How to Convict a Fourteen-Year-Old of a Murder He Didn't Commit
Lisa Polansky first saw the infamous “confession video” in fragments — a fifteen-minute segment on one old VHS tape, twenty minutes on another. The kid is in a small interview room with his mother and two Denver homicide detectives. Then the mother vanishes and there are three detectives.
Even with pieces missing and the sound turned down, you can chart the progress of the interrogation by the kid’s body language. First he slumps in a chair, staring down blankly, as if hoping these men will just go away if he doesn’t acknowledge them. Then he retreats to a corner, pulling as far back as possible as one of his inquisitors leans toward him, banging the table and getting in his face. For several minutes the kid is wracked with sobs. In the final segment, he sits dazed and slack, crumpled in his chair, as if finally resigned to his own damnation.
Lorenzo Montoya, the kid in the video, was fourteen years old when he walked into that room on the evening of January 10, 2000. What happened over the next two and a half hours set in motion an avalanche of events that resulted in Montoya’s being tried and convicted of the murder of Emily Johnson, a 29-year-old teacher at Skinner Middle School, and sentenced to life without parole. The slaying triggered substantial public outrage and media coverage — a white, pretty special-ed teacher, savagely beaten to death at her home in gentrifying northwest Denver, apparently by Hispanic youths keen on stealing her Lexus — and garnered much praise for the police officers who cracked the case in a matter of days.
Polansky, a veteran attorney with a passion for juvenile-justice reform, first met Montoya in 2011 at the Limon Correctional Facility, after he’d spent a decade behind bars. She’d agreed to take on the case pro bono, hoping she might be able to get him a reduced sentence. But she soon revised her notions of what she was dealing with.
“As I started to interview him, right away I knew something was wrong,” she recalls. “He had this twitch in his eye. And for someone convicted of this terrible murder, he didn’t seem to know a lot of the details.”
Polansky figured it was going to take some time to earn her new client’s trust. She set about tracking down legal files and discovery related to the case. Most of all, she wanted to see the entire interrogation video, in which Montoya reportedly admitted his role in Johnson’s death.
The video was a revelation. It starts out low-key, with the detectives trying to find out what Montoya may have heard about the crime from other youths. But the more Montoya hesitates in his answers, the more he stumbles over his denials of any knowledge or involvement, the more the detectives press, smelling fear and vulnerability. They tell Montoya they don’t want to put words in his mouth, then do exactly that. They tell him they want to know what happened, then boast they already know what happened; indeed, they claim to already have everything they need — fingerprints, shoe prints, even “hair prints” — to convict him.
They ask him for specifics about the bloody crime scene, then cut him off and correct him when he gets the specifics all wrong. They lie about what other suspects have said and feed him “facts” that fit their theory of the crime. Lead detective Martin Vigil comforts him one moment, putting a paternal hand on his arm and calling him “son,” then thumps the table and threatens to send him to an adult prison for life if he doesn’t “get on board” right away.
Polansky watched the video with a growing sense of nausea and alarm. “When [Montoya’s] mom left the room and it got really bad, I had to stand up,” she says. “I had to pace. I was saying, ‘Oh, my God. Oh, my God.’”
What Polansky was looking at, she realized, was no longer a simple resentencing matter. It was a case that had its origin in a coerced and demonstrably false confession, leading to a wrongful conviction.
Two years ago, thanks to the efforts of the team of lawyers and investigators that Polansky assembled, as well as DNA test results on the pieces of physical evidence that prosecutors had used at trial to link him to the crime scene, Lorenzo Montoya was released from prison. The Denver District Attorney’s Office agreed to dismiss his convictions for felony murder, aggravated robbery, first-degree burglary and auto theft in exchange for a plea of guilty to a charge of accessory after the fact. Because of the plea arrangement and other factors, the DA’s office continues to deny that he was wrongfully convicted, cleared by DNA or in any way “exonerated” in the case.
But Montoya insists he’s innocent of the crime for which he spent more than thirteen years in prison. Last month he filed a civil-rights complaint against the City of Denver and the police officers who built the case against him, seeking $30 million in damages. The attorneys representing him, David Fisher and Jane Fisher-Byrialsen, also represented one of the defendants in the Central Park jogger case, who spent thirteen years in prison before being exonerated by DNA; that civil suit resulted in a $12 million settlement from New York City.
