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Copyright © 2019 Albuquerque Journal

An Albuquerque judge ruled Wednesday that the man charged in the death of 10-year-old Victoria Martens may be released from custody as his case winds its way through the legal system.

At a conditions of release hearing Wednesday morning, Judge Charles Brown denied a request by the state to detain Fabian Gonzales, finding prosecutors failed to prove that the 35-year-old poses a danger to the community.

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Brown agreed to release Gonzales to the court’s pretrial services division, which must find an appropriate living situation for him before he can be physically released from the jail. Brown said he would revisit the issue if the division is unable to find a suitable option.

Gonzales has been in jail for more than three years on a $1 million cash-only bond. His case is on hold indefinitely pending an appeal.

Since that bond was set in September 2016, New Mexico has amended its constitution in a way that drastically reduced the use of monetary bonds like the one that has kept Gonzales behind bars, and prosecutors have completely revised their theory of the case.

The state now alleges a still-unidentified well-dressed man walked into the Martens family’s apartment and killed Victoria as Gonzales’ cousin Jessica Kelley babysat her. Both Gonzales and the child’s mother, Michelle Martens, were away from the apartment when the child was killed.

As a result of the new theory, several charges against Gonzales, including first-degree murder and rape, have been dismissed.

Gonzales continues to face one count of reckless child abuse resulting in death and multiple counts of tampering with evidence. Some of the tampering charges allege that he helped dismember Victoria Martens’ body.

“While the circumstances of the offense remain highly concerning, it is no longer claimed that Gonzales harmed the child in any way,” Gonzales’ attorney Stephen Aarons argued in the motion seeking his client’s release. Aarons could not be reached for comment following the hearing.

In court on Wednesday, Aarons suggested that a jury “may well find that the theory is hogwash and that there is no hit man,” and that Kelley “avoided a conviction for murder with a story that is unbelievable.” He proposed that the court allow Gonzales to live with family on a sort of house arrest.

In response to Aarons’ motion, the state filed its own motion seeking pretrial detention – the new mechanism for holding defendants in jail before trial.

Prosecutor Greer Rose offered a detailed look at Gonzales’ criminal record, along with his history of skipping court dates and failing to comply with court-ordered conditions of release.

Rose’s request to keep Gonzales behind bars was denied by Judge Brown, who pointed out that the many “outrageous factors” that were once part of the case had been disproven. He called the case ugly and horrible, but said the state had not shown by clear and convincing evidence that Gonzales poses a danger to anyone in the community.

In an interview Wednesday, Rose said the state plans to appeal the decision.

Michael Patrick, a spokesman for the District Attorney’s Office, said in a statement the office was disappointed in the decision.

“Our office files for preventative detention on individuals who clearly represent a danger to the community,” Patrick wrote. “Prosecutors presented 46 exhibits detailing Fabian Gonzales’ criminal history, which started at the age of 14, and his role in Victoria Martens’ death and mutilation. Gonzales has uncontradicted reports of violence against pregnant women and women with small children. For the last 21 years, he spent 15 years either in jail or violating conditions of release.”

Appeal expected

When news of the murders first broke in August 2016, Gonzales was accused of drugging, raping and killing the child.

But in June 2018, the DA’s Office announced that, due in part to false confessions, much of that version of the case was “simply not true.”

Now, the state says that after a pregnant woman gave Gonzales a black eye, he threatened the woman via text. The “disrespect and threats” set in motion the events that led to Victoria’s killing by a unknown man, the prosecution has argued.

While she was watching the girl, Kelley said, a stranger walked into the apartment, killed Victoria and told her that the homicide was Gonzales’ fault. The man said Kelley and Gonzales needed to “clean up the mess,” and both are accused of cleaning up the crime scene and mutilating the child’s body.

“Defendant made himself a target and then deliberately moved (Victoria Martens), unprotected, into the crosshairs,” prosecutors have said in court filings.

Gonzales’ decision to leave the girl with Kelley, who had recently been released from prison and was using meth, shows he knew “another dangerous person would be going into the apartment that day,” the state alleges.

Prosecutors are expected to file an appeal of Brown’s decision within five days and a ruling is likely within a month. It is not clear when Gonzales may be released from jail.