BY MAIRE O’NEILL
maire@losalamosreporter.com
Editor’s note: The contents of this story may be disturbing to some readers
Michael Novak has been released from the Los Alamos Detention Center under pretrial conditions of release following more than a year of incarceration. Novak was arrested in January 2021 and charged with 2 counts of criminal sexual penetration of a minor and 2 counts of criminal sexual contact with a minor.
Novak is represented in the case by attorneys Bill Snowden and Damian Horne. Snowden said Thursday that Novak has been detained in the Los Alamos Detention Center for more than a year and that during that time Novak was typically the Detention Center’s only occupant.
“Naturally, when the Assistant District Attorney Mary McCleary contacted us on the day of the hearing and proposed an agreement that allowed Mr. Novak to be released the defense accepted,” Snowden said.
When the case was filed in District Court in February 2021, there were 12 counts of criminal sexual penetration of a child under 13, 12 counts of criminal sexual contact with a child under 13, 2 counts of battery and 1 county of intimidating a witness. Following the preliminary hearing before First Judicial District Judge Lidyard, probable cause was found to support 2 counts of criminal sexual penetration against a child under 13 – vagina. Judge Lidyard said testimony by the alleged victim was that there had been sexual penetration of her vagina many times over a period of two days, at night and in the morning, over and over. He said the child had testified that she had nightmares and had woken up the second day and had the same thing happen, which provided the break in contact to support two separate charges.
Judge Lidyard used the same logic to support two more charges of criminal sexual penetration of a child under 13 – mouth. In addition because of testimony given by the nurse who performed the SANE examination at St. Vincent’s Hospital said that the child had reported mouth to vagina contact, Judge Lidyard added one count of criminal sexual contact of a child under 13.
Two charges of battery were dropped because the child did not testify to battery during the preliminary hearing. Judge Lidyard dismissed the intimidation of a witness charge because the allegation that Novak told the child not to tell her mother does not constitute intimidation of a witness which requires the threat to be made in connection with a judicial, legislative or administrative proceeding.
A hearing was scheduled for March 3 before Judge Lidyard on the motion conditions of release. On March 2, Snowden filed another motion, this time for the state to produce discovery in the case, which Snowden pointed out should have been provided to him with 10 days of Novak’s arraignment in February 2021.
Snowden’s motion noted that on February 23, he had asked Asst. District Attorney Mary McCleary to set up a follow-up interview with the alleged victim in the case. He said that on February 28, McCleary responded that the alleged victim was traumatized and that due to that traumatization, McCleary would not allow a second interview. The first interview was in September 2021 and those present agreed that the alleged victim was getting tired and they would need to reschedule the interview. Snowden asked that the state indicate exactly how the alleged victim was traumatized or if that was just McCleary’s opinion. He asked that the first interview be played in its entirety for Judge Lidyard at the motion hearing.
Snowden’s motion said that DNA evidence from January 27, 2021 search warrant has not been turned over to the defense. He said he had learned from an email disclosed via IPRA that Det. Matt Lyon had requested that any evidence seized during the execution of the search warrant should not be sent out to the lab “due to a packaging issue”. Snowden said on reviewing the search warrant video footage, it appeared that all items seized were packaged into a large black garbage bag and therefore may already be spoiled. Snowden also noted that during the January 27, 2021 search, Det. Lyons ordered other officers to search for a second cell phone that was not mentioned in the search warrant. Lapel videos from other officers involved in the search have also not been disclosed, Snowden, said, and he wants clarification as to whether those videos exist.
Snowden said that as of February 25, the alleged victim’s mother has a bench warrant for failure to appear. A request for an interview with the mother was made on February 28. The initial interview with the mother in 2021 was terminated after the first few minutes when the mother walked out of it.
When the March 3 hearing began, McCleary said that the two sides had reached an agreement, which if the Court accepted it would preclude the need for an evidentiary hearing.
“The state is willing to agree or to stipulate that there are conditions under which Mr. Novak could be released without posing an unacceptable danger to the community. In exchange the defendant is waiving the motion most recently filed and waiving any further request to interview or take any other statement from the victim,” McCleary said.
Horne said obviously is not waiving the right of confrontation at trial and that any cross examination would be saved for the trial. He said that in addition to the motion to compel discovery, the second motion was filed so that the Court would be clear as to exactly what the defense needs if the alleged victim is not to be interviewed.
McCleary said “this is not done to preclude the discovery of the truth of this case, your honor. This is done from the state’s perspective to contribute to the victim’s safety and wellbeing”.
Judge Lidyard asked Snowden and Horne if forfeiting the ability to interview the alleged victim was going to impair the defense in any way.
“Mr. Snowden and I have had long discussions about this. I didn’t think a second interview was necessary and we have agreed that this will not compromise (Novaks’s) defense and in fact at this juncture, given the Court’s indulgence, we feel that this is an appropriate resolution to protect our client’s interest,” Horne said.
Snowden noted that the defense had a pretty lengthy interview with the alleged victim already on September 8, 2021, and that that her mother is in bench warrant status and the defense was unsure where she was at this time.
McCleary said the proposed agreement has nothing to do with the state’s perception of the strength of its own case and is totally something she is entering into from the perspective of the victim‘s safety and wellbeing.
Judge Lidyard expressed concern that the issue of effective assistance of counsel could be raised if a particular discovery method is not pursued. Horne mentioned that the Court has not been privy to what went on in the first interview of the alleged victim, which he said was “very substantial”.
