Oklahoma Criminal Defense Blog

It was a typical case, unfortunately.  Daring the police to shoot him, the man waved a pistol, pointed the gun at his own head, even shot off a few rounds from his pistol.  Luckily, he had laid down his .45 pistol before he came into proximity of the police so they only used a Taser on him.  Too many times police answering a 911 call for help by by the person who is doing the shooting ends up getting shot by the police.  No surprise he was then charged with five counts of assault with intent to commit murder on the police, each count carrying a possible sentence of life in prison.

What was a surprise was the eventual outcome of the incident.  This man was a veteran of Iraq and his case was ultimately handled by a veterans court.  Finally enough people have gotten together to create a system that recognizes the Post Traumatic Stress Syndrome effects from service given for our country.

Everyone has heard about too much destructive behavior, too many suicide attempts, bar fights, domestic abuse and confrontations with the police from the returning veterans.  It is common knowledge that many soldiers and marines have been come back home in a dramatically deteriorated mental condition, but getting around to giving them the understanding of our justice system has been overdue and ad hoc.

Blame for bad behavior does not give up lightly in the U.S.A., however.  No matter how the behavior arose, no matter these veterans’ minds are victims of our wars, there is a strong impulse not to allow them to go without punishment.  Only reluctantly has our society taken responsibility for causing the harm to them, to give them an opportunity to improve rather then just punish.  The first special court for veterans was begun in Buffalo City Court in 2008, and now there are about 80 of them in the country.  Tulsa has one that is highly regarded.

First the prosecutor must agree that the defendant should be allowed this special treatment.  Sometimes the service must do some backtracking if the veteran has been given a discharge under other than honorable conditions, which is a common occurrence when a veteran is spiraling downward.  That discharge needs to be undone so the veteran can receive the rehabilitation benefits provided by the Department of Veterans Affairs.

The judges in the originally-assigned court where the felony charges were filed as well as the veterans’ court must approve the transfer of the veterans’ charges to the veterans court.  Sometimes the complaining witness must acceed to the transfer.  There can be other pushes and pulls, arrangements with veterans affairs, rehabilitation facilities, balancing acts, family arrangements.  The criminal defense attorney is the final source for those things.

A veteran with problems like these needs serious help.  And not all veterans facing charges like these even get the option of transferring their serious changes to to a veterans court.  Some face the full force of the criminal justice system.  But, unlike the tens of thousands of others charged in the criminal justice system every year, a veteran has available sources from the government that help him to come out of it, if he is motivated and if he is lucky.  As veterans, they have a history of accomplishing goals and thus have a higher prospect than the average citizen of addressing their problems and changing their behavior.  It is certainly appropriate that the society for whom the soldiers, sailors, marines and airmen fought should give special consideration to the veterans who incurred these problems in defense of their country.  Ideally, someday every person, however they incurred their problems, may be given more opportunities to change themselves with more programs that are now so underfunded or nonexistent.

Two men convicted of rape, robbery, and abduction in 1979 have joined the increasing crowd of exonerated from DNA evidence.  They served more than three decades behind bars, more than any others cleared by DNA evidence in Texas.  The DNA proof of innocence in this case was the first to reach back as far back to Dallas convictions in the 1970s.  Dupree is the twenty-first person exonerated by DNA evidence from a Dallas County conviction.

Cornelius Dupree, Jr., now 51 years old, and Anthony Ray Massingill, now 49, were the two inmates who got the good news. Dupree was going to be released in a Dallas courtroom after having been paroled last summer after serving 30 years of a 75-year sentence.  Massingill, however, will have to remain locked up awaiting  the results of another DNA test relating to a second rape conviction for which he is serving a life sentence.

Dupree and Massingill were convicted of attacking a 26-year old woman and her male friend at a pay phone outside a liquor store on an Interstate highway.  The man and women were confronted at gunpoint and carjacked.  The man was allowed out of the car, and the girl was raped at gunpoint.  The two perpetrators debated whether to kill her, then threw her out of the car, threatening to kill her if she called the police.  She was found unconscious on the highway.

