The Dark Side: Taos DA Bungles Investigation

In Judge John Paternoster’s District Court hearing on Wed. Jan. 8th, attorney Todd Coberly, representing Issac “Smiley” Martinez in a case consolidated with the case against alleged “mastermind” Carla Cassias, represented by Justin Lea, moved for dismissal of all charges in the alleged Kit Carson robbery and conspiracy of April 10, 2013. Coberly asked the court “to quash the indictment due to gross prosecutorial misconduct or in the alternative to suppress all evidence obtained through the prosecution’s unjustifiable use of fraudulent subpoenas.”

Attorney John Day, who represents another of the alleged conspirators, was present telephonically.

According to Coberly, Prosecutor Emilio Chavez “illegally obtained” evidence i.e. metadata-like phone records by issuing subpoenas to service providers—eleven times—subpoenas, which were signed—not by the court or approved by the grand jury—but signed by the district attorney’s officers of the court i.e. attorneys if not secretaries. Consequently, Coberly said Detective John Wentz of the Taos Police Department made false statements to the grand jury or “falsely claimed the warrants were obtained legally” to secure the evidence and subsequent grand jury indictments.

Among other epithets used to describe Deputy District Attorney Emilo Chavez’s actions, Coberly accused Chavez of “bad faith,” “egregious” and “illegal” and “outrageous” behavior, adding up to “prosecutorial misconduct.” During the summation of his charges, Coberly mentioned that Chavez or any prosecutor who ignored the rules of evidence law should be censured. “If I did this I’d be sanctioned or disbarred,” said Coberly.

According to Coberly, the DA’s office in 2013 from January into September issued 49 fraudulent subpoenas, at least 11 in the Kit Carson case—prior to filing a criminal indictments or charges. According to Coberly, there is a miscellaneous file at the court clerk’s office, where the DA’s office files “illegal” subpoenas, subpoenas that indicate the DA is considering or contemplating pending prosecution.You might be under surveillance by the DA’s office but you won’t know you are a target.

A defense attorney representing one of the defendants told Taos Friction that the DA has probably issued a “thousand” of said subpoenas going back several years. Another attorney said the DA has no immunity from law suits when conducting an “investigation” prior to filing charges and prosecuting a case in court.

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. For the DA’s office,  the practice can be justified due to issues of money and time management.

To justify the practice of issuing “illegal” subpoenas, Chavez argued that a state statute, first used in 1909 (when NM was a territory?) and part of state law in 1927, amended in 1955, allows attorneys to issue “written instruments,” which “instrument” Chavez interprets as a “subpoena.” But, as Coberly pointed out the statute was off the books in 1972 and even then required the “filing of a criminal complaint” before it allowed prosecutors to issue a subpoena. Chavez served the subpoenas first, and then filed criminal complaints after the grand jury indictment. Nor did he, according to Coberly, complete the “form” and provide the target of the subpoena with information regarding the target’s options.

Chavez claimed third parties, service providers, had constitutional standing but that the subjects, alleged conspirators against Kit Carson, had none. So Issac “Smiley” Martinez, the accused, had no constitutional standing to protest or argue against the “illegal” subpoena.

(What? Are the accused in Taos County suddenly the equivalent of Gitmo detainees?)

Chavez also referred to the federal Stored Communications Act as justification, saying that New Mexico was “behind the curve” when it come to telecommunications law and the issue of phone records. As Coberly pointed out, however, and despite the irrelevance of the Stored Communications Act in state matters, a subpoena under the act must be authorized by a grand jury or court order in federal or state jurisdictions.

Coberly argued that the District Attorney’s office had usurped the court and grand jury’s authority, the legal or impartial barrier that has been historically erected to prevent over-zealous prosecutions. Indeed, a bill in the New Mexico state legislature was recently rejected that would have permitted “administrative subpoenas” to bypass the courts and grand jury process in the interests of saving time and money.

Chavez pleaded with the court to ignore the defense’s claims due to the concept of “inevitable discovery.” Since the prosecution had in its possession a Kit Carson video of the alleged conspirators, the bag woman and bandidos (my language), as well as other “facts,” the Judge should not dismiss the evidence obtained from the phone service providers.

But Judge Paternoster reminded the prosecutor that the hearing was about the law, not the facts, which would be tried at a later time. The judge seemed nonplussed about why the prosecutor and the detective didn’t simply appear before a judge and ask for warrants based on probable cause to subpoena phone records via court order. While the Judge referred to the DA’s subpoenas as having similarities with “NSA” procedures under the Patriot Act, this reporter was struck by the fact that NSA operatives say that they get warrants, allegedly “rubber stamped,” from the FISA courts (when they aren’t lying to congress and the press).

But the Taos DA’s office has ignored the tried and true custom and law in seeking court approval and arguing probable cause before a judge. Attorneys often say the peculiar practices of the Grand Jury allow District Attorneys to “indict ham sandwiches.” But in the Kit Carson robbery case, the DA appears to have ignored the ham sandwich standard in favor of a hunch and a hope that somehow the rule of law would disappear in the mustard or mayo.

Not only has Chavez duped the grand jury and his own investigator Detective John Wentz, but he has ignored the constitutional rights of the defendants and confessed that—by example— he does not care much for the U.S. Constitution or the guidance of New Mexico State Statutes.

In a grand bit of hypocrisy, Chavez said Wednesday that he understood how he needed a court order to secure a subpoena for an out-of-state witness. But, in a former case, a district court judge dismissed the case due to this prosecutor’s prosecutorial misconduct on the very basis that he issued a subpoena, signed by his office and sent to an out of state witness, which subpoena was not even served on the witness—nor did Chavez seek a court order. In that case Chavez also misrepresented the facts to both the New Mexico Court of Appeals and the New Mexico Supreme Court, according to the judge.

Here’s a tidbit from the Wednesday proceedings about the Kit Carson robbery. According to Coberly, Kit Carson conducted a “polygraph” test of the alleged conspirators. The alleged mastermind, Carla Casias, scored way above the standard for telling the truth, and the alleged bag woman or agent responsible for the making the bank deposit, Crystal Martinez, scored well below the standard, according to Coberly.

Among other names thrown around yesterday in open court, members or witnesses to the “alleged conspiracy” were names like Chris Sillas, Tammy Rael, Ashley Casias, Tommy Gallegos, and an alleged six year old child, who apparently has a cell phone. (The DA once put a six-year old on the stand in Judge Peggy Nelson’s court, a child who had allegedly pilfered a wallet from a neighbor. I kid you not.)

So, if you deal drugs or sell smudge sticks, remember: there is a “miscellaneous court file” at the court clerk’s office, where the DA files private subpoenas, while “contemplating pending investigations.” The big brother in Washington D.C. has come to Taos in the form of a little brother at the DA’s office on Albright St. in the County Complex.

Judge Paternoster will rule on the defense’s motion to dismiss or suppress later in the month. Ironically, the alleged Kit Carson bandidos could be the canaries in the coal mine that have alerted us to illegal practices at the DA’s office. If Coberly’s charges are validated by the court’s disciplinary board,  the DA’s office should be shut down for gross prosecutorial misconduct. 

Post Script: I have a friend, many of us have termed “paranoid” who has claimed he is being watched, subjected to surveillance by both NSA and the local yokels. Now we know that he’s not paranoid. Both NSA and the DA are listening, watching, collecting phone records, and investigating y-o-u. You know you’re guilty of…something.