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Copyright © 2015 Albuquerque Journal
Brittany Cadena broke up with her boyfriend in mid-January. In the early-morning hours following Valentine’s Day, she said, he vandalized her car by painting hearts and “forever and ever” on the windows.
Three days later, she said, he accosted her in the garage of her parents’ two-story northwest Albuquerque home, using his “superior size and strength” to grab her keys and run away.
These are just two examples of the harassment Cadena has reported to the police several times over the past three months, but she feels powerless against him due to weak laws and low bonds.
Cadena, 20, isn’t just scared of her ex-boyfriend. She is afraid she is going to end up dead.
“I don’t know what he’s capable of, because he’s hurt me in the past,” Cadena said. “He knows I don’t want to be with him. How bad is it going to get next time he comes here?”
Thomas Duran, 22, is in custody at the Metropolitan Detention Center, accused, once again, of violating a restraining order protecting Cadena. It’s the fourth time he has been arrested this year and records show hundreds of incidents in which he has called, visited, followed or texted Cadena over the past three months.
Since late January, the state has filed 10 criminal cases against Duran charging him with stalking, harassment and violations of the restraining order. An assistant district attorney prosecuting one of the cases looked into whether he could be charged with felony aggravated stalking, even though he has never threatened Cadena with a weapon. An Albuquerque police officer is so concerned he is attending many of the hearings himself.
Duran’s mother and his public defender, Joseph Gribble, declined interviews, but said they would be willing to discuss events after the cases against him conclude. He has pleaded not guilty in all the cases so far.
Cadena says she has done everything she can to keep Duran out of her life, without success. She and her family said they feel the criminal justice system has failed to keep him away from her, and they worry about what could happen the next time he’s let out of jail.
Authorities, however, say there is little more that can be done without violating Duran’s rights. And, as in many cases of this nature, the courts must balance the rights of the accused with the rights of the accuser.
“Once a person is arrested, they have the right to reasonable bond and any accused person has the right to a trial,” said Margaret Strickland, the vice president of New Mexico Criminal Defense Lawyers Association. “We wouldn’t want a system where accusation equals guilt.”
Sometimes, however, these rights appear to disregard a victim’s safety, said Ellen Lloyd, the assistant district attorney representing the state in one of Duran’s cases.
“New Mexico is a state that takes defendant’s rights very, very seriously,” Lloyd said. “Because of that, there are also frustrations voiced that defendants might have more rights than victims.”
Looking over her shoulder
Cadena, who dated Duran on and off for five years, said her life has been turned upside down since she broke up with him three months ago.
She said she quit her job because Duran was following her to work and calling her throughout her shift. As an Albuquerque Public Schools police dispatcher, she was required to answer the phone, and, she told officers, he wouldn’t stop calling.
She eventually stopped leaving her house alone, even to take out the trash.
Cadena said she has changed her phone number nine times, but each time Duran has managed to learn the new one. She has blocked 43 numbers he’s used to contact her.
Cadena has repeatedly called police to report that Duran is stalking her. On Feb. 9, she and her now 2-year-old daughter received a temporary restraining order against him. And on Feb. 25, they were granted a 10-year order of protection.
But his behavior continued.
“I can’t even count every phone call or every time he has come to my house,” Cadena said.
‘Just a piece of paper’
In 2013, 5,352 protection orders were issued throughout the state, according to a report by Betty Caponera, director of the New Mexico Interpersonal Violence Data Central Repository. A survey cited in Caponera’s report found that more than half of all restraining orders in New Mexico are violated.
Sometimes, the violations end in bloodshed.
In 2010, Bernalillo High School teacher Stefania Gray and her boyfriend were killed by Gray’s ex-boyfriend, Ralph Montoya, less than five weeks after she received a temporary restraining order against him. Montoya pleaded guilty to two counts of second-degree murder. He was sentenced to 25 years in prison.
In 2013, Maria Aquino of Belen was shot in the stomach by her estranged husband, Pio Aquino, two months after she got a restraining order against him. Aquino pleaded no-contest to four charges, including aggravated assault on a family member. He is a couple months into serving a two-and-a-half year sentence.
The most dangerous time for a victim is right after they leave an abuser, said Lynn Gentry Wood, the executive director of the Domestic Violence Resource Center of New Mexico.
“The reality is a restraining order – an order of protection, an emergency restraining order, whatever phase you’re in – is just a piece of paper,” Wood said. “It’s not going to stop a gun.”
