Following the quashing of a robbery indictment earlier this year by a district court in Taos, the Disciplinary Board of the New Mexico Supreme Court has filed formal charges of professional misconduct against the prosecutor in the case, Assistant DA Emilio Chavez, as well as his boss, Taos District Attorney Donald Gallegos.
At issue is their use of apparently illegal subpoenas to gather cell phone records. And what the case has revealed is that the practice was hardly limited to one or two instances. It now seems that the behavior was widespread within the office, involving several prosecutors and over a hundred subpoenas in the last several years, at least one of which read “DO NOT DISCLOSE EXISTENCE OF THIS SUBPOENA.”
As the Albuquerque Journal reports, the Taos police were investigating an April robbery in the parking lot of a rural electrical cooperative that had netted over a hundred thousand dollars of the coop’s money. The man the money was stolen from was an employee, and police suspected it was an inside job, committed by fellow workers.
According in the Journal, to help the police along in their investigation, Assistant DA Emilio Chavez began sending out subpoenas to the suspects’ cell phone providers. The problem being no grand jury or court had authorized him to do this. Using an “improper” form not approved by the Mexico Supreme Court, which nonetheless threatened recipients with contempt of court if they failed to comply, the DA’s office effectively converted itself into its own grand jury.
In his decision quashing the indictment, District Judge John Paternoster wrote:
A stand-alone subpoena, in improper form, issued and signed by a prosecutor in aid of a police investigation, before a criminal cause is properly commenced…is simply without precedent, analogy or lawful authority in New Mexico law.
The information garnered by these subpoenas was presented to a grand jury several months later, and used to convince it to issue further subpoenas, and eventually to indict the suspects. Paternoster went on to say:
The prosecutor had no reasonable basis in law for issuing the subpoenas and had no reasonable basis in law to present the evidence to the grand jury, and therefore acted in objective bad faith, and tainted the grand jury with this evidence.
According to Taos Friction, a local political blog, “Prosecutor Chavez claimed in court that the practice of issuing subpoenas by his office saves time and obviates the need to call in a grand jury each time a prosecutor needs to serve a subpoena.”
Indeed. Save time it must. But conform to the law it apparently does not. Making copious reference to Paternoster’s decision, the Disciplinary Board of the New Mexico Supreme Court has now filed a “Specification of Charges” against Chavez for issuing the subpoenas, and against District Attorney Gallegos for his failure to supervise. Open File has obtained copies of the charges, and they can be read here (against Chavez) and here (against DA Gallegos).
The charges against Chavez are serious enough, involving over a hundred subpoenas in multiple cases. But those against Gallegos carrier even greater impact because of his supervisory obligations and status as an elected official. Among other things, the Disciplinary Board charges him with:
- “failing to make reasonable efforts to insure that the subordinate lawyer conformed to the rules of Professional Conduct.”
- “having knowledge of specific misconduct and ratifying that conduct…by failing to take remedial action.”
- “unlawfully obstructing another party’s access to evidence.”
- “failing to obey the rules of the tribunal.”
And as an aggravating factor, they site the fact that Gallegos has “displayed a pattern of misconduct.”
Thus to the annals of prosecutorial overreach, we must now add self-appointment as investigative magistrate. Gallegos and his assistant have until the end of the month to respond, after which the Disciplinary Board will hold its hearing. The “prosecutor” in the case will be Assistant Disciplinary Counsel Christine E. Long.