SANTA FE — The attorney for a man accused of killing a tortured boy who had been locked in a dog kennel maintains prosecutors and sheriff’s investigators held an improper interview with the boy’s mother and now wants her barred from testifying at trial.
The mother, Tracy Pena, is a key witness in the case against Jordan Nunez, the alleged killer. She herself has taken a plea deal for charges related to her son’s death.
A defense motion says what prosecutors described as a “witness prep” interview with Pena actually was investigatory in nature and also maintains that it was not recorded in an effort to keep information from the defense.
The District Attorney’s Office disputes the allegations.
Nunez, 21, is charged with child abuse resulting in death and several other child abuse and tampering with evidence charges. He’s accused of flipping over a dog kennel that 13-year-old Jeremiah Valencia was locked in and killing him in November 2017.
Nunez’s biological father and Pena’s then-boyfriend, Thomas Ferguson, allegedly forced Nunez and Pena to help dispose of the body off N.M. 503 near Nambé, where the family group lived.
Ferguson, who hanged himself in the Santa Fe County jail in April 2018, was initially pegged as the killer, but after his death the DA’s Office accused Nunez of dealing the fatal blow. Prosecutors say Jeremiah was tortured with implements included a heavy hammer and a homemade spear and was kept in the dog kennel in a diaper before he was killed.
Pena has agreed to serve a 12-year prison sentence after pleading guilty to one count of child abuse resulting in death. The agreement also calls for her to testify against Nunez.
In a motion filed Monday, Nunez’s lawyer, Mark Earnest, says Pena told him at an August pretrial interview that she was interviewed by two Santa Fe County Sheriff’s Office detectives and Deputy District Attorney Todd Bullion in a conference room at the sheriff’s office in June.
Pena said her lawyer was there and that she was read her Miranda rights before the two-hour interview. Earnest says the interview was deliberately not recorded and that Nunez’s constitutional right to confront a witness against him was violated.
Earnest adds that the state had never disclosed the existence of the interview. He now he wants Judge Matthew Wilson to exclude Pena as a witness in Nunez’s trial.
“What the State has done in regard to its secret two-hour deliberately unrecorded investigatory interview of its star witness who has a known history of giving inconsistent statements is egregious,” Earnest wrote. “It is, in fact, daring. It deliberately violates Jordan’s rights to due process of law.”
Earnest argues that the interview should have been recorded per state law because it took place in a police station and because Pena was in custody. Earnest also wrote that DA’s office has referred to the Pena interview as “witness prep” but that in fact it was investigatory.
“The decision not to record an interview of a defendant with two lead law enforcement officers and the Deputy District Attorney assigned to the case in attendance could be nothing other than deliberate and purposeful,” Earnest wrote.
A spokesman for the District Attorney’s Office disputes Earnest’s allegations.
DA’s spokesman Henry Varela said in an email, “The State strongly disputes these allegations, and this motion is consistent with tactics we have seen from this particular defense attorney time and time again. The State has been given 15 days to respond to this motion and a full response will be issued to the courts within that time frame.”
Sheriff’s Office spokesman Juan Rios wouldn’t comment because the case is pending.