Duran has never used a weapon, but Cadena filed at least two complaints against him in the past alleging he slapped, pushed and hit her. Since their breakup, his texts have included graphic photos and messages insisting they will get back together. He also sent messages to her friend and mother, saying they would be sorry for keeping the two apart. Some texts mentioned Cadena’s daughter, who at times Duran claims is his. Cadena says she is not.
Albuquerque police officer Jim Edison said he fears for Cadena’s safety.
“He, in my mind, is a threat to her,” Edison said in an interview with the Journal in early March. “If she was my daughter, I’d be terrified. I’m terrified, and she’s not my daughter.”
Edison became involved in the case on Feb. 22, when Duran tailed Cadena to a party at the house of a Bernalillo County Sheriff’s deputy. Friends said Duran arrived at the party, left, returned, and left again, according to police reports. Someone called police, and Edison responded to the call.
Cadena’s case soon became personal for him.
“I’ve been on a lot of homicide calls so far this year,” Edison said. “In two of them, clearly the victim was murdered by her choice of man. That touches me.”
Edison said that during the 72-hour period he investigated before and after the party, he found Duran violated his temporary restraining order more than 100 times by calling or texting Cadena, and twice by coming within 100 yards of her or her home.
“My experience tells me this is really, really abnormal behavior,” Edison said. “This is over 100 violations, and, from what I understand, over 300 previous violations. They were only apart six weeks.”
When Edison interviewed Duran following his arrest, Duran repeatedly denied calling or texting Cadena after he was served the restraining order. A video of the interview shows Duran telling Edison he didn’t even have a phone, and he denied being at Cadena’s friends’ house the night of the party. He said he had moved on from the relationship.
Rights of the accused
An officer can arrest someone for violating a restraining order if a victim provides proof. Most violations are misdemeanors, however, and not a high priority for police.
Each time Cadena reported a violation, Duran left the scene before officers arrived. When officers couldn’t find him, they sent a summons to his house for violating the restraining order. They did this six times, according to police reports.
The day after the party, police got a warrant, and Edison arrested Duran as he was leaving his apartment that day. He was charged with 114 counts of violating the restraining order and with battery against a household member in connection with an incident that occurred late last year when Duran and Cadena were still a couple.
Less than 24 hours later, Duran paid $2,500 – 10 percent of his $25,000 bond – and was free.
Duran has since been arrested for violating the restraining order three more times. Once his bond was set at $100 cash. He is still in jail after his fourth arrest.
He has pleaded not-guilty in nine of the 10 cases that have come before a judge so far, and his lawyer has asked for review of competency hearings.
Edison said he knows a defendant has the right to bond, but he worries that, in some cases, it puts victims at risk.
“His rights that we’re trying to preserve shouldn’t trump her freedom to go to the store and to feel safe in her own home,” Edison said.
Like many suspects charged with misdemeanor restraining order violations, Duran was ordered to wear a GPS ankle monitor as a condition of his release.
On April 1, police said, he removed his monitor and left a note for his mother saying, “I can’t deal with this (expletive) anymore. Brittany will know where to find me.”
Cadena went to a safe house until Duran was found at the Bubble Lounge hookah bar the next night. He has been in jail since. Due to the number of cases, his combined bond is now set at $143,500. His next arraignment is on April 29.
What can be done?
Even when a defendant violates a restraining order more than 100 times, he or she is not considered dangerous by the legal system unless weapons are involved.
Violating a restraining order in most cases is a misdemeanor and often these cases result in little or no jail time, said Wood, of the Domestic Violence Resource Center.
“The biggest problem is the laws that we have allow them (nonviolent domestic violence incidents) to be misdemeanor charges,” she said. “Until we are ready to make stricter laws, there’s not much more that can be done.”
The District Attorney’s Office looked into whether he can be charged with felonies instead but decided the cases will remain misdemeanors.
“We’ve had some discussions with the domestic violence felony division – because there are so many violations – to look at an aggravated stalking charge instead,” Lloyd said. “But those usually involve more immediate threats including weapons.”
As each criminal case against Duran comes before the judge, Cadena returns to court to testify. And her mother continues to worry that he’ll be given another chance.
“Is it going to take until he harms my daughter or kidnaps her?” said Rachael Cadena, Brittany Cadena’s mother. “If we didn’t have any documentation whatsoever, that would be different. But we have proof for our case.”