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Two deranged lawyers talking about our deranged obsessions.
Raven Sinner (00:01)
Thanks for watching!
Raven (00:26)
All right. Welcome back, Derangers. We have a very special episode for you today. First of all, this is Deranged DeJore. And we are two deranged lawyers talking about deranged topics. And we've been covering the New Mexico prison riot for the past couple of episodes because it's such a huge topic. And we felt like it needed to get the justice that it deserved.
So, and I think I could talk about this topic forever, to be honest with you, but you know who really could talk about this topic forever, who we got to talk to today? Yeah.
Pisha (01:04)
our guest host. Oh, and by the way, that's Raven. I'm Pesha. And we've got a guest host this week that I'm really super excited about.
Raven (01:15)
Yeah, we did good. We were honored to have Mark Donatelli, who has been a prison reform lawyer since the 1970s, was involved with this prison since 1976. And so he was a public defender at the time, and then switched over after the riots and did some
special defense during the prosecutions of the rioters, and then went on to start a firm, Rostein Donatelli, which is one of the bigger firms in New Mexico, and they do a lot of civil rights practice, and namely for Mr. Donatelli, he's done the majority of the work on the Durand Consent Decree, which is the,
class action lawsuit involving the prisoners who were in the prison. Dwight Duran, I guess, was not in the prison at the time that the riot occurred. But they were all part of this prison where the riot ultimately occurred.
Pisha (02:27)
Right. And Dwight Duran was a key negotiator throughout the prison. He wasn't in the prison, like you said, wasn't he released like a day or like a week or so before something like that. And he was released, but because he had so much credibility with the prisoners, he was brought in for negotiations. So that's why it's called the Duran Consent Decree. It's after this guy, Dwight Duran, who was so key to the negotiations.
Raven (02:38)
Mm-hmm.
Right. So yeah, so we're going to talk to Mark Donatelli today, who's going to tell you about what it was like being one of these attorneys for the prisoners who were charged with these crimes, as well as a whole host of other topics, some of which we were going to cover and some of which just came up. And so I think that it's going to be
a really fun, interesting interview for you guys. We're really, like I said, super stoked to have had Mark Dottetelli on. We're super thankful for him and all of the wisdom that he gave to us today. So I think without further ado,
Pisha (03:34)
First of all again. Thank you so much for being here You know for those of our listeners that don't know Mark Donatelli and your illustrious. Yeah, and your illustrious career Do you mind just giving a brief? summary of who you are
Raven (03:43)
How could you not? Ha ha ha.
Mark Donatelli (03:51)
Sure. I started doing prison work in New Hampshire when I was in law school and was representing prisoners in post-conviction cases. And then I came into Mexico my last semester of law school in 76. And the public defender that I was working for then, Bob Ross, Dean C. Farber, had me working on habeas corpus
cases out of the penitentiary New Mexico, mostly on conditions cases. And you know, as a law student, I was kind of like, I couldn't believe what I was seeing. This is in 1976. The treatment of mental health prisoners in the hole and that sort of thing. So then after I became a public defender, I did a brief stint in Carlsbad and Albuquerque and then came back to Santa Fe in 78.
was the district defender in 78 when the riot occurred. And then when the riot occurred, our office was responsible for the 125 guys facing murder charges out of the penitentiary riot. And I spent three years defending those capital cases and went into private practice and immediately got appointed as one of the plaintiffs' counsel representing the Duran class. And I'm still in the Duran lawsuit
continues to this day. A number of other prison work around the country, mostly involving riots or bureau prisons homicides. So I've been involved in prison litigation, both in civil litigation and in defending capital cases around the country.
Raven (05:20)
Forever.
Pisha (05:21)
Yeah, it's ongoing.
Well, and you've already kind of mentioned this. We, as you know, have been talking about the New Mexico State Penitentiary Riot of 1980 over the past couple weeks. And you spoke to this already, but what was your role in the aftermath and how did you come to be involved?
Mark Donatelli (06:02)
I remember the morning of February 2nd, very clearly because I had gone to a death penalty seminar in Atlanta. our death penalty statute went into effect in July of, of 79. And we knew there were going to be capital cases sooner or later. So I'm driving into this seminar in the dark in Atlanta and on the radio, they say that the prisoners have taken over the prison.
I was head of the Santa Fe Public Defender Office, and I was like, nah, that's not, can't be. We've been representing guys on cases for the last two or three years there. I called the prison and it rang, rang. And just couldn't believe what I was seeing on the news, and then came back here, and sadly, figured out right away that we had clients killing clients. The news accounts were all accurate about.
what took place. There was a lot more that came out eventually, but right back then, the state was washing oil money for the first time. And the state decided that they were going to spend $3 million prosecuting cases. They created a special prosecution office. And they were going to create a special public defender office that I was going to be the head of.
and gave us over a million dollars to defend the cases. So we had resources and immediately started finding out, well, they shipped, as you probably know, they shipped a lot of guys out of, the penitentiary was just unusable for a short period of time. And they got some of the cell blocks operating again, cell block three, cell block four, and not four right away.
of three and six, I think, brought some of the guys back. And gradually over time, I think they started using the dormitories again. But it was it was absolute chaos for a good 18 months after the riot as they were bringing guys back. There were nine murders in the first 18 months after the prison was retaken. And
for the first time since 1956, I think, we had two correctional officers killed in two separate incidents, one in cell block three and one across the hall and cell block five, I believe it was. So, so much for the death penalty protecting corrections officers. And as head of the defense
they would actually give us a room in the basement of Cell Block Three. And I couldn't believe the security or lack thereof. I mean, we had representatives of the cases that we would meet with. And I don't know if we, I think we had a Duran meeting in Cell Block Three, but I remember meeting with a bunch of prisoners one afternoon when they just opened all of the doors in Cell Block Three and sent guys out to the yard.
together. This is supposed to be a restrictive housing operation, because these were all guys who were targets, targets of committing homicides during the riot, right? And at the same time, the state is trying to make deals with some of the same guys. And guess what happened? Some of the suspected witnesses were getting murdered out in the yard. Just, I mean, you know, we, I know.
