Copyright © 2016 Albuquerque Journal
Sometimes the distance between what the police charge and what prosecutors can prove is a gap.
In the case handed to Assistant District Attorney Spirit Gaines, it was more like a chasm.
That is why on Wednesday, when the last of the five defendants who’d been charged with first-degree or second-degree murder of Richard Zarate came to court for sentencing, the longest sentence imposed was seven years for the person who actually beat up the 65-year-old victim in May 2014.
That was Marcus Ryan Hamilton, 22, who already has served two years in custody and who pleaded guilty to second-degree murder and using Zarate’s credit cards.
Also sentenced Wednesday was Phillip Martin, 27, who did not participate in the beating but pleaded no contest to theft or unauthorized use of the credit card of another. He was sentenced to time served and five years of supervised probation.
Most of the pleas were to fourth-degree felonies – a far cry from the initial charges in 2014.
The police report said Hamilton and his girlfriend Samantha Ross were friends and roommates of one of Zarate’s family members who had accused Zarate of a sexual assault that was under investigation at the time of the incident.
Police also suggested the motive was robbery, though a defense attorney said Wednesday in court that Hamilton and his girlfriend were retrieving their personal belongings from the home when the argument erupted over a police report.
“What was on the police report was not what we could have presented at trial,” Gaines told 2nd Judicial District Judge Christina Argyres. “In police reports, it looked planned, but it came out differently in pre-trial interviews.”
Prosecutors conducted more than 40 interviews and got DNA samples from boots that were tested.
Hamilton completely recanted his initial story that Martin was involved in the beating, and other statements corroborated this revised version.
As Gaines pointed out, the prosecution must review evidence looking at “reasonable doubt,” the jury’s mandate in deciding a case – whereas police bring initial charges based on the far lower evidentiary standard of probable cause.
“What you start off with is not always what you end up with, but we have to look at the facts as if it were presented at trial,” she said. “It’s been a very difficult case.”
It was only after the pre-trial interviews that plea offers were extended. The judge was bound by their terms if she accepted the pleas.
Ashley Zarate, 21, the victim’s granddaughter, and her friend Ross, 23, entered guilty pleas to credit card fraud charges and were sentenced to probation in July. Maxine Casados pleaded guilty to harboring or aiding a fugitive and was sentenced Tuesday to three years on probation with credit for the 10 months she spent in custody.
The pleas did not please some of the Zarate family, which wanted more prison time for the defendants. Judge Argyres was not free to impose it.
Over the weekend he was beaten, each of Richard Zarate’s four daughters mistakenly assumed their father was with one of the others, and he was not found for three days.
Zarate’s existing health condition and lack of medications to deal with the problem led to organ failure and his death 10 days later.
Leanne Hamilton, an assistant public defender unrelated to her client, said that at the time Marcus Hamilton went to Zarate’s home, “There was no plan, no intent to harm anyone.” She said that she had seen remorse by her client, who admittedly did “the wrong thing.”
Hamilton himself apologized and said he took full responsibility for his actions.
Martin’s attorney Stacey Ward called witnesses who spoke highly of the defendant’s temperament, character and participation as a drummer in his church band. She said the prosecutor was correct in stating the case “disintegrated,” and suggested police misconduct was behind the false statement implicating Martin, who had never even met Zarate.
“The Zarate family has been misled with regard to the two suspects,” she said, later adding, “Phillip Martin was not responsible for the loss of life of Mr. Zarate – not legally, not morally.”
Argyres, who often voiced sympathy for the Zarate family’s frustration with the system, said Gaines “has been a great prosecutor. And sometimes the facts don’t pan out.”
