Last month we wrote about the Disciplinary Board of the New Mexico Supreme Court filing disciplinary charges against Taos District Attorney Donald Gallegos and assistant prosecutor Emilio Chavez, for their alleged issuance of over a hundred improper subpoenas. The subpoenas hadn’t been authorized by any grand jury or judge, and they told the recipients not to reveal their existence.
Amazingly, rather than calling out the authorities on their apparent abuse of power, the Alburquerque Journal is going after the Disciplinary Board, accusing it of being “a hammer for the defense bar,” and of “picking sides” by having the temerity to file charges against the prosecutors.
As for the highly detailed charges themselves, the paper, in its editorial, breezes past them, suggesting the DA’s office merely “opted to use subpoenas for cellphone records in a six-figure robbery case instead of a grand jury or a search warrant signed by a judge.” This after the judge in the case went so far as to quash the indictment, declaring the prosecutor’s actions “simply without precedent, analogy or lawful authority in New Mexico law.”
But according to the Journal, the Disciplinary Board, shouldn’t “pile on prosecutors after a judge’s ruling has in practice already reprimanded them.” This is the attitude we see over and over again in the case of prosecutorial misconduct. If a prosecutor break the rules and violates ethical obligations, and a court happens, in a rare instance, to give the defendant some compensatory relief from the misconduct, then surely that’s enough. Why should a prosecutor actually be held accountable his or herself for violating the law?
To their credit, the paper did publish an excellent rebuttal to its editorial by Barbara Mandel, President of the New Mexico Criminal Defense Lawyers Association. The excerpt below gets to the heart of the matter.
We are glad that, if a prosecutor violates ethical rules, the committee will not be afraid to take action. This newspaper should not get in the way of a system that holds all licensed attorneys accountable for their actions.
Your editorial minimizes the prosecutors’ conduct by calling it “a costly error in judgment.” On the contrary, the prosecutors knew what they were doing was wrong and they did it anyway…
No citizen of New Mexico would want his or her privacy invaded by such unlawful means.
This disciplinary action by the Disciplinary Board is remarkable for its uniqueness. Improper conduct by prosecutors is pervasive and often hidden. Worse, it has serious consequences for defendants, and can result in wrongful convictions, imprisonment and even death…
Unfortunately, history shows that the courts cannot be relied upon to correct prosecutorial misconduct. Courts rarely reverse convictions, even when the misconduct is repeated, intentional and egregious.
In Taos, these were not young and inexperienced lawyers who just made a mistake. As stated by the Disciplinary Board, they “displayed a pattern of misconduct” and have “substantial experience in the practice of law.”
The citizens of the Eighth Judicial District deserve to know that their elected district attorney and his staff can be trusted to adhere to the law. They are the ones entrusted to enforce the law and they should be held accountable, just like the rest of us, when they break it.
We praise the Disciplinary Board for doing the right thing.
Here at the Open File, we’ll be following developments with the Disciplinary Board’s charges, and the resolution of this case.