Pisha (09:47)
So this was happening before the riot.
Mark Donatelli (09:50)
No, I'm talking about the period after the riot. I'm saying of the continuing chaos afterwards that they were bringing guys back before the, I mean, you think they would learn a lesson to have a secure operation, and secure correctional officer practices, but no. I mean, you know, you have 33 guys that died during the riot, nine more in the first 18 months after that. What were you doing bringing guys back when the place wasn't really...
Pisha (09:52)
Oh, got it.
Raven (10:02)
Right.
Mark Donatelli (10:19)
safe to be operated. And you hadn't figured out who the staff were that you had some of the same middle managers running the operation that were responsible for the riot. And they were in charge of deciding who would go to the yard and who would go to the yard together. I mean, we had some horrible murders of guys being stabbed multiple times while they were handcuffed behind their backs because the guards put known enemies in cages together. I mean, it's just
So there's nine horrible murders, including two correctional officers in the first 18 months. And then for the rest of the three years, we were defending cases as they brought the indictments, fortunately all successfully.
Raven (11:04)
Great.
And what were some of the difficulties in doing the defense work of these inmates in particular? I mean, I guess when I look at it, you know, for a lot of the guys, you're talking about the death penalty being back on the table, but there wasn't a whole lot. They're already in for a significant amount of time. So what, you know, more time would actually would that accomplish, essentially?
Mark Donatelli (11:31)
Well, that's true, but you know this was the new shiny object for processing.
cases and the prosecution, avoid by the three million dollars, told the legislature that they had identified 125 capital targets. I mean, can you imagine, I mean, let's talk about grandiosity and DSM. I mean, really you're going to, after what, and especially knowing what, you know, there was just no secret that the prison had been badly
Raven (11:57)
It's like Texas level.
Pisha (12:00)
Ha!
Mark Donatelli (12:08)
so many. I mean, I will tell you, we did a lot of attitude polling in Santa Fe County, we were trying to figure out should we get a change of venue? Because I mean, I was telling you about the escapes. People in Santa Fe were traumatized by the escapes that took place. I mean, it was pretty regular occurrence that you would hear a helicopter hovering up in the air. And it wasn't like Channel seven helicopter, it was a National Guard or
state police helicopter that people, oh shit, people are on the loose out of the prison again, right? So Santa Fe was just traumatized by that. And then the riot itself, and we thought, you know, do we really wanna be here? But because of the press coverage, we found out right away that Santa Fe jurors knew more about the mismanagement, the incredibly deplorable conditions at the penitentiary that were
responsible for the state of mind of the guys that were involved. I'm sure there were jurors who thought, yeah, well, just kill them all. What the hell? But we just knew with decent jury selection, we'd find people that were open to considering the conditions as mitigation in the cases. So the most difficult part was that...
On one hand, there were no videos of what took place. But on the other, the state had stacked the deck with informants. It took a lot of investigation to find out how the state had identified the informants and figured out who they thought were reliable witnesses to call in the cases. But we found out.
early on that what they had done, I mean, you're familiar with cell block four in particular. That was the snitch unit, right? Where out of the 33, there were nine or 11 of the homicides took place there, right? Yeah, the most ones took place. And I mean, let's face it, there were guys, I mean, that was one of the security breakdowns. There were guys who had testified to put guys in
Pisha (14:12)
Oh yeah.
Raven (14:19)
really gruesome ones. Yeah, yeah.
Pisha (14:22)
Right.
Mark Donatelli (14:34)
And when they took over the prison, they knew they were across the hall in cell block four, right? And yeah, those were the most gruesome. But still, it was a question of how do you prove who did what? I mean, you know, who the suspects were. But there were 1,100 prisoners at the time of the riot that you had to sort through for the people to face the death penalty. So what they did was they
put all the guys that were the survivors in cell block four on buses and some suspected informants and they took them to Las Cruces and had them in a gymnasium. And the correction secretary and some people from the state police talked to this group of witnesses. I mean, you know, making no effort to separate witnesses at all. And the...
Reports we got from prisoners were consistent. They came in and they said, you know, we know that all of you or most of you were in cell block four and we know what you saw. We have two buses sitting outside waiting for the people that are leaving this room. Those who saw something are going to get on a bus and be flown to a brand new prison in Talladega, Alabama. If you didn't see anything, then you have nothing to worry about and you'll be sent back to the penitentiary in New Mexico.
Raven (16:01)
Wow.
Mark Donatelli (16:03)
We'll be back in a little while to find out who saw something.
Raven (16:07)
That's incredible. Oh my gosh.
Pisha (16:09)
That's a good way to get anyone to talk, I think.
Mark Donatelli (16:14)
Right. And so all of a sudden, I just got together and they decided who was it that was, you know, who did this guy put in the prison and they all got together and put their stories together. So there were somewhat consistent, some inconsistencies, but when you give convicts enough time to get their stories together, they're somewhat consistent. So that was the
Raven (16:35)
Right, especially if they're together, right? As a purpose of separating witnesses. That's why it was so incredible for me to hear that. That's the way that they did that. So.
Mark Donatelli (16:44)
But, you know, I mean, I know you're both experienced in criminal defense. And if you give informants enough time, let's face it, informants are usually the most antisocial characters in the bunch who find a way to land on their feet, right? And the state did a very poor job of managing.
their informants, and they had made promises that went unkept. And I had to say, I don't need to paint with such a broad brush for all prosecutors, but most prosecutors don't think highly of prisoner informants. Well, they don't think of informants highly at all, because they know at least as well as we do. They know that they're the most antisocial characters in the process. And so they treat them.
usually cautiously, but they don't have much loyalty to them. And they'll tell them, oh, call my office any time if there is a problem. And that's just not the way it works. So the first time a promise gets broken, what do you think they do? They started calling our office. And then grabbed an investigator and went to Talladega and started talking to the prisoners. And that's where we got this story about
what had happened to the guys in Las Cruces, and then started fleshing that out. I mean, bottom line, it didn't, you know, the first case that we took to trial, we got convicted, but, and I have to say, I was stunned that they got a conviction. I just couldn't believe it. But we got a life sentence. As it turned out,
in doing jury interviews, there were many jurors who didn't believe the state informants. We had just done an excellent job of discrediting them. And it turned out that with the magnitude of the case, that the jurors who were holding out for not guilty cut a deal on the penalty and said, all right, we're going to vote for
for conviction, but we're not going to vote for death. I just tell you that. I wish the hell I'd have known that when I spent the next two or three weeks with sleepless nights putting together our penalty phase, right? But that's the way it worked. There were serious doubts about the guilt or innocence based on these. I mean, there was no physical evidence, for God's sake, you know, no.
