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Continuation of sentencing hearing for Wayne Bent – December 30, 2008. Donald Gallegos for the State. Ms. Sara Montoya, for the defendant.

Judge Baca: Alright, Ms. Montoya. How long do you think you’ll be?

Ms. Montoya: Very lengthy.

Judge Baca: Huh?

Ms. Montoya: Very lengthy. We had requested two hours, your Honor...

Judge Baca: We have till ten thirty. So you have about an hour and fifteen minutes left. Alright. And you’ll take up that time?

Ms. Montoya: Yes sir.

Judge Baca: And I anticipated that you would.

Donald Gallegos: I may just bring it to the court’s attention then.

Judge Baca: Sure. Let me understand your recommendation is a net of three years, is that correct?

Donald Gallegos: No, my recommendation is conclusive. Impose the full fifteen years.

Judge Baca: Fifteen years.

Donald Gallegos: On count two.

Judge Baca: Ok.

Donald Gallegos: I was just indicating to the court that, of course, three years is mandatory, that can’t be suspended or deferred.

Judge Baca: Alright.

Donald Gallegos: And I don’t believe can be given on home monitoring, given the cases cited by Ms. Montoya. I believe one involved a DWI and the other was a property (unintelligible word) .

Judge Baca: So you’re asking for a sentence of imprisonment of fifteen years? Is that correct?

Donald Gallegos: That is correct, your Honor.

Your Honor, the last thing... cause I probably won’t get to speak to the court again is, we are filing a motion and we’ll either ask the court to do it in open court or however the court would do it. But the basis of the State’s motion is for a determination of indigency in this matter. Mr. Bent, the defendant, since the beginning, as we understood, or I mistakenly understood, when we went to the arraignment, we researched his assets and his ability to access assets and it was factored in, in the determination of bond. At that time, I asked that the court not appoint a Public Defender until indigency was determined. I don’t know that that was ever done in this case. The reason we do that, your Honor, is that the defendant, we do have information has... the people who live on his compound give all their resources to him. And his story is he puts it into a Living Trust for the benefit of all. Sounds good?

Well, here’s the thing, the taxpayers are footing the bill for this guy when he has access to I believe two hundred acres or so, that could be mortgaged, that could be borrowed against, and I believe the case law has gone through that. I know this is a topic for another hearing, your Honor, and it’s... I know the timing is kind of tough, but I believe we wouldn’t be doing our job if we didn’t bring it up. And it may have to be, you know, for another day. But I just wanted the court to be aware of that and we do have the financial information. We’ve done the investigations as to what assets, really are accessed only by him in a Living Trust, that he has access to. And you know, this is gonna take the next step, of course, of an appeal and there’s gonna be an informal (unintelligible word) and the taxpayers are gonna continue to foot the bill for someone who wants nothing to do with our system, but yet, will benefit from it.

You know, you can call that throwing another hammer at the guy, or doing whatever else it is. I call that being vigilant. I call that watching out for the taxpayers and I call that, you know, for persons who are very very needy, who are genuinely indigent, even when they’re working and paying taxes, you know they need to have that help. But for someone who has chosen the lifestyle to ignore the laws, and to ignore everything else and then say, I should have the benefit of taxpayer defense, when I have access to more assets than I’ve got, from me or probably a bunch of us in this room combined. I think is an insult to the tax payers of the State of New Mexico and I think should also be taken into consideration. What I will do then is ask the court if I should file this over in Union County or if the court would file this in open court. Either way.

Judge Baca: If you wish to file it in open court, I’ll accept it.

Donald Gallegos: Alright, your Honor.

Judge Baca: Do you have a copy of this?

Ms. Montoya: No.

Donald Gallegos: If I may approach? And then we’ll give copies. It does have an attachment, which indicates the evaluation of the land, documents from the Assessor’s Office, deeds, those things. And Ms. Montoya will get a copy, forthwith.

Judge Baca: Alright.

Donald Gallegos: Thank you, your Honor.

Judge Baca: You’re welcome. Alright. So I’m going to mark this State’s Motion for Defendant’s Determination of Indigence, as filed in open court on today’s date. Alright. And I’ll see to it that it gets filed and placed in the court file. Anything else on behalf of the State?

Donald Gallegos: No, not at this time. Thank you, your Honor.

Judge Baca: Alright, Ms. Montoya. You have the floor.

