Calling Defendant A Witch Who Controls Men With Menstrual Blood Doesn’t Work Out For Prosecutors

One hoped that Justice Alito opening the door to basing constitutional law on the rantings of 17th century witch hunters would usher in a new era where we could finally get back to some old-fashioned stake burnings. Nothing is more “deeply rooted in the Nation’s history and traditions” than putting a stop to Strega Nona’s noodle nonsense. Alas, the box office success of Wicked has beguiled the New Mexico supreme court into complacency, tossing a murder conviction. APPARENTLY prosecutors telling the jury that the defendant has the power to control men through her menstrual blood is frowned upon.

In all seriousness, you’ve probably made it to this point in the story believing there’s no way the facts of this case match the clickbait headline. Friends, let me direct you to the Santa Fe New Mexican:

“Bolstered with copious amounts of other inflammatory and inadmissible evidence, including allegations that Defendant was a ‘witch’ and a ‘bruja’ … who controlled Mr. Montoya through her menstrual blood, ADA Ripol embarked on a three-day-long exercise in pathos and character assassination that utterly deprived Defendant of a fair trial that is guaranteed by the New Mexico Constitution,” the court wrote.

As everyone knows, these statements should’ve put a stop to the trial so the defendant should’ve been weighed against a duck to prove the veracity of these claims. That’s just jury instructions 101.

In all seriousness though, this is a real life state supreme court opinion.

The “Mr. Montoya” in question pleaded guilty in the kidnap and murder of Joseph Morgas. Montoya’s wife, Desiree Lensegrav, was later sentenced to 45 years based on her alleged involvement. Being New Mexico, the case obviously involved meth, with Morgas making a stream of horrific comments to Lensegrav at a drug house, which prompted Montoya to confront Morgas, killing him during the ensuing struggle.

You’re probably thinking the prosecutor was just colloquially if misogynistically insinuating that the defendant “controlled” men with her wiles or in some mutually endorsed neo-Pagan cult. And while the prosecutor would occasionally use terms like “wannabe” about the defendant’s witch status, the case did not shy away from “yo, she might actually be supernatural!”

ADA Ripol then began his witchcraft accusations. He told the jury that the first witness would be Rodriguez, the owner of the drug house, who would testify that he watched Defendant’s eyes turn “black. With fury. And rage. And it was like a Hollywood movie. He could feel the wind coming out of her.” ADA Ripol stated that “in addition to her eyes turning black and the wind,” Rodriguez would also testify “that [Montoya] was like a zombie when he was around her. And that [Defendant] suggested to . . . Rodriguez on several occasions that she was a witch and that she would put menstrual blood concoctions into [Montoya’s] food to control him.”

The drug house owner thought witchcraft turned Montoya into a zombie? I’m no Hogwarts graduate, but I’m thinking that might’ve been the meth.

In this case of severe and pervasive prosecutorial misconduct, exacerbated by a lackluster defense, we hold that an Assistant District Attorney who uses opening statements to expose the jury to incriminating allegations from a non testifying codefendant, repeatedly accuses a defendant of witchcraft, and relies on inflammatory and inadmissible evidence throughout the case, has knowingly committed misconduct so unfairly prejudicial and with such willful disregard for reversal on appeal that retrial is barred by double jeopardy.

A “lackluster defense,” you say? You mean to suggest a defense team that didn’t shut down the “lady flower hemomancy” allegations displayed insufficient zeal? If you’re wondering where the trial judge was in all of this, the opinion notes that the judge called the attorneys to the bench seemingly to “wink wink” to the defense that this is the part where they should be saying “objection” to no avail.

You’d think a witch with the powers of Satan at her command could at least force a lawyer to object. Or borrowed Roy Cohn.

Of all the abuses, the worst — yes, worse than the witch stuff — is the part the court describes as exposing “the jury to incriminating allegations from a non-testifying codefendant.” Because what they mean is that prosecutors used the opening statements to share Montoya’s claims incriminating Lensegrav but decided — before opening statements — to yank Montoya from the witness list claiming he was a hostile witness. Thus taking full benefit of Montoya’s inflammatory claims throwing his wife under the bus without offering the defense an opportunity to cross. Then they invoked Montoya again in closing.

But also… this case was cracked because Montoya subsequently tried to murder Lensegrav. So when prosecutors decided to inject Montoya’s statements incriminating Lensegrav, they did so knowing he’d tried to kill her.

This is the part where most courts shrug and dismiss all of this as “harmless error.” But the conduct shocked the New Mexico supremes to the point that they tossed the conviction and refused to allow the prosecutors a second bite at the apple. Which you’d think might be a poisoned apple — except these prosecutors weren’t remotely fair, let alone the fairest of them all.

“The entire trial was filled with theatrics, hyperbole and disparaging inflammatory statements, such that the extent of the misconduct cannot be fully conveyed in this opinion,” they said which is wild because if this account IS NOT fully conveying the misconduct what the hell else was there?

And while it sometimes feels as though cops and prosecutors can get away with just about anything before a court tosses a conviction, the New Mexico supreme court decided that wherever it is that the line gets crossed, it’s somewhere before you tell a jury that you saw Goody Proctor with the Devil.

(Full opinion on the next page…)

New Mexico Supreme Court overturns murder conviction of woman prosecutor called a ‘witch’ [Santa Fe New Mexican]

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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