Raven (19:18)
her. Oh.
Mark Donatelli (19:31)
can't know pictures or anything like that. It was all based on snitch testimony. No, and...
Raven (19:36)
Right.
Pisha (19:36)
And like you said, they're not the most credible witnesses in the world. Juries don't really put a lot of weight on their testimony.
Mark Donatelli (19:43)
And none of the guys had given statements after, none of the defendants had given confessions that we had the challenge or not. So it looked like a defense attorney's dream. It was just that with all the pressure, and I think that, I mean, you guys are experienced enough to know that we know what happens with death qualification. It rigs the, it stacks the deck in favor of a conviction because
they're conviction prone. I mean, we lost a lot of jurors who said they were excludable because they said, knowing what I know about the conditions there, there's just no way that I could be a fair and impartial juror. I know what these guys lived through. And no, I don't think I could, the state is responsible for the conditions. I could convict them, but I could never give death in. And you know, the defendants are sitting there and trial just watching the good jurors get sent.
sound out, right? And every study has shown that the jurors that are left are conviction-prone, that they don't require as much proof from the state before they convict. So we had conviction-prone jurors that convicted, but no death. And within, we got a couple other life sentences. And then the state's cases just started. I mean, there was a lot of pressure from the legislature. The
Legislators who had paid $3 million to support the prosecution were stunned that there were no life sentences, no death sentences, because like you said, everybody was doing life. And so the state just started folding its tents and offering giveaway pleas. There was only one guy, I think, who had any significant additional time as a result of the prosecutions, a guy named
after the riot while his case was on the field. I don't know the day you can look it up, but Moises, you'll see Moises Sandoval. Moises had made some enemies during.
Raven (21:40)
Wow. I didn't realize that. When was he killed?
Yeah.
Mark Donatelli (21:54)
filed him in a dormitory one time. He'd been convicted and sentenced, I think, to a consecutive life or something like that. He was on appeal when he was killed at PNM.
Raven (22:06)
I'm gonna see, was he one of your...
Mark Donatelli (22:08)
I didn't, he was one of the defendants, I didn't represent him, we had a conflict. And we had assistance from a number of out of state attorneys who helped take co-defendant conflict cases.
Raven (22:22)
And how many defendants did you represent overall who were involved with the riot?
Mark Donatelli (22:27)
Well, actually.
in the teens, I guess, where we sorted out the conflicts. We had guys that were involved in the actual takeover who threw the fire extinguisher through the glass that to take over and then in different homicides. Yeah, I mean, we had a dozen, 15, I guess, altogether that our office took. Where we.
Raven (23:00)
And so for the special.
Mark Donatelli (23:04)
separate homicides, we never would represent co-defendants in a case.
Raven (23:07)
Sure, of course. So how many attorneys were in the special defense program that they set up?
Mark Donatelli (23:15)
There were actually four of us full time.
in the special prison riot defense office. But on one hand, we didn't know what we were doing in the sense that the death penalty had just come in. And we got trained by lawyers from around the country who had done capital cases. And we had some expert witnesses. We had relied heavily on the work of Dr. Craig Haney.
Raven (23:29)
Wow.
Mark Donatelli (23:51)
who, if you're familiar with this, the Stanford experiment, that documented the effects of prison conditions on prison violence. I credit him with the bulk of the way we structured our cases, who helped us in our investigations, knew what to look for and what to examine witnesses on, what to present to the jurors. And basically, how to put on a penalty phase as well as we could.
back then in the really for New Mexico, the Stone Age of Capital Defense.
Raven (24:25)
Wow, that's incredible. So you actually had the expert on prison conditions. That's amazing. So, and.
Mark Donatelli (24:33)
Yeah, and Dr. Hayne was also an expert in jury selection. He published studies on conviction proneness and what were the best conditions for individual vortar. Helped us a lot with jury selection as well. So I give him a bulk of the credit in helping us. Because like I said, none of us had ever done a capital case before.
Pisha (24:33)
Yeah, we've definitely referenced it. We've definitely referenced the Stanford prison experiment at least once or twice.
Raven (25:03)
Wow. Yeah, that's important. Yeah, I guess I mean, that would make sense that he would be someone who would be an expert in both fields and the psychology of both, you know, people inside the prison and then juries feelings about, you know, those kinds of things. So that's, that's
Mark Donatelli (25:21)
Yeah, I mean, basically the theory being that the state is responsible for the conditions the state in this case had engaged in security practices, if you want to call them that. The most of snitches that resulted in application of excess force. I mean, you know, they would hit one prisoner group against another and then let it be known who it was that it ratted them off. And, you know, you read this.
things about the gauntlet, about the physical abuse gauntlets of guys crawling their hands and knees. And then Cell Block 3 torture that was just, I mean, I hadn't seen the hole in the basement of Cell Block 3 before the riot, but as we were developing the cases, we did. And I don't know if you've seen the pictures, but these were, it was just, I mean, I
actually Deputy Secretary Ray Percuni that took us on a tour down there that was one of the worst experiences I've ever had in a prison. And this was after the riot, this is after they cleaned things up. And there were seriously mentally ill prisoners, psychotics, schizophrenics, who were locked in these whole cells that had no bunk.
