Prosecutors seek 75-year sentence in triple murder
Man convicted of killing family at age 16 faces being in prison until he’s at least 88
State prosecutors are asking a judge to sentence Nicholas Ortiz to 75 years in prison for slaying three members of Northern New Mexico family with a pickax on Father’s Day in 2011 when he was 16.
Assuming the 24-year-old Ortiz earns credit for good behavior, Chief Deputy District Attorney Jennifer Padgett-Macias and Senior Trial Attorney Heather Smallwood said in a sentencing memo filed last week, he could be eligible for release when he is about 88.
Ortiz faces a maximum sentence of 93 years for convictions on three firstdegree murder charges and one count of conspiracy to commit aggravated burglary, according to the memo.
“There is a definite end date,” the prosecutors wrote. “Therefore it is not life without the possibility of parole and Miller does not apply.”
They were referring to a U.S. Supreme Court ruling that prohibits courts from automatically sentencing juveniles to life in prison without the possibility of parole.
One of Ortiz’s public defenders disputes that in a memo
filed Friday in advance of Ortiz’s sentencing hearing Monday — which finally will bring closure to the 8-year-old murder case.
“Nick respectfully disagrees with the State’s contention that a sentence resulting in his release at age 88 could be construed as anything other than a life sentence,” Stephen Taylor wrote. “It seems extraordinarily unlikely that he would live to the time of his release.”
Taylor argued scientific research on brain development supports a lighter sentence for Ortiz, one that takes into account his young age at the time of the crime, meaning his brain was still developing, and the possibility he could be rehabilitated.
Ortiz was convicted in December 2016 on three counts of murder in the deaths of Lloyd Ortiz, 55; his wife, Dixie Ortiz, 53; and their developmentally disabled son, Steven Ortiz, 21.
The Ortizes were found fatally bludgeoned with a mattock — a pickax-like garden tool — at their home in El Rancho, a tiny community just west of Pojoaque.
Four years passed before Nicholas Ortiz — who is not related to the victims but had been a frequent guest in their home — was charged in the killings.
Investigators found no fingerprints, footprints or DNA evidence connecting Nicholas Ortiz to the crime. The state’s case was based almost entirely on the testimony of his two co-defendants: cousins Jose Roybal and Ashley Roybal.
Ortiz’s first trial resulted in a hung jury. He was convicted at his second trial.
Jose Roybal and Ashley Roybal — 15 and 24, respectively, at the time of the Ortiz family’s deaths — testified that all three had conspired to rob the family’s home.
But the cousins’ stories conflicted when it came to explaining how a burglary plot became a plan to commit murder.
Jose Roybal — who was given complete immunity in the case — said it had been Ashley Roybal’s idea to kill the family, a claim she denied.
Ashley Roybal said she’d dropped the boys off at the family’s home that night. But when Nicholas Ortiz sent her a text message asking her to come get him about 20 minutes later, she said, he was alone and told her Jose Roybal had “punked out.”
Inconsistencies in the Roybals’ testimony was one of more than a dozen issues Ortiz’s former lawyer, Dan Marlowe, raised in a successful attempt to get a judge to grant third trial.
District Judge Francis Mathew wrote in his ruling on Marlowe’s motion that the jury hadn’t been properly instructed on a possible alternative charge of manslaughter, among other things, and said, “The testimony of the State’s key witnesses, which included parties who admittedly were involved in the crimes, was conflicting in material aspects of the case including the timing of events.”
But the state Supreme Court reversed Mathew’s ruling in March, saying the judge didn’t have the authority to grant a new trial because Marlowe hadn’t asked for one within 10 days of the verdict.
Marlowe called the ruling a “disgusting” and “cowardly” way for the court to avoid examining problems with evidence in the case.
As Ortiz headed toward sentencing, Taylor and B. Douglas Wood III — two attorneys in the Capital Crimes Unit of the state Public Defender’s Office — attempted in vain to convince Mathew to grant Ortiz an amenability hearing, where they could present evidence aimed at convincing the court he should be sentenced as a juvenile.
Almost all juvenile offenders in New Mexico have a right to such a hearing, in which the court examines the likelihood they can be rehabilitated within the juvenile justice system.
But because Ortiz was convicted of firstdegree murder, he fell into a narrow category of defendants who are not guaranteed an amenability hearing. His attorneys argued that denying him the hearing violated his due process rights and amounted to cruel and unusual punishment.
Taylor hoped to put Chicago child psychologist Antoinette Kavanaugh on the stand to talk about the adolescent brain.
But after Kavanaugh’s flight was canceled, forcing her to miss an August hearing to determine whether Ortiz should have an amenability hearing, the judge denied Taylor’s request to have the psychologist testify by phone. He ended the hearing without ruling on the motion.
Taylor tried unsuccessfully to get the judge to reconsider.
The defense attorneys renewed some of their prior arguments about teenage brain development in the sentencing memo filed Friday, writing that “the best available research indicates that even serious juvenile offenders are far more likely than not to desist from criminality as they mature.”
Ortiz’s lawyers are asking the court to consider mitigating factors when sentencing him and to “sentence him to substantially less than a life sentence.”