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Convicted of 2008 murder, Cortez continues appeals

By Bob Steenson, bsteenson@charlescitypress.com

A New Hampton man convicted of second-degree murder after a bar fight stabbing in Charles City in 2008 continues to fight his conviction from his cell at the Anamosa State Penitentiary.

The current efforts by Richard Cortez have resulted in a second motion before the Iowa Supreme Court to review previous proceedings, and a civil trial has been set for February where a judge will determine if Cortez’ constitutional rights were violated during his criminal trial.

Rachel Ginbey, who became involved in the case when she was elected Floyd County attorney in 2014, said of the latest event, “The trial is to determine if there was an error. It is not a retrial of the underlying offense.”

Cortez, 52, is serving a sentence of not more than 60 years in prison for the 2008 stabbing death of Charles City resident Kenyon (also known as Keyon) Armstrong, then 28, at what was then Tori’s Bar in Charles City.

His efforts to challenge the original trial results have also resulted in thousands of dollars paid by the state for court-appointed attorneys, transportation, expert witnesses and other expenses.

According to court records, a fight erupted on May 17, 2008, between Cortez and Armstrong over Cortez wanting to dance with Armstrong’s girlfriend. Witnesses testified that Cortez stabbed Armstrong in the chest, resulting in his death, and also wounded two other people, Robert Luckett, then 17, of Chicago, and Cyrus Riley, then 24, of Charles City.

Cortez was charged with first-degree murder and two counts of attempted murder and two counts of willful injury causing serious injury.

He argued that he was only defending himself from an advancing crowd.

GUILTY VERDICTS

After a week-long trial in April 2009, a Floyd County District Court jury found Cortez guilty of second-degree murder, two counts of assault with intent to inflict serious injury and two counts of willful injury causing serious injury.

But then a wrinkle in the case came up.

Between Cortez’ conviction and his sentencing, it was discovered that Cyrus Riley, who had testified during the trial, was really named Barry Holden and had felony convictions in another state.

Cortez filed a motion with the trial court asking for a new trial, arguing that the defense was not able to effectively cross-examine Holden during the trial because his true identity wasn’t known.

Cortez’ attorney also argued that several jurors’ faces had improperly been shown in televised coverage of the trial, and that the judge had given an improper jury instruction.

District Court Judge James Drew dismissed that motion for a new trial, and in August 2009 he sentenced Cortez to not more than 50 years in prison on the murder conviction and two terms of not more than 10 years each on the willful injury convictions, for a total of not more than 60 years in prison.

Cortez appealed his convictions to the Iowa Supreme Court, raising the same arguments he had made in his original motion to dismiss and also arguing that his attorney had been ineffective in challenging the evidence for one of the charges of willful injury causing serious injury.

The Supreme Court accepted the appeal, and the Iowa Court of Appeals ruled in October 2010 that even if the jury had known Riley lied about his name and if it had known about his prior criminal history, it would not have changed the verdict.

The appeals court ruled that Cortez’ attorney had challenged Riley’s credibility on several other issues during the trial and there had been other witnesses who had given similar testimony.

The appeals court affirmed the second-degree murder conviction and most of the other charges, but sent one of the lesser charges back to the district court for resentencing. That did not change Cortez’ overall sentence of not more than 60 years in prison.

NEW EVIDENCE

In December 2016, Cortez filed another motion for a new trial, arguing that new evidence had been found regarding the state lab technician who had testified about DNA evidence found on the knife at his original trial.

The technician, Amy Pollpeter, had been fired from her state job for making racial remarks on social media regarding the Black Lives Matter movement, and Cortez argued that her testimony was unreliable because of her personal biases.

The Floyd County District Court again denied Cortez’ motion for a new trial.

This summer, on Aug. 31, Judge Drew ruled that there was no evidence indicating the DNA test results were flawed or falsified, and even if the jury knew about Pollpeter’s personal feelings it would not have changed the result of the trial, because witnesses had identified the knife as the one Cortez used to stab Armstrong and the DNA evidence was not necessary.

“There is no basis for concluding that identifying Ms. Pollpeter as a racist would result in a different verdict, especially given that the results of her analysis were consistent with the evidence presented through eyewitnesses,” Drew wrote.

Two months ago, on Sept. 12, Cortez appealed the district court’s latest ruling to the Iowa Supreme Court. That court has not yet indicated whether it will accept this appeal.

TWO OPTIONS

Persons convicted of a crime in Iowa can file a direct appeal of their verdict or sentence with the state Supreme Court, which can choose whether or not to accept the appeal.

They can also file suit in civil court for post-conviction relief, asking a judge to hold a non-jury trial to determine if the defendant’s state or federal constitutional rights were violated during the original trial or sentencing.

Cortez has also filed for post-conviction relief, raising many of the same arguments he made in his direct appeals. In some cases he has acted as his own attorney, filing his own typed or handwritten motions.

He has also had several court-appointed attorneys along the way.

In his June 2015 petition for post-conviction relief, Cortez argues that the prosecution committed misconduct by using perjured testimony by allowing Holden to testify as Riley, and that Cortez’ trial attorney as well as his appeals attorneys were ineffective in arguing the identity issue.

He also argues that his trial counsel failed to obtain an independent expert to testify on DNA, blood spatter and wound evidence.

In July 2015, Cortez filed a petition asking that he be transported at state expense from Anamosa to Floyd County as needed to participate in his post-conviction relief case.

In August 2015, Cortez filed a request to have Genetic Technologies Inc. review the case and the DNA evidence. The expected bill at that time was $5,356.

A few days later, Cortez asked that Gene N. Gietzen of Forensic Consulting in Springfield, Missouri, be paid by the state to provide crime scene analysis on the case and to testify if necessary. The bill for that was expected to be $5,000 to $7,500.

District Court Judge Colleen Weiland approved spending up to $15,000 for those two expert witnesses.

“The information sought from the two experts is relevant and material to the issues raised by the applicant,” she wrote in her order. “They are not frivolous on their face.”

MOTION TO DISMISS

In June 2016, Floyd County Attorney Ginbey made a motion for the court to partially dismiss Cortez’ post-conviction relief case regarding the identity of Holden/Riley, because the Court of Appeals had already ruled that it would have made no difference in the outcome of the verdict.

Ginbey wrote in her motion that Cortez was trying to relitigate an already settled issue  by now pleading ineffective counsel and prosecutorial misconduct.

“Cortez cannot substantiate any of his claims relating to the identity of Barry Holden and there is no reasonable probability that the result of his trial would have been any different,” Ginbey concluded.

Cortez, through his current attorney, Travis Armbrust of Mason City, argued that there were a number of ways in which the incorrect identify of the witness could have affected the outcome of the trial.

“Postconviction proceedings are the proper venue for hearing all the alleged ineffectiveness claims to determine whether, taken as a whole, they amount to a constitutional violation,” Armbrust wrote.

In September 2016, Judge Weiland denied Ginbey’s motion for partial summary judgment, writing, “a determination of cumulative prejudice still constitutes a genuine issue of material fact.”

In February this year, Weiland issued an order allowing Cortez’ attorney to exceed the maximum fee limits, not to exceed $8,000.

In May, Armbrust told the court the initial expert witness expense estimate of $15,000 was now at least $18,300. The court ordered up to $18,500 to be allowed for the expert witnesses.

In June the post-conviction relief trial date was set for November 1.

At the end of last month the trial date was rescheduled for Feb. 14, 2018. That’s where things stand now.

 

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