If they were lucky, they might get a mattress every once in a while, concrete floor, the old hole in the floor for the toilet that would get flushed once in a while. The way they would clean them out would they bring the fire hose down the tier and hose them down through the bars. But these cells also had metal shutters and they could shut out all light and just leave these guys in these cold concrete cells with a hole in the floor without any clothes sometimes or just hose them down, leave them in there.
And those were conditions after the riot, right? So you had guys who would be the victims of use of informants prior to the riot, and they would be stuck in a hole. I mean, guys told us that they would receive the same kind of treatment, stuck without clothes on in these torture chambers, where they would close the metal gates and shutters and just leave them in there. They would lose all sense of time.
Raven (27:43)
Horrifying.
Mark Donatelli (27:44)
And then, you know, they know that the guy that's responsible for them being in there is over in cell block four, you know, what would you do if you had a chance to get over there? Right? So those were the four and after the, you know, I mean, this is like I said, when we used to do jury tours, and we took him to cell block three, it was it smelled worse than the worst zoom you've ever been in. And that's what
Raven (27:55)
Yeah, that's a good question.
Mark Donatelli (28:11)
as we're living in. And it didn't get much better after the ride. It was the same thing. I remember when they would leave the shutters up, the windows on the tier opened to the inside. And they had a collection. I mean, I don't know when the last time the windows had been closed. A collection of old food and feces stacked up on the windows just dried there. That's where the fresh air would.
Pisha (28:36)
Cheers.
Mark Donatelli (28:40)
come in. These aren't pictures I saw with my own eyes, right? With the deputy secretary. And, like, Ray, you know, I couldn't believe it. I mean, I don't think he'd been down there and seen it before, I'm sure. Because he was the kind of guy that was—he'd come in from California and was trying to turn things around. And things really did get turned around when Secretary of Frankie took over. Most of that was, you know, there were some riot trials still going on.
Raven (28:43)
Yeah.
Mark Donatelli (29:11)
You know, Mike Frank had been a district judge and he'd done one of the trials. But when he took over, things started turning around for a while. And he was serious about compliance with the consent decree. He would put a little notice in the paychecks with employees on Fridays when they got their paychecks that said compliance with the Durand Consent Decree is a serious matter, like you'll lose your job if you don't comply.
with the consent decree. It wasn't like that for a long time after the riot, but when Mike took over, things started turning around until they left office. And then the Republican administration came in and backslid. And anyways, there's several years of history in that. But the point was that we did see some market improvement after a while, but not for years after the riot and when they finally closed down the dormitories and got adequate staffing.
Raven (30:11)
So, no, yeah, so what year did that start turning around? When did you finally see some kind of significant change?
Mark Donatelli (30:11)
I mean the set. Go ahead.
It's in the mid to late 80s when he took over. Yeah, it's several years after the rise. Things were just horrific.
Raven (30:20)
Come here. Ventilate, Amy. Okay.
Yeah, yeah, it sounds like it. Yeah, and so, I mean, kind of getting to your involvement, because you've been involved kind of in every aspect of it. So you represented Dwight Duran prior to the riot, correct?
Mark Donatelli (30:51)
Well, I wasn't appointed until after the riot. I was a public defender. So it was back when Justice Daniels, Charles Daniels, David Friedman, I think were the first lawyers appointed back before the riot. And then my soon to be partner, Bob Rothstein, was also one of the lawyers. That's why when Bob, in 1983,
I joined his firm and he was already in the Duran case. So that's how I got involved. And then we hired, Dwight got out and then Dwight was our investigator from 83 on until he died actually.
Raven (31:21)
Okay, okay, I see.
Wow, that's incredible. Yeah, so he did quite a lot of work then. I guess, can you tell us a little bit about Mr. Duran?
Mark Donatelli (31:40)
Well, thank God, he would tell you that he wasn't in the riot. He wasn't there on the night of the riot, fortunately, just got out. But Dwight was the one that gave us credibility with prisoners. I mean, they were all distrustful of public defenders and private lawyers. But Dwight could meet with the inmate committee and get us reliable information. Nobody would bullshit us. And on the other hand, Dwight would make it.
clear to guys that they should not abuse the process, that, you know, our file cabinets with legal materials were not to be used for housing shanks, you know, just to make sure that everything was run ethically and legally. But Dwight was magnificent. And then in the negotiations, when we were negotiating changes to the consent decree or improvements, Dwight was the voice of experience that knew what to look for and knew...
how to deal with, and he had credibility with corrections because of his background. Just a real privilege to have worked with Dwight all those years during the negotiations. I mean, you know, the first administration did not take the consent decree seriously and the court was not giving us much backup at all. It was when we finally got, you know,
when he got elected governor and he had agreed to have a special master appointed, Vincent Nathan from Ohio, who had experience in investigating things. Until then, it was just a sham that they were doing anything to comply with the decree. I mean, guards were still allowed to falsify records. I mean, that was one of the things that...
Mike Franke did was that when he found guards falsifying records on excessive force, some of the same guards who had been involved in the 76 to 1980 period are abusing prisoners and then lying about it in reports after the riot, and Franke caught them and fired them. I mean, that was just a tremendous change in culture. But it took years to finally get to that point where people took that seriously and that the federal court...
had a special master that was investigating things to make sure that conditions weren't being whitewashed by the previous prison administrators. So yeah, that was when things finally started turning around.
Raven (34:21)
Right, so backing up just a little bit, so
just for people who are familiar with
grant consent decree, what were the original terms?
Mark Donatelli (34:33)
All right, well, it's a little complicated, because there were only two that ended up that after the riot, we got more consent decrees. I think prior to the riot, there was only legal access and one other. There weren't a number of important consent decrees in existence. When I talk about the important ones, I'm talking about staffing and training
guards per prisoner per unit, and then specify training for the staff. And then medical and mental health requirements, those weren't in place. Had specific consent decrees there. And then classification, where inmates would be housed. And then most importantly, restricting the use of solitary confinement and placing due process protections.
in the operation of cell block three, legitimate notice, the right to appeal. And when that was being overseen by the special master, we really cut down on the retaliatory use of solitary confinement by the administration. So most of those consent decrees weren't negotiated until after the riot. But as I said, the initial administration was just like, oh, yeah, let's...
let's negotiate a deal, but they had no intentions of complying with it. And it took Governor Anaya and Mike Franke actually to finally, and with the help of a special master, to finally get them to comply with those specific protections that the lawyers had negotiated.
