DA to Northrup

(Editor’s Note: The letter below is edited slightly for paragraph breaks. We appreciate the DA’s concern for public safety and the first amendment. The Town of Taos, under the leadership of Mayor Darren Cordova generally ignores civil, criminal, public safety and financially prudent principles, regulations, and laws that don’t meet the burden of political expediency. The Town needs a new mayor and council.)

OFFICE OF THE DISTRICT ATTORNEY
EIGHTH JUDICIAL DISTRICT STATE OF NEW MEXICO

DONALD GALLEGOS
District Attorney

June 26, 2013

Jeff Northrup
925A Paseo del Pueblo Sur Taos, NM 87571

Re: incident that occurred on March 2, 2013/Amos Cohn Dear Mr. Northrup:

I have reviewed the case involving Mr. Cohn’s alleged aggravated assault against you on March 2, 2013. I had spoken earlier with my chief deputy, Daniel Romero, before you contacted me about reviewing this. Daniel had explained to me the information he had reviewed and the conclusions he had come up with. At that time, Daniel explained to me that the felony · aggravated assault is not supported by the evidence because, as he pointed out, you had placed yourself in front of the suspect vehicle. When I met with you, you insisted that Mr. Cohn was trying to run over you.

With that background, I reviewed the case file on today’s date. I reviewed the police reports and viewed the video that you had taken of the incident. I also reviewed the statements that were contained in the police investigation. I was particularly interested in any information that would show that Mr. Cohn intended to commit a battery upon you with his truck. In addition, not only would I have to find that information, it would have to meet the burden of proof that the state is required to show should the matter go to a jury trial. I’m sure you’re aware that the burden of proof is beyond a reasonable doubt.

Therefore, my analysis consists of two prongs: 1) whether there is evidence to show probable cause that Mr. Cohn intended to commit a battery upon you with his truck; and 2) whether there is evidence beyond a reasonable doubt to prove that Mr. Cohn intended to commit a battery upon you with this truck. Although there may be evidence to show probable cause to charge a crime, that does not necessarily mean that there is evidence to present to a jury with the likelihood of a verdict of guilty. As prosecutors, we have to be able to meet both prongs of the analysis before we can go forward with the case. Since the process is created by humans and run by humans, it is not always perfect but it is the best considering other systems that exist in other parts of the world.

The evidence shows that Mr. Cohn and others were removing your signs from the highway right­ of-way. The evidence by way of the video also shows that you advanced towards the truck and the truck was moving towards you at same time. The video shows that you are backing up as the truck is moving forward. This certainly caught my attention as it is arguable that Mr. Cohn knew you were in front of him and he made no attempt to stop his truck. By the same token, it is certainly arguable that you knew that there was a moving vehicle in what would be considered the roadway and you did not get out of the way.

In fact, you made a statement to the police that you placed yourself in front of the vehicle. So, if this were to become a prosecution and wind up as a jury trial, I would have to have an adequate explanation for why you placed yourself in a zone of danger. funderstand that you wanted to stop Mr. Cohn from taking your signs, but the defense would surely argue that the only safe role you had would have been to pick up information such as license plate, description, etc. I have thought about how to frame the argument to show that the only intent Mr. Cohn had was to commit a battery upon you with his truck. I cannot come up with a plausible argument to ask a jury to find him guilty of aggravated assault. I have reviewed the cases that have decided issues regarding aggravated assault and I do not find anything that is instructive or that would encourage me to pursue the charge. I am pretty confident in my feeling that should this case go to a jury trial, at least one juror will argue that you placed yourself in harm’s way. And it only takes one juror agreeing with the defense to result in an acquittal. Based on this, I do not believe that I could sustain my burden at a jury trial.

I am therefore agreeing with Daniel’s analysis and am declining to pursue aggravated assault charges against Mr. Cohn. You are free to contact the Attorney General’s office should you wish them to review the matter. They may decide to look at it or they may decide to agree with my conclusions. I do not control what they do or how they evaluate a case but I will cooperate with them and provide them all the information that they require should they wish to look into it.

I recognize that you are very dedicated to providing information to the public that you believe is necessary. I know that this is protected by our Constitution and I’m glad that we have those protections. Unfortunately, speaking out usually means that difficulties and confrontations will result. I cannot say that I agree with your messages but as is often stated, I am willing to defend to the death your right to convey those messages. I also urge you to conduct your public information quest in a way that will be conducive to your personal safety and the safety of the public by all means possible.

Finally, I believe that there is evidence to charge Mr. Cohn and prosecute him with misdemeanor assault. That should be referred back to the police agency and taken care of in Municipal Court. I believe that the charges that the municipal judge threw out dealt with the signs, not Mr. Cohn’s conduct towards you. (Emphasis added.)

I apologize for the delay in getting back to you but my Raton office has been without attorneys and I have had other obligations that have gotten in the way. I appreciate your patience.

Sincerely,

Donald Gallegos District Attorney

cc: Chief Ken Koch, TPD

A reader comments:

DA to Northrup…  Whatever happened to “The pedestrian has the right of way” or “assault with a motor vehicle”?  Especially a vehicle that is leaving the scene of a crime? Are we being asked to believe that the law protects a criminal who has been caught in the act and resorts to attempting to injure, maim, or kill a witness to that crime? (Signed) LC