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The Orange County Sheriff's Office arrested Angel Rivera (left) and Christopher Otero-Rivera in the killing of Nicole Montalvo, but prosecutors have yet to indict either man on a murder charge.
The Orange County Sheriff's Office arrested Angel Rivera (left) and Christopher Otero-Rivera in the killing of Nicole Montalvo, but prosecutors have yet to indict either man on a murder charge. (Sarah Espedido and Ricardo Ramirez-Buxeda / Orlando Sentinel)

In the months since Angel Rivera and Christopher Otero-Rivera were arrested in the killing of Nicole Montalvo, the Orange-Osceola State Attorney’s Office has been criticized for not indicting the men on first-degree murder charges, ultimately leading a judge to rule neither suspect could be held in jail on that charge.

The scrutiny reached a boiling point last week after State Attorney Aramis Ayala held a press conference blasting Osceola County Sheriff Russ Gibson for attacking her office’s handling of the case.

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“It is my understanding that as we stand here today, the sheriff still does not know who actually killed Nicole Montalvo,” Ayala told reporters.

Gibson’s detectives said they’d found enough for an arrest: GPS, cell phone data and witnesses tied the Riveras to places on their properties where Montalvo, 33, was believed to have been killed and her remains were buried. The Riveras’ youngest son, Nicholas Rivera, told detectives he saw his father and older brother in a garage where Montalvo was lying dead on the floor in a pool of blood. Otero-Rivera, Montalvo’s estranged husband, had a history of abusing her.

So why have no murder charges been filed?

1,200 pages released Tuesday explained in new detail the roles authorities say were played by each member of the Rivera family played in Nicole Montalvo’s killing and the evidence gathered by detectives.

According to defense attorneys and former prosecutors who spoke with the Orlando Sentinel about the case, there are still pieces missing in the case, including evidence proving one or both of the men carried out the killing. Without that evidence, a confession or corroborating witnesses, prosecutors are facing an uphill battle, experts said.

“If you have two people standing over a body, you have a problem,” said Jason Fiesta, a University of Central Florida legal studies professor and former prosecutor in the Orange-Osceola circuit. “You first have to prove how she died and whether it was a criminal act. Then the question becomes, whose criminal act was it? And [Angel Rivera and Otero-Rivera] are probably not going to give us that evidence.”

Montalvo disappeared in October after dropping off her 8-year-old son at the Rivera family’s home on Hixon Avenue in St. Cloud. The search for her consumed the community before her remains were found at the home and at a nearby vacant lot owned by Nicholas Rivera, who was arrested November in Georgia on eight counts of possessing child porn unrelated to the case.

As details of the gruesome crime continue to surface, the public has grown frustrated with prosecutors for waiting to indict Rivera and Otero-Rivera for murder. On Wednesday, Nicole Montalvo’s brother posted a statement on the behalf of his family, who have rarely commented on the case publicly, saying they are “terrified” that her killers will go free.

It’s not publicly known how Montalvo died, and an autopsy report was not among the nearly 1,200 pages of documents recently released to news outlets by the State Attorney’s Office.

Since those documents were released, state officials have weighed in. Attorney General Ashley Moody, in a letter sent to Gov. Ron DeSantis after Ayala’s press conference, expressed concern that the feud between Ayala and Gibson “is not conducive to the ends of justice.”

The letter stopped short of requesting the Office of Statewide Prosecution take over the case but noted its “preliminary opinion was that there are charges that could be filed against [Angel] Rivera and Otero-Rivera.”

But based on what’s currently known about the case, it would be a gamble to move forward with first-degree murder charges, said H. Scott Fingerhut, a defense attorney and former prosecutor who teaches law at Florida International University. Charging the men with a capital offense would require an indictment by a grand jury, which experts said could be why prosecutors are waiting for more evidence.

“I doubt the prosecutor’s office is sitting back and doing nothing and not thinking out long and hard about what to do with this case. I applaud that it’s taking its time,” Fingerhut said.

Speedy trial clock 'ticking’

Florida’s speedy trial rule allows prosecutors to file charges up to 175 days after the initial arrest. Angel Rivera and Otero-Rivera were arrested by the Sheriff’s Office on Oct. 27, which sets the charging deadline around mid-April.

Legal experts told the Sentinel there is still ample time to gather evidence and secure an indictment. Missing that deadline, however, would be a disastrous outcome for prosecutors.