Pisha (36:17)
and straight up open source fashion. And I think that that's the most important thing that people have to have. I think that's the most important thing that people have to have.
Raven (36:20)
Right, okay, so and it sounds like there was just this culture in DOC that allowed for this kind of behavior by the guards, otherwise they wouldn't have done, continued doing the things that they were doing.
Mark Donatelli (36:32)
Well, it was stunning. I mean, some of the same administrators, I mean, you know, I don't know if he's still alive, so I don't want to speak ill of the dead, but there was a deputy warden who the prisoners were offering to turn all the hostages loose if they just give them a deputy warden that was in charge. And he stayed around it after the riot. He went, you know, a lot of these guys, they got promotions up to the, the central office, right? The got people who are responsible.
um, for, um, the riot. I mean, Adolf Sines got out pretty quickly. He didn't stick around, but, um, same, a lot of the same characters carried over. And I think it was political support by the, the King administration back then. They got these guys, their jobs, um, with corrections and kept them there. Um, you know, there, I don't think there was anyone fired.
for what happened after, despite all the findings in the attorney general's report, nobody got fired.
Pisha (37:35)
So there were no real consequences for any of the administration who was responsible for these conditions.
Mark Donatelli (37:41)
No. Really.
Pisha (37:45)
Wow, well, I mean, in that case, do you believe that, you know, with the conditions that were there and the administration unwilling to comply with these court orders related to the grand jury investigations, do you believe that riots are inevitable in those conditions?
Mark Donatelli (38:04)
Well, there were. I mean, if you have that kind of continued abuse, physical abuse, retaliatory use, the solitary confinement, yeah, that's going to create the kind of state of mind that is going to result in violence if there's any slip-up insecurity. Fortunately, we've only seen that occur a couple of times, a few times.
Since 1980 in New Mexico, we had the horrible riot at Guadalupe County in Santa Rosa, where a correctional officer was killed. Some of the same things that an administration had taken over, I won't mention any names, but a correctional secretary that didn't know what he was doing, in supervising that place and putting known gang members together in an understaffed, poorly trained...
staff running a prison and prisoners right in that situation. We had another disturbance down at southern New Mexico. You know, again, there weren't any correctional officers killed. We had some problems up at Clayton, but there haven't been, you know, I mean, fortunately with, you know, there's an incredible media attention even 40 years later.
when conditions are brought to public's attention. I will say one of the sad things that has occurred and I don't remember who was responsible for it, but the state has eliminated the responsibility of grand juries to conduct walkthroughs and compile reports on jail and prison conditions, something that I'd like to see the new attorney general
Torres with his, the civil rights division, see if he could get the legislature to recognize the mistake in keeping grand juries up because you saw those reports. It was report after report, but sometimes, and I think now when grand juries talk, people listen if they have the opportunity to go in. But even, you know, in Santa Fe County, the county jail that grand juries used to go through and we would get...
immediate remedial action from the county commissioners after having been through that. But now we don't have that oversight by grand juries. I think it's something the state ought to revisit. So.
Raven (40:39)
So how long has it been since there's been a grand jury going?
Mark Donatelli (40:44)
Not in the last five years, I think it was about five.
Raven (40:46)
How likely do you think it is that Raoul is going to start doing grand juries again?
Mark Donatelli (40:53)
Well, he would have to get a statute passed. So we'd have to convince him. He's a busy man. I like the direction that it's going. But it's one of the things that we've talked to him about. And hopefully, in a 60-day session, we could get support for a bill like that. I'm sure we could find. I can think of a number of legislators who'd be happy to carry that bill if we could get the attorney general behind it.
Raven (41:22)
Do you think, like, politically, like, the climate right now would be in favor of changing prison conditions, especially after COVID and kind of what we saw, the deplorable conditions that happened then?
Mark Donatelli (41:37)
You know, I don't have a good sense of the public perception of what the Corrections Department is doing. And my sense is that we're in, again, I mean, if you look at the last session and you look at news coverage, it's this focus on longer sentences and the fiction
It's just a revolving door and you get charged with murder today and released tomorrow without an ankle bracelet, you know. So, you know, I don't know.
Raven (42:17)
I'm always curious where those cases are. I've not seen one of them.
Pisha (42:22)
And I'm going to leave this for the other questions since we have to continue with this. So thanks for having me. Thanks for having me. So I'll see you later. Have a good day, sir.
Mark Donatelli (42:22)
I know there was a Laura Cote who said she had 14 murder cases by contract and every one of her clients was in custody, right? I mean, it's just the way it goes. So I don't, I mean, you know, I've been doing this since the seventies and I've seen this unfortunate cycle of it's only when somebody gets hurt that suddenly public attention focuses on the conditions, right? And they don't
Raven (42:30)
I'm gonna go to bed.
Mark Donatelli (42:48)
They're not familiar with what we call the criminogenic effects of prison conditions on recidivism. I mean, there's so much written about that. And people don't understand that if you're going to lock people up, it is got only for violent offenders. That when you send nonviolent offenders to prisons, it's better than even that they are going to graduate to violent crimes because they lose their ability to function in society, right? And so.
I mean, I think that if you see the cycles when people get hurt, if people see what's going on, then they want to see the conditions improve. But they really don't understand that public safety means not sending people to prison as only as a last resort and trying to use community resources. But I think that, you know, I mean, let's take a look at what happened at the riot. And I'm afraid this is what I've seen in these cycles.
