Was Mendoza part of a gang rape?

Copyright © 2009
Gallup Independent
By Bill Donovan
Independent correspondent

GALLUP — It was 1948 and a crime that summer would send shock waves through Gallup and lead law enforcement officials to call it one of the worst they had ever seen.

The gang rape of a 17-year-old Native woman would end up with five Gallup youths going to prison and Gallupians wondering how something like this could happen in their peaceful city.

But 61 years later, there are still questions surrounding the crime, and these center on Mayor Harry Mendoza, one of Gallup’s most prominent politicians. Did Mendoza play a role in the rape as 1949 news reports would suggest, and if so, how was he able to avoid prosecution? Inexplicably, the official court records of the trial, which were used in a 1996 Independent story, cannot be found.

These are not new allegations. The Independent has looked into this once before and the current investigation has been hampered by the missing court records, the refusal of at least one key witness to talk and fading memories. Many questions still remain unanswered and there are some in town who feel that Mendoza may have spent the past decades playing down whatever involvement he had in the incident.

The investigations have uncovered some evidence — a 1949 story in the Independent saying Mendoza was charged with rape and references to court records that implicate him as well — but these and other records that would settle these questions are nowhere to be found.

The story that appeared on the June 5, 1948 front page of the Gallup Independent — headlined “Five Boys Held on Rape Charges” — was only six paragraphs long and lacked a lot of details, such as names of those who were being arrested for rape.

The information came from John Scanlon, the city’s assistant district attorney. The article read: “The story, as he reported it, was that the Zuni girl and her (14-year-old) sister were accosted by a group of boys on 66 Avenue Saturday evening as they attempted to enter a drug store. One of the girls broke away as the youths forced the 17-year-old girl to accompany them down the street. (The sister later told police that she threw rocks at the boys before escaping.)
“They forced the girl to go with them down South Fourth Street and attacked her on the hill. In the meantime, the sister had notified police and a search was started for the boys.

“Mrs. Howard Woods later reported hearing the girl’s screams and sent a boy to direct police to where the girl was lying on the ground. Police took her to St. Mary’s hospital and then began a roundup of the boys who were identified by the sister.”

Scanlon said that the boys admitted participating in the attack and would be tried for rape.

Among the boys who were picked up was Mendoza. Years later, he would talk about spending the night in jail along with a lot of other youths that police picked up on that night as part of a sweep through the downtown area. That, he would claim, was his sole involvement in the incident.

A year later, five Gallup youths went on trial for the crime — Joe Delores Lucero, 20; Refuglo Barela, 21; Sammy Lucero, 20; Ralph Garcia, 18; and Henry Montano, 18.

Mendoza mentioned

The only mention of Mendoza in the Independent during that time came within the story about their conviction. John Perry, one of the defense attorneys, said that Ernest Lopez was not charged because of lack of evidence. The next sentence in the story read: “Harry Mendoza, who was also charged with rape in the case, was not tried since he was in the Army.”

When this article was shown to Mendoza earlier this month, he said he had never seen it before. “That’s not true,” he said. “I was never charged with rape.” Without the official court records, Mendoza’s innocence cannot be confirmed.

Mendoza said he was in the Army when the trial occurred, enlisting on Jan. 2, 1949, on his 17th birthday, but the enlistment, he said recently, was because he had been missing a lot of school and was afraid that eventually he would get in trouble so he decided the best thing he could do was go into the military.

Since the court records are missing, no records have ever been found proving that he was charged with rape — either during the investigation that the Independent has undertaken for the past month or the one it did in 1996 when Mendoza was running for county commission.

The 1996 article quoted Mendoza as saying that he dropped out of school when he was 17 to join the Army.

Two days after their 1949 conviction, the Gallup five learned their fate.

Four of them — the two Luceros, Barela and Garcia — all received 12 to 20 years in the state prison. The fifth, Montano, was given a nine to 15 year sentence after the jury recommended clemency. Montano’s defense attorney presented evidence that while he was at the scene, he did not rape the victim “because of a temporary physical disability.”

His defense attorney, Howard McDevitt, said Montano “was so ashamed of his failure that he ran away and did not assist the others in the act.” He argued that that Montano could not be found guilty because he did not commit the act and was not an accessory.

The judge in the case, James B. McGhee, a Roswell judge who had been assigned the case after the local judge recused himself, basically gave them all the maximum sentence allowed, saying that the rape was “the worst I have ever come across.”

Later, during the sentencing, when one of the five asked for “another chance,” McGhee responded: “You boys have had your chance to live a decent life. You have violated the law in a terrible way and must pay society for your misdeeds.”

‘Never charged’

Back in 1996, Mendoza said that on the night of the rape, police had accused him of being a part of it but “I was never charged.” Mendoza said in 1996 that he wasn’t there when the rape occurred but had met up with friends and later he and his friends were stopped by police and questioned about the rape.

Local attorneys and judges, none of whom go back anywhere near the 1940s, said that they had all heard of reports of practices in the old days that would allow someone to enlist in order to avoid prosecution, but most of these stories centered around misdemeanor offenses and definitely not anything as serious as rape, one local attorney said.

The 1996 investigation by the Independent found court records in which Mendoza’s name came up in the deposition of one of the six defendants. The reference to Mendoza by one of the defendants — it does not mentioned which one — came when he was asked who held the girl down while he was raping her. The defendant said: “Harry Mendoza and the other guy.”

But the defendant then, in his next sentence, mixes up Mendoza’s name with another defendant and the person preparing the record — or someone later — penciled out Mendoza’s name and replaced it with one of the other defendants. Later, the defendant who mentioned Mendoza’s name was asked to list the names of every one involved with the rape and Mendoza’s name was not among the ones he listed.

In the current investigation, District Court officials in Gallup, after conducting a search that came up empty, said the files may be in Roswell since it was a judge from Roswell who handled the case. But District Court officials there said that while McGhee may have made copies of the record for his own personal reference, none of them were turned over to the Roswell District Court and the primary records should have been kept in Gallup.

In 1996, the Independent was able to track down only one of the defendants in the case. That person was not identified in the story but he said “I don’t think that (Mendoza) was there.”

Montano’s response

In this year’s investigation, the only defendant still in the area was Montano, who came back to Gallup and worked for the county road department for many years. When he was contacted by phone by a reporter who wanted to know about Mendoza’s involvement in the rape, he said, “no comment” and hung up.

Mendoza came back to Gallup after his stint in the Army and prosecutors could have filed charges again but did not. It wasn’t until he started his political career a decade or so later, that the reports of his involvement in the rape began surfacing.

In its current investigation, the Independent received information indicating originally that the victim of the rape was not Zuni but was likely a resident of Acoma. When people in Zuni were asked if they recognized the name, no one had any information but some said that the name sounded like it was someone from Laguna or Acoma.

A woman by the same name as the victim, Francis Abeyta, was listed on the Acoma rolls but pueblo officials said she died several years ago. The pueblo records showed that she had relatives who were still alive. Her daughter, who spoke with the Independent, is 68, so her mother is ruled out as the victim since she would have been seven years old when she had her daughter. The victim’s last name, Abeyta or Abeita, however, is a common one. There is no record of the victim’s sister, Lyda.

Other parts of the investigation are also continuing with the paper still trying to locate the records or discover if someone over the years may have removed them. The paper is also contacting all participants, including friends and associates of Montano, seeking information on Mendoza’s involvement — or lack of involvement — in the rape.

— Contributing to this story were reporters, Phil Stake, Jim Tiffin and Gaye Brown de Alvarez.