About five days after the crime two, two miles from the liquor store which was the original abduction, two unidentified men tried to sell the woman’s rabbit fur coat  Her stolen car was found in the parking lot.  Authorities do not believe those two men are Dupree and Massingill.   But Dupree and Massingill were arrested two miles from the location of the abduction about ten days after the crime because they matched the description of men wanted in similar case.  At the arrest, Massingill had a gun, but Dupree was unarmed.

Once arrested, Dupree and Massingill were mistakenly identified by the rape victim in a photo lineup, but her male companion could not identify their photos.

Once the matter arrived in the courtroom, however, Dupree and Massingill became officially became victims of another unreliable eyewitness identification.  Both the young woman and her male companion pointed out Dupree and Massingill to the jury as the perpetrators.   In an indication of the unreliability of the identification in this case, the young woman had trouble at trial of keeping straight which defendant was which.  The criminal defense attorney must have raised some serious questions about her certainty of that identification, but, of course, the prosecution told the jury the evidence was air tight.

Massingill was given three 10-year sentences and a life sentence from this liquor store abduction plus a 75-year sentence from another 1979 rape and robbery.  Dupree received a 75-year sentence for the liquor store robbery, but he was not tried for and rape or abduction.   He too was a suspect in the other 1979 rape and robbery, but the grand jury declined to indict him for that crime.

Dupree wrote the Innocence Project for help.  In 2007, the Innocence Project accepted the case.  It contacted the Dallas County District Attorney’s office about the case in 2008, and the District Attorney’s office then asked the crime lab to search for any evidence in the case.  The lab found it had pubic hairs from the rape exam that contained genetic from two men, the two men who committed the abduction, rape and robbery in question.  The DNA did not match either Dupree or Massingill.  That DNA evidence has not been matched to anyone, but it may not have been entered yet into the national DNA database.  Even if the lab does not find any DNA to compare for Massingill’s other case, he may be freed because both crimes were thought to have committed by the same men as the crime committed with Dupree.

Dupree would have been released on parole earlier than last summer on his 75-year sentence if he had admitted his guilt.  Such admission is required for rehabilitation, of course.  The rehabilitation system is not constructed for the innocent.

Since the attacks of September 11, 2001, a vast system has grown up to collect information about Americans has grown up.  No one knows how many programs exists within it or even who many people it employs or how much it costs.  It is the largest, most technologically advanced in our history.  It is designed to collect, analyze information about thousands of Americans, many of whom have been charged with a crime, feeding information from the F.B.I., local police, state homeland security and military criminal investigators.

Such snooping is new to America, but Israel and Britain, among others, have had such domestic security.  There are 3,984 federal, state, and local organizations working on domestic counterterrorism.  The F.B.I. is building a database with the names and certain personal information whom a local police officer or fellow citizen believes is acting in a suspicion manner.  It is accessible to an increasing number of local law enforcement officers, so it may end up as public records.

Some law enforcement agencies have sought to learn more about Islam and terrorism, so they have hired trainers.  These have included self-styled experts whose views on Islam and terrorism are considered inaccurate and counterproductive by the F.B.I. and U.S. intelligence agencies.  Yet the Department of Homeland Security sends the state and local agencies in its network intelligence reports with little helpful guidance.

Of course, everyone in government believes in the program, certainly the players in the  executive branch of the federal government.  Their instincts are all toward security.  “The old view is that if we fight terrorists abroad, we won’t have to fight them here’ is just that – the old view, “ Department of Homeland Security Secretary Janet Neopolitano told police and firefighters.  The Obama administration claims its local approach is the preferred approach, but the effectiveness of its programs is difficult to assess.

Neopolitano is a former governor of Arizona, which built one of the most extensive state  intelligence bases outside New York to combat illegal immigration.  “See Something, Say Something, “ was the catch phrase in Arizona.   Now, traffic signs in Washington, D.C. ask motorists for “Terror Tips,” and to “Report Suspicious Activity.”  Now, Neopolitano has enlisted as partners in her campaign Wal-Mart, major league baseball, Amtrack, and hotel chains.  She compares this fight against terrorism to the cold war fight against Communists.

