Former DA: Chan should not have been charged with 1st Degree Murder

Tuesday’s second mistrial in the Tai Chan murder case had a lot of people asking questions about how the case unfolded.

Chan, a former Santa Fe County Sheriff’s deputy, is accused of murdering his partner Jeremy Martin after an argument at a Las Cruces hotel in 2014. The prosecution says Chan shot at Martin 10 times, 5 of those shots hitting him in the back. Chan testified that he acted in self defense.

After the two week trial with roughly 50 witnesses, it took a jury only three hours to decide they would not be able to come to a unanimous decision.

ABC-7 wanted to know, can a judge force a jury to deliberate longer?

Former Dona Ana County District Attorney Amy Orlando, who has covered multiple high profile cases, told ABC-7 that in New Mexico, they can’t.

“What that is sometimes known as in the legal profession is a shot gun jury instruction,” Orlando said. “That’s not allowed in New Mexico. So the judge has to rely on what the foreperson is telling them, that if they have come to a deadlock and no more deliberations would help move any of the jurors one way or another that’s all he can enquire.”

After the mistrial was declared, James Martin said he doesn’t believe his brother Jeremy will receive justice in a Las Cruces court.

Orlando said the only time she believes a change of venue could be granted is if there is so much media coverage of a case there is not a fair jury panel. She said the district attorney’s office would still prosecute the case. Unless they decide to hand it over to another office.

“They can what we call ‘farm it out’ to another District Attorney’s Office,” Orlando said.

On Tuesday District Attorney Mark D’Antonio said he was working with the Martin family to determine what the next step would be. He said he believed justice could be served in Las Cruces.

He also said he stood by the first degree murder charge.

But after the mistrial, both the prosecution and defense confirmed with ABC-7 that in a final vote, not a single juror believed Chan was guilty of first degree murder.

Five believed Chan was guilty of second degree murder, one believed he was guilty of voluntary manslaughter and six believed Chan was not guilty.

Orlando says that from the beginning, she believed it was a second degree homicide case.

“I think premeditation and deliberate intent to prove for a first degree homicide case doesn’t match the facts, unfortunately,” Orlando said.

She added that she believed proving that the murder was premeditated might of confused the jury.

“They focus more on the intent and deliberate act that they lose sight of the fact that the defendant killed Martin that night by shooting him in the back,” Orlando said.

After the mistrial was declared, Defense Attorney John Day said because not a single juror believed Chan committed first degree murder, that it would be double jeopardy if the state tries him again on the first degree murder charge.

“Because no jurors voted for first degree the jeopardy attaches to it and we’ll probably brief that issue with the judge,” Day said.

Orlando agreed that double jeopardy is a strong argument.

“If he polled the jurors and they said they found not guilty on the first degree and that was made in the record, they can under New Mexico law, the prosecutors would be prohibited, in my opinion and based on law, from trying the case again as a first degree homicide. They would have to go to the next highest level that the jury was deadlocked on.”