Friday, December 31, 2004
Ex-Officer McCracken Won't Face Trial in Wife's Death
By Scott Sandlin
Journal Staff Writer
A district judge has cleared retired State Police officer Mark McCracken of murder charges stemming from his wife Melanie's death in a 1995 car crash near Los Lunas.
Retired District Judge David Bonem of Clovis was critical of State Police for not involving an independent agency early on when investigating one of their own.
But he said that, in the final analysis, there was no credible evidence of a crime, so there will be no trial.
Bonem's four-page factual and legal analysis was released Thursday, based on more than a week's worth of testimony in a highly contentious preliminary hearing that started just after Thanksgiving.
The hearing examined facts surrounding the crash that claimed the life of Melanie McCracken the night of Aug. 5, 1995. She was found dead in the back seat of the officer's car after a one-car accident on N.M. 47. He told investigators he was driving his wife to the hospital after finding her unconscious in their home.
Bonem, a former prosecutor sitting as judge pro-tem on the Valencia County case, found testimony by a critical prosecution witness, forensic pathologist Dr. Ljubisa Dragovic, chief medical examiner for Oakland County, Mich., "not plausible or credible."
Dragovic testified during the preliminary hearing in Albuquerque that asphyxiation by someone else was the only explanation for the death of a healthy 25-year-old woman.
Bonem said the only factual support, other than suspicions, for Dragovic's testimony was testimony by Melanie's brother Ryan Gamber and emergency medical technician Donnie Hobbs. And in both cases, their testimony about spousal abuse was "negligible," Bonem wrote.
Bonem expressed "similar reservations" about testimony by pathologist Dr. Thomas Henry, Denver's chief medical examiner, that Melanie McCracken had died of an accidental overdose of promethazine.
The defense theory was that Melanie McCracken suffered from a mental illness that might have prompted her to take a toxic dose of the antihistamine.
What he was left with, Bonem wrote, were conclusions by other pathologists, including one expressed in a 1996 autopsy report, that the cause and manner of death are best classified as "undetermined."
Suspicions raised by the investigation, which was conducted by State Police, helped fuel the reopening of an investigation against the officer. Melanie McCracken's mother, Nancy Grice, pushed to reopen the inquiry. She suggested another autopsy be performed, and her daughter's body was exhumed in December 2002.
Bonem said he believed it was "clear to all that the failure to involve an independent agency early on ... was not provident. Hopefully that lesson has been learned. But (McCracken) has not been linked to such improvident investigative techniques to the degree necessary to support a finding of probable cause."
McCracken's attorneys Peter Schoenburg and Cammie Nichols said justice was served.
"We feel sympathy for Melanie McCracken's family, but Mark McCracken did not murder his wife," their statement said.
Special prosecutor Randall Harris of Clovis said he was disappointed but added that Bonem "is the most experienced and qualified judge in New Mexico."
The case was a difficult one for the state, more than eight years after Melanie's death, he noted. Harris said in a statement that he had contacted Melanie's family in "one of the most difficult phone calls I had ever made."
McCracken was charged with first-degree murder and tampering with evidence by a Valencia County grand jury in 2003, but the charges were dismissed because an investigator for the prosecution was in the grand jury room during testimony.
Harris next opted to have the charges presented in a preliminary hearing, in which the judge decides whether there is sufficient evidence to establish probable cause of a crime committed by a defendant.
Bonem said there was not enough evidence.
Thirteenth Judicial District Attorney Lemuel Martinez, whose district includes Valencia County, said referring the case to a special prosecutor was the appropriate course of action.
Martinez, who became district attorney in 2001, said it was his decision to have the case reinvestigated, but the decision to take it to a grand jury was up to Harris.
Martinez sought a special prosecutor because his office works routinely with State Police.
He said his office has spent about $50,000 on the case, including $20,000 this year.
Whether Bonem's ruling represents an end to the legal case, he said, depends on Harris.
"Once we have a conflict we're out of it completely," he said.