Just like the Central Park debacle, Montoya’s case demonstrates how easily routine and widely accepted police-interrogation techniques can lead to false confessions — particularly when the suspect is a juvenile. Although most of Montoya’s interrogation was later ruled inadmissible at trial, the lawsuit contends that the ready-made confession prompted investigators to distort the facts in arrest affidavits, fabricate evidence and ultimately fail to pursue two more likely suspects who may have been involved in Johnson’s murder — all to secure a slam-dunk conviction.
“I think they rearranged the evidence to fit with that confession rather than following the evidence to where it led,” says David Fisher. “Police officers, for the most part, don’t really believe in false confessions. They think it’s a myth or something, which is crazy.”
False confessions aren’t a myth; they’re the leading cause of wrongful murder convictions. According to the National Registry of Exonerations, there were 27 exonerations across the country last year for convictions that involved false confessions. Twenty-two of the cases were homicides, and most of those exonerees were juveniles or men who had been diagnosed with a mental illness or intellectual impairment. Polansky points out that not only was Montoya just fourteen at the time of his interrogation, but he also scored very poorly on IQ tests, before and after his conviction; a 2000 Colorado Department of Corrections assessment found him to be functionally illiterate, with mild retardation or a developmental disability. As she sees it, there’s plenty of blame to go around in his case, from zealous, bullying cops to the feeble defense mounted at trial to prosecutors who bitterly opposed DNA testing after his conviction.
“It was a confluence of grave errors and potentially intentional misconduct,” she says. “Defense attorneys who were completely incompetent, a client who was potentially incompetent, and district attorneys who wanted a conviction at all costs. And the police, who used these tactics that are outdated and highly dangerous.”
Attorney Lisa Polansky says the police tactics used in interrogating Lorenzo Montoya are “outdated and highly dangerous.”
On the first day of the new century, Eric Ortegon was driving home from his girlfriend’s house when he saw the neighbor lady lying in her back yard. His first impression was that she must have had too much to drink on New Year’s Eve. What was she doing outside in the cold?
It was half-past eight in the morning on January 1, 2000. Ortegon got out of his car to see if he could help. The woman’s blond hair had turned red, as if someone had played a trick on her, decorating or dyeing it while she slept. As he drew closer, he realized she was bleeding. Her face was covered in blood, her eyes stuck shut. There was a mop-like trail of blood from her open back door. Her breathing was labored.
Ortegon called 911. As he waited, Emily Johnson’s dog, a Grand Pyrenees named Cassius, came out of the garage and sniffed at him. Then the dog stood over Johnson and whimpered.
Police converged on the scene. It was clear that the attack had started inside the home. Johnson had evidently been struck on the head repeatedly with her own platform shoe, dragged outside and bludgeoned with a softball-sized rock. She died in a hospital the next day.
The murder spread a pall over the neighborhood. Johnson had bought her house on West Denver Place, just north and west of 38th and Federal, in order to live near Skinner, where she was known as an exceptional teacher. She’d taken on waitressing jobs to supplement her income and was a familiar figure on the block, spending many weekends working in her garden and building a backyard waterfall. Finding her killer quickly became a police priority.
It didn’t take long to locate a possible suspect. The officers who entered the home found Johnson’s boyfriend, Robert Davis, asleep in a bedroom. The couple had been out clubbing on New Year’s Eve until the wee hours. Davis had a criminal record, primarily related to drugs, and was soon found to be in violation of the terms of his current probation. He also had a wound on one hand.
Arrested and questioned by police, Davis insisted he’d slept through whatever had happened to Johnson. But as the exhaustive interrogation dragged on, he made what his inquisitors considered to be a very odd remark.
“There may be someone else inside me,” he said.
An early scene from the 2000 police interview shows Denver detectives Martin Vigil (left) and Mike Martinez questioning Montoya in the presence of his mother, Mary Torres.
On the first day of the new century, not long after Ortegon summoned paramedics and police to West Denver Place, Lorenzo Montoya arrived at his aunt’s house on Newton Street, four miles away. He had hickeys on his neck, a souvenir from his night on the town. He had gone to a party at a cousin’s house, then dropped by his girlfriend’s place to see in the new year. He crashed on a couch there until morning.
The youngest of five children, Montoya had been brought up in chaotic circumstances. Both of his parents had battled substance-abuse problems. His father lived in Pueblo; his mother was sometimes homeless, leaving older siblings or other relatives to raise him. He’d drifted in and out of school, picked up juvenile charges for theft, possession of a weapon, criminal mischief, marijuana — he’d first tried weed when he was nine and now smoked daily — and other delinquencies. People came and went from his life, thugging or getting high.
