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Charges pending for FPD officerFARMINGTON, Jan 29, 2012 (The Daily Times - McClatchy-Tribune Information Services via COMTEX) -- The 13th Judicial District Attorney's Office, overseeing the investigation into allegations that a Farmington police sergeant raped a local woman, announced it would take the case before a magistrate judge in a preliminary hearing. The announcement came days after a local district court judge denied a petition for a restraining order against the sergeant following an eight-hour hearing. District Attorney Lemuel Martinez, who was charged with investigating criminal violations after the local district attorney conflicted out, said in a phone interview Wednesday that his office is moving forward with the case. "We will place various counts under the criminal information to see if a judge finds probable cause," Martinez said. Sgt. Kent O'Donnell, a 12-year veteran of the Farmington Police Department, adamantly denied that he sexually assaulted a Farmington woman during an Aug. 27 incident. He and his wife partied with the woman earlier that night. The woman filed an emergency restraining order against O'Donnell on Sept. 17, and Farmington police administration, the following day restricted O'Donnell to desk duty. Despite being a tactical firearms instructor, part of his restrictions entailed turning in his department-issued firearm. The woman claims O'Donnell forced his way into her home and bedroom, where he assaulted her. O'Donnell said it was consensual. District Judge William Birdsall, in a Jan. 20 order, denied a petition for a restraining order. Birdsall ruled that the victim did not establish the elements of her case by a preponderance of evidence more likely than not the event occurred which is the standard required in granting an order of protection. "The video testimony and statements of (the victim's son) were particularly illuminating to the court, both as to inconsistencies in (the woman's) testimony and motive and interest connected with this case and (the woman's) legal action against the city of Farmington," Birdsall wrote. The victim filed a tort claim notice against the city, which must be filed within 90 days of an incident to reserve the right for a person to bring forth a civil lawsuit. O'Donnell's defense attorney, Steve Murphy, said there were numerous discrepancies in the statements the victim made during a deposition compared to what she said on the stand. Specifically, the woman denied speaking to her 16-year-old son about getting money from a lawsuit against the city when asked during depositions. During the hearing, however, the son testified they discussed it twice, Murphy said. "We sent a copy of the order to Lemuel Martinez on Thursday, Jan. 26, because he indicated he never received the order before," Murphy said. "I think once they review the order and District Judge Birdsall's finding in that order that they failed to meet their burden of proof, Martinez will not want to waste any of the money of the citizens of San Juan County pursuing this case." The woman's attorney, Brigitte Thomas, in an email statement said they disagreed with Birdsall's ruling. "Here the court did not wish to render a decision that would destroy the officer's career at this level when that decision should be made in a criminal case or a civil lawsuit," Thomas wrote. "What should have happened is the temporary restraining order should have continued in place, which doesn't affect the officer's right to bear arms, until the larger decisions were made the criminal and/or civil verdicts." Thomas said the Family Violence Protection Act, under which the restraining order was filed, was designed for domestic violence situations, and until recently could only be obtained by a family member or intimate partner. The Legislature, she said, "squeezed sexual assault by acquaintance or stranger into the definition of domestic abuse as an afterthought." Martinez said his office continues to investigate pending criminal charges and is reviewing the information from the restraining order hearing. It remains unclear what time frame his office expects to have the investigation complete. The standard used in determining a petition for a restraining order is the same that is used in a preliminary hearing. While he declined to comment on what specific charges would be filed against the sergeant, Martinez said the officer would not be arrested but required to appear in court by a criminal summons. "It doesn't seem like he is a flight risk," said Martinez of O'Donnell's willingness to appear at other court hearings. "A summons is an appropriate manner to get him to court." The preliminary hearing system used in San Juan County is different from the grand jury inquisition used in other areas of the state. In the preliminary hearing system, charges are filed against an individual, which then triggers the hearing. In a grand jury system, charges do not have to be filed prior to the inquisition. Meanwhile, Farmington police administration said O'Donnell remains restricted to desk duty. "I'm not comfortable putting him back in his regular position until the District Attorney decides something," Chief Kyle Westall said. "There is no restriction for him having weapons, and I'm not going to keep him from having a weapon, but he's not going back to patrol before this is cleared up completely," Westall said. O'Donnell remains under an internal affairs investigation within the department. "It's appropriate that we wait before that investigation is done to close the IA," Westall said referring to the district attorney's investigation. "All of that information would be open to us in the internal investigation, and we want to gather as much information as possible to make a decision." Although O'Donnell is restricted to desk duty, he has assisted with firearms trainings in the department. According to Westall, the rules require two certified officers to be present. Thomas' client continues to fight. She is seeking other options, such as pursuing revoking O'Donnell's peace officer certification through the law enforcement body in Santa Fe, Thomas said. Additionally, the Navajo Nation Human Rights Commission took her case and is investigating violations. "My client is undeterred and is pursuing every possible avenue to hold this officer accountable," Thomas said. "She feels a duty to prevent other women being assaulted by him, and will continue to, despite her own safety concerns." ___ (c)2012 The Daily Times (Farmington, N.M.) Visit The Daily Times (Farmington, N.M.) at www.daily-times.com Distributed by MCT Information Services |