CHAPTER 30
“For talking, I punish a girl in one of two ways. You’ll be whipped or have your tits and sex organs worked over with an electric cattle prod.”
David Parker Ray audiotape, July 6th, 1993
Just before he left for Antarctica, Jeff Rein called his good friend Lee McMillian and asked him to take over the David Parker Ray case. McMillian, thirty-seven, a tall, beer-bellied lawyer more comfortable in cowboy boots than Brooks Brothers suits, had a tough reputation as a very aggressive defense attorney who split his practice between Texas and New Mexico. Rein also knew that McMillian presented a real problem for the prosecution: he’d never lost a case in front of Judge Neil P. Mertz.
“I asked the public defender’s office to take me off the case,” Rein told McMillian. “They refused, so I just quit. I needed a break. I’ve been doing this for twelve years and I’m tired.”
After McMillian made the lowest bid and was awarded the case, Rein made arrangements to have the entire eight boxes of background information shipped to McMillian’s small one-man office in Albuquerque, sandwiched between the new Interstate 40 and the old Highway 66.
McMillian, a seasoned attorney with thirteen years’ experience under his belt, jumped into the case feetfirst.
“I’ll tell ya one thing,” he told friends. “David Ray is in no way a ‘balls-out’ sadist. I wouldn’t want him dating my daughter, that’s for sure, but when the trial gets going again on November twenty-seventh, I’m going to present a whole new defense for David. All I need to do is find a couple of women who enjoyed having rough sex with David and I know I’ll have a strong case. And I’m sure some of those ‘babes’ really enjoyed fooling around with the old boy. You just know some of those old girls were consenting partners and not the unwilling victims Jim Yontz wants everyone to believe they were.
“It’s not against the law to be interested in dominance and submission,” he told Amy, his young, redheaded office secretary.
“It’s called consensual sadomasochism.”
McMillian’s first job was to meet and have a little talk with David Ray. He drove down to the Sierra County Jail in Truth or Consequences in early October. For over five hours the thirty-seven-year-old balding attorney and the sixty-year-old mechanic with the full head of hair had a good chat. They talked about everything under the sun. When McMillian returned to Albuquerque the next day, he strolled into his office sporting a big smile, threw his arms up in the air and declared that he had really taken a liking to the old geezer. Lee leaned over and tapped his pencil on Amy’s desk.
“He’s the nicest client I have ever represented,” McMillian said. Looking over the rim of his wire glasses, he quickly added: “Yeah, he’s a pervert—but we’re going to go to the wall for this guy.”
McMillian, always one for a good story, then strolled back to his office out of the earshot of Amy and called a college friend and described his trip to southern New Mexico.
“I was down at the jail in T or C,” he told his friend, “and David and I are walking along with a guard when some crazy female inmate throws her panties out the bars of her cell and says, ‘Eat me, David!’ We all laughed our asses off! Everybody down there really likes David.”
McMillian had been practicing law in New Mexico for the past six years and he knew the emotional terrain like the back of his hand. In his opinion, there was a long-standing class war going on in the state and without a middle class there was always bound to be extreme violence. Some of his friends thought of New Mexico as the “Murder Capital of America,” and if cornered, Lee McMillian was hard-pressed to disagree. He liked to hike and fish the Pecos River in northern New Mexico and he never went anywhere without his Colt .45 tucked in his briefcase. He liked to tell his friends how New Mexico was different from his old stomping grounds in Texas.
“It attracts nuts!” he used to say.
The retrial of the Kelli Garrett case had been scheduled for Estancia, a small town in cattle country, just southeast of Albuquerque. McMillian felt he knew the people who lived there inside out.
“There are no liberals down there,” he used to tell other lawyers. “I’m a dyed-in-the-wool adrenaline junkie—I like to bungee jump and skydive—and I was real pleased to get this case. I know those people down in Estancia. It’s a real ultraconservative community of German ranchers and I know how they think. They won’t like the idea of government prosecutors looking into David’s private life.
“Anyway,” he concluded, “I’m the hired gun for the redneck community in New Mexico!”
For weeks McMillian pored over the volumes of notes and photographs, looking for female witnesses to help him with his S-M defense. Early in his research he found photographs of a woman named Candy Frairs, who had since nearly vanished off the face of the earth. According to friends, she was hiding up in Ruidoso—living with some Mescalero Apaches—but McMillian was unable to find her. He did, however, have the handwritten notes she’d scribbled to David on the back of two nude photographs found on the bulletin board inside the toy box.
And to the new defense attorney for David Parker Ray, they sure did not sound like the sentiments of a woman who hated or feared David. They sounded like the words of a woman who really liked rough sex. Not unlike 2 million other Americans who are attracted to the ultrakinky, but not illegal, sexual practices. Each note was printed in big black letters. One night McMillian held the pictures under the lamp on his desk and read the words out loud to himself. The first note got right to the point:
I LOVE WHAT YOU DID TO ME
YOU KNOW “THE ROPES.”
SOME OF THOSE BIG THINGS HURT, BUT
I MUST HAVE CREAMED 15 TIMES.
MY BACKDOOR IS STILL SORE, BUT
IT’S READY FOR MORE.
McMillian smiled a sly smile as he contemplated the legal possibilities of reading both notes out loud in court. The second note mentioned some of the sex toys and asked David Ray to give Candy Frairs more of the same:
GREAT FOR SPANKING, HUH.
OR FOR ANYTHING ELSE
THAT YOU HAVE IN MIND.