Now in Arizona, members of the Maricopa County Sheriff’s Facial Recognition Unit use a type of equipment common in war zones, recording 9,000 biometric digital mug shots per month.  Now along the Mexican-U.S. border, the U.S. Customs and Border Protection flies predator drone along the border equipped with real-time, full motion video cameras.  These are the same aircraft as used in Afghanistan, Iraq, and Kosovo, manufactured by General Atomics.  Hand-held, wireless fingerprint scanners are being sold to police departments to check motorists identity.  Such scanners were used by American troops to register residents of neighborhoods in Iraq.

Special operations forces fighting overseas demanded technological advances that are now used at home.  In combat that technology enabled the quick use of biometric identification, captured computer records and cellphone numbers to give the troops the ammunition to launch their next surprise raid.  Now Department of Homeland Security has helped the Memphis Police Department purchase surveillance cameras that monitor high-crime housing projects, problem street corners, and bridges and other infrastructure.  It helped to pay for license plate readers and helped with the costs of setting up the crime analysis center in Memphis.  The D.H.S. has given Memphis $11 million total since 2003 in homeland security grants, most of which Memphis used to fight plain vanilla crime, not Al Queda.  There is no such thing as spending too much money to fight crime, so long as the taxpayers are willing to keep paying the bills.

Memphis is using the new equipment.  The police department all information it can get from government and private industry.  It now has daily updates on the names and addresses of subscribers from the utility company.  Instead of waiting for a patrol officer in the field to decide which license number to input, the officers now just drive around using one of their fancy new license plate readers installed on the hood of the car read and transmit to the center every license
they drive by.  The computer in the vehicle will tell the officer in the field the name, address and criminal history of the vehicle’s owner, along with the names of any one else who lives at that address with a criminal history.

The F.B.I. has 90,000 sets of fingerprints stored in Clarksburg, W. Va.  Stored there are fingerprints from this country with those collected by American authorities from Saudia Arabia, Iraq, Afghanistan and Yemen.  Now the F.B.I. has developed sharing its fingerprints files with D.H.S. and the Department of Defense fingerprint databases.

Meanwhile the F.B.I. maintains a top-secret vault on the fourth floor of the J. Edgar Hoover building. Kept there are the profiles of thousands of Americans, none of whom have been even accused of a crime.  Instead, the profiles are of people who have acted in a suspicious manner to any deputy sheriff, police officer or neighbor.  This should be a concern for all citizens, not just criminal defense lawyers.

Suzanne Wooten was sworn in as judge of the Texas 380th District Court in January, 2009. She defeated Charles Sandoval in the 2008 Republican primary. Sandoval had held the judgeship for the 12 previous years and had never previously had an opponent.  The 380th District Court is in McKinney, Texas, in Collin County, the county immediately north of Dallas County.

Collin County District Attorney John Roach has been investigating now-Judge Wooten, apparently for election fraud.  This investigation has been going on for a year, and Peter Schulte, a lawyer representing Judge Wooten says that is too long to keep her under a cloud of suspicion.  Roach’s office has presented evidence to several grand juries, but has never asked the grand jury for an indictment.

In Texas, as in United States District Court, all criminal charges must come for the indictment of a grand jury.  Oklahoma law permits, in addition to proceeding by indictment, the signing of an Information by the prosecuting attorney to initiate such charges.  Without an indictment, there are no criminal charges. Grand juries are in session for only so long, to be replaced by a grand jury with different members.  The grand jury that hears the evidence must act on that evidence to decide whether to indict.

