Judge Paternoster, Oriana Farrell, a Smoking Gun? and a Gap in the Tape

In a district court hearing on Thursday, March 6, 2014, Judge John Paternoster decided, for all practical purposes, in favor of several points, re: Attorney Alan Maestas’s motion to compel discovery, in his defense of Oriana Farrell.

Farrell is the black woman from Tennessee, whose minivan, full of kids, was stopped by a white state police officer, Tony DeTavis, near Talpa, a neighborhood in the vicinity of Taos last October for speeding. As Internet buffs and news-watchers know, the cobbled together video of the incident went viral, became a cause celebre at criminal justice classes nationwide, and, subsequently, the focus of local attention, due to the actions taken by state police Officer Elias Montoya, who shot at the tires of the van in an effort to disable the fleeing vehicle.

If you watch the Nov. 23 release of the 18-minute video of the event, a video released by the New Mexico State Police, you will get an idea of what happened. Particularly from about 16 minutes and 45 seconds into the video, you will hear mention of a “gun” or lack thereof by officers and the Espanola state police dispatch communication. There is much static but one officer sounds equivocal and one officer says “negative” in response to questions from dispatch about the gun.

Ironically, Officer De Tavis, who battered and broke the windows of the van on the passenger side, during the second stop, claimed later, according to court testimony that “it was believed there was a gun.” If you believed there was a gun in the van would you batter the windows with your baton? Just asking…

Regardless, Farrell was subsequently apprehended at the Don Fernando Hotel, and charged with “aggravated fleeing,” “child abuse,” and “possession of drug paraphernalia.” Officer Montoya, who acted with due deliberation and caution, when he aimed and fired at the tires and the ground, was subsequently terminated by the state police and, in the eyes of the Taos community in Upstate New Mexico, scapegoated.

Two questions remain uppermost in the community’s mind.

Number 1: Why was Officer DeTavis, the officer who stopped the van, twice, and beat upon the windowpane of the van until it broke, never disciplined or put on administrative leave?

Number 2: Who produced the initial video for World Wide Web distribution? According to the March hearing in the Farrell case, the defense does not have the video. Yet before the defendant was arraigned in November 2013, a chopped and doctored video was released to the Internet, a video, which embarrassed the state police, the Governor and her Chief of Police, and resulted in the termination of Officer Montoya. The dash-cam products were under the supervision of the state police either at the Taos sub station or, one assumes, the Espanola state police dispatch center.

At Farrell’s initial November 2013 arraignment, Deputy District Attorney Emilio Chavez claimed a “gun” was involved. Two photos of a “gun” were introduced into evidence. When defense attorney Alan Maestas asked where he might find the “gun,” on Thursday, March 6, 2014, Deputy District Attorney Emilio Chavez explained it away, saying the gun depicted in the photos belonged to state police officer Elias Montoya. Maestas asked for information regarding the history of introducing the “gun” into evidence. He apparently wrote a letter to District Attorney Donald Gallegos asking for a history of the “gun.” Who introduced the evidence? The state police or the DA?

One must ask oneself if the DA and state police were trying to incite the public against Ms. Farrell?

The incident occurred some four months ago and trial is scheduled for October in the Farrell case. Yet on March 6 Maestas said he had not received a witness list, accompanied by statements and reports.

Maestas said that his request for a recording of dispatch communication between officers and the Espanola state police dispatch headquarters resulted in a patched together and incomplete record of calls between cops and dispatch on a DVD. In other words, the recording, like the video on the web, has been edited and doctored. What is missing?

(Remember Rosemary Woods and the gap or missing 18 and ½ minutes on the Nixon/Watergate Tapes?)

Maestas said Officer Elias Montoya, who was advised by dispatch that DeTavis was confronting an “uncooperative driver” obviously arrived at the scene, according to Internet video. But, according to the Deputy DA Chavez, Montoya’s so-called “dash-cam” recorded “audio” but no “video.” The record is incomplete, suggesting “exculpatory” evidence, either in favor of Farrell or Montoya is missing from the file.

Or perhaps the missing evidence goes to the actions of DeTavis?

Since Officer Montoya fired his weapon at the ground in the direction of the van’s tires, an internal state police investigation and report was required. Maestas said the internal state police report of the investigation has not been produced for the defense by the DA or state cops.

Judge Paternoster, on March 6, 2014, ordered the state to provide a witness list, make Officer DeTavis’s statements as well as other three officers’ statements, available to the defense, and submit the state police internal affairs report to the judge himself. The judge apparently believes the court, not the DA or state police, should decide what evidence is “relevant” to the trial. The judge also ordered the DA to provide Maestas, defense counsel, with documents etc. relating to the history of the “gun.”

And Paternoster ordered the DA to provide a complete and accurate report of communications between officers and dispatch, including the person who “prepared the excerpts” for the DVD. Maestas said he has yet to receive an “official” video recording of the event and has been limited, like the rest of us, to the video evidence available on the World Wide Web.

At the hearing on March 6, 2014, television and news reporters sat in the jury box. I sat behind the defense with about 7 members of the public. The mainstream media focuses on sensationalism, the easy images, Farrell, De Tavis’s baton, Montoya’s weapon, the filler for a news report.

But “mistakes were made” from beginning to end in this very human conflict. Now, due to what appears to be reluctant cooperation by the DA and the state police with the “rules of discovery,” the initial Snafu is turning into a tedious and torturous tug-a-war between the rights of the defendant and the rights of an honorable officer. Officer Montoya has been turned into a scapegoat by his department, a Governor and her appointed police chief, and a media, which trails along but does little in the way of shedding light on the event captured in the viral video.

Just as this case has become a study in “what not to do” during traffic stops for criminal justice classes nationwide, the case may ultimately become a study in issues of “race, gender, and ethnicity” for classes in American studies. Judge Paternoster and Attorney Maestas will ultimately see that Ms. Farrell receives just treatment under the law. But I am less certain that our friend and neighbor Elias Montoya will receive the equivalent.

During the second traffic stop, Ms. Farrell repeatedly told Officer De Tavis, “give me the form, I’ll sign it.” Then, when other officers arrived, De Tavis started beating on the passenger’s side and smashed the glass—though he knew there were children in the van. Officer Montoya arrived, the van fled, the officer, taking deliberate and careful aim, fired at the tires and the ground. After the van stopped at the Don Fernando Inn, Officer Montoya not only went out and bought the kids hamburgers and cold drinks but said later on national television, “If I had known there was even one child in the car, I would not have fired my weapon.”

Miracle to say, nobody was hurt, physically. In her flight from fear, Ms. Farrell was a helluva driver. And the community, the friends and neighbors of Elias, who have known him since childhood,  also know that he is a good man. Some of us in the community are better drivers because he ticketed us for the occasional seat belt violation. This case is about human error and about restoring harmony in the community—not about reacting to an overzealous national media or activists and taking sides for or against Ms. Farrell or Mr. Montoya.

One imagines that Ms. Farrell will probably receive some sort of just compensation for her abuse by the system subsequent to the first traffic stop and ensuing madness. Certainly I and others believe Mr. Montoya should receive consideration during his appeal from dismissal by the state police and an opportunity to win back his job. Despite the prejudicial nature of the viral video, let us hope wiser heads prevail in district court as we wait for Judge Paternoster to decide what facts are relevant to trial. We are also waiting, as Paul Harvey might say, “for the rest of the story.”