Around noon on New Year’s Day, a sixteen-year-old named Nicholas Martinez showed up at Montoya’s aunt’s house in a sharp white 1994 Lexus. Montoya had never met Martinez before, but Montoya’s cousin, Luke Anaya, knew him. Lorenzo, Luke and Lorenzo’s brother Freddie hopped in the Lexus and went for a ride.
Lorenzo was high on weed. He would later insist that he was only in the car for twenty minutes or so. But Nick Martinez was running his mouth a bit, boasting that he’d hit some lady with a rock and taken her car. It was a story that several people heard, either from Nick directly or elsewhere. An employee at a Sonic restaurant who worked with Nick’s cousin, Lloyd Martinez, later told the police that Lloyd had said he and his cousin “stole a Lexus” on New Year’s Eve.
Police found the Lexus overturned in a ditch later that afternoon. Several Hispanic youths were observed fleeing the scene. It was Johnson’s car, one she’d purchased at a dealership just hours before she was attacked.
It was also the first solid lead in the case. Robert Davis, the focus of many early, lurid news stories about the murder, was quickly discounted as a suspect. The wound on his hand was old, there wasn’t nearly enough blood in his vicinity to incriminate him, and the remark about “someone else inside me” was apparently a bit of sarcasm. Whoever did this had taken the victim’s car.
A few days after the car was located, Denver police received an anonymous tip about Nick Martinez, who’d told some relatives a story about finding the car running in front of Johnson’s house and making off with it. Brought in for questioning, Martinez told a slightly different story. He and cousin Lloyd had been prowling, trying car doors. They found the car unlocked, keys on the floor, and helped themselves.
Things didn’t look too good for Nick. A search warrant turned up shoes at his house that reeked of gasoline and appeared to have blood residue on them. A palm print on a milk chute in Johnson’s back door — which, detectives believed, the intruders had touched while trying to unlock the door — would come back as a match for Nick Martinez.
The police questioned Martinez carefully about the guys he went joyriding with in the Lexus on New Year’s Day. Martinez named Luke Anaya and Freddie Torres, but he couldn’t remember the name of the young kid he’d just met, referring to him only as “Freddie’s brother.” Police decided that if they wanted to find out what else Nick might have said and who else might have been involved in the slaying, they should bring them all in.
Including Freddie’s brother, Lorenzo Montoya — the one whose name Nick didn’t even know.
Nicholas Martinez was sixteen years old the night Emily Johnson was murdered.
From his previous brushes with the law, Montoya had some experience talking to police officers. Ten days after Johnson’s death, he arrived with his mother, Mary Torres, at Denver police headquarters for an interview with homicide detectives. He signed a Miranda waiver that stated he understood his right to silence and to have legal counsel present.
His attorneys, though, maintain that Montoya’s cognitive deficiencies raise serious concerns about whether he truly understood what was going on, from the severity of the charges he was facing to the fact that he was basically being invited to incriminate himself. He didn’t know that several of the older, savvier teens being hauled in by police were lawyering up in other interview rooms and refusing to say anything. And he didn’t know that police were allowed to lie to him about the evidence against him and what other witnesses had said.
Lying is, in fact, an essential component of the most common approach to interrogation among American law enforcement agencies, a method known as the Reid Technique. Rather than neutral, fact-finding questioning, the Reid method stresses a form of psychological warfare, designed to blast through the defenses of a subject presumed to be guilty. Officers trained in the technique learn to ask loaded questions for which there is no good answer. (“Did you plan to kill her, or did it just happen?”) They claim to have proof of guilt that they don’t have, a strategy known as an “evidence ploy.” They downplay the severity of the crime, presenting it-could-happen-to-anybody scenarios that make it easier for the subject to admit doing something horrible. They ignore denials of guilt and seek to wear the subject down by making a confession seem to be not only a moral and practical imperative, but inevitable.
Critics of the method say that it’s inherently coercive and dangerous, particularly when applied to juveniles. “The Reid Technique is really good at getting confessions — both false and true ones,” observes Montoya attorney David Fisher. “You make the suspect believe it’s in his best interest to say what the interrogator wants him to say, whether it’s the truth or not.”
Nick Martinez later told an investigator that he was “a thousand percent sure” Montoya wasn’t involved.