Ms. Montoya: Thank you, your Honor. I’m gonna work a little bit backwards, in that I’m gonna respond to the Motion for Indigencey first.

Judge Baca: Ok.

Ms. Montoya: As to the Motion for Determination of Indigency, this is another blindside. We knew nothing about it. The people on the land do not give all of their resources to Mr. Bent. It goes into a trust. There are trustees that determine how the monies are spent. It’s a communal living arrangement. And all of Mr. Bent’s money also goes into the trust. The Determination of Indigencey was made by the magistrate in Clayton, New Mexico who appointed me to represent him. When the District Attorney dismisses cases and then takes them to Grand Jury, as public defender contract attorneys, we don’t then submit for a second payment on the same defendant and the same charges. I got paid once and one time only. I believe for a second degree felony that my payment was six hundred and fifty dollars. And I spent a week in trial, a week in trial preparations and more than that on witness interviews. And even if the determination is made that Mr. Bent is not indigent and he has to repay the six hundred and fifty dollars, then it would be up to me to pursue him for my payment, which I would not do. So I don’t know how often D.A.’s are looking into the resources of clients that are assigned to public defender representation, whether it be by the Public Defender offices in the various cities or by the contract attorneys, but this is absolutely the first time in all of my career that any District Attorney has ever gone into make a determination of indigency after it was already determined by a legally elected magistrate. So as to it being an insult to the taxpayers of the State of New Mexico, the insult is in the amount of approximately six hundred and fifty dollars. There were some...

Judge Baca: Do we have the Affidavit of Indigency that was filled out?

Ms. Montoya: It should have been in the magistrate court file, but since this was by indictment by a grand jury, I don’t know if the magistrate court file ever came up to the District Court, your Honor.

Judge Baca: I don’t see it here, in...

Ms. Montoya: I don’t believe its part of the...

Judge Baca: Do you have a copy of that affidavit; is it attached to your motion?

Donald Gallegos: No, your Honor. We didn’t see it in the file either, in the pleadings.

Ms. Montoya: And I want Mr. Gallegos to know that I did not submit for payment under this District Court Case. I did not submit for payment.

Judge Baca: And I’ll take notice of the fact that, and I understand how that works, that you, you get appointed and you get to bill one time and it follows through the entire case, from the magistrate through the District Court.

Donald Gallegos: If I may just real quick, your Honor,

Judge Baca: Sure.

Donald Gallegos: So that we can maybe save some time on this, it’s not anything about Ms. Montoya. When she showed up to represent him, she indicated she would even do it pro-bono. That’s fine; I got no problems with that. The other thing is that it’s not up to her to collect. This money is pursuant to the statute to be pursued by the District Attorney and then it goes back to the general fund of the State. She got paid for what she did. And she put in a lot of hours, very diligent, I give her that. But at the beginning, she indicated she was, believed so much in the case that she would do it pro-bono. So this has more to do with what the tax payers are out than it has to do with Ms. Montoya.

Judge Baca: Alright. And that’s why I’m interested in seeing what the affidavit actually says, because at that point in time, the Magistrate who arraigned the Defendant would then have his staff fill out the affidavit based on information provided by the Defendant. And so before I make a ruling on this case, on this issue, I’d like to see that affidavit, if we can get a copy. I’d like to see it today before we’re done here. So whatever scrambling has to happen, both sides have assistants and let’s get them finding that affidavit. Alright. Ok.

Ms. Montoya: Your Honor, my recollection is that the magistrate judge filled it out herself from the bench, on the date of arraignment.

Judge Baca: Alright.

Ms. Montoya: We do have a copy in our file, but I did not bring the file with me, all I brought was the aentencing documents.

Judge Baca: Alright.

Ms. Montoya: Now, as to the sentencing issue...

Judge Baca: Alright.

Ms. Montoya: As to A.S. and her becoming suicidal and Mr. Bent basically disrespecting her, by what Mr. Gallegos characterizes as being kicked off the land when she became suicidal; she did not become suicidal because of the incident with Mr. Bent. She was suicidal before that incident. We had individuals willing to testify to that at trial and that... the witness that we proffered was not allowed to testify. But she was suicidal before anything occurred with Mr. Bent and her mother was suicidal at about the same age as A.S. So we don’t know if it’s genetic, if there’s some kind of problem there. We don’t know. But Mr. Bent called her parents and said, “She’s got a problem, you need to deal with it.”