Now Judge Wooten, through her lawyers, has filed an objection to this continuing saga in a 12-page document.  She claims Roach is seeking her resignation, saying this latest grand jury, possibly the fifth grand jury to be used to invade her private, personal and professional life for purely political, harassment and/or intimidation purposes.  She claims the judge she defeated, Charles Sandoval, met with district attorney supervisors the day after the election and said Sandoval believed the only reason he lost was that Wooten “must have cheated.”  She offered to talk to prosecutors several times but was not accommodated.  According to Peter Shulte, Assistant District Attorney Chris Milner, chief of the special crimes unit, mentioned election fraud but refused to give any specific allegations that were being investigated.  Milner allegedly encouraged Wooten to resign, and Schulte claimed, even urged Wooten to resign immediately before authorities took “her law license, her family, her home, her liberty and her reputation.”  If those words were indeed used, that is the most gross of threats. It is so strong, it sounds like a bluff.

Roach asked the Texas attorney general’s office a year ago to assign a prosecutor to the investigation.  Assistant Attorney General Harry White wanted Judge Wooten to appear before the grand jury a week ago, but a judge ruled that the grand jury’s term ended and evidence would have to be presented to a future grand jury.  District Attorney Roach says he is not directing White’s investigation.  Another grand jury begins this month.

Now three former prosecutors who served under District Attorney John Roach have criticized the lingering investigation.  Sharon Curtis, Mitch Nolte, and Hunter Biederman, have spoken out publicly against the length of time it has taken to investigate without bringing charges. One said even the most complex of cases should not take more than two or three months to go to the grand jury.

Roach’s response is to essentially a stone-wall and to criticize his criticizers.  He responded that the case against Wooten is taking so long because it is complicated but would not elaborate.   He said Wooten could have ended things if she had agreed to appear before the grand jury last week.  Wooten’s lawyer, Peter Shulte, however, said Wooten said she received only 48 hours notice after a year-long wait.  He said a sitting district judge was entitled to more notice than that.

Roach has been district attorney since 2002 and has not filed for re-election in this year’s Republican primary.  His term of office will end December 31st.

The Supreme Court of South Dakota ruled a violation of the 4th Amendment to the U.S. Constitution, a police search when they conducted a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking violations.

After incurring two overtime parking citations in the same morning, a car was towed by police and impounded.   At the impound lot, a police officer observed a watch and some other personal property inside the car and ordered the car unlocked to perform an inventory of its contents.  Using a “standard” form to list the property found, a police officer performed an inventory of the contents of the car according to police procedures.  Inside the unlocked glove compartment, police found some marijuana in a plastic bag.  All property, including the marijuana, was sent to the police department for safekeeping.

Respondent Opperman was later arrested and charged with possession of marijuana.  His motion to suppress was denied, and he was convicted by a jury.    He was sentenced to 14 days in jail and a fine of $100.  That conviction was reversed by the Supreme Court of South Dakota in a ruling that found an illegal search and seizure in violation of the Fourth Amendment.  That ruling was appealed to the United States Constitution and was decided in South Dakota v. Opperman.

The Supreme Court of the United States has recognized for years the distinction between the search of a building versus the search of an automobile.  According to the Court’s decision in Carroll v. United States in 1925, the “inherent mobility of automobiles creates circumstances of exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible.”  The Court stated the expectation of privacy was less in an automobile than in a home because its function is transportation and “seldom serves as one’s residence or as the repository of one’s personal effects…”

The Court found state courts have “overwhelmingly” concluded that, even if an inventory is characterized as a search, the intrusion is constitutionally permissible.  The Court noted that the majority of Appeals Courts have approved inventory procedures as reasonable police intrusions, citing decisions from the Fourth, Fifth, Sixth and Ninth circuits.

The Court cited its prior decision in Cady v. Dumbrowski, which had approved a warrantless search of an automobile which had been towed to a private garage even though no probable cause existed to believe the vehicle contained fruits of a crime.  In Dumbrowski, “the sole justification for the warrantless incursion was that it was incident to the caretaking function of the local police to protect the community ‘s safety.”

