One
hoped
that
Justice
Alito
opening
the
door
to
basing
constitutional
law
on
the
rantings
of
17th
century
witch
hunters
would
usher
in
a
new
era
where
we
could
finally
get
back
to
some
old-fashioned
stake
burnings.
Nothing
is
more
“deeply
rooted
in
the
Nation’s
history
and
traditions”
than
putting
a
stop
to
Strega
Nona’s
noodle
nonsense.
Alas,
the
box
office
success
of
Wicked
has
beguiled
the
New
Mexico
supreme
court
into
complacency,
tossing
a
murder
conviction.
APPARENTLY
prosecutors
telling
the
jury
that
the
defendant
has
the
power
to
control
men
through
her
menstrual
blood
is
frowned
upon.
In
all
seriousness,
you’ve
probably
made
it
to
this
point
in
the
story
believing
there’s
no
way
the
facts
of
this
case
match
the
clickbait
headline.
Friends,
let
me
direct
you
to
the
Santa
Fe
New
Mexican:
“Bolstered
with
copious
amounts
of
other
inflammatory
and
inadmissible
evidence,
including
allegations
that
Defendant
was
a
‘witch’
and
a
‘bruja’
…
who
controlled
Mr.
Montoya
through
her
menstrual
blood,
ADA
Ripol
embarked
on
a
three-day-long
exercise
in
pathos
and
character
assassination
that
utterly
deprived
Defendant
of
a
fair
trial
that
is
guaranteed
by
the
New
Mexico
Constitution,”
the
court
wrote.
As
everyone
knows,
these
statements
should’ve
put
a
stop
to
the
trial
so
the
defendant
should’ve
been
weighed
against
a
duck
to
prove
the
veracity
of
these
claims.
That’s
just
jury
instructions
101.
In
all
seriousness
though,
this
is
a
real
life
state
supreme
court
opinion.
The
“Mr.
Montoya”
in
question
pleaded
guilty
in
the
kidnap
and
murder
of
Joseph
Morgas.
Montoya’s
wife,
Desiree
Lensegrav,
was
later
sentenced
to
45
years
based
on
her
alleged
involvement.
Being
New
Mexico,
the
case
obviously
involved
meth,
with
Morgas
making
a
stream
of
horrific
comments
to
Lensegrav
at
a
drug
house,
which
prompted
Montoya
to
confront
Morgas,
killing
him
during
the
ensuing
struggle.
You’re
probably
thinking
the
prosecutor
was
just
colloquially
if
misogynistically
insinuating
that
the
defendant
“controlled”
men
with
her
wiles
or
in
some
mutually
endorsed
neo-Pagan
cult.
And
while
the
prosecutor
would
occasionally
use
terms
like
“wannabe”
about
the
defendant’s
witch
status,
the
case
did
not
shy
away
from
“yo,
she
might
actually
be
supernatural!”
ADA
Ripol
then
began
his
witchcraft
accusations.
He
told
the
jury
that
the
first
witness
would
be
Rodriguez,
the
owner
of
the
drug
house,
who
would
testify
that
he
watched
Defendant’s
eyes
turn
“black.
With
fury.
And
rage.
And
it
was
like
a
Hollywood
movie.
He
could
feel
the
wind
coming
out
of
her.”
ADA
Ripol
stated
that
“in
addition
to
her
eyes
turning
black
and
the
wind,”
Rodriguez
would
also
testify
“that
[Montoya]
was
like
a
zombie
when
he
was
around
her.
And
that
[Defendant]
suggested
to
.
.
.
Rodriguez
on
several
occasions
that
she
was
a
witch
and
that
she
would
put
menstrual
blood
concoctions
into
[Montoya’s]
food
to
control
him.”
The
drug
house
owner
thought
witchcraft
turned
Montoya
into
a
zombie?
I’m
no
Hogwarts
graduate,
but
I’m
thinking
that
might’ve
been
the
meth.
In
this
case
of
severe
and
pervasive
prosecutorial
misconduct,
exacerbated
by
a
lackluster
defense,
we
hold
that
an
Assistant
District
Attorney
who
uses
opening
statements
to
expose
the
jury
to
incriminating
allegations
from
a
non
testifying
codefendant,
repeatedly
accuses
a
defendant
of
witchcraft,
and
relies
on
inflammatory
and
inadmissible
evidence
throughout
the
case,
has
knowingly
committed
misconduct
so
unfairly
prejudicial
and
with
such
willful
disregard
for
reversal
on
appeal
that
retrial
is
barred
by
double
jeopardy.
A
“lackluster
defense,”
you
say?
You
mean
to
suggest
a
defense
team
that
didn’t
shut
down
the
“lady
flower
hemomancy”
allegations
displayed
insufficient
zeal?
If
you’re
wondering
where
the
trial
judge
was
in
all
of
this,
the
opinion
notes
that
the
judge
called
the
attorneys
to
the
bench
seemingly
to
“wink
wink”
to
the
defense
that
this
is
the
part
where
they
should
be
saying
“objection”
to
no
avail.
You’d
think
a
witch
with
the
powers
of
Satan
at
her
command
could
at
least
force
a
lawyer
to
object.
Or
borrowed
Roy
Cohn.
Of
all
the
abuses,
the
worst
—
yes,
worse
than
the
witch
stuff
—
is
the
part
the
court
describes
as
exposing
“the
jury
to
incriminating
allegations
from
a
non-testifying
codefendant.”
Because
what
they
mean
is
that
prosecutors
used
the
opening
statements
to
share
Montoya’s
claims
incriminating
Lensegrav
but
decided
—
before
opening
statements
—
to
yank
Montoya
from
the
witness
list
claiming
he
was
a
hostile
witness.
Thus
taking
full
benefit
of
Montoya’s
inflammatory
claims
throwing
his
wife
under
the
bus
without
offering
the
defense
an
opportunity
to
cross.
Then
they
invoked
Montoya
again
in
closing.
But
also…
this
case
was
cracked
because
Montoya
subsequently
tried
to
murder
Lensegrav.
So
when
prosecutors
decided
to
inject
Montoya’s
statements
incriminating
Lensegrav,
they
did
so
knowing
he’d
tried
to
kill
her.
This
is
the
part
where
most
courts
shrug
and
dismiss
all
of
this
as
“harmless
error.”
But
the
conduct
shocked
the
New
Mexico
supremes
to
the
point
that
they
tossed
the
conviction
and
refused
to
allow
the
prosecutors
a
second
bite
at
the
apple.
Which
you’d
think
might
be
a
poisoned
apple
—
except
these
prosecutors
weren’t
remotely
fair,
let
alone
the
fairest
of
them
all.
“The
entire
trial
was
filled
with
theatrics,
hyperbole
and
disparaging
inflammatory
statements,
such
that
the
extent
of
the
misconduct
cannot
be
fully
conveyed
in
this
opinion,”
they
said
which
is
wild
because
if
this
account
IS
NOT
fully
conveying
the
misconduct
what
the
hell
else
was
there?
And
while
it
sometimes
feels
as
though
cops
and
prosecutors
can
get
away
with
just
about
anything
before
a
court
tosses
a
conviction,
the
New
Mexico
supreme
court
decided
that
wherever
it
is
that
the
line
gets
crossed,
it’s
somewhere
before
you
tell
a
jury
that
you
saw
Goody
Proctor
with
the
Devil.
(Full
opinion
on
the
next
page…)
New
Mexico
Supreme
Court
overturns
murder
conviction
of
woman
prosecutor
called
a
‘witch’
[Santa
Fe
New
Mexican]
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
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