Judge Michael Vigil has rejected the defense's motion that the case against Carlos Fierro be thrown out.

A reporter is in the courtroom now and will update the story later today with details from the proceedings.

1:49 p.m.

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A lot more was going on during the jury selection process for Carlos Fierro's trial than jurors, defense attorneys or the media knew, according to trial testimony Tuesday.

First, District Attorney Angela "Spence" Pacheco spent thousands of dollars on a jury expert who took notes while sitting in the doorway of the courtroom where the attorneys for both sides were choosing jurors. Neither Pacheco nor her fellow prosecutor, Juan Valencia, told defense attorneys about the expert, a local attorney named Diego Zamora.

Also, the prosecutors used a confidential, secure law-enforcement database called the National Crime Information Center to determine whether jurors on at least one of the two panels called for the case had ever been arrested for drunken driving, according to testimony.

Finally, the prosecutors didn't share the results of the NCIC searches with defense attorneys.

Fierro's attorneys filed a motion Tuesday morning asking state District Judge Michael Vigil to dismiss the case because of prosecutorial misconduct. Lawyer Robert Gorence told the judge it was illegal for prosecutors to use NCIC for jury selection, and that withholding the information from defense attorneys wasn't fair.

Finally, Gorence questioned whether it was legal for prosecutor to give some of the NCIC information to Zamora, who is not a law-enforcement official.

State police Maj. Robert Shilling, who is in charge of NCIC for the state, testified outside the presence of the jury that FBI personnel told him Tuesday it was legal for prosecutors to use NCIC for jury selection. He said defense attorneys could have asked a state district judge to ask the FBI to release the material to them, though he admitted that would have been unlikely, considering the defense didn't know NCIC was used in the first place.

Shilling said it would have been legal for Zamora to receive the material as a contractor of the District Attorney's Office, though the proper permission form was not filed for that. Prosecutors ran 142 juror names through NCIC, a clearinghouse of information that includes criminal and arrest history, whether the person is a gang member, terrorist or sex offender or wanted by a police agency, Shilling said.

Valencia told the judge that NCIC material was accidentally given to Zamora, who testified that he only saw two such reports.

Zamora testified that he didn't tell defense lawyers or the media what he was doing at the jury selection. He also admitted on the stand that he lied to a New Mexican reporter who asked him what he was doing there. Zamora told a reporter he was handling a case with facts similar to the Fierro case.

In an interview later Tuesday, Zamora said it was his decision to lie about why he was there. He said he did so for "personal reasons," which he declined to state. Pacheco said she never told Zamora to keep his involvement quiet and didn't know why he lied.

Zamora, who was paid $195 an hour, is expected to receive between $4,000 and $5,000, though Pacheco said she hadn't seen his final bill. She said she hired him after talking to a witness in the case who told her two men had approached him while he was at work and asked him what it would take to make him change his testimony. Zamora investigated jurors to see if they might be susceptible to such overtures, Pacheco said.

"It was related to jury tampering," she said.

Judge Michael Vigil told prosecutors to bring the NCIC materials to court today for him to see. Lawyers will argue the motion to dismiss during the lunch hour.

Contact Jason Auslander at 986-3076 or :jauslander@sfnewmexican.com.

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