Over the years I have received messages from followers on online platforms like Twitter, Facebook, or email about certain facts or aspects of my case. Most questions I have addressed on my podcast, and others I have answered through my newsletter. But, some questions were repeated enough times that they merit their own space. And if you find that there is a question that I don’t answer, please don’t hesitate to submit your question in the box provided at the bottom of the page.
Why haven’t you sought out the assistance of innocence organizations like The Innocence Project or the Center on Wrongful
actually, I have requested their assistance and currently continue to do so. I first wrote to the New Mexico Innocence Project in 2009 following the denial of my direct appeal in the New Mexico Supreme Court. Unfortunately the program closed its doors due to a lack of funding. Below are two letters I received from the program.
Recently I wrote to the Innocence Project in New York, I have completed their questionnaire and am currently awaiting a response. However, it’s important to understand that there are more than 40,000 wrongful convictions in this country every year. Which means that there is an immense demand for their services, and unfortunately for the many wrongfully convicted where there is no DNA evidence to be utilized for exoneration purposes, finding advocacy or legal assistance from an innocence organization is a long shot.
What is the basis for your claim to innocence if it’s not DNA?
There is no DNA in my case because the circumstances of the crime and the ensuing investigation didn’t yield any. In fact, the only direct evidence of my supposed guilt was the self-serving accusation of the first suspect in custody Eloy Michael Montaño.
He gave four official, recorded statements to the police. Those statements served as both the basis of my arrest and the ensuing investigation. Literally hours after my arrest, before any investigation into the validity of Eloy’s statements could be performed, law-enforcement was making public statements to the media claiming that I was a conman and white-collar criminal and ensuring the public that I was the perpetrator of this horrific crime.
This created a tunnel vision where their ensuing investigation went towards proving Eloy’s statements true instead of simply following the evidence to the truth.
The District Attorney Kari Brandenburg likewise accepted Eloy’s unconfirmed narrative, but when the official investigation itself showed that he had lied to the police on numerous issues she realized that placing him on the stand as her star witness would prove counterproductive to her primary objective — convincing a jury to convict the individual she was accusing of this crime.
Brandenburg needed a way to present the jury with her only direct evidence of guilt (Eloy’s testimonial statements to police) without having to expose her case to the scrutiny of cross-examination. To make her stratagem work she needed a judge who was willing to simultaneously ignore the constitutional demands of the Sixth Amendment and the holding Supreme Court precedent Crawford v. Washington (2004), and a defense attorney who wouldn’t object to her stratagem as “prosecutorial misconduct.”
Brandenburg was successful.
Therefore, the basis to my claim of innocence is the uncontested and undeniable fact that I was found guilty without being afforded my constitutional right to confront my sole accuser — and one of the individuals who stood to benefit from my conviction. And, there was no defensive investigation ever presented to the jury in my defense (trial attorney admitted in a state evidentiary hearing in 2019 that he only spent $50 on investigation).
Which means that no defensive, investigative leads were followed or presented to the jury. For example, it was physically impossible for me to have placed the payphone call that lurid Garland Taylor to the residence where he was later killed. Why? Because as T-Mobile records showed I was logged onto the Wi-Fi at a Starbucks several miles away.
Then there was the issue related to the discovery of the victim’s wallet. It was discovered days after my arrest in the men’s locker room in a Jewish Community Center within walking distance from Dennis Melin’s residence in Tucson. There were only ten names signed into that locker room on the day in question and Dennis was one of them — the same man and ex-father-in-law who had been openly threatening my life for weeks prior to the murder.
Or, the fact that less than six hours after my arrest there was an article published online by a writer who normally wrote science fiction and science related articles for a university that portrayed me as a white-collar criminal. An article whose facts were never called into question — despite the fact that I have never been questioned, arrested, or charged for any such crime — and because of which I was never able to defend myself from these accusations or demonstrate the relevant motives behind their false source.
There were many more relevant leads that were never followed precisely because the police and prosecutor were never committed to seeing where the evidence and facts led them, they were only interested in arriving at a conviction.
If you are innocent why didn’t you go to the police immediately once the crime had been committed by your friend Eloy Montaño?
The short answer is fear, but allow me to unpack this a little further:
When I realized that a man had been killed I was simultaneously aware of the obvious, immediate danger and, that I was the target of whatever bizarre plot was currently unfolding. Calling the police seemed about as absurd as calling a park ranger while being pursued by an angry bear. Add to this predicament the fact that I have never in my life had a positive experience with the police. As many minorities can attest, calling the police is not going to make anything better.
However, as the reality of the situation began to sit in, it likewise became clear that I needed Eloy to turn himself in. But I also needed to know who was behind his actions and why.
What I didn’t anticipate (and I should have) as it related to the police was that: (a) he would sell them a false narrative; or (b) that the police would so readily accept, without even a cursory investigation, his narrative.
Why do you believe that the courts have so adamantly refused you justice?
This is probably the most difficult question to answer, precisely because I see so many improbable events colliding together to create the outcome of my wrongful conviction.
First, it’s relatively easy to see that who a victim is plays an enormous role into how elected officials in law-enforcement (e.g., Sheriff and District Attorney) respond to bringing someone to justice. And in this case, the victim was someone respected in his community, and, even more importantly, his immediate family were, and, currently are, high-ranking officials in the U.S. Marshals.
Added to this fact that the police only had two suspects. The first suspect (Eloy Moñtano) stepped into the interrogation room with an agenda: to sell the police a narrative that would let him walk out of there. He was successful, in large part, because his narrative somewhat corresponded to the media narrative at large — that I was a liar and a conman — that was not only convenient but well timed.
So far so good.
The problem for the police and prosecution, however, came about when actual investigative work started to take place. Eloy Moñtano, although cooperative, was proven on numerous points to have lied about his possession and disposal of the murder, weapon, his proximity to the crime (bloody footprint left at the scene), his actions prior to and following the crime, and his planning that had went into the crime long before I had traveled to New Mexico (facts brought forth through his own statements, handwriting analysis, the files retrieved from his home computer, and his bank records).
The challenge this presented to law-enforcement was how to proceed while saving face with both the media and the victim’s family. If they admitted error, then, both the elected Sheriff Darren White and District Attorney Kari Brandenburg would have received devastating blows to their already troubled political careers.
Most will probably understand what an embattled politician will do in this kind of predicament. Not all, but certainly most, will take the easy route and justify it by saying something like, “he may be wrongfully convicted today but, that’s why he has appeals.”
As for the courts and their unwillingness to uphold the law, that’s a more complicated issue to unravel. For years I believed that the court would see the blatant, cascade confrontation violation and overturn my conviction, just as they have in every other instance where the Sixth Amendment was violated in this manner. But, this hasn’t been the case.
Instead, the courts have gone to great lengths to find or invent reasons to avoid having to address the issue: if I am as guilty, as they claim, why then was it necessary to deny me the opportunity to confront my only accuser? Why cheat?
I encourage everyone to read the recent legal briefs presented on my behalf. The law is clear and the outcome of my trial cannot be trusted precisely because I was denied what the Constitution guarantees me: the right to confront my accuser.