The Court distinguished its holding in Preston v. United States in 1964, in which the Court had invalidated a car search after a vagrancy arrest, saying Preston stood for the proposition that “the search challenged there could not be justified as one incident to an arrest.”  The Court said Preston did not raise the issue of the constitutionally of a protective inventory of a car lawfully within police custody.  Preston was not, therefore, at odds with the Court’s decision in Opperman, the Court ruled.

One of the ghosts of Hurricane Katrina has surfaced – again.  A fifth former police officer has been charged in federal court for covering up the killings of unarmed civilians in the days after Hurricane Katrina.  Ignatius Hills was charged in New Orleans federal court with obstructing justice and misprison of a felony.  Hills resigned from the police force less than a week ago, obviously in anticipation of this filing.

A week after Hurricane Katrina, police were called to the Danziger Bridge on a report that shots had been filed.  Lance Madison, a 40-year-old mentally disabled man, and James Brissette, who was 17, were both shot to death by the police.  Police arrested Madison’s older brother, Ronald, on eight counts of attempted murder of a police officer.  All those charges were later dropped, obviously charges trumped-up by the police to cover their wrongdoing.

Four other former police officers and one civilian have pled guilty to covering up the shootings.  They all plead guilty to plea agreements.  Hills has been charged by Information rather than Indictment, indicating he is going to plead guilty with a plea agreement.  The reason this is indicated by the filing of an Information is that a person has a right under the fifth amendment to the constitution to be charged only by indictment by a grand jury.  The government would not bother to file the Information unless Hills’ attorney, Robert Jenkins, had agreed to plead to it.   Hills is facing a maximum sentence of eight years.

The government Information claims Hills and others shot at unarmed people and then covered up to make the shootings appear justified.  Hills allegedly wrote a police report which accused Lance Madison of eight counts of attempted murder, even though Hills had no firsthand knowledge of wrongdoing by Madison.  The Information claims another officer dictated the report to Hills, who signed it, even though Hills believed Madison was being framed.

Hills is accused of getting together with other officers to develop false stories about the incident.  Those get-togethers included one particular secret meeting in January, 2006.  The government also accuses Hills him of giving false testimony when he testified to a state grand jury in October, 2006.

A former A.T.F. agent is in jail, awaiting prosecution for a fabricated drug buy.  Brandon McFadden was an agent for the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives for seven years before resigning last year.  He was arrested by the F.B.I. and is now in the Tulsa County Jail awaiting prosecution in U.S. District Court there.  McFadden pled guilty soon after he was arrested to participating in a drug conspiracy.

McFadden is alleged to have coached a drug informant and fabricated a drug buy on May 8, 2007.   Not charged but implicated along with McFadden in the crime is Jeff Henderson, a Tulsa Police Officer.  Upon pleading guilty, McFadden named Henderson as a co-conspirator in the drug conspiracy, saying he and Henderson stole drugs and money and set up drug dealers to sell drugs on their behalf.

The drug buy with the coached informant led to the conviction of Larita Annette Barnes and Larry Wayne Barnes of federal drug charges.  They were both released from federal prison last July because the informant, Ryan Logsdon, said he lied about the drug buy.   Larry Barnes had served about a year on a 5 ½ year sentence.  Larita Barnes had served about a year on two concurrent 10-year sentences.

Jeff Henderson was put on paid leave from the Tulsa Police Department in April after the local newspaper published the report about the Barnes’s being released from prison.  He should be getting ready for prison because McFadden will do whatever he can to help the U.S. Attorney to convict him.

Tulsa County District Attorney Tim Harris has ordered a review of the cases in which Henderson had been involved, which could number more than 100.   Harris announced in court that he could not release any information because there is an ongoing grand jury investigating matters, but Harris’s office acknowledged that it was contacted by Jane W. Duke, special prosecutor assigned to investigate corruption in law enforcement in Tulsa.  She is U.S. Attorney for the Eastern District of Arkansas.

