Rape charge still active
Mendoza says he, family were unaware of charges

Gallup Mayor Harry Mendoza sits in a City Council meeting May 26. — © 2009 Gallup Independent / Cable Hoover

Copyright © 2009
Gallup Independent
By Bill Donovan
Independent correspondent

GALLUP — District court records of a rape that occurred 61 years ago showed that Gallup’s Mayor Harry Mendoza, along with six other Gallup men, was charged with the rape of a 16-year-old Native girl.

Mendoza was never tried for the rape and officials for the district attorney’s office said that if the case against Mendoza was never dropped, it still may be on the books.

As for Mendoza, he said Tuesday that he was “shocked” to read the court documents and learn he had been charged. A 16-year-old in 1948, Mendoza said that no one had ever told him or his family about the rape charges.

It was two days of revelations that began with the chief clerk of the district court in Gallup, Fran Palochak, announcing that her office had found the missing court records dealing with the conviction and sentencing of five Gallup men for the crime in June 1949. Mendoza was not tried because he entered the Army six months before.

The records were found, Palochak said, after City Attorney R. David Peterson had made a request for them and said they were filed under the name of Joe Delores.

It turned out that the records were indeed filed incorrectly.

The defendant’s name was Joe Delores Lucero.

The court records consisted of 42 pages. Of these 42 pages, only four dealt with statements by two of the defendants — Sammie Lucero and Ralph Garcia — giving their version of the rapes and who was involved.

In the statement by Lucero, Mendoza’s name is listed as being involved in the rape.

The records also show that beginning on Oct. 21, 1948, Mendoza’s name was listed as one of the seven men who were charged with the rape. Others were Joe and Sammie Lucero, Henry Montano, Refugio Barela, Ralph Garcia and Ernest Lopez. Lopez would later have the charges dismissed against him, and the Luceros, Montano, Barela and Garcia would be convicted and sentenced to prison.

The records show that from Oct. 21 to the day the trial started on May 30, Mendoza’s name was listed. It wasn’t until May 31 when the verdict was given that Mendoza’s name was not among the defendants.

Mendoza said it wasn’t until he saw the court documents on Tuesday that he realized that he had been charged.

He remembers spending one to three days in jail beginning on June 6, the day after the rape, but this was part of a citywide sweep conducted by police in the aftermath of the rape. According to a newspaper accounts, police were picking up any men between the ages of 15 and 25 who they found on the streets as possible suspects in the rape.

Mendoza said he remembers being on the street that night with friends but today can’t recall any of their names. He said he was not among the group that would later be convicted of raping Frances Abeyta. Court records differ from Mendoza’s account.

Police picked up the youths and men so that Abeyta would have an opportunity to identify her assailants. At that time, after being given a chance to look at everyone who was picked up, she named five men — the Luceros, Garcia, Montano and Barela. It turned out that she knew at least one of them personally. According to the Independent the next day, all five admitted their guilt.

On June 7, according to the court records, Sammie Lucero was interrogated by an attorney with the county’s district attorney’s office and during the questioning, he was asked if anyone held the girl down while he committed the rape.

“Yes, Harry Mendoza and that other guy.”

It was at this point that the person conducting the question became confused, thinking Lucero was referring to Montano since he comes back and says; “Henry Mendoza and the other guy were on either side of her?” to which Lucero says yes even though no such person as Henry Mendoza existed — it was either Harry Mendoza or Henry Montano.

Later on when asked to name the people who participated in the rape, Lucero named himself and the four others who had been arrested. He did not name Mendoza. He again referred to “the other guy.”

The statements by Sammie Lucero and Garcia both indicated that they did not know Montano very well. Garcia refers to him as Henry and says he doesn’t know the person’s last name during his questioning and in a 1996 investigation on the rapes conducted by the Independent, the similarities between Mendoza and Montano’s name would be mentioned as a reason for the mix-up.

But the question remains — how could Mendoza and his family not know that Mendoza had been charged with rape?

Mendoza said he was never arrested after that first night, never appeared at a hearing, never had anyone from the district attorney’s office come and serve him papers. He just went on with his life until Jan. 2, 1949, when he joined the Army and was sent to basic training.

One aspect of this has to do with the Independent at the time. The major newspaper in the area, the original report of the rape and the arrest of the five Gallup youths did not include the names of the five. In fact, it would not be until June 5, 1949, after the conviction that the paper would list the names for the first time and say that Mendoza was not prosecuted because he was serving in the Army.

Mendoza said he was not even aware of what the newspaper said on that date until he saw a copy of the article last week when the Independent was preparing its first article on the rape.

Mendoza apparently first came to the attention of law enforcement officials when Sammie Lucero mentioned his name, but there are no records of the preliminary hearing held in July.

At the arraignment a few days after the arrest, only the two Luceros, Garcia, Montano and Barela were named. They were all represented by John Perry who convinced at least two of them — Montano and Barela — to plead guilty. Later, he would get the court to change their plea to not guilty, saying that he only got involved in the case shortly before the arraignment and did not time to interview his clients very much before it was held.

None of the five had attorneys during the two days they were questioned by police and the district attorney’s office.

McDevitt, who was to represent the five at trial, was retained by the parents of the defendants on May 4, 1949, less than four weeks before the trial began.

Jim Bierly, the chief deputy district attorney for McKinley County, said Tuesday that a lot of things that happened 61 years ago wouldn’t happen today.

First, this was decades before the Miranda rulings were imposed which required law enforcement officials to explain to the accused that they had a right to an attorney and if they couldn’t afford one, one would be provided. Looking at the questioning of the Sammie Lucero and Garcia, he said he noticed that a lot of the questions were leading, something else that wouldn’t be allowed today.

“You also wouldn’t have one attorney representing all five defendants,” he said.

Mendoza said that when he decided to join the Army, he was not aware that charges had been filed and the Army — preparing for the Korean War — didn’t question his eligibility.

He had no problem enlisting.

He said that when he returned to Gallup a few years later, there was no mention by anyone of the rape charges, and it wasn’t until that 1996 story in the Independent, which was written during a time he was running for county commission, that the matter came up publicly.

Bierly said he checked with the Web site that is run by the New Mexico judiciary but could not find Mendoza’s name. Of course, these records only go back to 1986.

If the charges that were filed against Mendoza in 1948 were never dismissed, they still may be on the books, he said. No one at the district attorney’s office, however, had any idea if the charges were still on the books or how to find out if they were, given the length of time that has passed.

“If they are still on the books, Mendoza could come to the district attorney’s office to have them dismissed,” Bierly said.

District Attorney Karl Gillson agreed, saying that the charges would be dismissed because the statute of limitations had expired decades ago.

As for Mendoza, he said he didn’t see any need since the matter happened so long ago and his statements that he had nothing to do with the crime still have not changed.