The Last Time We Saw Her

by Robert Scott

  Would he proclaim his innocence on all of these cases, including Kirov and Wilberger? Or would he buckle under the pressure and start telling exactly what he had done—and to whom?

  CHAPTER 19

  “I WOULD SPIT IN YOUR FACE …”

  As far back as the summer of 2005, it became clear that there wasn’t going to be a speedy road to justice concerning Joel Courtney. This was even true in the Natalie Kirov case, much less the Brooke Wilberger case. As early as December 2004, the prosecutor in the Second Judicial District of New Mexico was putting together a witness list in the Kirov case. And hearings went on, month after month, throughout 2005. These included a “Notice Regarding Evidence” on April 13, 2005, to an extension hearing on May 24, 2005, to a “Motion to Review Conditions of Release” on June 22, 2005.

  The defense wrote that the present conditions of release are more strict than necessary to reasonably assure the defendant’s appearance. In essence, they were saying that Joel Courtney should be out on bail, and that he would make his court appearances when scheduled. But Judge Michael Kavanaugh wasn’t buying that argument, and Courtney stayed right where he was in the Bernalillo County Metropolitan Detention Center. Had he been released on bail, there would have been a firestorm of protests from Oregon.

  About all of this interstate interest in Courtney, Benton County district attorney Scott Heiser said, “[Governor] Richardson will serve the warrant on Courtney when he deems appropriate. A Bernalillo County case is pending against Courtney, and he is not likely to be extradited to Oregon until that case is resolved.”

  And then the Corvallis Gazette-Times added a very interesting bit of new information. It noted, “The trial date (in New Mexico) has already been delayed because Courtney’s attorney was reportedly arrested on a charge of driving under the influence of intoxicants and was fired.” Courtney now had a new attorney named Liane Kerr.

  Joel Courtney was not content merely to address the court through his lawyer. Irritable as usual, he addressed the judge on his own behalf in a statement he wrote that his rights were being violated. Calling himself the “petitioner,” Courtney stated: Petitioner is not provided sufficient access to law library in the detention center. He went on to relate, I have had one opportunity to visit the law library in the seven plus months since being incarcerated. I believe this to be a violation of my 5th Amendment Right to Due Process and New Mexico Constitution Right, Section 2, Article 18.

  Hearing after hearing followed: a “Petition to Extend Time,” a “Petition for Writ of Habeas Corpus,” and then a judge recusal filing on August 24, 2005. This concerned Judge Michael Kavanaugh, who briefly stated in a court document: I, J. Michael Kavanaugh, do hereby recuse myself as District Court Judge assigned to the above case.

  Judge Mark Macaron was assigned the Courtney case on August 26, 2005, but that lasted less than a week. For whatever reason, Judge Macaron was replaced by the Honorable Kenneth Martinez, and he would see things through for the rest of the court proceedings into the years ahead on Joel Courtney.

  Judge Martinez soon had his hands full. A sealed document came before him about Joel Courtney’s competency to stand trial. So did an emergency motion from Liane Kerr to reinstate Joel’s medication. Kerr said that Joel had been taking eight hundred milligrams of Motrin twice a day, twenty milligrams of Baclofen twice a day, two milligrams of Phenergan twice a day, and two milligrams of Synthroid once a day before his arrest. Since being confined, he’d been off medication, and Kerr stated that Joel had been supervised for suicide attempts, and that “his deprivation of medications clearly does not help.” Kerr wanted Joel’s medications to start again at once. Within a few days, Kerr not only said that Joel needed his medication, but that he was “bipolar and suffers from depression.”

  By November 2005, Judge Martinez ordered a psychiatric evaluation of Joel Courtney to deem if he was competent enough to assist his attorney at trial. By this time Courtney was not only hostile to the prosecution, but there was a great amount of friction with his defense as well. On April 6, 2006, there was a filing motion by Liane Kerr to withdraw as Courtney’s lawyer. In fact, it was Joel Courtney who let Judge Martinez know that he no longer wanted his female attorney, Liane Kerr.

