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Court overturns sex charge case

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The state Supreme Court has overturned 9th Judicial District Chief Judge Drew Tatum's decision in a 2009 case and ordered criminal sex charges against a Clovis man dismissed.

The ruling, handed down Thursday, centers on Tatum’s decision to stop a jury trial that had started against Julian Gutierrez when the prosecution’s chief witness failed to show and testify.

Tatum scheduled a new trial with another jury.

Supreme Court justices ruled: “Because impaneling a new jury and retrying Defendant would violate his double jeopardy protections ... we remand to the district court with instructions to dismiss.”

“There is no question in this case that jeopardy attached at the moment the district court swore the jury,” the opinion said.

“In this case, there was substantial reason to question whether the ... (victim) would appear. She had already failed to appear at a scheduled pretrial interview ...

“A simple request that the judge not swear the jury until the key witness appeared in the courthouse ... would have avoided the attachment of constitutional jeopardy.

“Instead, the prosecution took a calculated risk and ‘proceeded to trial in the face of a known risk that (the witness) would be unavailable at trial.’”

The case was tried before Tatum when he was the sitting judge in the district court in Portales.

Gutierrez was accused of touching and fondling a 15-year-old girl. He was indicted by a Curry County grand jury and charged with three felony counts of criminal sexual conduct.

According to court documents, days before trial the alleged victim recanted her testimony.

Tatum declined comment.

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