After the riot, the focus was not on who should, I mean, if you look at the attorney general's report, there was a citizens committee report at the same time. If you read the recommendations of the citizens report, and I've brought that to the attorney general Torres last year sometime, you'll find that those are the same recommendations that have been made every 10 years or so by another.
legislative committee after the riot at Santa Rosa. There was another study about what we should be doing to reduce prison violence. And it was like, well, it starts with not sending people to prison in the first place, right? Community resources. That's what you need. But what happened was there was a saying there was this unfortunate coincidence of New Mexico being awash in money. And instead of diverting the money to the community resources that the community
committee had recommended, they were spending $100 million on new prison construction. I mean, I think they, my math, as I recall, they built a north and south facility, the two solitary confinement units, for $22 million a piece, $45 million for solitary confinement units, that they ended up not needing.
They didn't activate them for three or four years. By the time they activated them, the warranties were gone on the HVAC and electrical systems, right? And then they, and they, and you know, uranium was disappearing. So they were throwing prisons at grants, prisons in Las Lunas, prisons in Las Cruces that we didn't need at the time. That's where all the money went. And as a result, we built this prison monster that just generated violence.
Raven (45:21)
Ugh. What a waste.
Mark Donatelli (45:42)
criminals. Because, I mean, what happened, you know, as we saw, Durand, for a little while, was providing the resources necessary to make prison conditions tolerable, and make programming that required that every prisoner either be in an education course or vocational training or some kind of training for skills for release. As soon as that was vacated, that's the state pulled the skids out. Most of those programs, you'll find some here and there.
but you won't find anywhere near 80%. You'll find 20%, 15% of the prisoners involved in programs like that. So we built concrete and steel monuments to the right and we built prisons that would never go down. They were, you know, in Durand we did classification studies of the people that were in prison in the 80s. And all these classification experts said,
You don't need these medium and maximum security prisons. You need low level. Yes, of course, you need one. But for the most part, most of your prisoners are low to medium custody and can be housed in dormitory type settings or camp settings. That's where the vast majority of prisoners back then should have been housed. But instead, what we had were these high intensity, high correctional officer.
staffed prisons with small pods, with an incredible ratio of prison guards to prisoners that was unnecessary. And ironically, we ended up with, at one time, the most expensive prison system in the United States. Not because the resources were going to medical care, mental health care, or programming, but because of the security staffing.
And we had prisons spread out all over the place instead of using economies of scale. So I mean, when people say, why is the crime rate as high as it is? Well, it starts with foster care, it starts with juvenile detention, but then all this money that you spent on corrections backfired and generated violent criminals because of what you were doing to people when you had them housed. All right.
Raven (48:02)
Exactly, exactly. Yeah, I guess that, you know, as a criminal defense lawyer, how many people have you seen get better after prison? I think that the answer is none.
Mark Donatelli (48:15)
When people get sent to prison, they have very few skills, very few ties to the community that they can rely on. And once you take the freedom, and that's this whole thing about pretrial detention. These are people who are on the margin. When they get locked up, they lose their families, they lose any hopes for having a job. And there they are when they come out. What are they going to do? I mean, just the same situation with prison only. Usually it's worse. I mean, I've been...
Raven (48:38)
Exactly.
Mark Donatelli (48:42)
This prison in Clayton was just such a mistake that they didn't need. They didn't need the beds, but they threw a prison up there because they wanted to give some jobs to the community. Right. But you know what? You know how far prison families have to drive from Las Cruces to see a loved one up in Clayton? I mean, it takes me forever from Santa Fe to Clayton.
Raven (49:03)
Right, and a lot of them don't have resources to be able to do that. And losing your family, I mean, just, you know, the mental harm that causes is incredible. So.
Mark Donatelli (49:14)
And then look at, I mean, the female experience, you know, what they did, getting off point here. But when they shipped all the women out to Springer, too, because they just decided that that's what they were going to do. It made no sense at all. But all these are these are all mothers who have kids in Albuquerque, mothers who have substance dependence, who are victims of sexual abuse. It's just a classic profile of the.
female prisoner and shipping them away from their kids up to Springer and just generating more violent criminals that the foster care system is going to pick up or that they're going to go to juvenile detention center. You see them there down. And I know Ahmad's soft with these kids all the time. So yeah.
Raven (50:00)
Yes, all the time. Yep, yeah, exactly. Yeah, well, I mean, and I think that sets a good segue into what we're heading into, you know, Women's History Month. And we were covering prison riots, you know, unintentionally during Black History Month, but obviously, you know, there's definitely a racial component to over incarceration in this country. And so we ended up focusing on this prison riot in New Mexico.
even though it may not be the most,
example of that issue. But in your experience, what is your thought on mass incarceration and the racial component of it?
Mark Donatelli (50:45)
Well, good question, because as you were talking, I was thinking that I've been asked so many times, did New Mexico learn any lessons from the prison riot, right? And they learned chapter one, but they didn't get the next nine chapters that they should have. Of course, one of the lessons is if you don't have humane conditions that prisoners are likely to engage in violence. But the lesson that we should have learned.
was the second half of the Attorney General's report. You don't really need mass incarceration if you divert resources upfront. And that's the lesson we should have learned was, and instead, as I said, we wasted the opportunity with $200 million, I think, in new prisons, new concrete and steel, instead of in
children, youths and families and increasing the resources
Raven (51:40)
Yes.
Mark Donatelli (51:44)
mental health counselors in grade schools and juvenile detention facilities. That was the lesson we should have learned that the it still happened four years ago. No, there was, I don't know if you saw it, I'm getting off point, but there were two op-eds in the journal on Sunday. And they said, you know, the legislature has been criticized for not passing so-called public safety bills, but in fact they
Raven (51:49)
I still haven't, apparently. Yeah, unfortunately, unfortunately.
Mark Donatelli (52:12)
had a number of public safety measures. And it comes to, it was directed at housing and work skills, workforce funding, mental health services, behavioral health services. Those are public safety measures that will pay off in the long run. There's no quick fix or silver bullet for violence. But we know that, that increasing the penalties for second degree murder.
