Is imprisoned woman actually victim of crime?
She told him to stop. She admits she was drunk, her blood alcohol concentration at 0.16 percent, twice that of the state’s presumed level of intoxication.
She admits she had agreed to go out drinking with a man who had been her boyfriend three years earlier. They broke up, she says, after he raped her, an offense she never reported, perhaps not even to her own father. Her father and the boyfriend had stayed friendly even after she broke it off.
That night — March 5, 2012 — the three of them drank at a West Side bar until her father left. She let the ex-boyfriend drive her and her car to his place.
She said they were just going to hang out and watch a movie. Then he tried to kiss her. He touched her face.
She told him no. But he kept trying, forcefully, violently enough that he tore off a button on her blouse and ripped her sleeve. He took her car keys, her cellphone. He blocked the doorway.
Angrily, he threw a pillow, sending a CD tower clattering to the ground and waking up his roommate.
Maybe he was trying to keep her from driving home drunk; maybe he was trying to do something worse.
Sometime after midnight, he relented. He put down her phone and her keys, and she grabbed them, ran to her car and started the engine.
But he was quick. He jumped into her car. She pulled the car forward, ordering him repeatedly to get out of her car as he screamed at her. She reached for her phone to call her father, but he grabbed at the phone, his fingers catching her long, dark hair, pulling her down, forcing her to send the car swerving.
In that frenzied, frightening moment, he jumped out, ran around to the front of the car and was struck as the car spun toward him, badly injuring his leg. She was free. Of these facts, there is little dispute.
But decisions made that night and in the years since then as the case has wound its way from a criminal trial in Albuquerque to the state Court of Appeals and, now, as it heads to the state Supreme Court are rife with questions, concerns and condemnations, more pointed now in the reckoning of the #MeToo movement.
Because the person arrested that night was her, not him.
She is Crystal Ortiz, 31, arrested that night and convicted after a three-day trial in April 2014 of charges of great bodily injury by vehicle, aggravated battery, leaving the scene of an accident and aggravated DWI.
In June that year, she was sentenced to one day shy of 10 years with one day shy of eight years suspended for an actual sentence of two years behind bars, two years of parole and five years of probation. Court records indicate that she will finish her sentence in December 2019, but she is likely to be done sooner, given credit she’s earned for good behavior. And maybe even sooner than that. In December, the state Court of Appeals ruled in her favor, reversing the convictions for great bodily injury and aggravated battery, each which carried a three-year sentence.
The appellate court ruled that the trial judge — in this case, state District Judge Stan Whitaker — should have allowed the defense to give the jury a “duress instruction,” an affirmative defense in which jurors can find that a defendant is not guilty because what she or he did was under threat, in fear of immediate and great bodily harm and that a reasonable person would have acted the same way under the same circumstances.
The state, however, argued that Ortiz’s actions that night were not reasonable enough to justify a reasonable doubt as to her guilt in a criminal act.
In its petition asking the state Supreme Court to take the case in light of the appellate decision, the state argues that the duress defense is not applicable because Ortiz found herself in a mess “due to her own recklessness.”
Further, it argues that Ortiz failed to seek reasonable legal alternatives from the actions she took that night. She did not ask the man’s roommate for help, did not leave the house on foot, did not run to a neighbor’s house, did not lock her car doors and call for assistance on her phone.
All of which may make sound legal argument but still smacks of victim blaming — and in this case, the woman is not even positioned as the victim.
The state Supreme Court has agreed to hear the case — which likely comes as welcome relief to the now-retired Court of Appeals Judge Jonathan Sutin, who in an “especially concurring opinion” encouraged the high court to weigh in on duress cases, calling the application of such a defense a “crapshoot.”
Briefs in chief from both sides are due by May 21. Maybe then we will learn who was the most reasonable that night.
UpFront is a front-page news and opinion column. Comment directly to Joline at 8233603, jkrueger@abqjournal.com or follow her on Twitter @jolinegkg. Go to www. abqjournal.com/letters/new to submit a letter to the editor.