Evidence delay by police led to dropped charges in Entrada case
District attorney says he’s still considering counts against UNM student
The region’s top prosecutor is still considering pursuing charges against a Native American activist accused of hitting two Santa Fe police officers with a cardboard sign during a protest of an annual commemoration to Spanish conquistador Don Diego de Vargas, but the police department still hasn’t submitted any evidence to back up its case.
District Attorney Marco Serna confirmed Wednesday that felony and misdemeanor charges against Jennifer Marley were dismissed this week in Magistrate Court. Serna, though, said that was because his office is still waiting for the Santa Fe Police Department to present its evidence.
“The typical procedure, especially if somebody is out of custody and we don’t have all discovery, is we’ll dismiss it and then after we get discovery, we’ll make a determination on whether or not we in fact want to take it to grand jury or not,” Serna said. “That’s essentially where we’re at right now.”
Serna said he didn’t know why the police department hadn’t submitted its evidence yet.
“I would talk to the chief on that one,” he said. “It should just come automatically. I personally haven’t requested it, but I’m sure my intake individuals have requested it considering we were running up on
the [preliminary hearing in Magistrate Court]. But typically we would receive all that information anyways. We obviously need it to prepare our cases.”
Even police officers’ lapel camera videos, which were released to the news media the week after Marley’s Sept. 8 arrest, still haven’t been submitted to prosecutors.
“We need to have the video. We need to have the other statements from other officers and any other individuals who were interviewed on scene who may have seen something. We need to look at all of that before we make a determination,” Serna said.
Serna said it’s “not completely uncommon” for police to not submit discovery before a court hearing, especially involving a case involving multiple officers and witnesses.
“I hope we get it sooner rather than later, of course, but just given this large of a case with the amount of people involved, it’s not that uncommon,” he said.
Police Chief Patrick Gallagher said he didn’t know why police officers hadn’t yet turned over their evidence to prosecutors but that his department is looking into the matter.
“If somebody dropped the ball, we’ll find out,” he said. “We’ll fix it.”
Gallagher called The New Mexican to emphasize that “there’s no rift or problem” between his department and the District Attorney’s Office.
“I want to go on the record for that, OK?” the chief said. “There’s no problems. There’s no lack of communication. He and I met last week. We talk frequently, so please don’t try to stir up some problem where there is none, OK?”
When asked earlier in the day whether there was friction between his office and the police department, Serna said, “I believe we have a good line of communication.”
Before the chief ’s call, police spokesman Greg Gurulé said Serna hadn’t requested the evidence.
“We haven’t had a conversation with the DA about this,” he said. “Until we talk to DA Serna, we really can’t comment.”
When pressed for details, Gurulé said, “You can keep asking the same question. I’m going to give you the same answer: The DA hasn’t approached us to ask about it. Until we chat with the DA about what he wants, what his needs are, there’s nothing really that any of us can say about it.”
Serna said his office only has the criminal complaint against Marley. That isn’t enough to determine whether to pursue the case, he said.
Marley, 21, is a student at The University of New Mexico. She’s originally from San Ildefonso Pueblo.
The New Mexican reported in Wednesday’s print edition that charges against Marley, who has become the public face of opposition to the Entrada reenactment, had been dismissed based on information provided by her attorney, Dan Cron.
The newspaper tried to reach Serna for comment after business hours Tuesday, but Serna said Wednesday that he had changed his cellphone number.
Cron said he didn’t know what was going on between the police department and the District Attorney’s Office.
“As I understand it, the discovery just goes over as a matter of course, but once again, I really can’t speak directly to that because I’m not in that flow,” he said.
Cron, who expressed confidence that his client won’t be prosecuted, said he believes the charges will be dismissed for good once the police department submits its evidence to the District Attorney’s Office.
“In my view, the video and other evidence does not support the charges,” he said.
Marley was charged with two felony counts of battery on a police officer. She was one of eight protesters arrested after the Entrada, the costumed re-enactment of Spanish colonists retaking the city in 1692 after being driven out 12 years earlier during the Pueblo Revolt. Misdemeanor charges against the other protesters are pending in Municipal Court, meaning the city attorney, not Serna, would prosecute them.
Chief Patrick Gallagher called ‘The New Mexican’ to emphasize that ‘there’s no rift or problem’ between his department and the District Attorney’s Office.