Ah... and Mr. Gallegos stated that it was never about religion for the State. Well that’s the problem; it’s never been about religion for the State. It’s always been about religion for Mr. Bent and for his followers, because they live their life dedicated and believing strenuously in the power of God and in their ability to commune with God. So we understand, it was never about religion for the State. And it’s never going to be, because they don’t understand these people and they’ve made no effort to understand these people.

Mr. Gallegos states, "You can practice your religion, but you cannot break the law." And again, he wants some kind of remorse or apology from Mr. Bent. It’s not going to happen. It’s not going to happen, because he continues to believe it’s not illegal for someone to lie naked in someone else’s presence. It only becomes illegal if some kind of sexual touching occurs. And as long as he continues to shout from the rooftops his innocence, there’s no reason for him to have remorse. He believes that he was persecuted by the State because of his religious practices. And that’s not going to change.

And as to propaganda, I don’t know if Mr. Gallegos is trying to say I was guilty of disseminating in some kind of propaganda, but I don’t believe propaganda was promulgated so much by Mr. Bent or his followers. His website has been in existence long, long, years before this case ever ensued. It’s not about propaganda. It’s not about brain washing. Their own witness, in witness interviews, stated, their own expert witness stated that there is no such thing as brain washing and it doesn’t occur in this instance and that this group does not constitute a cult. And yet, Mr. Emilio Chavez during trial would slip that word in, just slip it in a couple of times when he was making comments to the jury, innocently, supposedly. But it wasn’t innocent, it was, it was calculated to try to attempt to taint the jury.

And as for A.S.’s pictures on the internet, I had absolutely no intention of bringing those up. The trial's over and A.S.’s not on trial. She never was. So we had no intention of bringing those up, but Mr. Gallegos has now brought those to the attention of the media and I’m sure now they’ll be clamoring for them. And it was never our intention to bring those up today.

And as for the parents, leaving the two daughters, saying that they didn’t expect their daughters to be subjected to this behavior. The truth of the matter is, your Honor, that the incident occurred with Mr. Bent and then the daughters were away from the land for a period of time and the parents still brought the daughters back. They still brought their daughters back after it was known, it was known throughout the community. It was posted on the website that these occurrences did, in fact, happen. And they still brought their daughters back. And their daughters still lived at the land. And Healed is present here today and she may not have wanted to speak on behalf of the Prosecution, but she may want to make a statement on behalf of Mr. Bent. And she can tell the court that, even after these events occurred, she was allowed to continue to live on the land and again without her parents. So it’s not as though their trust with Mr. Bent was violated, that was something that all of a sudden we hear about at trial. It was never brought out before trial or before Mr. Bent was charged. And they’re saying they never would have agreed for their daughters to consummate. Consummation was never a part of the ritual. It never was with these two girls. And these words keep coming up, these words like, "virgin" and "consummation," because they shock the conscience of what we would call normal society. But the virgins were for a purpose of pouring out plagues. It was a whole separate ritual and the State has them all mixed up because, again, they never took the time to understand these people, or how they... or what they were doing or why they were doing it. So the consummation had nothing to do with A.S. and Healed. Healed wanted consummation. Mr. Bent would not allow that to occur. And as to L.S.’s feelings...

Judge Baca: Do you agree then that consummation means a sexual act?

Ms. Montoya: Not always. Not in the context of their religion, because they’re talking about consummation with their God, which may not have anything to do with a sexual act. There’s two different ways that the word is used. Mr. Bent’s belief has always been that the church itself is consummating with God, which has nothing to do with sex whatsoever. It would take days, your Honor, to get into an explanation of the religion, which we have tried to avoid because it just gets so complicated.

And as to L.S.’s feelings, the District Attorney’s office stands up here today and says, “She was in love with Mr. Bent.” She was not in love with Mr. Bent. I asked her, “Are you in love with Wayne Bent?” She said, “No.” She’s in love with the spirit of Michael, that they believe came unto Mr. Bent. Mr. Bent is a human person. Michael is a spiritual spirit that walks the land with Mr. Bent. But Mr. Bent and Michael are two different entities. She is not in love with Wayne Bent. She is in love with the spirit of Michael, because the spirit of Michael is pure and loving and cares about people. It’s all encompassing and it’s something that cannot be explained except for spiritually. And that’s something that I never thought I’d have to be standing here in a court of law trying to explain. But, in any event, when the District Attorney says L.S. is in love with Wayne Bent, that is, in fact, incorrect.