Growing concerns over false confessions have prompted several European law enforcement agencies to prohibit deceptive interview practices. They train their officers to ask fact-gathering and open-ended questions — and discourage them from disclosing evidentiary details that a disturbed or overly compliant suspect could use to craft a bogus admission of guilt. Some American officers have also raised doubts about Reid; a 1992 book on criminal interrogation co-authored by David Michaud, then a division head and later the chief of Denver’s police, warns against making any false statements during an interrogation and urges detectives to restrict the use of leading questions.
“There is a danger in asking leading questions,” Michaud notes. “You may reveal information about the crime to all the suspects.... It becomes possible for people to make false confessions, which can become an embarrassment.”
But Michaud’s advice went unheeded by Denver detectives Martin Vigil and Michael Martinez on the night they met with Montoya. The two homicide dicks preferred a more aggressive approach, especially in the Johnson case. “This is getting solved tonight,” Vigil declared as officers shuttled back and forth between the various interview rooms.
At the outset of Montoya’s interview, the detectives seem focused largely on finding out what Nick Martinez might have told him about the murder during the ride in the Lexus. The first thirty minutes of the video offer little indication that they might be after Montoya, too. But Montoya manages to excite their suspicions in several ways. His answers are slow, hesitant, and the detectives seem to regard his lethargy as a sign of evasiveness. His know-nothing attitude doesn’t go over well, either; his denial that he knew the Lexus was stolen when he got into it is met with jeers.
Even worse, his proffered alibi for New Year’s Eve is an awkward lie. Instead of admitting (in front of his mother) that he spent part of the night making out with his girlfriend on her couch when he was supposed to be elsewhere, he says he was at his cousin’s party all night.
Impatient, Vigil adopts a stern tone. “By withholding information in a homicide investigation, you are making yourself an accomplice to this,” he warns. “You’d better straighten yourself up and get on board here. You want to be an accessory to this? Now, tell us exactly what Nick said about him and Lloyd and how they did it. I know they told you the story.”
“They hit the lady in the head with a rock,” Montoya says.
“How did they get to the lady? Did they tell you how they broke into the house?”
“Lorenzo, I want the whole story,” Vigil presses. “Come on.”
Attorney David Fisher is representing Montoya in a $30 million lawsuit against Denver police.
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Montoya insists he doesn’t know the whole story. The only reason he’s there is “’cuz I got into a car I shouldn’t have got in.” But Vigil isn’t buying it. He must know a lot more. He needs to tell them everything Nick said, “so we can conclude this interview and let you guys go home.... Do a paragraph and that’s it.”
“You tell them exactly what they want to hear so we can get out of here,” Mary Torres tells her son. “Do you understand?”
But Montoya’s repeated denials that he knows the story Vigil wants to hear only puts him in a tighter corner. If he won’t tell them the story, then he must know a lot more, Vigil reasons. Maybe he was with Nick that night.
“If you were there, you’d better give it up now,” Vigil says. “We’ve got fingerprints, shoe prints. We’ve got blood prints. We’ve got saliva prints. We’ve got everything. And if you were there — which I’m starting to believe, because you’re not going to give it up — we’re going to find out.”
As if to underscore the DPD’s total mastery of the evidence, Lieutenant Jon Priest comes into the room, slips on a pair of latex gloves, and takes the shoes Montoya is wearing into evidence. “Would you be surprised if I told you this shoe was at a homicide scene?” Priest asks, snapping his gloves. “I can tell you right now, this is the pattern that we have at the homicide scene. You’d better think long and fast about this one, pal.”
Actually, the shoes Montoya wore to the interrogation were not the shoes later introduced at trial as the source of bloody footprints in Johnson’s house; those were other shoes, subsequently seized at Montoya’s aunt’s house — which, according to Montoya and his aunt, belonged to his cousin Luke. But the dramatic confiscation of the suspect’s shoes, right in the middle of the interrogation, gives the detectives even more to work with.
“So you were there,” Martinez says.
“No, sir,” Montoya says.
“Yeah, you were,” Vigil insists.
“Were you there?” Montoya’s mother asks.
“No, I swear to God,” Montoya says.
“We think you were,” Vigil says.
“Oh, as God is my witness, Lorenzo, you’d better tell them something,” his mother implores.
Fifty minutes into the interrogation, the detectives ask if Montoya will speak to them alone, without his mother in the room. Unwisely, Montoya and Torres consent to this. After Torres leaves, the detectives turn up the pressure. They have all the evidence they need; they just want to give him the opportunity to “help himself out.” Seizing on something Montoya said about being stoned during the joyride, they try to get him to admit that he was high during the murder.
