In an unusual development in a case we’ve been following in Taos County, the Albuquerque Journal reported Friday that a judge has fined an assistant district attorney for “abuse of power” following his extensive use of subpoenas that were never authorized by a grand jury or judge.
This is the latest disciplinary action in a controversy that has already led to the filing of charges against the ADA, Emilio Chavez, by the New Mexico Supreme Court’s Disciplinary Board, along with his boss, District Attorney Donald Gallegos. Hearings in those proceedings, in which both men face possible disbarment, are scheduled for February.
In the meantime, however, the district court judge in the case, John Paternoster, has gone ahead and imposed his own form of discipline on ADA Chavez, fining him $999 for what he described as an “abuse of power.” According to the Albuquerque Journal:
Paternoster’s decision Friday says Taos Assistant District Attorney Emilio Chavez improperly acted as an “investigator in a criminal investigation” and issued unjustified subpoenas in an attempt to solve the April 2013 armed robbery of the Kit Carson Electric Cooperative, which netted the perpetrators about $120,000.
A court-ordered fine for a prosecutor in New Mexico apparently is a rare occurrence. Defense attorney Todd Coberly, who represents a suspect who was charged in the robbery case, said he was “personally not aware” of a judge fining a prosecutor in New Mexico. “I’m pleased the court saw that what Chavez did was inappropriate and wrong and was sanctioned accordingly,” said Coberly.
Paternoster already has dismissed charges against two main robbery suspects. “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,” Paternoster found…
The judge says there’s a difference between a police investigation and a DA’s job to prosecute a criminal case. “When police and prosecutors attempt to blur the distinctions between the two, the elements of a police state may appear as a result,” Paternoster wrote.
Some of the subpoenas resulted in release of cellphone records that the police wanted because they believed the co-op robbery was an inside job. The records were used to secure indictments of defendants by a grand jury, but the charges were dismissed by Paternoster in April based on “gross prosecutorial misconduct.”
Thus far, the Taos District Attorney’s office has made no comment on the fine, though it is appealing the judge’s dismissal of the charges against the robbery suspects. We will be following with interest the further developments in this case to see what, if any actions the Disciplinary Board takes against Chavez and Gallegos.
Taos District Attorney Donald Gallegos and ADA Emilio Chavez gave testimony before the the New Mexico Disciplinary Board over two days this month. The Albuquerque Journal reports:
Disciplinary Counsel Christine Long and Chief Disciplinary Counsel Bill Slease examined the two prosecutors at a quasi-judicial proceeding before a committee of the Disciplinary Board – chairman Christopher Holland and members Howard Thomas and John Sugg. The committee will make recommendations on discipline, if any, to the board, which will in turn take the case to the New Mexico Supreme Court, which has the ultimate authority in matters of discipline.