“The defense frankly believes that that was very substantial and if we proceed in this direction, not only will our client’s rights not be compromised but may in fact be enhanced,” Horne said.
McCleary said that under the proposed terms of release, Novak would be required to live with his mother in Elephant Butte. He would be required to enter into a curfew from 6 p.m. to 6 a.m. He would be allowed no contact with minors for any reason whatsoever, regardless of whether they are related to him or not. She said the Court would determine the appropriate level of pretrial services supervision and that all standard conditions of release including no contact with anyone other than his attorneys – with anyone who might testify in this case would be included.
There was some discussion on how Novak would handle the situation if there minors at residence where he would be working and Judge Lidyard expressed concern about how the terms of the agreement would be regulated. He noted that he would not want Novak in a playground or sitting on a park bench.
“Walking through a Lowes or a Home Depot, there’s a very good chance that there will be children there walking through the aisles as well. How does he handle those situations?” he asked.
McCleary responded that her view is that Novak would not talk to strangers, certainly not strangers who might be minors in order to secure release under the conditions being proposed.
‘You may wonder why the state would ask for a condition that is difficult to enforce. The reason is that if I come before the Court where a child has reported to the police that Mr. Novak said something inappropriate to that child, you and I will not be arguing whether that statement had a criminal intent or not. Because the state is asking for this condition of release, and Mr. Novak may defend himself saying, ‘No, I was just asking about an innocuous subject’, that won’t matter. There will still be a violation established. The Court will still have all those tools at its disposal to protect the community. If I could write it in, I would just say no violations of the law,” McCleary said. “I’m only concerned that Mr. Novak will violate the law in a way that makes people unsafe but since we don’t want to have a mini-trial if there’s ever a motion to revoke his conditions of release, we’re asking him to avoid contact with minors and today he’s on notice that that’s to the point of rudeness and to the point of quitting employment and to the point of asking for help from another person if he sees a child who he believes is in trouble. He will call 911. He will not go to assist himself. Because I believe that he can understand and follow these conditions is why I’m willing to agree to the defense proposal.”
Judge Lidyard noted that the situation would probably be different than what McCleary was describing.
“He more likely would say, ‘I did talk to them, I just didn’t say what they said I said’. He probably would say, ‘I didn’t talk to them; the kid’s lying.’ And you’re talking about a situation where the child notifies somebody that this happened, but the odds of that happening are also slim. The thing that I’m concerned about is how do you regulate it? How do you even know unless a child comes forward and says a strange man came up to me and started talking to me and I should call the police about it or I should tell my parent and he should call the police about it. We know how those things unravel and they hardly unravel that way,” Judge Lidyard said.
After more discussion, McCleary said if the Court is expressing that the conditions being proposed aren’t completely proposed she would accept and the hearing could be held or rescheduled at the defense’s convenience.
“If the Court is saying it’s possible, I would appreciate an opportunity to work with the defense on a very specific release order that we might submit for your approval. It sounds like the principle of the exchange of headaches that is proposed here, where the defense may not need the interview and the state may be able to see a way to protect the community without incarceration in the Los Alamos jail. Is that the principle? If that principle is acceptable to the Court, then we really just need to work out exactly how we’re going to phrase this,” McCleary said.
Horne asked Judge Lidyard what terms he would feel comfortable with. Horne proposed that Novak not be allowed out in public outside the company of another adult. Judge Lidyard said he didn’t think Novak should be in the presence of a child in a private place at all, personally.
“But you all have come to a sort of an agreement here analyzing the strengths of your positions and if this is what you’d like to do, I would likely go along with it because I rely on you all to know what you think your success would be if we went to a hearing. I assume you’re striking a compromise because each of you is realizing the strengths and weaknesses of your positions and that this is perhaps the best outcome for both parties. I just want the provisions crystal clear so that he understands what he can and cannot do,” Lidyard said. “In a conviction situation, electronic monitoring is a requirement as a standard for any sex offender probation so to a certain extent some contact with children is self-regulated but other contact is regulated. Specific exclusion zones are put in place. I’ve put a condition on people’s release pretrial in sex offender via electronic monitoring to prevent them from going to any schoolyards, to go into any parks or places that children play. So there are specific areas that he would know he is not supposed to go. And then he’s not to be in a private place with a child, ever. And then when he’s in public, he shall not interact with a child either verbally or physically in any way. I think that might be clear enough for anyone to regulate themselves, to know exactly what they need to do. Never be in a private place with a child, even a room in a dwelling, inside a dwelling, a public place outside, in a store where the public is – no physical contact with children. No verbal or physical contact with any children and at least because of the public nature of the area, I’m hoping there’s always going to be other adults around which would eliminate any nefarious or otherwise concerning to occur.”
Snowden said the last thing his client wants to do is go back to jail.
‘He has been incarcerated for a year and frankly the way things are proceeding in this case, where the key witness has disappeared, if he’s not let out, it’s going to proceed for a considerably longer time. Mr. Novak, of all people present here will hasten to agree that he doesn’t want to be alone in the Los Alamos County Jail any longer than he already has been,” Snowden said.
The Los Alamos Reporter has been informed that Novak has been released and is currently in Elephant Butte with his mother under a 6 p.m. to 6 a.m. curfew. He is not allowed to have any contact with witnesses involved in the case. With respect to individuals under the age of 18, he is at no time permitted to be in any private location with an individual under the age of 18. He is prohibited from going to school yards, public parks and other areas where it is known that children frequent. While in public places, he is to have no physical contact or communication verbally or otherwise with anyone under the age of 18.