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“If by then the state doesn’t get its act together, the defendant is free. Forever,” Fingerhut said.

Fingerhut and Orlando-based defense attorney Richard Hornsby said the suspects could have been arrested on lesser crimes as placeholders while the State Attorney’s Office built its case for murder.

Prosecutors made a similar move ahead of a Dec. 5 hearing that could have seen Angel Rivera released on bond after arguing he could no longer be held on a murder charge. On the eve of that hearing, Ayala’s office hit Rivera with new counts of abuse of a dead body and not reporting a death to the medical examiner, keeping him in jail a while longer.

But once he and Otero-Rivera were arrested for murder, the “speedy trial clock was ticking,” Fingerhut said. Ayala mentioned that concern at her press conference last week, accusing Gibson of ignoring her office’s advice against arresting the two men before the murder investigation was completed.

Nicole Montalvo
Nicole Montalvo (Osceola County Sheriff's Office)

“There’s an argument to be made they rushed to arrest a little bit, but you also have to look at the circumstances and the evidence they already have,” Fingerhut said.

Gibson did not address that claim in a statement the Sheriff’s Office issued in response to Ayala’s comments but said he reached out to the Office of Statewide Prosecution after “it became clear that the State Attorney’s Office was not interested in pursuing homicide charges.”

Moody also mentioned the speedy trial in her letter to the governor. Coupled with Ayala and Gibson’s public dispute, it “could result in a miscarriage of justice,” she wrote.

But Hornsby said whether Ayala’s office is capable of handling the case is becoming more a political question than a legal concern.

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Ayala, a progressive Democrat, is no stranger to political controversy, having battled former Republican Gov. Rick Scott all the way to the Florida Supreme Court soon after taking office, in a dispute over her opposition to the death penalty. Dozens of murder cases were removed from her office by Scott, a decision the state’s high court ratified.

Ayala is not seeking a second term. She is set to leave office Jan. 3, 2021.

“I think if it wasn’t Aramis Ayala or if it wasn’t such a heinous crime, it probably wouldn’t be on anybody’s radar," Hornsby said.

Rising pressure

Friends of Montalvo have expressed frustration. After Circuit Judge John Morgan ruled in December that Otero-Rivera could not be held on the murder charge, the slain mother’s supporters in the courtroom stormed out. One later said prosecutors had “failed" Montalvo.

“[Otero-Rivera] beat [Montalvo] continuously for 14 years, and she knew in the back of her mind that something like this was going to happen,” said Montalvo friend Annmarie Collins. “And now he’s going to walk free with a smile on his face. So now justice is not served for Nicole.”

Steven Montalvo, Nicole Montalvo’s brother, in a statement posted Tuesday on Facebook said his family is “terrified that more attention is now being paid to a ‘public spectacle’ rather than bringing Nicole’s killers to justice.”

He attached an image from the OCSO investigative report, which he said “shows the magnitude of the crimes committed and the concerted, coordinated effort to cover it up.”

On Facebook and at church, the Rivera family seemed to be a close-knit group with a dedication to service. But behind the scenes, there was a history of run-ins with police and abuse allegations long before four members of the family were implicated in the death of Nicole Montalvo.

Steven Montalvo called on anyone with information on his sister’s death to step forward and stressed that the statement was not meant as a criticism of those working on the case for the Sheriff’s Office or State Attorney’s Office.

“We are terrified that those responsible for this vicious and disturbing crime will not be held accountable. We are terrified that Nicole will have died in vain,” he said. “We are terrified that anyone involved in her death will not only avoid prosecution but will be able to reinsert themselves back into Nicole’s son’s life, back into our family’s lives, and back into our community - more emboldened than ever.”

But Fiesta said moving forward without additional evidence could jeopardize the State Attorney’s Office’s ability to win a conviction.

“It’s 100% circumstantial, and in a case like that, the jury has to decide whether those facts support a theory of guilty or a theory of innocence. And if it supports one theory of innocence, the case falls apart," Fiesta said.

Hornsby said it’s not unusual for prosecutors to hold off on indicting someone for murder, even after suspects have been arrested. Doing so before all the evidence is in is “not a position the state attorney wants to be in.”

Ultimately, experts said, the public should allow the process to play out as prosecutors continue to investigate Montalvo’s killing and as new details become available.

“Someone’s always going to be upset,” Fingerhut said, “but what we want is a responsible criminal justice system that fairly prosecutes people and makes sure factually innocent people are left alone as best as possible.”

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