  Judge Martinez finally agreed with Courtney and put the whole process on hold while an available male attorney could be selected for Joel. John McCall was on the list, and he became Courtney’s attorney. It only added to the time consumed as McCall had to read through thousands of pages of documents to get himself up to speed on the case. But speed was the last thing Joel Courtney wanted in New Mexico. With every day of delay, there was one more day he put off being returned to Oregon on a death penalty case.

  Things even got more convoluted when Liane Kerr let Judge Martinez know that a Dr. Westfried had contacted her about a mental evaluation he was to perform on Joel Courtney. Kerr related, “Dr. Westfried indicated to me that he believed Mr. Courtney to be disturbed. But without an evaluation he could not provide a report of any kind.” Unfortunately for Dr. Westfried, Kerr was no longer Courtney’s attorney. So there things stood, until the whole mess could become untangled.

  By the end of May 2006, McCall put in a request for a “Speedy Trial and Request for Discovery.” McCall stated that United States Constitution Amendments V, VI, XIV, and an article in the New Mexico Constitution, protected Courtney’s rights to due process and a speedy trial. But this rush to justice was short-lived. Less than a month later, McCall put a “Notice of Unavailability” before Judge Martinez. In it McCall stated that he would be completing a complex murder appeal in State v. Manzanares, working on a series of cases between June 28 and July 10, and also remodeling his office.

  It was apparent there was going to be no trial coming soon for Joel Courtney on the Natalie Kirov case. This became even more evident when Judge Martinez ordered that Joel be sent to the Forensic Treatment Unit at Las Vegas, New Mexico, for a mental evaluation to see if he was competent to stand trial. Judge Martinez wrote: The Bernalillo County Sheriff shall forthwith transport the defendant to the forensic treatment unit for no more than 72 hours, then return him to the Bernalillo County Detention Center. The Las Vegas Medical Center is to provide assessment and treatment to address defendant’s possible dangerousness and his competency to proceed in his criminal case. Defendant shall be provided with treatment available to persons involuntarily committed pursuant to the Mental Health Development Disabilities Code.

  Speaking about this, the Benton County DA told reporters, “If Courtney is found to be competent, the case could be put back in the trial queue. If he is found to be mentally ill, it could take months before the trial could resume.”

  That may have been the initial plan to have short evaluations of Joel Courtney at the Las Vegas facility. But before long, Joel Courtney was bouncing back and forth between the Metropolitan Detention Center and the Forensic Treatment Center, more than one hundred miles away. Courtney was sent to the facility in Las Vegas on July 1, 2006, and October 3, 2006, as well, for psychological evaluation. There was only one problem with all of this: Joel Courtney was not cooperating with anyone.

  Almost beside himself with frustration, Judge Martinez let both the prosecution and the defense know: Given defendant’s current refusal to participate in an evaluation of his competency, the Court cannot make a determination of competency at this time. Therefore, the defendant shall be committed to the care and custody of the Department of Health of the State of New Mexico in Las Vegas, New Mexico, for evaluation of the Defendant’s present competency. If the Defendant is found incompetent, the Defendant shall be treated for competency to stand trial for a period of not to exceed nine months.

  Judge Martinez was going to do everything he could to make sure that Joel Courtney was able to assist at his defense when a trial occurred. And it was Joel’s mission to put that off as long as possible. If he acted and seemed incompetent now, there was no way he was going to Oregon anytime soon, and that suited Courtney just fi
ne.

  With that mission in mind, Joel dug in his heels, refusing to cooperate in mental evaluations and being as unruly as possible. He griped and swore and acted out at the facility in Las Vegas, New Mexico. Sometimes it was hard to tell if he was “just acting crazy” or if he really was “crazy.”

  All throughout the autumn of 2006, the prosecution and defense held competency hearings in front of Judge Martinez. But without the cooperation of the main character in the drama, it was like trying to walk up a muddy, slippery slope on a steep hill. No one could get any traction.