THOSE BIG “TOYS” THAT YOU
PUT IN MY BUTT STRETCHED
IT A LOT, BUT ITS O.K. NOW,
AND READY FOR MORE ACTION!
Later that day, McMillian was leaving the office when Amy asked him if he really thought he had a chance to get David Ray off the hook a second time. McMillian shrugged his shoulders and came back with his casual “win-win” philosophy.
“If I lose, I’ve lost a case that was impossible to win,” he explained to her. “And if I win—well then, I will have won a case that most people thought was impossible to win.”
The next week, he went back to T or C looking for a live witness he could put on the stand. He had to prove that not all the ladies “ran for their lives” at the sight of David Ray. He found a thirty-nine-year-old woman named Cindy Asbell, who claimed to have lived with David and Jesse for a short time. She told McMillian that she “enjoyed” the times David Ray tied her up, whipped her and inserted a few of his large collection of dildos into the private holes in her body. McMillian was overjoyed, but when he went back a week later to tape-record an interview with Asbell, she wouldn’t say a word.
McMillian came back to his office, discouraged.
“People in town threatened to beat her up—hell, even her own family threatened to disown her if she testified for David,” he told Amy. “I even had death threats on my life.
“People down there are nuts,” he added.
While McMillian was struggling to patch together a defense for his client, Jim Yontz had moved his base of operation to a tiny office in Estancia, feeling boxed in by Neil Mertz and Ron Lopez down in Socorro. He found out the two lawyers had worked side by side years earlier when Lopez was the DA and Mertz was his ADA; he knew the two men royally disliked each other. Yontz was trying to walk the thin line between Mertz, the legal purist, and Lopez, the fast-talking prosecutor.
That November, Lopez was running for reelection in the seventh district against a rancher named Clint Wellborn. Lopez had already served eight years as DA, and a week before the election, he placed an advertisement in the Sentinel that pointed out to the residents of Sierra County that he had been tough on crime. Lopez claimed his overall conviction record on murders, drug crimes, sex crimes and other felonies was 91 percent. Clint Wellborn was quoted in the Sentinel as saying that “ninety-six to ninety-eight percent of the crime in Sierra County is drug related,” and he promised to reduce considerably the proliferation of meth labs if elected the new district attorney.
On November 7, 2000, Clint Wellborn (R) beat Ron Lopez (D) by a wide margin—2,638 votes to 1,793 votes. In an article written by Frances Baird and published in the Sierra County Sentinel, he promised he would take a different approach to the David Parker Ray retrial and possibly use a new strategy.
“That’s news to me,” Yontz told Baird off the record a few days later.
The very next day, Wellborn came up and humbly asked Jim Yontz a question that Yontz always wished people in power would ask him. Wellborn admitted that he knew very little about how to “get” David Ray, but he liked the work he had seen Yontz do so far and simply wanted to know if there was some way he could assist Yontz.
“What can I do to help you?” he asked Yontz.
“Let me call the attorney general’s office in Santa Fe and ask them if they can loan out Claire Harwell. I’ve worked with her before and she’s sharp. She and I can win this case.”
“Go for it,” said the new DA.
Ron Lopez was bitter about losing the election. He told Yontz that since he, Lopez, wasn’t out of office until January 20, 2001, that he, not Yontz, would be selecting the jurors for the retrial in Estancia. When a Reuters reporter called Judge Mertz the next day to ask what was going on, Mertz said he would look into it. After several days of undisclosed legal wrangling behind closed doors, the situation changed.
By November 27, the first day of jury selection in the retrial of David Parker Ray, Ron Lopez was no longer part of the story.
Jim Yontz was back in the saddle again.
During the first day of questioning jurors, there was a break in proceedings so Mertz could smoke a cigarette. A few minutes later, Jim Yontz and Lee McMillian ran into each other in the men’s lavatory. They had dueled in court before, but always as friends. McMillian swore to other defense lawyers that Yontz was “the most honest man I know—if he tells you something is true—it’s true.” McMillian was still upset about the way Yontz got treated after he had been caught with a prostitute in Albuquerque back in 1998. McMillian told friends that “Jim picked up hitchhikers all the time.” McMillian always made it plain that Yontz “got screwed” back in 1998.
Yontz grinned at McMillian.
“So why did you take this case?” he asked.
“The extreme challenge—and, of course, the money.”
“Why did three women who did not know each other all tell the same story about David?” asked Yontz.
McMillian slapped Yontz on the back and reminded him that defense lawyers are not easily swayed.
“Remember, my good man, human memory is plastic and cannot be trusted—don’t forget that.”
“If that’s the case, nobody would be in jail,” joked Yontz.
“You guys put too many innocent people in jail anyway,” quipped McMillian.
“That might be true in some cases, but I’ll tell you one thing—David Ray is not one of those—he deserves to be locked away where the sun don’t shine.”
The next day, November 28, Lee McMillian was starting to come down with a bad case of laryngitis and a cold, so he asked Judge Mertz if they could postpone jury selection for a day so he could get well. McMillian was speaking in a whisper. Mertz shook his head over the prospect of another delay and agreed that since McMillian could barely be heard, on Wednesday, November 29, there would be no interrogation of potential jurors for the second trial of Ray.
On the way out of the courtroom, Mertz was overheard telling his court clerk, Kathy McClean, how he felt about attempting to try David Parker Ray.
“What else can go wrong in this case?” he said, with no possible hint of what was going to happen to him in less than forty-eight hours.