Tearful now, Montoya persists in his denials. “I was not at that lady’s house, bro,” he says. (By Polansky’s count, her client denies involvement in the murder 65 times during the course of the interview.)
But the detectives are relentless. Martinez checks his phone, then declares that Nick Martinez, sitting in another interview room, has just implicated Montoya in the murder — another evidence ploy. (None of the other suspects, nor any hair, finger or saliva prints, ever put Montoya at the murder scene.)
Montoya bows his head in exhaustion during a break in his interrogation.
“Nick’s lying out his ass,” Montoya says defiantly.
The two police officers stare impassively as Montoya, sinking into the seeming hopelessness of his situation, sobs for several minutes. Vigil raps impatiently on the table, describing the investigation as a race to the finish line — the first one to tell “the story” wins and, by implication, avoids going away to prison for life. When the threat of “big boy jail” fails to elicit the admissions they seek, Vigil adopts a tone of utter exasperation.
“Mike, let’s just get out of here,” he declares. “Let’s take him to prison. Let’s say goodbye to his mom.” He pounds the table angrily. “You want to be the main man in on this? You want to be the man who killed her, who hit her first? You’re it. Your footprints are there, your fingerprints are there.”
They ask if Montoya will take a polygraph. He agrees, then asks what it is. The detectives apparently have no intention of putting their emotional, overwrought suspect on the box, but Vigil uses the lie-detector ruse as an excuse to ask Montoya some heavily loaded, yes-no “preliminary” questions — and finally, Montoya begins to edge into the story the detectives have been demanding. Like his interrogators, he begins to make shit up.
No, he says haltingly, he didn’t go into the house. Yes, he was outside somewhere. Yes, Nick and Lloyd Martinez went in the front door.
“So they went in the front,” Vigil muses. “Are you sure they went in the front? I don’t think they went in the front.”
“The back,” Montoya says, becoming more agreeable by the moment.
“Were the lights on in that house?”
Montoya is dumbfounded for several seconds. “I can’t hardly remember, sir,” he says.
Vigil continues to prompt, school and gently correct Montoya on key details, such as where Johnson’s car was parked and the specifics of the attack. But his pupil keeps getting it wrong anyway. He calls the victim an “old lady” and describes her as dressed in pants or sweats, when she was still wearing her party dress. He says Nick and his cousin emerged from the house covered in blood, then they all went to a 7-Eleven at Tenth and Federal and “bought some stuff” at around 9:15 in the morning. Aside from the fact that the 7-Eleven surveillance tape will prove this to be utterly false, the time frame is all wrong.
“Let me tell you what I know,” Vigil says, eager to shape Montoya’s version into something that fits the facts of the case. “They found the lady at 8:30 in the morning, and they probably didn’t get home until after midnight. So I think it happened sometime between midnight and 8:30 in the morning. Is that right? Was it still dark out?”
“That was the New Year’s, huh?” Montoya asks. “So, like, about one.”
But at one o’clock, Emily Johnson was still alive and out dancing.
Montoya can’t get it straight. And he still stubbornly refuses to admit a more direct role in the murder, even after Priest comes back in the room and triumphantly declares that the shoes taken off Montoya’s feet absolutely, positively match footprints found in the victim’s blood inside the house (another lie). The interview ends, ironically enough, with Priest complaining that Montoya has given them a bum confession.
“We’re in here busting our butts to save your ass, and all you’re doing is giving us this song-and-dance bullshit story,” he snaps. “You’re giving us what we think we want to hear. You don’t have a fucking clue what we can prove. Your ass is hanging out big time. Better think about what really happened. Because we know what really happened.”
More than a decade later, attorney Polansky asked sociologist Richard Ofshe, one of the world’s leading experts on the dynamics of false confessions, to review the video of Montoya’s interview. Ofshe called the abrupt shift in Montoya’s responses late in the game “confession by coercion.”
“It is my opinion that the interrogators’ tactics succeeded in overwhelming Lorenzo, reducing him to apparently uncontrolled sobbing,” Ofshe wrote, “and, when threatened with the start of his promised lifelong punishment in adult facilities, caused him to reverse his position and comply with the interrogators’ demands for a confession.”
Attorney Fisher points to the moment in the interview in which Montoya’s mother urges him to “tell them what they want to hear so we can get out of here.”
“That psychological maneuvering is so effective,” he marvels. “But it’s the opposite of the truth. If you tell them what they want to hear, you’re never going home.”
