Copyright © 2019 Albuquerque Journal reprinted with permission

Jessica Kelley will not be going to trial in the brutal slaying of Victoria Martens.

In a nearly empty courtroom Monday – watched only by the media, a couple of investigators and Victoria’s crying grandparents – 34-year-old Kelley pleaded no contest to child abuse recklessly caused resulting in death, tampering with evidence and aggravated assault.

The plea was accepted by Judge Charles Brown.

She faces a total of 50 years in prison. Since she has two prior felony convictions, she will be sentenced as a habitual offender, which adds 20 years in prison to the sentence.

But Kelley has the possibility of cutting her time in prison down to 20 years total with good behavior.

The plea agreement is similar to one Brown rejected last September.

Although the District Attorney’s Office and Kelley’s defense attorneys had agreed to that deal at the time, Judge Brown said they had not presented enough evidence that Kelley was guilty of child abuse.

At a news conference after the plea hearing, District Attorney Raúl Torrez said the primary difference this time is that Kelley is pleading “no contest” – or saying while she is not admitting guilt, she is not contesting the state’s narrative.

“We were able to fashion an agreement that substantially exposes Ms. Kelley to the same amount of time in the Department of Corrections and satisfies the concerns of the court,” Torrez said. “It also brings some finality at least to the second of the three suspects that are charged with the death of Victoria Martens.”

Kelley is the second suspect to take a plea deal in the case.

Victoria’s mother, Michelle Martens, pleaded guilty to child abuse recklessly caused resulting in death over the summer, and she faces between 12 and 15 years in prison.

Martens’ boyfriend, Fabian Gonzales, is charged with child abuse resulting in death and tampering with evidence. His trial has been delayed pending a ruling by the New Mexico Court of Appeals.

His attorney, Steve Aarons, said his client is innocent and will not take a plea deal.

“We are disappointed that the prosecution settled for a child abuse conviction against Jessica Kelley for her brutal murder and dismemberment of Victoria Martens,” Aarons wrote in an email. “On the other hand, by pleading and agreeing to testify as the prosecution’s star witness, Kelley will be subject to cross examination at our trial.”

Although police initially said Gonzales and Kelley stabbed and strangled Victoria while Martens watched, prosecutors now say an unidentified man was retaliating against Gonzales when he went to Martens’ apartment and killed her daughter.

They say that man’s partial DNA sample was left on the little girl’s body and he has been indicted as a “John Doe.”

Torrez said he hopes the plea deal his office struck with Kelley will strengthen the case against Gonzales and will help identify and prosecute John Doe.

No sexual assault

Less than 24 hours after the August 2016 morning when 10-year-old Victoria’s body was found mutilated and on fire in the bathtub of her mother’s Northwest Albuquerque apartment, detectives arrested Martens, Gonzales and Gonzales’ cousin, Kelley.

They were all charged with murder, child abuse and other charges, and Gonzales and Kelley were charged with raping the little girl.

On Monday, Mark Earnest, Kelley’s defense attorney, announced that over the past two months experts have determined that contrary to the findings in the initial autopsy report, there was not any evidence that Victoria was raped the night she was killed.

“In totality these three experts that I’m talking about have over 100 years (of experience) …” he said. “They determined that no sexual assault took place. Despite that, early on, the autopsy report in this case indicated that there was sexual assault.”

Last Friday, the DA’s Office filed charges dismissing rape charges against Kelley, saying there was “not sufficient evidence to connect Jessica Kelley to the charge of criminal sexual penetration.”

Earnest said he wishes those charges had been dismissed earlier in order to correct the public’s misconceptions about the case.

“Part of the pretrial publicity in this case, adding to the horrific nature (and it was a horrific crime), was this added element that Victoria had been raped and sexually assaulted, and she wasn’t,” Earnest said. “That the state did not concede until a few days before the trial in this case.”

“This case was reviewed by seven additional experts, including forensic pathologists, a child sexual abuse expert, and an expert in the changes in genital tissues from sexually transmitted viruses before the autopsy report was finalized,” Sanchez wrote in the statement. “We strongly refute any claims he was unqualified to handle this case.”

She said officials will be reviewing the independent findings along with OMI’s autopsy report.

Torrez said this case has illustrated that all the major players in the criminal justice system “can do a much better job.”

“We do our very best to be professionals,” he said. “To examine the evidence, to look at every angle of the case, to work with law enforcement partners, our partners at the Office of the Medical Investigator and to examine specific cases, but also to learn important lessons for the future.”

Not a perfect outcome

Kelley was “tweaking” and experiencing paranoid delusions from methamphetamine the afternoon she agreed to baby sit Victoria while Martens and Gonzales went out, according to the factual basis included with the plea agreement.

She should have realized she was too intoxicated and impaired to care for a child. When an unknown man arrived at the apartment, asked for Gonzales and went to Victoria’s room, she should have tried to stop him.

“The man strangled Victoria to the point of death or to the point of causing great bodily harm,” the statement reads. “Evidence would support a reasonable inference that Kelley knew or should have known that the man posed a substantial and unjustifiable risk of serious harm to Victoria.”

After the man left, Kelley carried Victoria’s body down the stairs, but was interrupted by Martens’ and Gonzales’ return.

Kelley told Gonzales that Victoria had been killed and the two cousins “agreed to conceal the crime and dispose of Victoria’s body and to hide the murder from Martens by keeping her way from Victoria’s room.”

After cleaning up the room, Kelley grabbed a clothes iron and struck Martens on the face with it. This is the basis for the aggravated assault charge. There was a struggle between all three suspects and “a short time later, Martens and Gonzales left apartment 808. Kelley then set Victoria’s body on fire and took down two smoke detectors in the apartment.”

Torrez, flanked by his two lead prosecutors and Art Gonzales, the deputy chief of investigations at Albuquerque Police Department, said the two detectives who had been assisting with the investigation will continue to do so. Art Gonzales did not comment at the news conference, and in response to request for an interview, an APD spokesman merely said, “Today’s plea agreement is a step toward accountability for this heinous crime.”

Torrez said he did not make the decision to enter a plea deal lightly and he recognizes it’s not the perfect outcome.

“It is not something that is ideal in terms of what we all would like to see happen in these cases,” he said. “However we are confronted as prosecutors with our ability to present cases based on the facts and the evidence that we have. We, as you know, identified some issues with the initial investigation which altered the course of our prosecution and had to inform our decision to enter into this plea agreement.”