PUBLIC HOODWINKED: TRAGIC COMEDY IN GONZALEZ TRIAL

By Juan Montoya
The public's attention span being fleeting, by now most people have forgotten the comedy of errors that took place in the Marco Antonio Gonzalez trail where the former county corrections officer convicted on 11 aggravated assault and retaliation counts arising out of a daylong shooting standoff with police resulted in a five-year prison sentence.

Before that, defense counsel Ernesto Gamez had managed to get an acquittal for Gonzalez in the shooting death of former correction guard colleague Ivan Reyes. This came about after a mistrial in a previous prosecution for the homicide.
Immediately after the controversial five-year sentence was handed down by 404th District Judge Elia Cornejo-Lopez, the finger pointing began.

A poll of the jurors after the trial indicated that only two of the 12 favored probation while the rest favored imposing five years on each count to total 45 years. The jury could have imposed a minimum of five years to 99 years or life for each of the 11 first-degree felony counts.
The case was tried by lead prosecutor and Assistant District Attorney Peter Gilman. The defense was headed by Ernesto and daughter Erin Gamez.

Cameron County District Attorney Luis V. Saenz blamed it on "miscommunication" between the judge and the jury. Cornejo-Lopez followed with a press conference with local media where she pointed out that Gilman had not objected to the removal of part of the state charge to the jury that included the sentence: "All of the punishment you assess will run concurrent since all of these allegations were tried at the same time."

And this is where the public deception begins.

El Rrun-Rrun has attained a true and certified transcript of the sentencing phase of the trial and what emerges is a tragedy of errors that belies the assertions of both the DA and Judge Cornejo-Lopez.

The first error was Cornejo-Lopez – a jurist for close to two decades – when she addressed the jury on October 4 (Page 7, lines 8-19) when she tells the jury:

"After you have heard all the evidence, I'm going to read you another charge which will be the charge on the range of punishment for him (Gonzalez). All of the assaults on the peace officers are first degree, which will be a minimum of five years in prison and a maximum of 99 to life. You will also have the option to run them concurrent or to stack them. Do you understand what that means?

"They can all run together; and he goes in on the same date, comes out at the same time; or he could -- you could stack each count for each officer for each count. That will be up to you."

That prompted Gamez to ask for a bench conference out of the range of hearing of the jury where he tried to press the point that since the 11 charges stemmed from the same continuing offense, he believed the sentencing could be concurrent.

(Page 8 (lines 10-25) and page 9 lines 1-12:
Gamez: "Your honor, on the range of punishment, this is one continuous offense. I believe it's all concurrent, because it's all one continuous offense. Also, the range of punishment is not only prison time, as you mentioned, but not to say anything in front of the jury, to argue with the court, but I believe that they can consider up to – anywhere from five to 10 years probation. So, you didn't tell them."

Court: "About probation?"
Gamez: "You didn't."
Gilman: "They're the only ones who can give probation."
Gamez: "Yes. You've got – if you don't, they'll leave with that in their minds.
Court: "Yes, I'll say – "
Gamez: "It's got to be concurrent, Your Honor. It can't – it's not a stacking deal."
Gilamn: "The stacking is the prerogative of the jury.
Gamez "Yes."
"Gilman: "It's the prerogative of the Court."
Gamez: "You shouldn't – "
Court: "Okay. I'll correct it. No problem."
Gamez: Yes, Judge. and I have to say mistrial. Okay. I mean, I have to."
Court: "Denied."

(Once the bench conference ends, with the jury listening, Gamez objects to the court's remarks and asks for a mistrial based on the misstatement on the range of punishment, which Cornejo-Lopez overrules. She then addresses the jury which she has just told that it's up to them whether to asses punishment on the 11 counts either concurrently or stacked.)

Page 9, Lines 24-25, Page 10, Lines 1-4, 10-17:
Court: Ladies and gentlemen of the jury, whether or not it's run concurrent or stacked, that will be my decision. Your decision will be whether or not – anywhere between five years and 99 years or life; and you are the only ones, as a jury, the 12 of you, that could decide whether or not he gets probation...

"So, anyway, you're going to go home right now instructed by me that the range of punishment is minimum five, maximum 99 or life, that you may consider probation. That will be up to you, as the 12 of you as a body of the jury, to decide. And whether or not it's stacked or run concurrent will then revert back to me after you've given – after you've done your sentencing. Okay?"

(So now the jury has heard two different versions of the sentencing, that they are to decide whether the sentences for the 11 offenses runs concurrent or "stacked," and that it will be up to Cornejo-Lopez to decide whether the time assessed by them for each count will be "stacked" or run concurrent."

On October 4, the jurors came back to set punishment. But before they entered the courtroom, the prosecution and defense agreed to the court was to give the jury before they entered deliberations. Both charges were basically identical except for a sentence included in the state charge. That sentence told the jurors that whatever sentences they set on Gonzalez would have to run together.

Page 19, Lines 3-25, Page 20, Lines 1-21

Gilman: "Defense counsel then presented us their charge, and we have reviewed it. We don;t have any objection to the defense charge. The difference seems to be, Judge that in the State's charge there is a statement on the second page, 'All the punishment you assess will run concurrent since all of the allegations were tries at the same time.'  And that is the law as we've researched it and prepared for this.
"So, the Defense doe snot have this in their – in their charge. If – I don't have any problem with leaving it out, but I just thought it would help based upon what the Court said last night to the jury when they were excused.
Gamez: "And, your honor, as you'll recall, I asked to approach the bench so as not to have any objection out loud; but if it's improper for the jury to consider concurrent û that is to consider concurrent or consecutive or instructions that it is you who will determine whether or not the sentence is concurrent or – "
Court: "Right. The jury was told that whether it's concurrent or stacked, that belongs to the Court. They are to consider only the range and probation."
Gamez: "That's correct, Judge."
Court: "Probation or the range. Yeah, the jury was told that. So – "
Gamez: "At first it wasn't, Judge."
Court: "Well, of course not, but then it was."
Gamez: "You cleared it up."
Court: "After you objected I cleard it up. Now we are cured and cleared. Now, this is the only difference? This one sentence?"
Erin Gamez: "No, Your Honor."
Gilman: "Pretty much. It's basically the same."
Court: "Hold on. You're willing, Mr. Gilman – the State is willing to remove that sentence and go with the defense charge?"
Gilman: "Yes."

(The jury, after being told that it was up to them to decide whether the sentences they assessed on each count would run concurrent or stacked, is then told that it was up to Cornejo-Lopez to make that decision, is sent to deliberations thinking that if they assess a five-year prison sentence on each of the  remaining nine counts, Gonzalez will receive 45 years. That is, that the sentnces will be stacked.)

Two jurors wanted probation, the rest wanted between 99 years and life. They then compromised and assessed five years on each of the 9 counts to give him 45 years. But both Gamez and Gilman knew that state law dictates that all sentences stemming from the same continuing incident will run together. If the jurors had set a 45-year sentence on one charge, and smaller sentences on others, the rest of the sentences would run concurrent with the longer sentence.

Instead, they multiplied five times 9 and erroneously thought they had sentenced him to 45 years. But the five year sentence they set on Gonzalez for each of the crimes means he will serve five years on all of them at the same time (concurrently). Having served 840 days at the time of his trial, that means that he has only two and one-half years left on his sentence.

And so the comedy of errors which resulted in the ridiculously low sentence for Gonzalez was set in motion by Cornejo-Lopez and facilitated by the inept Asst. DA Gilman. In their wake, the members of the law enforcement community have been made to feel that no one is watching their backs and that anyone can feel free to attempt to do them harm because the courthouse crowd will drop the ball time and time again.