  Finally by February 2007, Judge Martinez had had enough. He sent out a document, “Order Ending Competency Stay.” Martinez related in it that the Department of Health in Las Vegas, New Mexico, had information to say that Joel Courtney was competent to stand trial. And then Martinez noted: The defendant’s lack of communication with Defense Counsel is not the result of the Defendant being incompetent.

  Joel Courtney might have tried fooling everyone into thinking he was incompetent to stand trial, but he wasn’t fooling Judge Martinez. Martinez saw the misbehavior as a ploy by Courtney to put off trial until the end of time.

  Commenting on this latest event in the Joel Courtney saga, Benton County, Oregon, DA Scott Heiser said, “We’re glad it’s finally going to trial in New Mexico. At last there’s some progress in that case.”

  And Greg Wilberger added, “We’re glad it’s (the Kirov case) finally going to trial.”

  Progress, however, still meant pretrial hearings on witnesses and evidence in the Natalie Kirov case. These went on through January, February, and March 2007. The prosecution’s witness list included the likes of Dara Finks, Zoraida Oviedo, and, of course, Natalie Kirov. The list also included APD personnel, such as Detective John Romero, Officer F. Aragon, Officer E. Taylor, Officer R. Sanchez, and Sergeant Gallindo. As far as crime scene techs went, there were personnel from the Metropolitan Forensic Science Center, which included Laura Galbraith, Cathy Pfefferle, Catherine Dickey, and Donna Monogne.

  John McCall, Joel’s defense attorney, was also constructing his own list of witnesses, which included David King, of the APD, Tanya Hicks, a private investigator, one unlisted African-American male, who was present when Joel was arrested, and one Hispanic female, who was present when Joel was arrested. Interestingly, McCall had Zoraida Oviedo on his witness list, and she was also a prosecution witness. A short time later, McCall added psychologist R. Edward Geiselman to the list. Geiselman was a professor of psychology at the University of Southern California.

  Judge Martinez no longer wanted this case just to drift, as it seemed to have done for so long a period of time. Martinez set in writing an exact scheduling order for the months leading up to trial: Discovery must be completed by April 6, 2007, motions must be filed by April 13, 2007. The parties shall submit their proposed jury instructions to the court by May 3, 2007.

  Even with these marching orders, the actual trial date was not set until September 2007. And before that time Joel Courtney had another matter to take care of. His wife, Rosy, finally had had enough of Joel and his errant and destructive ways. She filed for divorce and a petition for support to the New Mexico Human Services Department. Named as the defendant in this case was Joel Courtney. He was ordered to pay monthly child support, as well as medical and dental care for the children. Just how Joel was supposed to do so while in jail was not addressed.

  Spring turned into summer, and still pretrial hearings dragged on. It wasn’t until September 2007 that jury selection began and twelve jurors were empaneled. And by now, even the New Mexico television stations were more interested in the case than they had been, because of the impending Brooke Wilberger case in Oregon. Station KOB sent out a reporter, who learned that the prosecution in Natalie Kirov’s case had offered Joel Courtney a plea deal, but Joel wouldn’t say one way or another if he would take the deal. What was being offered was eighteen years in prison on the Kirov case if Joel pled guilty.

  Joel’s attorneys told KOB that Courtney was acting in his usual erratic manner. One of those attorneys said that Courtney did not want to talk about the case. All he would do was talk about unrelated things and about the medication he was taking. It was almost as if Joel didn’t think about the case, it would all go away.

  On September 17, 2007, the Natalie Kirov trial was set to begin. Print and television journalists filled the gallery, as did curious onlookers. So did investigators from Oregon and even a news crew from a Portland, Oregon, news station. And then they waited, and waited, with no defense attorneys, prosecutors, judge, or Joel Courtney appearing.

  Finally it was announced the reason for the long wait. At the very last instant, just before the jurors were to be brought in, Joel Courtney accepted the prosecution’s plea deal. The Albuquerque Journal noted: After nearly a year of barely communicating with his attorney and sitting trance-like through much of jury selection, Courtney entered a guilty plea to two of four charges before Bernalillo County District Judge Kenneth Martinez.

  DDA Theresa Whatley told reporters, “This was always my hope. It always is better if the victim doesn’t have to testify in a trial.”

