A Monday (Sept. 18) district court jury trial scheduled in Taos for David W. Lewis, a Carson man charged with four felony counts of criminal sexual penetration of a child under the age of 13, was postponed after a motion to push back the trial date - and potentially dismiss the case - was filed by the defense.
The motion, prepared by attorney Stephen D. Aarons, of Santa Fe, alleges that crucial evidence pertaining to the case was not provided to the defense by the Eighth Judicial District Attorney's Office in time to prepare for trial and that other evidence previously recovered has gone missing.
"At the 12 September 2017 pretrial interview of lead detective Jesse Whitaker, he first revealed that he discovered the defendant's cell phone, which had been taken into evidence at defendant's arrest and extradition, has been lost," the motion states.
According to the defense, that cellphone may contain evidence that one of Lewis' alleged victims, who claimed they were molested for several years, had contacted the defendant asking to stay with him and his daughter. Aarons believes this may be crucial evidence, as the communications, according to the motion, run in "contrast to [their] claims of eight years of sexual molestation."
Aarons also contends that additional medical examinations of the alleged victim would also be necessary before moving to trial. Though the victim claimed they had undergone examinations at Taos Clinic, a medical assessment by a certified sexual assault nurse examiner would be essential to search for evidence of any history of abuse. The motion states, "Defense counsel believes that no [scarring] or other injury was ever observed, in contradiction to [the victim's] claim ..."
Whitaker also failed to cross-reference "an unfounded investigation" alleging abuse of another victim, whose allegations were investigated by The Children Youth and Families Division and The Department of Homeland Security, the motion also states. Those allegations were eventually found to be faulty when, during an interview with defense investigator Maurice Moya, the alleged victim purportedly stated that they had been coerced by the first victim to submit false claims of abuse. "The CYFD reports and any Homeland Security report should have been disclosed years ago," the motion reads. "The prosecution was able to download the CYFD report but is still refusing to disclose it to defendant."
In the same document, the defense argues that there are both grounds for an additional delay in scheduling the trial, but that any further delay in going to trial would serve as grounds to throw out the case entirely. "Before the court entertains a continuance for discovery violations," the motion reads, "defense counsel seeks to dismiss this matter for violation of [the defendant's] right to speedy trial."
Charges were first filed against Lewis, 65, in August 2015. Later that year, he was indicted on charges by a grand jury, and since, trial dates have been scheduled and rescheduled more than a dozen times, according to court records, efforts to reach either Aarons or his client went unanswered as of press time.
Aarons argues that the delays in bringing the case to trial are "well beyond any normal delay in criminal cases of simple to moderate complexity," and further, that they show prejudice against Lewis, who has been waiting two years to stand before a jury.
The prosecution, represented by Eighth Judicial District Attorney Tim Hasson, is preparing a response to the motion that will likely be filed this week.
Chief Deputy Ron Olsen, also of the district attorney's office, said that the reasons for the delays - referred to legally as "continuances" - have been reasonable given the "complexity" of the case. The reasons he provides include the need to have extradited Lewis from Washington state and the more than a dozen subpoenas that have been filed calling on witnesses to testify at trial. He adds, however, that not all of the continuances originated from the district attorney's office. "Old case law used to say that you had basically six months to a year to get a case to trial," Olsen said. "But those could be extended, and most often in cases like this, you would not bring the case to trial within a year. We will be looking at each of the prior continuances and balance out who was responsible for them."
New Mexico Court Rule 5-604, which provides guidelines for the timing of trial dates, states that "... the six-month rule provisions previously applicable to cases originally filed in the district court have been withdrawn," but that, "for cases that originate in the district court, the district court should remain mindful of the defendant's right to a speedy trial."
As of press time, however, no new trial date had been set, as the court has yet to determine whether the dawdling court case will ever make it to trial at all.
Both sides will be heard at a motion hearing, which had not been scheduled at press time Wednesday (Sept. 27).