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          Front Page




Retrial Planned in Murder, Rape Case

By Scott Sandlin
Copyright © 2011 Albuquerque Journal
Journal Staff Writer

          Prosecutors plan to retry Carl Case, the inmate who won a new trial order in March from a federal judge who found he had been unconstitutionally convicted of murder and rape of Nancy Mitchell in Carlsbad nearly 30 years ago.
        The Attorney General's Office, meanwhile, has filed notice it will appeal the detailed findings of U.S. District Judge Martha Vázquez, who ordered the state to notify her within 30 days whether it intends to retry Case.
        "Upon expiration of this 30-day period, the state shall take prompt steps to initiate proceedings against Mr. Case, or shall cause him to be released from custody," Vázquez wrote in her March 28 order. She said his trial had been "plagued with constitutional error," including failure to turn over exculpatory materials to the defense and recantations by key witnesses.
        Attorney General Gary King asked for the court to stay the order pending an appeal to the 10th Circuit — a request swiftly denied by Vázquez— and filed an affidavit from 5th Judicial District Attorney Janetta Hicks saying she intends to retry Case.
        Hicks declined to provide details when contacted Friday.
        "I'm sorry I can't comment at this time," she said in an email. "There is still pending litigation."
        Case's lawyers, meanwhile, have asked that he be permitted to remain at the state prison in Clayton where he's been for several years, and that either party be required to make an application to Vázquez before he's transferred anywhere else.
        The Northeast New Mexico Detention Facility, where Case works in the maintenance department and has earned good behavior credits, is far preferable to the county jail, says a document filed by the legal team that has been working on his exoneration.
        "Our position is that the retrial is supposed to proceed expeditiously, so we're trying to reach Janetta Hicks to find out what their plans are for that," said Santa Fe attorney Todd Coberly, one of Case's attorneys on the habeas corpus petition, on Friday.
        Documents filed by Assistant Attorney General Margaret McLean seeking a stay pending appeal cite from proposed findings of a federal magistrate who looked at the same record and found Case hadn't met the procedural standards for a retrial. The magistrate recommended that Case's petition be dismissed with prejudice.
        The state "believes that the conviction is just and will so argue on appeal," the Attorney General's Office says in its filing, adding that it would "create an undue burden on previous judicial resources to require a retrial."
        The state also contends the position taken by Case's team "fails to take into account the brutality of the crime in this case and the severity of the charges against" him.
        In refusing to halt the effect of her order, Vázquez wrote in a May 2 opinion that Case "demonstrated by clear and convincing evidence that no reasonable factfinder would have convicted him of the rape or murder of Nancy Mitchell ... and that the New Mexico Supreme Court's decision also amounted to an unreasonable determination of the facts in light of the evidence presented."
       





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