The jury that convicted Montoya of Emily Johnson’s murder never saw his on-camera confession. The final hundred minutes of his police interview were ruled inadmissible in court on a technicality: The detectives had failed to obtain another Miranda waiver of rights from the kid after his mother left the room.
In some ways, the suppression of the video was a break for the prosecution. Jurors never got to see how the detectives threatened and coached their fourteen-year-old fall guy, never discovered that the story the prosecution presented at trial was significantly different from the story Montoya told the police that night. But Montoya’s attorneys say the false confession still played a central, devastating role in all that followed, sending the investigation in the wrong direction. Instead of rejecting Montoya’s statement as incompatible with the known facts of the case, they say, the police instead worked to make the crime fit the confession.
There was a surprising dearth of physical evidence linking Montoya to the crime scene. They had Nick Martinez’s palm print on the milk chute, plus his boasts to several witnesses about how he’d acquired the Lexus. But the evidence against Montoya was much more tenuous. Technicians identified his fingerprint on the back door of the Lexus, but that could have been put there during the joyride the next day. An orange Denver Broncos jacket had been found outside the house, and police interviewed two witnesses who claimed to have seen Montoya wearing such a jacket on New Year’s Eve. But there were conflicting statements from other witnesses who insisted Montoya didn’t own a Broncos jacket and wasn’t wearing one that night.
Far more incriminating, it seems, were the footprints. Martinez and many of his teen friends were partial to a certain style of Lugz shoes, and bloody Lugz prints were found inside and outside Johnson’s house. One particular set of prints showed a defect in the sole that was identical to a pair of shoes seized from Montoya’s aunt’s house. Montoya maintained that the seized shoes belonged to his cousin, Luke Anaya; Anaya and his mother both said they were Luke’s shoes, too. The problem, though, was that several of the male siblings and cousins who stayed at the house wore each other’s shoes and clothes on occasion.
Logically, a case could be made that Luke Anaya — who had the advantage of actually being acquainted with Nick Martinez prior to Johnson’s murder — was more likely to have been wearing those shoes on December 31, 1999. But the police had a confession from Montoya and no other physical evidence tying Anaya to the scene. (Anaya declined to testify at his cousin’s trial, invoking his right against self-incrimination under the Fifth Amendment.) The detectives’ interest in Anaya or other alternate suspects declined dramatically after they extracted Montoya’s confession; they even lost interest in Nick’s cousin, Lloyd Martinez. Charges against him were dropped, despite what Lloyd had supposedly said about stealing a Lexus with Nick — and despite the fact that Montoya’s confession, if reliable, implicated Lloyd as much as Nick.
The science of touch DNA — which involves detecting and analyzing a minute amount of genetic material, such as skin cells left from handling an object — was still in its infancy at the time of Johnson’s murder, making it difficult to establish conclusively who was wearing the jacket and shoes. But by the time Montoya’s case went to trial, the prosecutors had something they considered almost as good as DNA: another alleged confession by Montoya, to replace the one that got tossed out of court.
The star witness for the people was a sixteen-year-old jailhouse informant named Matt Hernandez, who claimed to have shared a room with Montoya at the Gilliam Youth Center shortly after his interrogation and arrest. During the brief time they were together, he testified, Montoya gave him a graphic account of the murder: how he had been there when people he declined to name knocked on Johnson’s front door, burst into the house when she answered, hit her in the head with a gun, stomped on her wrists because she wouldn’t let go of the car keys, and dragged her outside.
There were at least three huge problems with the star witness. One, the story Hernandez told diverged in several details from the one Montoya had given the police. Montoya hadn’t told the detectives anything about a gun or a stomping, and he’d agreed with Vigil that the killers must have come in the back. Two, Hernandez’s story seemed to change with each police interview; in one version, he claimed Montoya told him that Johnson was raped. Three, Gilliam records indicated that Hernandez was mistaken about ever having been in a cell with Montoya — a little detail that prosecutors blamed on poor record-keeping rather than concede a problem with their informant’s credibility.
Hernandez knew Nick Martinez, and the defense suggested that he gleaned some of the elements of the “confession” from jailhouse gossip. But the prosecution insisted that no deal had been made with the witness for his testimony, and the jury seemed to take a shine to him. In an effort to shore up his story, prosecutors decided to take the unusual step of presenting much of their forensic evidence at the crime scene itself. Without a peep of protest from the defense, the jury was hauled to the victim’s house to hear Lieutenant Priest, the DPD’s crime-reconstruction guru, testify about the fatal attack.
