Dec 30, 2004

Albuquerque Tribune




By Joline Gutierrez Kreuger

Tribune Reporter

December 30, 2004


The nearly decade-long nightmare for former State Police Lt. Mark McCracken is over today after a judge ruled he will not stand trial for his young wife's mysterious death.


But the nightmare the dead woman's mother, Nancy Grice, has lived since the day Melanie McCracken died in 1995 continues.  "She's crushed," Mike Corwin, a private investigator close to the case, said today of Grice after learning retired state District Judge David Bonem will not bind over Mark McCracken for trial.  "This is a travesty," he said. "It just goes to show you that women in New Mexico do not stand a chance."


Bonem, who presided over the McCracken preliminary hearing earlier this month at Metro Court in Albuquerque, ruled that while a "violent and unnatural death cannot be excluded" there was not enough probable cause to try Mark McCracken on charges of murder and tampering with evidence.


"There are some deaths where it is not possible to determine a cause although most, but not all, of these deaths involve skeletal remains," Bonem said in a four-page letter issued today. "Based on the state of the evidence at this time, the death of Melanie McCracken is such a death even though it does not involve skeletal remains."


The cause of the death is still undetermined. Authorities could bring Mark McCracken back to another preliminary hearing in the case - but only if new evidence surfaces.


In his ruling, Bonem did question why the State Police and not an independent law enforcement agency investigated Melanie McCracken's death. Mark McCracken was a State Police sergeant at the time.


"I believe it is clear to all that the failure to involve an independent agency early on to conduct the investigation was not provident," Bonem wrote.  "Hopefully the lesson has been learned. But the defendant has not been linked to such improvident investigative techniques to the degree necessary to support a finding of probable cause."  Bonem, who resides in Portales, was on vacation and unavailable for comment today.


Mark McCracken, 43, also declined comment today. His wife, LeeAnn McCracken, referred all calls to his attorneys, Peter Schoenburg and Carolyn "Cammie" Nichols.

The attorneys said in a written statement that justice had been served.  "It was just a result," the attorneys said in a joint statement. "We feel sympathy for Melanie mcCracken's family, but Mark McCracken did not murder his wife."


Mark McCracken said he found his 24-year-old wife facedown in their Bosque Farms home on Aug. 5, 1995. Mark McCracken has said she was suffering from leukemia.

He said she was fearful of ambulances. So, he said, he took his unresponsive wife in the back of their car to a hospital but crashed off N.M. 47, about four miles from their home and 13 miles short of an Albuquerque hospital.


Even after two autopsies and investigations by six pathologists, there remains disagreement about the cause and manner of her death.  Her autopsy report classifies the cause of her death as "undetermined."


Special Prosecutor Randall Harris, who was selected to try the case for the state, had argued the only possible reason for her death was asphyxiation.  Harris also said the defense case was flawed because it could not prove Melanie McCracken died at the crash scene. He also said the real crime scene - the McCracken house - was not investigated properly by State Police officers, some of whom McCracken supervised and fraternized with.  But Schoenburg and Nichols had countered that Melanie McCracken died at her own hand by accidentally ingesting a lethal dose of promethazine, an antinausea drug, although toxicological tests could not show a lethal level in her system.


Mark McCracken's attorneys had also argued that testimony during the seven-day preliminary hearing made it clear the crash was not staged, as prosecutors have alleged; that Mark McCracken was rendered unconscious by the crash and not capable of orchestrating a cover-up at the scene; and there had never been any cover-up found by the layers of investigators, nor could any of the investigators say without a doubt that Melanie McCracken's death was a homicide.


Schoenburg said an autopsy confirmed she had no leukemia or other terminal illness. But he said the pressure she felt to continue her charade masquerading as a profoundly ill person prompted her to take too much promethazine, causing her death.


Harris said today that while he is disappointed with Bonem's decision he respects it - and Bonem.  "Both sides were able to present all of their evidence to Judge Bonem in a fair and extremely difficult case for the state," Harris said in a written statement issued from his law office in Clovis.


It fell to Harris to relay the judge's decision to Grice.  "It was probably the most difficult phone call I had ever made, contacting Melanie's family," Harris said. "I ask all parties to pray for all families touched by this untimely death of Melanie McCracken."


Grice did not return a call to her home today. But Corwin, who has worked closely with Grice to bring her daughter's case to trial, said it was clear the judge excluded most of the prosecution's testimony introduced during the preliminary hearing and opted instead to side with "hearsay" testimony introduced by the defense.  "He kicked out anything that supported that a murder had taken place," Corwin said. "And then he allowed false testimony in, and there is no recourse."


Bonem in his letter said that he did not find credible the testimony of Dr. Ljubisa Dragovic, a renown forensic pathologist who had testified for the state that Melanie McCracken's death was most likely caused by asphyxiation.  Bonem also took no value in the testimony of Melanie McCracken's brother, Ryan Gamber, who had told the court he had witnessed an incident of domestic violence between his sister and Mark McCracken.


"Gamber," Bonem said, "was simply not believable."