Two Theories - Part 1

Fall trial in killing of basketball standout spotlights myriad legal issues, including the bounds of self defense and juvenile justice reform

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Jurors must answer a host of thorny, charged questions in a First Judicial District courtroom come October; whether Estevan Montoya fired the shot that killed Santa Fe High basketball star Fedonta “JB” White won’t be among them.

>> READ MORE: Two Theories - Part 2

>> READ MORE: Two Theories - Part 3

Montoya, 16, and White, 18, found their way to the same underage drinking party in Chupadero on Aug. 1. The younger of the two shot a single bullet that struck the blue chip hoops recruit, who was likely on his way to the starting lineup for the University of New Mexico Lobos—an act that in a split-second led to impassioned calls for harsh punishment, pleas for understanding and a divided community.

None of that’s in doubt. Even Dan Marlowe, Montoya’s lawyer, concedes his young client, now 17, pulled the trigger.

But that’s where the agreement stops.

District Attorney Mary Carmack-Altwies says it was first-degree murder, committed by a gang member with a history that was pointing toward a heinous crime.

“We’re going to trial, and we’re pursuing the maximum sentence,” Carmack-Altwies tells SFR in her first public comments about the killing.

Marlowe says White was chasing Montoya, who was armed because he’d watched a close friend die by gunfire just two weeks earlier, and his client fired in self defense. Further, the longtime criminal defense attorney says, the boy is a member of a rap group known as the Southside Goons, which is no gang.

“He didn’t mean to kill that kid. He didn’t even know he was gonna hit him,” Marlowe says in an interview. “He just shot to scare him. And then the kid dies....I believe that it’s absolutely preposterous that they would be charging him with first-degree murder. It is all political, and there’s no way around it.”

Montoya has pleaded not guilty to charges of first-degree murder, evidence tampering, negligent use of a firearm and unlawful carrying of a firearm.

Jury selection is set to begin in Santa Fe Oct. 4, with First Judicial District Judge T. Glenn Ellington presiding. The trial will take place against a thick, emotional backdrop, which for nearly a year has sometimes boiled into anger among friends and supporters of both boys on social media and in the comments sections of news stories about the case.

Additionally, it’ll be an early, high-stakes test for Carmack-Altwies, a newly minted, first-time prosecutor who ran on a platform of progressive change in the criminal justice system, particularly shifting resources and energy “away from punishment and toward rehabilitation.”

Juvenile justice reform has been ascendant nationwide—and in New Mexico—in recent years, with US Supreme Court rulings that recognize people under 18 make decisions differently than adults. The rulings paved the way for more leniency, even in the most serious cases, and in this state, for proposals to change the sentencing and parole schemes for those who committed crimes as children. (See SFR’s story on the reforms.)

Carmack-Altwies was a vocal supporter of such a reform bill that nearly crossed the finish line during this year’s legislative session. However, she says, the job of a prosecutor requires a different calculus.

“We have to treat them the same-ish for these most serious crimes,” Carmack-Altwies says. “But we have to take into account that down the line, they’re going to grow and develop more and change more than a 32-year-old man that commits a heinous first-degree murder.”

The seriousness of the crime

Marco Serna, Carmack-Altwies’ predecessor at the DA’s Office, made the decision almost immediately after Montoya’s arrest to charge the boy as an adult.

Serna could have chosen a different tack by setting up an amenability hearing—a process through which a judge decides whether the accused youth is open enough to treatment to be released at 21 years old.

The other path: adult sanctions, which could lead to a sentence of 30 years to life in a state prison.

“We definitely explored it,” Carmack-Altwies says of whether Montoya should have been eligible for an amenability hearing. “Ultimately we rejected that based on factors I can’t disclose—both in the pending case and Montoya’s history.”

She decided Serna made the right call.

“When I came into office, I went through every pending homicide with my attorneys who were assigned to those cases, and we made decisions about every single one to see: Should this prosecution continue?” she says. “Should this be charged at a higher level? Should this be charged at a lower level? This was one where I thought the prosecution was spot-on.”

Asked for details about what, specifically, in Montoya’s background convinced her he should be tried as an adult, Cormack-Altwies reluctantly declines to answer.

Her prosecutors have offered clues in the courtroom, from lengthy school disciplinary records to cellphone video they say shows Montoya firing a gun in a park.

Marlowe, the defense lawyer, has countered, saying Montoya has just two marks on his criminal history, neither of them violent.

Prosecutors have also asserted that Montoya is a “proud gang member,” citing his affiliation with the Southside Goons.

Marlowe and members of the group have pushed hard against that claim , saying the Goons are a rap collective who have been heavily maligned—and have even lost one of their own, Ivan Perez, who was fatally shot July 15 outside the Bluffs at Tierra Contenta.

Montoya was nearby when Perez, a close friend, was shot. Mario Guizar-Anchondo, 17, faces an open count of murder in the killing, and Cormack-Altwies has charged him as an adult.

“But I’m reviewing that decision at this point,” she says.

Cormack-Altwies declines to comment on the Goons. But outside the context of the Montoya case, she describes her decision-making process when it comes to whether a child should face adult penalties.

First, the DA considers the seriousness of the crime. Second, she examines the defendant’s past actions.

“It’s mostly their on-paper criminal history, but we also take into account the file that the police have on that kid, if any,” she says.

‘I believe he’s not guilty all the way down the line’

Marlowe says the way Santa Fe police have handled the case is “complete bullshit.”

But he doesn’t begrudge Carmack-Altwies’ charging decision.

“She doesn’t have really any choice, in my opinion,” he says, pointing to intense community pressure to aggressively prosecute Montoya, which he believes flows from White’s beloved status in the community as one of the region’s best basketball prospects in a generation.

Prosecutors’ choices and tactics are a different matter. Marlowe says the facts are not on prosecutors’ side, so they are attacking Montoya as a “gang banger.”

After the Perez killing, Marlowe says, Montoya caught wind that he would be “next.” That explains why he was carrying a gun at the Aug. 1 party.

“What are you gonna do if you see your best friend killed right in front of you?” Marlowe says. “And then you hear that you’re next? What’s that do to anybody? But what’s that do especially to a 16-year-old kid?”

White began chasing Montoya, who was trying to leave the party, and fired a wild shot under his arm and across his chest as he fled, Marlowe says. It left White dead, but it’s not a murder case.

Marlowe has appealed to Judge Ellington on several fronts: first, to free Montoya from the San Juan County Juvenile Services Center, where he’s being held after the closure of the Santa Fe County juvenile lockup last year and, later, to move the trial to Los Alamos County .

Ellington has sided with prosecutors both times.

“That’s the reddest county in the state, and you want to do a murder trial up there?” Marlowe says. “I should have my head examined for that one, but I do, because they’re fair...and they don’t have the same kind of political overflow that you would get if you were in Santa Fe County with the local star getting killed.”

Marlowe also says Montoya should have been afforded an amenability hearing.

He believes the trial’s outcome will depend on whether Ellington allows the jury to receive a self defense instruction, which could wipe away all the charges his client faces.

“I believe he’s not guilty all the way down the line,” Marlowe says. “And sure, the fact that he was 16 factors in, but from the very beginning, this was grossly overcharged regardless of how old he is.”

>> READ MORE: Two Theories - Part 2

>> READ MORE: Two Theories - Part 3