Pelotte images exposed
Police ER photos to be published Friday in Gallup

By Elizabeth Hardin-Burrola
Staff writer

GALLUP — So what caused the injuries to Roman Catholic Bishop Donald E. Pelotte on July 23, 2007?

Within a week, members of the public will be able to decide that question for themselves by viewing police photographs of the injured bishop taken last year.

Pelotte and diocesan officials have steadfastly insisted the bishop was injured in his home after falling down eight or nine carpeted stairs to a tile floor. Because of the severity of his injuries as documented in the police report, and because the emergency room physician requested police to question Pelotte about a possible battery, others — within and without the diocese — have speculated Pelotte was possibly the victim of an assault. The doctor also requested police search Pelotte’s home for evidence of a possible assault. Gallup Police officers questioned Pelotte and took photographs of his injuries, but they did not search his home.

Copies of those photographs are now in the custody of television news reporter Larry Barker. His station, KRQE Channel 13 of Albuquerque, is planning to air a special report on Monday.

Last week the city of Gallup settled the civil lawsuit it filed against Barker after he requested the photographs under New Mexico’s Inspection of Public Records Act. According to City Attorney David Pederson, the settlement included the release of the photographs, payment of $2,500 to KRQE for reimbursement of the station’s legal fees, and an agreement by the city to first issue a written explanation of denial of an inspection of public records request before filing a complaint for declaratory judgment in the court system. Under the settlement, Barker has dropped his counter lawsuit, a petition for alternative writ of mandamus, against the city. The settlement also stipulates that other media organizations that submitted requests for the photographs, including the Independent, won’t be given their copies until Thursday, July 31.

According to Pederson, KRQE has hired a forensic pathologist to examine the photographs. Pederson questioned how news organizations will determine which photographs will be “appropriate and suitable” for publication. Some are “innocuous,” he said, but others are “quite graphic.”

Martin Esquivel, Barker’s attorney, has seen the photographs and has made up his mind about what happened. “I think the photos clearly show there was an attack on the bishop, and the explanation of a fall is clearly ludicrous,” Esquivel said. He said he would view it differently if Pelotte’s injuries were consistent with a fall and there was a close judgment call about the injuries displayed in the photographs. “It was pretty clear that he was beaten senselessly,” he added. “And why?”

Esquivel said the Catholic Church has “a history of looking the other way” involving uncomfortable issues. “It’s really incumbent on the Church to say what happened here,” he said. Esquivel expressed sympathy for the Gallup Police officers who interviewed Pelotte. If a victim misleads the police, he said, what can the police really do in the situation?

Although Esquivel expressed satisfaction with the settlement, he has repeatedly asserted that former City Attorney George Kozeliski should never have filed the lawsuit in the first place. Esquivel views Kozeliski’s actions as an example of government retaliation against a member of the public who dares to request a “touchy” public record.

According to Esquivel, New Mexico law is clear that photographs attached to police incident reports are public records.

“No one’s perfect, but I think Mr. Kozeliski’s approach was unusual and costly to the city of Gallup,” Esquivel said. If current city officials would have allowed the lawsuit to continue, he added, it might have ended up in a higher state court, and the city might have possibly faced fines of $100 a day. Esquivel credits Gallup attorney Lynn Isaacson, who was hired to represent the city, for approaching the case from a strictly legal analysis perspective.

Rather than faulting Kozeliski, Pederson blamed “a flaw in the statute” of state law for the declaratory judgment filing. “The statue is a model of vagueness and lack of clarity,” he said. The city was faced with a “damned if you do and damned if you don’t” situation, he explained, and Kozeliski “pursued in good faith” what he thought was best for the city.

“I don’t think it’s appropriate at this point to do Monday morning quarterbacking,” Pederson said of Kozeliski’s actions.

Officials with the Diocese of Gallup are unhappy that the settlement will soon lead to the publication of the photographs. When contacted on Friday, Deacon Timoteo Lujan, the chancellor of the diocese and the individual who discovered the injured bishop, reasserted the diocese’s position that the police photos were taken without Pelotte’s consent and they are private medical records.

“We are aware of the upcoming broadcast interview with Bishop Pelotte conducted by Larry Barker, and the diocese anticipates wider distribution of these photos in the media,” Lujan said in an e-mailed response. “Again, we respectfully ask those who are decision-makers within their organization to recognize the decades of service Bishop Pelotte gave to our communities, his dignity as a human being and spiritual leader — and respect his right to privacy.”

Pelotte was also named as a defendant in the city’s lawsuit against Barker. Since the bishop never filed a legal response, Pederson said he expects District Court Judge Grant Foutz to order a default judgment against Pelotte soon.

Elizabeth Hardin-Burrola can be contacted at (505) 863-6811 ext. 218 or ehardinburrola@yahoo.com.