And yes, there are some firearms things that would help, but that is not... All those firearms bills could be signed into law tomorrow. You wouldn't deflect things much at all. We know that because with more guns than there are people on the streets, with the people who are the product of the... With the diversion of resources from the services those people needed to prisons.
the criminals of the future and the guns are out there. That's just sad fact of not having spent money the last 20, 30, 40 years the way we should have. So it's in the pipeline. We're gonna be paying the piper for a long time until that equation changes.
Raven (53:19)
Yeah.
Yeah, that's frustrating and hard to hear. So, I mean, do you think that there is any hope for change in the future that will be... I mean, I think we have to change as a culture, but...
Mark Donatelli (53:38)
You know, I'm in a...
I'm trying to find a way to say that I'm hopeful. There are these cycles. No, here's the thing. I've been appointed to, Governor Richardson appointed me to the Corrections Department transition team. And that was a reform minded administration. And the Corrections Secretary, then Joe Williams, had some people that put together reports about the direction the corrections should go.
And I was hopeful that was the direction we're going to go. This governor just hasn't in this correction, secretary, have reversed course. I mean, it's just back to the status quo of prison as incarceration and confinement and not sending the message. You know, you see what the governor, the governor is criticizing the legislature for what they do. And it's like, well, what was it that you were proposing that was going to improve public safety? Right. So.
You know, where is the political will to take on the unpopular message of saying, you know what, we've been spending money in the wrong direction. We can't, we don't have a quick fix. We can't make the streets safe quick. I mean, if the governor's out there, people don't feel safe. We've got to do something. Yeah, but what you're proposing, it's going to reduce crime significantly at all. But you had an opportunity, you know, I mean, like when Governor Colbo.
Raven (55:05)
Right.
Mark Donatelli (55:10)
first governor Cuomo was the governor. You could take on these reform messages and explain it to people and get behind, and with credibility explain that. And until you see a reform minded correction secretary and a governor that can get out front. And you know, we're still running scared from the Hollywood video from 20 some years ago, the old Willie Horton bullshit about, you know, one guy gets out.
too early and kill somebody and we're going to retaliate by locking more people up for longer periods of time. One of the things that, one of the reasons I'm not hopeful about this, there was a reform minded legislature in place in the 90s that put a great community correction statue in place and most people don't know this.
but the vast majority of prisoners are eligible for release into community corrections 12 months before their parole date. Drug offenders, 18 months before. And that was being used, all right? So you're minimizing the criminogenic effects and getting people into community resources. That was what the legislature had intended back in the 90s when I was hopeful that we'd learned the lessons of the riot. Now we had money and what happened was that the...
I don't know if you're old enough to remember Hollywood video, but there was a woman who was in the community corrections program. She was a cocaine offender who had been released prior to her parole date in community corrections. And she was one of the people that lined these people up in Hollywood video on their faces and shot them on the floor. And everybody was going, well, what was, you know, why did this person get out so early? And was Governor Johnson at the time said, well, I'm going to suspend the program.
And they haven't used it significantly since then. But the idea was that you were going to have community transition programs prior to parole for substance-defendant people, for people who had diagnosed mental disabilities or mental illnesses. That that's where the money was going to go into community corrections. And then we wouldn't have to build more prisons. The numbers showed it. We didn't need Clayton. Instead of putting money in.
in community corrections, he built a prison 200 miles from nowhere up there, right? But this statute's on the books. Will this governor, would this governor divert the resources from running Clayton? No, she took over Clayton, and it still isn't using community corrections the way it should be used, especially for non-violent offenders, to get them out 12 to 18 months prior to their parole dates into community-based resources.
You know, until there's a reform minded governor and a corrections secretary who can articulate this, because believe me, there are legislators out there too, but they're all running scared that if they don't support, you know, a lot of them are going to face heat for not getting these gun proposals. Again, I'm like arguing against these gun proposals, but for not getting these through and not getting the electorate to understand that's not what's going to make your
community safe. It's up front in foster care and juvenile detention and minimizing the criminogenic effects of incarceration.
Raven (58:37)
Right.
Right, I mean, I guess the way that I've always thought about it is that, you know, you can't just put people away in a box and they're just going to disappear forever. And you don't ever have to worry about them again. These people have to be released and they have to be returned to society. And don't you want a better society? And to do that, you have to invest in those people and you can't just do it by throwing them away.
Mark Donatelli (59:05)
It's, you're extinguishing any.
When I was a public defender, when I was a first, you know, a lawyer in 1976, and I was after being a public defender for about two years, I was in Albuquerque. I reached the conclusion that, um, there ought to be like two sentences, um, on the books, one for up to 18 months. And if you were going to put anybody, somebody in prison for more than 18 to 24 months, you might as well have a life sentence that it just, there was no.
Raven (59:16)
Mm-hmm.
Mark Donatelli (59:39)
in between, right? It was just like if 18 isn't enough, quit wasting your money. That's the whole point. With those short sentences and community-based programs, you have a chance, but once they're in for two or three years, forget about it. It's just 90% recidivist rape, and they're most likely to commit violent offenses when they weren't violent before.
Raven (59:53)
No, exactly.
Yeah, yeah, that's incredible. Well, I think my only last question is the status of the Durand Consent Decree today. What does it look like?
Mark Donatelli (1:00:05)
We have talked for an hour, what else can I help you with?
Pisha (1:00:06)
Such a shame.
Mark Donatelli (1:00:14)
Well, OK, sadly, this is going on. I mean, there was a, in the late 90s, Congress passed the Prison Litigation Reform Act, PLRA. And it basically cut the legs off of institutional reform in federal courts. It eliminated, for the most part, the jurisdiction of federal courts
really enforce injunctive relief with the resources that we had before. They cut the attorney's fees, they made it impossible to get expert witness fees, and then placed severe restrictions on consent decrees for the length of consent decrees. And when that happened, we were in the position of having to cut our losses and negotiate a tail out of the consent decrees. I mean,
had the consent decree stayed in place with the money the legislature had, we could have, you know, if to this day, we would have vocational training for every prisoner, right? But because of PLRA, the Durand Consent Decree got gutted. And the only thing that's remaining now is a population cap. That's the only thing that's been upheld by the courts. There's some minor agreements about
trying to population control measures like making sure that people get their parole plans to the parole board in time to get them out on time, you know, that sort of thing. But there is no significant institutional, I mean, all the medical care, mental health care, use of solitary confinement, staffing and training, all those orders have been vacated. There's no longer any Article III federal court power to make sure that New Mexico has.
constitutional prison conditions, addressing prisoner safety, medical care, and mental health care.