This sort of thing does not come as a surprise to criminal defense lawyers.  Some people, however, believe uncritically in “law enforcement,” they will alibi without reason for these false-swearers.   Some people will continue to believe such “law reenforcement” types are the good guys, in spite of clear evidence they are the bad guys, law-breakers, perjurors, those who bear false witness and wrongfully put people in prison.  There are those who believe that just because someone wears a uniform, that someone can do no wrong.  That is a dangerous attitude, that someone can commit no wrong.  It is not the principle that drives our American system of justice, and that is why McFadden is being prosecuted.

Veteran’s Court was created to help people.  Veterans Treatment Court in Tulsa treats veterans who would otherwise face criminal charges in a different courtroom in the Tulsa Count District Court.  It is one of four in the country   It is being considered as a model by the National Drug Court Institute.

Representatives from five states have come to observe Tulsa County Special District Court Judge Sarah Day Smith conduct proceedings.  The participants report to the judge on their progress through the five phases of the program.

Veterans of wars in Vietnam, Iraq, Afghanistan appear.  They carry the psychic wounds of their service.  It usually manifests itself to the courts as drug problems, but those are only part of the problems in the lives of the veterans.  Some of them homeless, unable to hold a job, they need help instead of prosecution.  Of the homeless in Tulsa, 20% are veterans.  Many have been to drug treatment center after center.

They tell their story in open court.  Just as in drug court or in AA, they share their lives and their success in the treatment program.  The others in attendance share their feelings of accomplishment, their hopes for the future, since they will address the court in turn.  There are 48 participants now in the court, and they each have up to 12 months to complete the program.

District Judge Tom Thornbrugh and District Attorney Tim Harris have pledged their support of the program.  The District Attorney acknowledged that the veterans need to be looked at differently once they come into the criminal justice system.

Judge Day instigated the Tulsa veterans court in 2008 after she had seen one in Buffalo, New York.  She was convinced it worked.  Veterans commonly suffer from post-traumatic syndrome and traumatic brain injuries related to their military service.  No matter how desperate, they rarely ask for help.

As in drug court, familiar to criminal defense lawyers, the participants had to plead guilty to the criminal charges they were facing in order to enter into the Veterans Court process.  If they violate the terms of their probation, they face the maximum sentence of the charge to which they pled guilty.   Only two have dropped out and went to prison.  But veterans organizations and the U.S. Department of Veterans Affairs help out with services.   Only about 10% of the participants in the program had applied for the veterans benefits before entering Veterans Court.

Joel Stoval filed a motion to withdraw his guilty plea in Freemont County District Court in Canon City, Colorado.  He had pled guilty to first degree murder in 2001 shootout which left a deputy sheriff dead and another police officer paralyzed.

District Judge Julie Marshal denied the motion to withdraw the plea,  She said Stoval’s attorney’s performance “not deficient.”  The judge heard six hours of testimony from Stoval and from his attorneys at the time of the plea, assistant public defenders Patrick Murphy and Doug Wilson.

Stoval had entered a plea to first degree murder of Freemont County Deputy Sheriff Jason Schwartz and the attempted of Florence Police Corporal Toby Bethel, who is paralyzed from the shooting.  He also pled guilty to 16 other counts of attempted murder for shooting at other police officers at the shootout.  He was sentenced to life imprisonment plus 800 years.

The shootout had arose when  Deputy Schwartz arrested Stoval and his twin brother, Michael, because Joel Stoval had shot a neighbor’s dog and a heated altercation began between the Stovals and the law enforcement officers.

At the hearing to withdraw his plea, Stoval testified he felt like he was defending himself, but his attorneys never discussed the issue of self-defense with him.  “They excluded the fact that Toby Bethel was reaching for his handgun,” Stoval testified, at which Bethel’s wife, Mary jumped up out of her seat in the courtroom and yelled, “You are such a #@& liar.”  She then left the courtroom.

Murphy testified to the contrary that Stoval had told him, “Officer Bethel did not see Joel because he was in the shadow next to the truck he had stolen.  I didn’t see any way the argument of self-defense could be made.”  Wilson testified similarly.  “I did not think we had a self-defense that we could have sold to the jury,” Wilson testified.

