A hearing committee of the Disciplinary Board of the New Mexico Supreme Court has recommended that the Board dismiss charges of misconduct against the Taos District Attorney and one of his assistants, according to the Albuquerque Journal.
In a case that we have been following (read our full description of the case here), a “specification of charges” was filed against District Attorney John Gallegos and ADA Emilio Chavez after a judge found that their issuance of subpoenas that had not been approved by either a grand jury or a judge was “gross prosecutorial misconduct” and an “abuse of power.”
Judge John Paternoster wrote that “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.”
In recommending the dismissal of charges, the hearing committee of the Disciplinary Board didn’t entirely disagree, at least as to the question of precedent. According to the Journal:
When the subpoenas were being issued, the recommendation states, “Chavez and Gallegos were operating in an unsettled legal ‘gray area'” and each “held a reasonable and good-faith belief that his actions were legal and proper.”
The prosecutors have made assurances “that they will refrain from the practices which were the subject of this proceeding pending issuance of definitive guidance by the appropriate judicial authority.”
The committee held a two-day hearing in February, with Gallegos and Chavez the only witnesses.
The issue, then, of whether prosecutors in New Mexico have the authority to issue investigative subpoenas without grand jury or judicial approval remains unsettled. The full Disciplinary Board could still disagree with the hearing committee’s recommendations, and the underlying question will have to await either judicial or legislative resolution.
But what does seem clear at this point is that a potentially unchecked prosecutorial power–to subpoena whomever a prosecutor wanted on his or her own authority even before a criminal case had been opened–has been at the very least curtailed by the intervention of a disciplinary body that brought the charges in the first place.
The prosecutors “will refrain from the practices which were the subject of this proceeding pending issuance of definitive guidance.”
Rather than interpreting this as an endorsement or total clearance of Gallegos and Chavez, then, it would be more accurate to say that, as all too rarely happens, light has been shed on a dubious exercise of prosecutorial power, and the actors involved are now on notice that they are accountable for their actions.
If prosecutorial behavior regularly met with even this much attention and review we wouldn’t have much to write about. And that’s a day we look forward to.