Raven (1:02:16)
Wow, so no hope. That's a good note to end on. No. Well, I mean, I think that's just, you know, that's a call to people everywhere to, you know, just invoke as much change as you possibly can. And so, I mean.
Pisha (1:02:21)
Yeah, yeah, I'm not feeling super hopeful right now.
Mark Donatelli (1:02:23)
It's not true. Sorry.
You know, where my hope is, it's seeing people your age involved in this that are going to take the baton and fight as hard as you can to try to get things back on track. That's what makes me hopeful, working with younger lawyers who have the message to send and that you have this kind of access to people. That's my hope that it will affect some people who will join the cause and help turn things around in the future. Come on, you guys.
Raven (1:03:03)
Well, we can't do it without your wisdom. So I mean, I can't personally thank you enough for being here, for imparting that wisdom on us and, you know, fangirling a little bit here. So thank you, thank you so much, seriously. Yeah. Yeah, thank you.
Mark Donatelli (1:03:18)
Appreciate it. Appreciate the opportunity. Good luck. Good talk.
Pisha (1:03:21)
Thank you
Well, derangers, that was our special interview with Mark Donatelli regarding the 1980 prison riot at the New Mexico State Penitentiary. He was super involved. His stories were so fascinating when he was talking about how the inmates who were responsible for some of the more heinous murders and trying to determine who was.
responsible for what murders. It really reminded me, this is the closest thing I had as a personal injury lawyer, but it really reminded me of this one dog mauling case I had. A little girl was mauled by, I think, nine dogs, all of them owned by various people, different people. Some of them were strays, but all these dogs gathered together and unfortunately attacked this little girl.
I was in insurance defense at the time and one of my biggest defenses was how do we know what dog did what damage? And honestly, the only dog they could really hold responsible was the one that left a tooth in her scalp. And the ones that actually had like blood on their muzzles. There were several dogs that didn't have blood on their muzzles and you couldn't really tie them to the attack.
Raven (1:04:34)
Oh wow.
Pisha (1:04:46)
And so our defense was the same thing. Without photographic evidence, how do you even know these dogs were involved or there's no blood on them? They haven't broken their teeth off into her skull. So, you know, exactly.
Raven (1:04:57)
Right, no physical evidence. Yeah, yeah, that's what you hope for in criminal defense is no physical evidence. Yeah, those are my favorite cases.
Pisha (1:05:02)
Right, right. No evidence. That's always great. And I mean, right, we couldn't call up the dogs to have them testify or anything like that. But it was definitely interesting how the same sort of idea applied to the inmates who were committing these atrocious murders. Like how do you hold who responsible for what? And you're basically taking the word
of other inmates and they're not known to be the most credible, trustworthy sources. So it's, wow, I was so shocked by his stories. They were so fascinating. And really, that's it for this week. I mean, he covered most of the aftermath, I think better than we could.
Raven (1:05:50)
Oh, absolutely. Yeah. I mean, I think that was a really good wrap up. And I'm so glad that we were able to have him on at all. But for him to give as much of his time as he did and as much information and wisdom that he had was really special. I just have to say about your dog bite case, that we all in law school wanted the dog bite case, and I think you got it.
Pisha (1:06:08)
Right.
I got it! I got it! It was so good. I loved that case. I know that sounds really sick to say, but like, I actually really enjoyed dog bite cases. When I was in insurance defense, I frequently had the dog bite cases thrown to me. Usually I wasn't so lucky that it was like a whole mauling by like a gang of stray dogs. Like, it's usually a controlled bite by a dog on a leash and it's like, well, you're kinda at fault for your dog. Don't know what to say.
Raven (1:06:42)
Yeah. Yep.
Pisha (1:06:43)
So yeah, it was kind of like a slam dunk sort of case in that scenario, but yeah, not so much, which you feel so badly because you're like, this little girl deserves money for sure, like from someone, but not my dog owner. So I mean, and that's the problem you're often faced with in insurance defense, which is why I switched to plaintiff work because I just...
Raven (1:06:50)
Yeah, for the defense at least, not for the plaintiffs.
Right.
Pisha (1:07:10)
I don't want to work against people. I want to help people. And so that's where I'm at. But I don't want to do that anymore. I want to be a podcaster forever. So everyone listen, listen to our podcast. So many more, so many more. So please tell everyone you know. But yeah, so join us next time. We're going to be talking about the Attica prison.
Raven (1:07:21)
We need so many more listeners for that to happen. Yes.
Pisha (1:07:35)
riot. And the reason why is it's going to tie all of what we've been talking about with the New Mexico State Penitentiary riot with like a pretty little bow. We're going to learn about how the Attica riot not only impacted racial relations within the prisons, but also how it directly led to the New Mexico riot. So we'll talk about that next week.
Well, no, this week because no episodes last week, two episodes this week. So we will talk about that later this week and you'll get your double dose of prison action. Ooh, prison action. That's bad. Don't call it prison action. No, no, we're bad at this. You know what? We should just sign off. Let's just sign off after we remind everyone to like, subscribe and follow us on all those socials.
Raven (1:08:09)
Yeah.
Yeah, I was about to call it.
in a double bag and I was like okay well we're both fired we're fired yeah let's just let's call it
Pisha (1:08:34)
And until next time, stay out of law school and the infirmaries.
Raven Deranger (1:08:40)
Remember to like and subscribe to Deranged DeJure on your favorite podcast platform and follow at deranged.dejure on all the major social media. Contact us by email at deranged.dejure at gmail.com. This has been a Raven Kink production.