Surrounded by large photo blow-ups of the bloody crime scene and strings running across rooms to indicate blood-spatter trajectories, Priest explained why the likely point of entry was the front door (a total about-face from the homicide detectives’ theory when they interviewed Montoya), why one of Johnson’s head wounds was possibly caused by being struck with a gun (or maybe something else), why her wrist injuries could be consistent with the Hernandez account (or maybe not).
It was like something out of CSI, and a lot more persuasive than anything the defense offered. Montoya didn’t testify. But his ex-girlfriend, her brother and his wife did, all insisting that he was at their house on New Year’s Eve while the murder was going down. There were minor inconsistencies in their stories, but the larger puzzle was why Montoya hadn’t offered this alibi to the cops when it might have done some good. The prosecution put Vigil on the stand to testify that Montoya told the detectives he was at a party all night — in effect using the defendant’s own words to impeach his alibi witnesses.
The jury was out three days. They declined to find Lorenzo Montoya guilty of first-degree murder after deliberation and with intent. They did find him guilty of first-degree felony murder, which carried the same sentence: life in prison without parole.
A turning point in the interview came when Montoya, told he was facing life in adult prison, began sobbing uncontrollably.
Short, slight in stature and all of fifteen years old, Montoya didn’t have an easy transition to the adult prison system. He spent several years in solitary confinement, in part for his own protection. He struggled with depression and insomnia — common symptoms among juveniles sentenced to die behind bars — and other mental-health issues.
When Polansky tried to reopen his case in 2011, she encountered a series of obstacles and brush-offs. It took months to track down discovery materials and other files and arrange an inspection of the physical evidence. The representative of the Denver DA’s office who showed up for that review let her know that he considered the whole process to be a waste of his time.
“It was one of the most unprofessional physical-evidence reviews I’ve ever been to,” she says.
Montoya’s own court-appointed trial attorneys weren’t overly helpful, either. One told Polansky that he hadn’t even retained his files on the case. “He told me to fuck off,” she recalls.
With patience and persistence, though, Polansky began to learn more about what had been done to her client — and what his own attorneys had failed to do. In 2012, Gina Brovege, Polansky’s investigator, interviewed Nick Martinez at the Sterling Correctional Facility, where he was serving his own life sentence for the murder of Emily Johnson. Martinez readily confirmed that he had never met Montoya before the kid got into the stolen Lexus for a ride on New Year’s Day. Montoya’s videotaped statement was completely inaccurate, Martinez said, because he wasn’t at the Johnson house that night and didn’t know what he was talking about. He was “a thousand percent sure” that Montoya wasn’t involved. He identified the orange Broncos jacket as belonging to him, not Montoya.
Brovege also interviewed Martinez’s mother, who confirmed that the Broncos jacket was her son’s. She added that she’d approached one of Montoya’s attorneys during his trial and offered him a family photo that showed her son wearing the jacket, but the attorney declined to take it, saying it wasn’t of any use.
Polansky believed that Montoya’s case deserved consideration by the Justice Review Project, a four-year program jointly administered by the Denver District Attorney’s Office and the Colorado Attorney General. Funded by $2.6 million in federal grants, the project required state prosecutors to review 5,000 criminal cases in search of possible wrongful convictions. But the criteria for a case to merit actual DNA testing were severe; for example, the review panel automatically excluded from consideration cases in which defendants had admitted involvement, even if that confession was later challenged or withdrawn. Polansky was informed that the project administrators had concluded that “additional DNA testing could not establish Mr. Montoya’s actual innocence” and thus had rejected his application.
(The Justice Review Project is now the target of a lawsuit by the Chicago-based Exoneration Project, seeking to learn why, out of 5,000 cases, prosecutors found only one worthy of DNA testing — the case of Robert Dewey, who spent sixteen years in prison for a sexual assault and murder he didn’t commit. The lawsuit notes that Dewey’s case led to an exoneration only after his defense attorney “brought the case to the JRP’s attention and informed them that new DNA testing showed the blood found on Mr. Dewey’s shirt did not belong to the victim.”)
Polansky then sought a court order to have key items of evidence — the jacket, the shoes, the rock, and so on — submitted for touch DNA testing by the Colorado Bureau of Investigation. Denver District Attorney Mitch Morrissey’s office opposed the move, again contending that the tests wouldn’t prove anything. Denver District Judge Sheila Rappaport disagreed and ordered the tests.
