State hospital treats Ojo Caliente man charged in 2017 killing spree

Questions about defendant's mental health lead to delays

By John Miller
jmiller@taosnews.com
Posted 8/16/19

Questions about Herrera's mental health have resulted in multiple delays to each case over the last two years …

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State hospital treats Ojo Caliente man charged in 2017 killing spree

Questions about defendant's mental health lead to delays

Posted

An Ojo Caliente man charged in 2017 with killing Michael Alan Kyte of Tres Piedras has been admitted to a state psychiatric hospital after he was found mentally unfit to stand trial. On Thursday (Aug. 22), attorneys who have been working on the case will convene in Taos District Court  to determine how to proceed.

Damian Herrera, 23, was sent to the New Mexico Behavioral Health Institute last month after doctors determined him to be "incompetent" in the case and in a separate case filed in Santa Fe County, which alleges he murdered three of his family members and another man on the same day he is accused of killing Kyte. A finding of incompetence means that a defendant is unable to understand charges filed against him, court proceedings related to his case or to rationally assist in his own defense.

Questions about Herrera's mental health have resulted in multiple delays to each case over the last two years, but Marcus Montoya, the newly appointed district attorney of the 8th Judicial District, said on Friday (Aug. 16) that Herrera's status could change at any time.

Montoya said doctors at the state hospital are continuing to work with Herrera to help him reach an acceptable level of awareness of his legal situation, which Montoya said sometimes involves prescribing a defendant psychiatric medication.

A public defender assigned to Herrera's case, Todd Ellis Farkas of Albuquerque, said an update from the hospital regarding Herrera's progress is expected at least every six months.

"If the report is that he's likely to become competent, then they will continue to treat him," Farkas said. "If not, then there will be an evidentiary hearing, where the government will have to prove by clear and convincing evidence what crimes he committed."

That's a lower standard of evidence compared to a criminal trial, where a defendant's guilt must be determined by a jury "beyond a reasonable doubt."

If a judge determines the state has enough evidence to prove that Herrera murdered Kyte, then Herrera would be committed to the state psychiatric facility for the same length of time he would have served in prison if convicted at trial, Montoya said. In either case, that could mean a maximum sentence of life in a state facility.

Farkas explained that there is no time limit imposed on the doctors working with Herrera, so it could still be some time before either case reaches its conclusion.

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