

Judge Brown, who is presiding over the case, blasted Torrez for the statement.

“I don’t know if it was (intentionally done in order) to deprive the defendant of a fair trial, or if the goal was to shift the light away from the District Attorney’s Office or to move light to the Albuquerque Police Department,” Brown said. “I find it to be woefully inaccurate in its ambiguity. It could be interpreted in many ways – all of them positive to the District Attorney’s office, some to the detriment of others.”


Michael Patrick Director of communications for the District Attorneys Office testifies in a court hearing for the Victoria Martens case Friday afternoon. (Elise Kaplan/Journal)

Prosecutors had insisted Torrez’s statement referencing Kelley’s role in the case was factual and denied any attempts to prejudice the public against her.

However, Kelley’s defense attorney, Mark Earnest disagreed, saying it was unnecessary and prejudicial and “yet another example of a pattern of behavior by the District Attorney’s Office in this case.”

Earnest – who said he has not asked for sanctions in any case in 10 years or more – filed a motion late last month asking for the state to be penalized or the case to be dismissed.

Brown said he agreed with the defense that Torrez should not have made the statement at all.

“The District Attorney also has an obligation to protect the due process right of the defendant,” he said. “He represents the state, which is everyone including the defendant and the defendant’s families … The District Attorney’s obligation is to the system.”

However, Brown decided to evaluate whether the statements had influenced potential jurors during jury selection next week before penalizing the state.

Following the hearing, Patrick sent an email defending the office and stressing that the public has a right to know about developments in the case.

“It is our obligation to the community to ensure truthful and updated information is made available in this polarizing case which has received international attention,” he wrote.

Victoria’s mother, Michelle Martens, pleaded guilty to child abuse resulting in death over the summer. Her boyfriend, Fabian Gonzales, is also charged with child abuse resulting in death and tampering with evidence. His trial has been delayed pending an appeal.