The defense attorney for a teen charged with killing Santa Fe High School basketball star Fedonta “JB” White has accused prosecutors of trying to block him from gathering evidence by naming everyone with a connection to the case as a witness for the state.
Prosecutors, meanwhile, say Dan Marlowe, the attorney for 17-year-old Estevan Montoya, has been trying to persuade the state’s witnesses to provide statements to the defense without notifying the District Attorney’s Office.
Prosecutors are seeking adult sanctions against Montoya, who was 16 in August, when police say he shot 18-year-old White at a house party in Chupadero.
Montoya is charged with first-degree murder, tampering with evidence, unlawful carrying of a handgun by a person under 19 and negligent use of a deadly weapon.
Marlowe has said Montoya shot White in self-defense as the much bigger boy — a student-athlete who planned to graduate from high school early and play basketball for the University of New Mexico — was chasing him after a brief fight.
Marlowe argued in a motion filed Monday the district attorney’s witness list is unnecessarily large, naming even Montoya’s own mother as a witness for the state.
“The State has intentionally obstructed the Defendant’s ability to obtain exculpatory information from these witnesses,” Marlowe wrote, “and has told [him] to ask for pretrial interviews of their witnesses, basically 157 pretrial interviews.”
The motion asked the court to exclude the state’s witnesses and to release Montoya as a sanction for the behavior.
“It’s not a good witness list,” Marlowe said in an interview Tuesday. “And I don’t like the thought process behind it — just stick a flag in everybody, and I can’t talk to them.”
Marlowe also argued in his motion that despite a state law requiring the District Attorney’s Office to provide addresses for witnesses, 63 state witnesses in this case have an address listed as “c/o the Santa Fe District Attorney’s Office.”
Chief Deputy District Attorney Blake Nichols said in an email Tuesday the office has offered to arrange witness interviews with Marlowe, but he has only asked to speak with two of them. In the meantime, Nichols said, Marlowe has continued to make direct contact with witnesses and “attempted to get them to give ‘one-on-one’ statements … without notifying us … that defense was going to take these statements.”
None of the witnesses was told not to speak with the defense attorney, Nichols said, but they were advised “they did not need to give a one-on-one interview and that these matters are typically handled with witness statements via notices of statement or pretrial interviews.”
District Attorney Mary Carmack-Altwies said Marlowe doesn’t need her office’s permission to speak with witnesses. “However out of courtesy and agreement, he should have notified us,” she wrote in an email, adding, “both sides have agreed to speak with witnesses together.”
Marlowe confirmed he agreed not to conduct any recorded interviews with witnesses unless prosecutors were present, but he said he never made an agreement not to speak with witnesses at all. Marlowe filed a motion in December asking the court to move Montoya’s trial from Santa Fe to Los Alamos. White’s reputation as a hometown hero and the publicity surrounding the case would make it impossible for Montoya to receive a fair trial in Santa Fe, he argued.
“The attention that this case draws would be less extreme in Los Alamos,” Marlowe wrote in the motion. “JB wasn’t a local boy there as he was in Santa Fe.”
The state has opposed moving the trial. State District Judge T. Glenn Ellington is scheduled to hold a hearing on the matter Wednesday.