New Mexico Supreme Court upholds murder conviction in 'warrior gene' case
Feb. 26—The state Supreme Court on Thursday upheld the murder conviction of a man whose public defender argued a "warrior gene" predisposed him to impulsive violence — making him incapable of forming the intent to kill his victim.
Anthony Blas Yepez was convicted of second-degree murder in 2015 for the 2012 beating death of 75-year-old George Ortiz of Santa Fe.
Yepez, then 26, and his girlfriend, Jeannie Ann Sandoval, then 30, had recently returned from California, where they met, and had been staying with Ortiz in his apartment in a senior housing complex on Luisa Street. The violence that led to Ortiz's death began when Ortiz struck Sandoval in the face, according to testimony she gave during Yepez's trial.
Yepez said he didn't remember exactly what happened next, only that he "must have blacked out." When he regained consciousness, he was on top of Ortiz, who was bleeding profusely from the back of his head and appeared to be dead.
The couple then poured cooking oil over Ortiz's body and set it ablaze before fleeing in Ortiz's car.
Yepez's public defender, Ian Lloyd, sought to introduce evidence at trial that Yepez's genetic makeup and history of childhood abuse made him less able to control his violent impulses. But state District Judge Mary Marlowe Sommer rejected the argument and didn't allow jurors to hear expert testimony on the topic, saying she felt "iffy' about whether it was "reliable enough to prove what it proposes to prove."
The so-called warrior gene theory has been hotly debated since a Dutch scientist discovered in the early 1990s that all the male relatives in a New Zealand family with a history of aggressive violence lacked a specific gene critical for regulating anger.
The theory had been sparingly introduced in criminal proceedings worldwide at the time and was still so novel that the New Yorker sent a writer to Santa Fe to cover a hearing in the case.
Following his conviction, Yepez appealed to the state Court of Appeals, which found Sommer had erred when she excluded the testimony. But the court said the error was harmless because Yepez — who is serving a 22 1/2 -year sentence at the Lea County Correctional Facility near Hobbs — was convicted of second-degree murder, which didn't require a finding of premeditation.
The Attorney General's Office appealed the ruling, asking the state Supreme Court to vacate the portion of the appellate opinion finding Sommer erred in keeping out the warrior gene testimony.
Assistant Attorney General Maris Veidemanis argued at the time the Court of Appeals overreached when it published an opinion stating the judge should have allowed the testimony, noting judicial protocol requires the court only to decide issues necessary for disposition of the appeal.
After determining the error was harmless and required no redress, Veidemanis argued, the state should have stopped there — a position also held by Emil Kiehne, one of the three appellate court judges who reviewed the case.
Veidemanis argued the Supreme Court should reverse the appeals courts ruling — one she said was reached without full analysis — because if it were allowed to stand, it could create confusion in state and federal courts going forward.
The Supreme Court did just that in the Thursday ruling, reversing the Court of Appeals opinion that Sommer should have allowed the testimony and rejecting Yepez's request for a new trial.
The Supreme Court found "the district court was within its discretion to exclude as lacking in scientific reliability an opinion that Yepez is predisposed to impulsive violent behavior," a spokesman for the Administrative Office of the Courts wrote in a news release Thursday.
The court reached its ruling in Yepez's case based in part on ambiguity over whether he actually had the genetic makeup known as the warrior gene, or was only predisposed to it.
In an opinion written by Judith K. Nakamura, who was chief justice when oral arguments were heard, the court concluded "mere genetic susceptibility to a given mental condition is not relevant on the issue of deliberate intent," without evidence it has "such strong predictive value as to be clinically validated as an indicator of the mental condition."
Attorney Helen Bennett, who represented Yepez on his appeals, said she was disappointed in the ruling but felt it was thoughtful and would help future courts render decisions on the issue.
"This is how the law grows," she said. "We develop ideas; we present them in court; the court makes a decision; and win, lose or draw, that's how the law is made. Now, the next court facing this decision will have the benefit of our court's decision in making its decision."
Bennett said the ruling neither confirmed nor denied the science behind the warrior gene argument.
"It's much more nuanced than that," she said, adding the way the court applied the argument in Yepez case would provide guidance for attorneys on how it might apply to the specific facts in their own cases.
