Doña Ana County man convicted of child molestation has case overturned

LAS CRUCES - After spending three years in jail and after two trials, 75-year-old Jose De Jesus Cabral's conviction of two counts of criminal sexual contact with a minor was overturned in June.

The New Mexico Court of Appeals ruling sets up a potential third trial for a man that police said molested his niece in 2006. The appeals court said that a Third Judicial District judge erred during the second trial that led to Cabral's conviction.

Cabral had begun serving his parole sentence when the appeal ruling came down, essentially eliminating his sentence, according to his lawyer.

Cabral's first trial in 2016 was declared a mistrial after jurors said they couldn't come to a decision, according to court fillings. But after about a year, Cabral, the judge and the lawyers were back at it for round two in 2017.

Mid-trial, Judge Marci Beyer made a decision that the appeals court ultimately said was the wrong one.

A critical part of Cabral's defense was a polygraph test that Cabral and his defense attorney, Kelly O'Connell, planned to present. In a recent interview, O'Connell said the polygraph results showed that Cabral did not commit the crime.

"You've got a 'he said, she said' crime, and the one piece of scientific evidence — the passage of a polygraph by a poor, and an educated guy who only spoke Spanish — it was treated as trash," O'Connell said.

New Mexico is one of 18 states that allow polygraphs, which rely on physiological reactions that are said to indicate if the test taker is lying. Many other states have banned the use of lie detectors because many believe they're unreliable.

But for Cabral and his defense, the lie detector mattered.

According to court filings, the lie detector test and the accompanying interview came to the forefront on day three of the trial. Prosecutors wanted to play part of the interview during the trial. To do so, they would need an interpreter since the polygraph interview was conducted in Spanish.

The prosecutor, who spoke Spanish, said he had listened to the recording and needed only about 15 minutes of the two-hour tape. Courtroom interpreters said they could translate the whole thing, but they would be able to interpret small sections at a time.

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On the trial's fourth day, the interpreters returned with their supervisor. They were having trouble translating a portion of the interview because two parties were talking at once.

The interpreters said the best way to move forward was to write down what was being said in the polygraph interview in Spanish, then interpret that into English. But that would take a lot more time.

Judge Beyers then proposed a solution. She said that the state ought to make a motion to excuse the polygraph results for failure to comply with the rules.

In order for polygraph results to be admissible, the party that wants to present them must ensure that:

According to the court filings, prosecutors argued that the defendant violated the spirit of the law by not have the results translated before trial. Beyers accepted the motion to exclude the polygraph. She said that translating the results was incumbent on the defense since they were the ones who sought the polygraph in the first place.

But the appeals court disagreed.

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"The district court misconstrued both the language and the purpose of (the polygraph rules) improperly excluding a key defense witness," Appeals Judge Jane Yohalem wrote in her opinion on the case.

While no new trial has been scheduled, O'Connell said that he plans on using the polygraph results in the next round of proceedings.

Justin Garcia is a public safety reporter for the Las Cruces Sun-News. He can be reached by email at JEGarcia@lcsun-news.com or by phone at 575-541-5449 or on Twitter at @Just516garc.

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