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Sierra County Sheriff Joe Baca, for whom Noah Pestak previously worked, is outspoken in saying that Pestak should be charged, the marriage to the teenager notwithstanding. The girl’s father said he believes the pair met when Noah Pestak made an on-duty stop of a car in which the teen was riding.

“It’s not like he met this girl and she lied about her age. He (Pestak) picked up this little girl,” Baca said. “If this was anybody else, he’d already be in jail. Because he’s a former police officer and a judge’s son is the only reason he’s free right now.”

Baca said three judges with knowledge of the situation, including Pestak’s father, should resign or be sanctioned, and the sheriff has filed a complaint against all three with the state Judicial Standards Commission.

Baca says the judges were legally obligated to report Noah Pestak’s alleged crime of having sex with a child under 16. Permitting the marriage, Baca said, was “an immoral act.”

The other judges involved were District Court Judge Kevin Sweazea, who approved the issuance of a marriage license following a court session, and Municipal Judge Beatrice Sanders, who performed the marriage ceremony. So far, the three judges have been tight-lipped about the matter, in part due to the ongoing State Police investigation.

The girl’s father, Chester Hamilton, said he was initially enraged by the situation and reported it to State Police in TorC.

Hamilton, however, said he now believes it is in the best interests of his daughter, and the unborn child, to drop the criminal investigation and allow Noah Pestak to support the new family.

“Right now, I think they should leave him (Noah Pestak) alone. He’s doing what he should be doing,” Hamilton said. “Yeah, what he done was wrong, by all means, but, you know, any other way, my daughter would be a teenage mom on welfare, and he (Noah) is trying to see to it that that doesn’t happen. … What he did was wrong, but by them putting charges on him now, putting him in prison, would leave my daughter a teenage mom on welfare and that’s something I don’t want either.”

Conflicting laws

The case spotlights an apparent conflict in state law.

One statute says that sexual relations with someone at least 13 years old and less than 16 amounts to rape when the adult is at least 18 years old, four years older than the victim and not the victim’s spouse.

A different statute, 40-1-6, bars the marriage of anyone under the age of 16, with or without parental consent, but it makes an exception — “where the female is under the age of consent and is pregnant.” In that case, a District Court judge must first authorize the marriage.

As Hamilton put it: “… Prosecuting him is the right thing to do, but it’s the wrong thing to do to my daughter and that baby. So, you know, it’s one of them damned-if-you-do and damned-if-you-don’t things.”

Mercedes Murphy, a deputy district attorney in the 7th Judicial District that includes Sierra County, said Noah Pestak could still be charged with statutory rape, despite having married the girl. “The fact this law allows an underage person to be married doesn’t preclude a criminal prosecution on the statutory rape laws,” Murphy said.

Just such a scenario unfolded in a similar Nebraska case in 2005, when that state’s attorney general prosecuted a 22-year-old man, Matthew Koso, on a statutory rape charge for impregnating a then-13-year-old girl, despite the fact that the couple had married in Kansas with their respective parents’ consent. Koso served a 15-month sentence on the rape charge.

Murphy said she was unaware of any New Mexico case in which an adult man had been prosecuted for the legally defined rape of a girl he later married.

The marriage

The couple obtained a court order authorizing the marriage on May 30 after the girl’s parents filed a petition. Sweazea told the Journal the Code of Judicial Conduct prohibited him from commenting on the case outside the courtroom, and he noted that judges are “not able to insert their own views of whether a particular law is moral” or not.

According to a recording of the May 30 hearing, Sweazea asked the girl if she wanted to marry Noah Pestak (“yes, I do,” she replied); confirmed that she was pregnant; heard Hamilton’s support for the union; and pressed Noah Pestak on when he planned to marry the girl.

“Today, if we could,” Noah Pestak said.

Sweazea then noted the statute, 40-1-6, “permits a person under the age of 16 to be married only in the event of pregnancy.”

Sweazea went on in court. “I guess the Legislature has decided that it is better to have a marriage when there’s a child expected than not. It is not for me to …” Sweazea said, pausing for several seconds, “to question that statute, so based upon your petition, I will sign the order that permits the marriage.”

Scot Key, chief deputy district attorney in Doña Ana County, who was assigned the case as special prosecutor, said he expects to announce whether he will file charges this week when the investigation is complete. He added: “I do not think the suspect is acting altruistically in marrying this young lady.”

Municipal Judge Sanders, who married the couple later that day with the groom’s father as a witness, said the ceremony was perfectly legal under state law, even if the bride was younger than the age of consent when she became pregnant.

“All I saw was it (Sweazea’s court order) was a legal document that was presented to the county clerk that allowed the county clerk to issue the license, and then I am obligated … to perform a marriage ceremony,” Sanders said.

Magistrate Pestak declined to comment on the case because of the ongoing criminal investigation. “Nobody in the judiciary and nobody in law enforcement should be discussing these issues with you,” Judge Pestak said.

Hamilton said neither Noah Pestak nor his daughter wanted to address the media. He said they are not living with him, and he was unsure if they had their own residence or were living with Noah Pestak’s father. Thomas Pestak said the couple was not living with him.

Hamilton said he only learned of his daughter’s relationship with Noah Pestak when she informed him of her pregnancy. After calming down, he said, he went to State Police.

Hamilton disclosed that, earlier on the day of the marriage, he and his daughter met with prosecutors from the office of District Attorney Clint Wellborn, at the prosecutors’ request, to talk about the case. Hamilton said he told them that he does not want his new son-in-law to be charged, and his daughter “pretty much said” she would not cooperate in the event of a trial. The privilege allowing someone to avoid testifying against their spouse does not pertain to events prior to marriage or to communications during the commission of a crime, a prosecutor said.

Hamilton said that, when one prosecutor asked the girl about sexual relations with Noah Pestak, “My daughter told her it was none of her business and she didn’t want to talk about it” anymore.

— This article appeared on page A1 of the Albuquerque Journal