  In the plea bargain Courtney admitted to the forcible abduction and sexual assault of Natalie Kirov. Joel Courtney, who had refused to change into civilian clothes that his lawyers had provided for him throughout much of the hearings, wore a charcoal gray suit on the day of his plea bargain.

  After the hearing John McCall told reporters that Joel finally explained his strange trancelike behavior that he’d adopted throughout most court hearings. McCall said that Courtney related that he’d adopted Zen Buddhist practices. Just where and when Joel had picked these up was anyone’s guess.

  One thing the trances had done was to make it extremely hard for any attorney to work with Joel Courtney on his case. McCall said, “He just sat and stared. It was a very difficult case for a defense.”

  Even though Joel Courtney was quiet and behaved himself on the day of his plea deal, that manner didn’t last long. On December 11, 2007, the date of his formal sentencing on the Natalie Kirov case, Joel pretended to be ill and tried to fire his attorney and renege on the plea deal.

  Judge Martinez wasn’t having any of this and proceeded toward sentencing. When asked if he had anything to say, Joel Courtney replied to Judge Martinez, “I have no respect for this court. You are the rudest person I have ever met. I would spit in your face if I was close enough.”

  Those were probably not the best words to say to a judge just before being sentenced. Judge Martinez frowned at Courtney’s outburst; then he quietly sentenced the defendant to the maximum of eighteen years in prison.

  CHAPTER 20

  ENDINGS AND BEGINNINGS

  There may have been an extradition order in place for Joel Courtney to be sent from New Mexico to Oregon, but that did not mean that Courtney wasn’t going to fight it every step of the way. The order was ER Number 05-00081, and it stated: The State of New Mexico notifies the Court that the Governor of New Mexico has issued a Governor’s Warrant authorizing the return of the fugitive to the state of Oregon.

  There were other battles being waged before Courtney was returned to Oregon as well. Hungry for any scrap of news about Courtney and Brooke Wilberger, Oregon media outlets were up in arms against the Corvallis Police Department and Benton County DA’s Office and their complete blackout on any new information concerning Brooke’s kidnapping. The Associated Press, KGW-TV, and the Oregonian newspaper all filed suit against those offices, citing that a free press had the right to documents and files. A lawyer representing the three news outlets claimed, “Disclosure of public records before trial in Oregon courts is standard practice.” Basically, the news outlets were asking for the original affidavit in the arrest of Joel Courtney in the Brooke Wilberger case. This kind of document is almost always public record that anyone could look at by merely going to a court clerk’s office and viewing the information.

  This time, however, both DA Scot
t Heiser and CPD chief Gary Boldizsar said that releasing information from the affidavit and other “public” documents would compromise their case. They cited in particular the fact that there was no body in the case. A death penalty case without a body was always tricky business.

  Heiser went on to say, “If this was a case that involved the questionable dealings of a public agency, the corruption of a public official, or some other issue that strikes the underpinnings of our democracy, then the balance might very well tip the other way for disclosure. However, that is not the situation in this case.”

  Before long, the Oregon State Attorney General’s Office was involved in this matter as well. The spokesman for that office, David Leith, urged the court to keep the documents sealed. Leith said, “The court should exercise caution to avoid impeding an important criminal investigation and to avoid prejudicing an important criminal prosecution.”

  And then as a bit of a tease to the news media, Leith also let it be known, “The state anticipates that the continuing grand jury investigation will result in at least one additional indictment against Joel Courtney.” This left a lot of possibilities in the air. Had Joel done another kidnapping? Had he committed another murder in Oregon? Leith was closemouthed on the matter.

  Finally Judge Locke Williams came down with a ruling as to whether the media outlets were going to view the affidavit and other documents. Williams ruled that the affidavit and documents should remain sealed because of “the risk of interfering with the state’s ongoing investigation of this and other crimes that may have been committed by Mr. Courtney.”

  This only added fuel to the fire in the media: What other crimes? Were there other victims? Were they still alive? Or just like Brooke Wilberger, had they disappeared?