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Judge ‘appalled’ about case

Copyright © 2013 Albuquerque Journal

A judge who felt compelled to declare a mistrial in a first-degree murder case last month declared himself “appalled” at the way the case had been handled.

In the end, 2nd District Judge Stan Whitaker faulted both prosecutors and police for having “dropped the ball,” leading to the dismissal with prejudice of the murder charges during the trial.

“It’s unfortunate we have to be here,” he said at the conclusion of a show-cause hearing Monday that he had called to ascertain what led up to the mistrial.

Whitaker, a former prosecutor, said justice required dismissal of charges against Oscar Orejel, the defendant in a fatal shooting at Truman Middle School playground on May 18, 2010.

“Professionalism was lacking by the Albuquerque Police Department and by the prosecution,” he said. “I don’t think it rises to the level of contempt.”

The dismissal of the murder charges came in the wake of what Whitaker termed the “smoking gun” – a gun recovered by federal firearms authorities not long after the shooting and later connected to the crime scene by testing at the Albuquerque Crime Lab.

The gun was not disclosed to the defense before trial, but the two prosecutors on the case, Natalie Strub and Leticia Simms, testified that they were never told anything about a gun in the materials they had been given by APD before trial, either. Strub had inherited the case after a succession of other prosecutors had handled it, and Simms came in just two weeks before trial.

Simms said she had heard nothing about an alleged murder weapon being recovered “until Detective (Kevin) Morant blurted it out in the hallway” just before he was to testify. She said she pulled him away and pressed him on the topic, and Morant said an unnamed Alcohol,Tobacco and Firearms agent had recovered a firearm somewhere in northern New Mexico. When she asked him how he knew it was the murder weapon, he told her, “They said it matched” and that he had written a report.

Another officer who responded to the scene of the shooting had testified that the evidence bag with casings from the scene was untouched, Simms said.

“Every other piece of evidence was not just inconsistent but contrary to a firearm being tested,” she said. “I didn’t think we had a good faith basis to believe there was a firearm.”

Morant, testifying after the prosecutors at Monday’s hearing, said that he had sent a one-page report on the gun to the prosecutor then on the case, John Duran, now a Metropolitan Court judge, but he didn’t know if Duran had received it. That was sometime after ATF told him in January 2011 that they had recovered the gun that killed victim Michael Barragan.

He also said the prosecutors told him not to mention the gun in his testimony, which Simms said was “a lie.”

Whitaker refused to permit Erlinda Johnson, who represented the prosecutors at the hearing, to call witnesses or conduct cross-examination of police witnesses. Johnson said afterward that Duran, the prosecutor to whom the gun report was presumably sent, would have testified that he, too, was unaware there was a gun tied to the crime scene or the defendant.

Whitaker noted that “this important piece of evidence was available for a couple of years before the case was tried,” and an inquiry into what happened was necessary for the sake of the deceased.

He declared himself a fan of the two prosecutors and the police officers,

“I hope we never see anything like this again,” he said.

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