Judge to allow testimony by Jeremiah’s sister

August 10, 2018

Prosecutors lost their fight Thursday to keep a 13-year-old girl from having to testify — and be interviewed by defense attorneys — about her brother’s death at their Nambé home.

A state district judge sided with defense attorneys who argued they have a right to interview the girl and call her as a witness, despite prosecutors’ concerns that the girl needs more time before she is subjected to questioning.

The teenager, identified only as A.V., is the sister of Jeremiah Valencia, a 13-year-old boy who authorities say was beaten to death last year by their mother’s boyfriend, Thomas Wayne Ferguson.

Police have said evidence shows Ferguson tortured and abused the boy — including choking him, keeping him in a cage and making him wear diapers — leading up to the boy’s death in late November.

Ferguson, who was charged with first-degree murder, hung himself in jail in April.

Valencia’s mother, Tracy Ann Peña — who is also A.V.’s mother — and Ferguson’s 20-year-old son, Jordan Anthony Nuñez, are accused of helping Ferguson bury Jeremiah’s remains in a shallow roadside grave.

Both are in jail awaiting trial on multiple felony charges, including child abuse resulting in great bodily harm and tampering with evidence.

The state sought to block the defense from calling A.V. as a witness at detention hearings for Nuñez and Peña that are set for Sept. 5. The judge will decide at the hearings if they will be released from jail pending trial. The state also asked the judge to keep the girl from being from being interviewed ahead of those hearings.

But attorneys for Peña and Nuñez argued they have a legal right to interview and call witnesses who have information that could be helpful to their clients’ defense.

A.V. is an important witness, the attorneys said, because she witnessed the abuse as well as actions taken or not taken by Peña and Nuñez before and after Jeremiah died.

Specifically, the lawyers in court documents and at a hearing before District Judge Matthew J. Wilson offered as reasons why A.V. should testify:

• She was aware of efforts her mother made to shield Jeremiah from Ferguson, for which Peña received beatings.

• She was aware of efforts her mother made to keep Ferguson from keeping Jeremiah in a dog kennel.

• She was aware that her mother tried to feed Jeremiah behind Ferguson’s back, “but that Jeremiah was in too much pain to eat.”

• She never saw Nuñez harm Jeremiah, and that he “instead would attempt to help and care for him during and after the abuse.”

• She trusted Nuñez and “felt safe in his presence.”

Deputy District Attorney Jennifer Padgett argued that subjecting A.V. to questioning in September would “set her back in processing not only the extent of the abuse she suffered but also witnessing the homicide of her brother.”

Padgett said she was not asking the court to shield the girl indefinitely but until at least October, at which point her therapists would have been able to prepare A.V. to testify.

Padgett said the state has already conducted interviews with A.V. and defense attorneys could rely on recordings and transcripts of those interviews to make their case during their client’s detention hearings.

Nuñez’s attorney, Theresa M. Duncan, countered that prosecutors had not asked the same questions defense attorneys would and said it makes more no sense for defenders to interview A.V. sooner rather than later.

“She was there,” Duncan said. “She can testify to the events that happened in that home. The more time that passes the less fresh her memory will be.”

Padgett on Thursday called to the witness stand a Children, Youth and Families Department caseworker who testified A.V. is living with an unrelated foster family and that the agency is seeking to have parental rights terminated so she can be adopted.

The caseworker said A.V. had not disclosed any sexual abuse at the hands of Nuñez.

She said A.V. was timid and shy when they first met but has since become a “bubbly,” energetic teenager who is taking gymnastic lessons and preparing to attend public school.

“She’s getting the opportunity to live the childhood she never had the opportunity to,” the case worker said.

Padgett asked the caseworker what effect testifying could have on the girl, but the judge upheld defense objections that the caseworker was not an expert witness or qualified to answer the question.

The judge said none of the facts presented by prosecutors justified granting the state’s motion for a protective order and said the defense has a right “under due process concepts” to interview A.V. and call her as a witness.

Peña’s attorney, Michael L. Rosenfield, and Duncan both assured the court they would be gentle in their questioning of the girl. Rosenfield also said they would take whatever measures the court felt necessary — including putting time limits on the girl’s testimony — to ensure she would not be “unduly burdened” by their questioning.

“We have no interest in traumatizing her or causing her any kind of harm,” Duncan said.

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