Durante trial waiting on test results – backlogs may let suspect free
By Bill Donovan
Gallup Independent (NM)
December 4, 2006
GALLUP — The lead prosecutor in the Kenneth Durante case told the court Monday that the case will "fly by Jan. 4 or die."
Durante, 48, is charged with murder and tampering with evidence in the death in September, 2005 of Felizia Hope Penaloza.
The teen's body was found under a bridge northwest of Gallup. Codefendant Joseph Evans, 30, also faces murder, kidnapping and tampering with evidence charges in the teens death.
Mike Calligan, chief deputy prosecutor for the McKinley County District Attorney's Office, said Monday his office is still waiting for tests to be completed by the FBI,
That's been the problem now for several months as Durante has, for the most part, sat in jail waiting for a trial date. The case is scheduled to go before a jury on Feb. 6, but no one expects that it will actually happen on that date.
Evans, who has admitted being involved in the killing, has implicated Durante, but Calligan has told the court that the state has not been able to find any collaborative evidence to support Evan's statements, which is required by state law.
The prosecution had been hoping that blood found at the bridge would do that, but DNA tests were delayed because the state failed to pay the private lab the DA's office had to step in and pay for the tests, which came up negative.
The prosecutor's office is now hoping that the testing of trace evidence will link Durante to the crime, but Calligan admits that he has no idea when the FBI will finish the testing.
Dave Pederson, Durante's defense attorney, pointed out that his client, except for a brief period, has been in jail now for 15 months and he's gotten to the point where he is now prepared to file a motion to have the case dismissed or, at least, allow his client to be released pending the outcome of the testing.
Durante had been released in October but was back in jail within two weeks after he admitted in court that he had strayed at least once from the area where he was under house arrest.
Calligan said the prosecutor's office has been frustrated about the inability to get evidence tested in a timely manner, not only in this case, but also in other cases. Recent stories in the media indicate that this is a statewide problem caused by both a lack of enough funding to the state lab and an increased workload.
He told the court that if the situation on Jan. 4 is in the same as today, he is willing to consider dismissing the case as well.