Joel Stoval testified the entire focus of the plea bargain was to prevent his brother from receiving the death penalty.  “I had to just take the advice of my attorneys.  I had no choice.”

Both Murphy and Wilson testified Stoval did have a concern for his brother, Michael, both attorneys nevertheless thought it was in Stoval’s best interest to accept the plea agreement to avoid the death penalty for himself, especially since they did not know if Bethel would survive.   If Bethel died, the chances of Stoval’s receiving the death penalty would increase significantly.

Assistant District Kathy Eberling asked Murphy and Wilson whether they thought their representation of Joel Stoval was deficient.  Both replied, “No.”  “We spent sufficient time to make sure he understood the charges, evidence and potential of the death penalty.  This was a case in which the facts were not greatly in dispute,” Murphy testified.

The irony is that even if Stoval had gone to trial and the District Attorney had sought the death penalty and a three-judge panel had then awarded the death penalty, it would have been overturned when the United States Supreme Court ruled three-judge panels were unconstitutional.  Stoval would therefore have ended up with a life sentence, instead of the life imprisonment plus 800 years, which he received.

As criminal defense attorneys will tell you, an attorney is expected to defend someone suspected of a crime.  That was not the case in New Mexico earlier this month.  The lawyer called the police, but she did so when a man apparently told her to do so.

Lauren Oliveros called the police in Albuquerque, New Mexico, to report a man walked into her law office and told her had killed two people the day before and wanted to turn himself in.  The man told her where the bodies could be found.

Ralph Montoya wanted to give himself up.  He was already on bail for attacking these very two victims weeks before.  Police found the bodies of Stefanie Gray and her boyfirend, Hector Torres at Torres’ home.  Ms. Gray was a high school teacher, and Torres was a professor of English at the University of New Mexico.  Gray was also a graduate student at the University of New Mexico due to defend her thesis this month.

Following the tip from Montoya, police went to Torres’ home, kicked in the back door and found their bodies in the house.  Police reported they found a handgun was in Torres’ left hand, pointing at his head.  One officer said the handgun appeared to have been placed there, but that could be one of those “police opinions” that creep into the courtroom and are claimed to rest on some sort of expertise, but which are really based on nothing more than “hunch”.  In other words, police routinely claim to know things that they really do not know.  But none of that apparently matters to solving this case.

At the time of these deaths, Montoya was on bail for attacking Ms. Gary and Mr. Torres. In that earlier incident, Montoya reportedly forced his way into the front door, chased Gray into a back bedroom, jumped on her and kicked her, all while Torres was fighting him.  Gray broke free, Montoya pulled a knife, and Torres started talking.  Torres must have been a pretty good English professor because he talked Torres into dropping the knife.

Gray then obtained from the court in Sandoval County a restraining order against Montoya, who was then released on bail on the charges of kidnapping, aggravated assault with a deadly weapon, aggravated assault on a household member  and aggravated burglary.  It was while on bail for this incident that Montoya allegedly confessed to going to Torres’ home and killing Gray and Torres.

This was not Montoya’s first rodeo.   In 1995, Montoya pleaded guilty to charges of stalking, assault, attempted arson and attempted breaking and entering after a complaint from a student at New Mexico State University in Las Cruses.  For that, he received probation for a year.      But that was not enough, so in 1998, another woman from Las Cruses obtained a restraining order against Montoya.  She claimed that Montoya had made 15 to 20 threatening telephone calls a day for two months and that she had seen him near apartment window several times.

With a belly still not full, Montoya had an incident in 2005 with a different woman, this one from Rio Rancho.  She complained that Montoya had harassed her for a month after they had dated briefly.  She said he would show up at her home at her new boyfriend’s home, but no charges were ever filed.

Nadine Hamby, spokeswoman for the Albuquerque Police Department, summed up Montoya’s attitude pretty well.  “Obviously ‘no’ was not something he wanted to hear,” Hamby said.   As to the subjects of Montoya’s serial attention, she said: “It appears he wouldn’t leave them alone until he found someone new.”