And the District Attorney’s office stands up and talks about arrogance. I think there’s been arrogance all over this case and not necessarily always by Mr. Bent. If we weren’t arrogant, none of us would have made it through law school, frankly. The truth of the matter is that attorneys are known for their arrogance, so I think it’s the pot calling the kettle black.

And again, Mr. Gallegos stands before the court and asks for fifteen years of incarceration, because Mr. Bent put his hand, here. probably shows her hand over her heart, as Bent demonstrated during the trial And they want to say that’s the breast and that her bodily integrity was violated. But what I want to say is, you know, if we’re talking about turkey breasts, we’re talking from here to here. We’re not talking about that, here. He’s recommending fifteen years. Your Honor, the sentence for second degree murder in this state is fourteen years. He didn’t kill anybody. The recommendation is completely blown out of proportion for the crime. And he argues about rehabilitation deterrence and the punitive value. The trial itself was punitive. To put this man through that, to put all of his religious followers through that was punitive.

Judge Baca: You said the sentence for second degree felony murder was fourteen years?

Ms. Montoya: Correct.

Judge Baca: Thirty-one, eighteen, fifteen (311815) says for second degree felony, resulting in death of a human being, is fifteen years.

Ms. Montoya: Fifteen. Well, it’s the same, then, for a second degree murder, and he didn’t kill anybody. Nobody died here. And, in fact, A.S., herself, when I did the witness interviews, said she didn’t want him locked up. And the State didn’t bring her here to say, “Your Honor, lock this man away, he’s really harmed me.” She’s not here to do that. And if it really mattered to her, she would be here. Her father himself, testified from the witness stand, “Well I still like him, I don’t hate him and I think he still likes me. I consider him my friend.” And I’m going to back to that argument I made at closing with the jury. Why would you care, if someone was your friend or why would you stand there and say, “I don’t hate him,” if you believed your daughter was sexually molested?

I think there... that this is a convoluted case. It always was and what Mr. Gallegos perceives as arrogance on the part of Mr. Bent is just someone who is talking about his religion. He believes wholeheartedly in everything he says. He always has. And so I don’t think that’s arrogance. I think it's belief. It’s a strong belief in having conviction. When Mr. Bent said he "had more authority than a medical doctor," again, taken out of context. He said, “I have more authority than a medical doctor to... as to their souls.” He was talking about their souls. He wasn’t saying he ministered to them as a doctor. He’s talking about ministering to their souls. So the very statement is taken out of context. And that’s true. What medical doctor wants to minister to someone’s soul? That’s not their job.

Fifteen years amounts to a death sentence for Mr. Bent. He would be eighty-two years old, if he lived that long in prison with his special diet. We believe that the punitive value of the trial itself has really been a deterrent for everyone who has anything to do with this religion. There are no individuals on the land that are under the age of eighteen. There’s no reason to believe that anyone will come to the land under the age of eighteen. But your Honor could make it a condition that no one be allowed to live on the same land with Mr. Bent under the age of eighteen, if he’s allowed electronic home monitoring.

Mr. Gallegos also referred to a pre-sentence report. I didn’t receive a copy of that. So if the recommendation is six years, I believe that Mr. Latham made that recommendation, based on the fact that he thought there was mandatory time. I talked to him about electronic home monitoring and he agreed that he would be a good candidate for that. Mr. Gallegos is incorrect as to the State of New Mexico and what the law requires. An ankle monitor, electronic home monitoring, does amount to incarceration. It’s done on mandatory time, all the time. Mr. Bent does have a special diet and he is of advanced years. But we believe that the court can impose electronic home monitoring for the mandatory three years. So we are asking for electronic home monitoring for the three years of incarceration that are mandatory under the law and any amount of probation after that, that the court would wish to impose. And we are asking that all three counts run concurrent to one another. We do have several individuals who do want to address the court and I know that your Honor will ask Mr. Bent at the end if he wishes to address the court. And I know that he does.

Judge Baca: Alright. And just to remind everybody, that I have read all the attachments that were included in your sentencing memorandum and so, if people want to address, who have already submitted letters, I asked that they bring new information to me.

Ms. Montoya: No, your Honor, they’re all different people. The only letters I submitted to you were from his siblings. I would tell the court that Dr. Ned Siegel is here today. He asked if the court has any questions about the evaluation that he conducted, then your Honor may want to address that with him, directly.

Judge Baca: Ok, I see him. Alright. So who do you wish to call first?

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