ALBUQUERQUE, N.M. (KRQE) – With a COVID-19 positive diagnosis, Fabian Gonzales will be allowed back in the courtroom for proceedings Thursday as prosecutors and defense attorneys attempt to wrap up the trial tied to the 2016 Victoria Martens killing. Gonzales, who began feeling ill Tuesday, tested positive for COVID-19 after Tuesday’s proceedings.
Facing a possible week long delay or a mistrial, Judge Cindy Leos received approval from the New Mexico Supreme Court Wednesday afternoon to continue proceedings with a special set of circumstances for Gonzales. Gonzales did not want to continue with trial while appearing via video chat.
Instead, Gonzales will be in the courtroom, despite his COVID-positive status. Judge Cindy Leos says Gonzales will be required to sit inside of a glass box with an air purifier, while wearing two KN-95 masks.
With that, proceedings are expected to resume on Thursday morning at 9 a.m. The prosecution is expected to wrap up re-direct examination of its final witness, APD detective Richard Lewis, before Gonzales’ defense starts presenting its own witnesses to the jury. Lead detective in the reinvestigation of the murder, Lewis testified most of Monday afternoon, and continued testimony in cross-examination most of Tuesday morning and afternoon.
Nearly six years since Victoria Martens’ 2016 murder, Gonzales is facing charges of reckless child abuse resulting in death and evidence tampering. Gonzales is accused of leaving the 10-year old girl in a situation that lead to her murder. He’s also accused of attempting to cover up the crime.
Attorneys discussed Gonzales’ positive test during Wednesday morning’s proceedings, which should have marked the start of day 11 of testimony. Gonzales, who is symptomatic, is said to have tested positive following Tuesday’s proceedings. On Wednesday, attorneys said Gonzales was running a fever of between 101 and 103 degrees.
“[I was] close enough to hear his voice, know his voice was wrong, and [I] asked him about it,” said Hugh Dangler, speaking of an interaction with Fabian Gonzales. “[He said] he probably had allergies.” Gonzales could be seen grabbing several tissues while leaving the courtroom Tuesday.
Judge Cindy Leos appeared adamant Wednesday that she was “not willing” to declare a mistrial due to Gonzales’ COVID-positive status. The trial already went through one COVID-19 related delay in January 2022 after a member of the prosecution was exposed to the virus.
“I think that there’s a way that we can continue this trial,” Judge Leos said. “We’ve just got to figure out a way to do it. I 100-percent agree with the state, I know the defense is interested in finishing this trial, as well. So, I think we’re all going to have to be flexible and creative about how we’re going to get this done, so that we can get it done.”
Because jurors, court staff, the judge and prosecutors are not being considered as “close contacts” of Gonzales, they’re being allowed to continue forward with proceedings in the courtroom. They’re also not being asked to take a COVID test.
Gonzales’ attorneys are expected to call several witnesses in his defense. Those include family members and his former girlfriend, Michelle Martens. Gonzales’ brother is slated to testify Wednesday along with a cousin who he fought with at a BBQ party days before Victoria’s murder.
Victoria was killed on August 23, 2016. Prosecutors believe an unknown man strangled Victoria to death while she was left in the care of Jessica Kelley, Gonzales’ cousin. Gonzales is accused of helping Kelley dismember Victoria and clean the crime scene in an attempt to conceal the 10-year old girl’s death.
Meanwhile, the defense argues that Gonzales had nothing to do with Victoria’s death or the crime scene clean-up. It’s accusing Jessica Kelley of being the sole person responsible for killing and dismembering Victoria.
2nd Judicial District Court Judge Cindy Leos is overseeing the trial. Defense attorneys Stephen Aarons and Hugh Dangler are representing Gonzales in the case. The prosecution is being lead by Greer Staley and James Grayson, both of whom are deputy district attorneys with the Bernalillo County DA’s Office.