DA’s Office defends yearlong delay in rape case

ALBUQUERQUE (KRQE) – More than a year has passed since the Bernalillo County District Attorney’s Office got the case of a 15-year-old developmentally disabled girl who said her father raped her. And it’s been nearly 17 months since the alleged rape took place.

The lone suspect in the case, Ruben Nieto, 45, has been sitting in a jail cell at the Metropolitan Detention Center since early May on unrelated charges. He’s facing decades in prison for 21 counts alleging that he downloaded and shared graphic images and videos depicting child pornography.

He is not, however, facing any charges related to the alleged rape of his daughter despite the fact that a detective from the Albuquerque Police Department’s Crimes Against Children Unit has believed since last spring that Nieto was a rapist.

Chief Deputy DA Deborah DePalo, however, insists her office has been hard at work assessing the case’s chances at trial.

“It was reviewed really quite quickly with the basic initial review that we do,” DePalo said in an interview on Aug. 22. “It’s really not that unusual for a case of this nature to take as long as this is taking. We always end up with some waiting for results. It’s going to be what happens in a system that’s overloaded.”

Sounding a familiar refrain, DePalo said the DA’s Office is overburdened and understaffed. The office calls its initial review a “pre-screening process,” put in place to “weed out” instances in which there’s insufficient evidence of a crime and to ease the strain of an ever-growing caseload.

By August 27, 2013, prosecutors had determined the Nieto rape case cleared that first hurdle, DePalo said. Other than to talk about a general timeline of the case, she refused to discuss evidence or other specifics.

KRQE News 13 has learned that, by the end of July 2013, prosecutors had reports from APD, recordings of safe house interviews with the girl and other family members and, perhaps most importantly, a rape kit that included DNA collected during an examination of the alleged victim.

While the DA’s Office had enough evidence to look deeper into prosecuting Nieto, there was still a key piece missing.

Prosecutors did not have a DNA sample from Nieto for comparison. That’s because APD detectives never arrested him. In fact, the detectives never so much as interviewed him, even though Nieto returned a detective’s phone call and invited her to his home to ask questions.

“I let Mr. Nieto know this was not possible,” a detective from the Crimes Against Children Unit wrote in her police report.

News 13 first reported on Nieto after he was arrested by Bernalillo County Sheriff’s detectives in May and charged with distributing child pornography. BCSO detectives had Nieto in handcuffs within two weeks of receiving information on the alleged child porn from the Internet Crimes Against Children Unit at the state Attorney General’s Office, known as ICAC.

The ICAC agent tracked the pornographic uploads and sharing to an address he recognized: Nieto’s Southeast Albuquerque apartment. The agent had put together a nearly identical case against Nieto more than a year prior, in early 2013, and sent it to APD.

That case, received by APD in February 2013, sat dormant, the agent wrote in a report. Two months later, Nieto’s daughter made the allegation he had raped her.

Without an arrest in the alleged rape, and without action in the 2013 child porn case, Nieto was a free man until the ICAC agent started investigating him again for illegal uploads and sharing and sent the case to BCSO.

Nieto was in jail by early May, almost four months ago. That gave law enforcement another opportunity to take his DNA for comparison.

In the weeks leading up to this story, no warrant had been filed to collect that sample. DePalo wouldn’t say when or if her office ever asked for Nieto’s DNA, but a spokeswoman for the DA’s Office said prosecutors received a “rape kit report” earlier this month.

I think that we’ve received everything we need to fully review the case right now,” DePalo said. “We also are dependent on getting information from other agencies. And we don’t always get them instantaneously.”

The APD Crime Lab has been handling the DNA evidence in the case.

APD has repeatedly refused to sit down for an interview about the Nieto case, but a spokeswoman sent a series of texts and emails saying the lab can prioritize the tests and comparisons it runs if the DA’s Office asks it to do so.

The two agencies work together to arrest and prosecute suspected criminals. Their jobs, collectively and apart, are to assign blame.

Neither would do so when it came to explaining why Nieto has neither been cleared nor indicted in the nearly 17 months since he allegedly raped his daughter.

Asked whether the decision to prosecute or not dragged on because of a longer-than-normal wait for lab results from APD, DePalo said: “I think we got it in the course of business, under the circumstances, in a reasonable way.

See more of our interview with Chief Deputy DA Deborah DePalo on waiting for lab reports:

“We would like that to be faster,” she said. “Sometimes it just can’t happen. At least not done responsibly.”

As of 5:00 p.m. Friday, the DA’s Office still hadn’t decided whether to prosecute Nieto.

News 13 asked the longtime prosecutor what sort of message the yearlong decision-making process should send to the families of alleged victims and others in the city.

“The message that it should give to everyone is that we are putting our best effort forward on all of these cases,” DePalo said. “That we are doing them as carefully and responsibly as one possibly can do them and that we care immensely about these cases.”

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