The results effectively nullified the only two pieces of physical evidence that prosecutors had used at trial to tie Montoya to the crime scene. No DNA from Montoya was found on any of the objects submitted. The jacket came back as having been worn by Nick Martinez. The shoes came back with a match for the DNA of Luke Anaya. The tests not only took Montoya out of the picture; they suggested that others who participated in Johnson’s murder — police believed that at least two, possibly three people were involved in dragging the victim outside — had never been prosecuted.
Faced with a looming post-conviction hearing and the possibility of a new trial, Morrissey’s office offered to cut a deal: Montoya’s release in exchange for a plea of guilty to accessory after the fact. Polansky says she had great qualms about taking the offer, which would leave a felony on her client’s record — and would make him ineligible to apply for state compensation for wrongful conviction under legislation passed in response to Dewey’s exoneration. But what he was admitting to reflected, to some degree, his actual involvement: that he’d been in a stolen car, heard that a woman had been assaulted with a rock, and failed to report either crime to authorities. And taking the plea would get him out immediately rather than waiting possibly years for a new trial — no small consideration for a man who’d spent half his life in prison.
“We were ready to go to our hearing and get a new trial and win,” Polansky says. “But when he’s told we can wait and win this or he can get out next week, after fourteen years...it was a compromise. At the same time, I felt sick to my stomach.”
For its part, the DA’s office has continued to maintain that Montoya was involved in the theft of the Lexus — based, apparently, on his inadmissible statement to the detectives, his disputed statements to the jailhouse informant and nothing else — and thus was appropriately prosecuted as a complicitor for felony murder. A posting on the DA’s website explains that the deal serves the interests of justice, since Montoya’s role was always viewed as that of a “lookout” — an assertion strikingly at odds with the way prosecutors portrayed him at trial, as a homicidal home invader who stepped through the victim’s blood and helped drag her outside. The posting also notes that the deal meets the approval of Johnson’s family, who believe that a second chance for such a young defendant is something the victim would have wanted.
In a statement provided to Westword, Morrissey’s office also insists that the DNA results don’t prove Montoya’s innocence; he may have been wearing someone else’s Broncos jacket that night, and “the presence of clothing worn under the coat might well have prevented the deposit of DNA on the coat.” (The lack of his DNA on the shoes isn’t addressed.) The statement does concede that someone else besides Martinez may have been directly involved in the murder, “but there was not then nor is there now evidence that would allow the filing of criminal charges against anyone else.” Because no court has ever issued a ruling to the contrary, it remains the position of the DA that Montoya’s confession to the police wasn’t coerced or false, even though it contradicts many aspects of the case presented at trial.
“They don’t want anything to exonerate him, because they can’t sleep at night if they believe they convicted somebody who was innocent,” Polansky says. “You would hope they would lose sleep. It’s almost like the district attorneys and the detectives in this case don’t care about any of this.”
Denver Police Department officials didn’t respond to a request for comment on the Montoya case. Shaun Sullivan, the acting city attorney, declined to comment, citing the pending litigation. Homicide bureau chief Jon Priest retired in 2011, but detectives Vigil and Martinez still work for the DPD, and training sessions in the Reid Technique are still widely offered to Front Range law enforcement agencies. Attorney Fisher says new cases of false confession keep coming to light — and typically, the officers involved are adamant that the false statement wasn’t coerced in any way.
“The whole process makes the officer exponentially more likely to ignore exculpatory evidence,” he says. “You are psychologically incapable of admitting that you did that to that person.”
Lorenzo Montoya is now 31 years old. He lives in northern Colorado, works at an organic farm and calls himself Lawrence — his proper first name. During his long years of incarceration, his family was decimated by further tragedies. One sister committed suicide. Another sister fatally stabbed his brother Freddie in a drunken argument. He credits his own survival in prison to his faith and his God. He does not give interviews.
Fisher says Montoya decided to pursue a lawsuit against the Denver Police Department because “he doesn’t want other kids to go through what he’s been through.” Through Polansky, he is also suing his trial attorneys, claiming negligence. He has been active in speaking to juvenile-advocacy groups, Polansky reports, and has shared his story to alert others about the dangers of police interrogation methods.
“Do you know how many of my clients still say to me, ‘Why wouldn’t I talk to the cops?’” Polansky asks. “A fourteen-year-old who’s telling them, ‘I wasn’t there, I’m innocent’ — he thinks they’re going to let him go.”
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