Lost Evidence Issues Linger

A recent lawsuit filed against the City of Santa Fe and its police department highlights the impacts of mishandled evidence, although the region’s top prosecutor says SFPD has made some progress in completing criminal investigations.

The lawsuit, filed last week on behalf of a mother and daughter who are only identified by their initials, accuses police of botching a 2018 case against a man accused of raping the 4-year-old girl by losing crucial DNA evidence.

“Concern for a known sexual assault victim, especially a minor of tender age, should inspire an immediate and thorough response,” the suit reads. “However, SFPD had a policy of refusing to investigate sexual assault and battery against women, such that the DNA evidence went untested.”

Lawyers for the mother and daughter declined to comment on the case.

Enrique Palomino-Loya, now 35, was initially facing six separate first-degree felony child sex-crime charges and up to 100 years in state prison if found guilty. But he reached an agreement with prosecutors in which he pleaded no contest to two fourth-degree felony counts of contributing to the delinquency of a minor and a misdemeanor charge of child enticement. The deal meant that Palomino-Loya was credited with the two years he’d spent in jail as the case wended its way through the system and was required to serve five years of supervised probation and register as a sex offender on a non-public registry.

“The lost evidence was not a helpful thing to our case, but it was not the only deciding factor,” First Judicial District Attorney Mary Carmack-Altwies tells SFR. She declined to provide additional details, other than to say there were “deficiencies all the way around with that case.”

Without the DNA evidence, the jury would have been instructed to assume the missing evidence would have been helpful to Palomino-Loya and not the state, the DA adds.

“It’s not so much that the evidence would have necessarily been the deal maker or the deal breaker, but that that jury instruction, based on having lost evidence, definitely was a big factor,” she says. “But because we don’t know what [the test result] said, I can’t say that it was the entire picture.”

Carmack-Altwies says there were “big problems” with SFPD’s evidence handling and investigations when she took office in January 2021, but the department has been better about delivering solid cases..

“Is it perfect? No. But it has dramatically improved,” she says.

Deputy Police Chief Ben Valdez declines to comment on pending litigation, but says the department has recently updated its evidence-logging process to avoid human error.Some of those changes, Valdez says, include an automated process that makes it easier to track evidence and eliminates the prior need for handwriting evidence tags.

“We’ll always look for ways that we can make improvements,” he says. “If we can’t do it now, we’re going to look at ways at how we can make it happen, whether it be through funding, through personnel, or reallocation.”

Problems with SFPD’s evidence handling came to light in 2017, when a Santa Fe man who was accused of stabbing his girlfriend to death saw his charge dropped to voluntary manslaughter and his sentence reduced to 12 years in prison after prosecutors found DNA evidence in that case would have proved unreliable. A later audit of the department’s evidence storage room found more widespread issues.

In the case of Palomino-Loya, department leaders and the mayor admit the evidence was lost, but were quick to pin the blame on retired detective Paul Ytuarte, who worked the case before his 2019 retirement. But Ytuarte tells SFR he followed protocol and was shocked when the DA’s office called him and asked about the missing evidence, which Ytuarte maintains he logged years ago.

“What do you mean, it’s missing?” he recalls asking the prosecutor.

Ytuarte says he saw improvements in how evidence was handled during his time with SFPD. Years ago, he says, officers were required to take DNA evidence to a state lab for testing, but a policy change left that up to SFPD’s certified evidence technicians, which freed up detectives to work cases instead of waiting in line at the New Mexico Department of Public Safety lab. Those improvements, he says, are just one reason why there should have never been an issue with the Palomino-Loya case.

“You fill out an evidence tag, and then you submit it and then I was done,” Ytuarde says. “So there should have been video surveillance of me going into the department and going into that room, as well as the key fob entries, as well as the written log.”

As for the improvements Valdez describes and that were identified in the 2019 audit, Ytuarte says, “That should have been done a long time ago, because the Santa Fe Police Department and the mayor’s office have been well aware of the problems in our evidence room for years.”