Legal Eagles Contend
On Oct. 9, 2014, Judge John Paternoster convened district court to hear an emergency motion for sanctions filed by Defense Attorney Todd Coberly, representing the defendant in State v. Issac Martinez, aka the Kit Carson Robbery Case. The motion was filed against Deputy District Attorney Emilio Chavez for the “abuse of subpoena powers”
Allegedly three subpoenas were issued by Deputy District Attorney Emilio Chavez after grand jury indictments of the alleged Kit Carson Bank Robbers to aid Taos Police Officer Wentz in his investigation. The motions we’re filed some two months after a motion to quash evidence garnered by the earlier “hometown or bad subpoenas,” subpoenas issued over the DA’s signature to cell phone companies but without court or grand jury approval. The subpoenas in question on Oct. 9, 2014 above followed in the wake of grand jury indictments, subsequently quashed by Judge Paternoster, but prior to the decision to quash, a decision now on appeal.
Those early or “bad” subpoenas (like bad checks) have led to numerous charges filed by the Disciplinary Board of the State Supreme Court of New Mexico against DA Donald Gallegos and DDA Emilio Chavez.
Attorney Coberly claimed the Deputy District Attorney’s subsequent subpoenas were issued to possible witnesses in the case. Although Coberly says he hadn’t been properly noticed but become aware of the subpoenas through the court uploading system so he, along with other attorneys and parties to the case, arrived at the DA’s office, where the interviews were scheduled with said witnesses. Then Coberly said he was told that he was “not allowed” to participate because “this is part of an investigation.”
Coberly referred in Judge Paternoster’s court to the Attorney Chavez’s “audacity” and “hubris” while asking for sanctions, including attorney fees and travel, payment for the hours he spent representing his client that day. “What gives him (Chavez) the authority to abuse the court’s power?” asked Coberly. “Anybody else would be disbarred.”
Apparently, the subpoenas though issued subsequent to grand jury indictments were misused to aid the Officer Wentz’s investigation because, as Chavez said, the witnesses were unresponsive to phone calls from the investigator. The fact that the witnesses were required to respond to the DDA and at his office was incidental, as Chavez explained it. The DA had a conference room available for Officer Wentz’s use, he said. Earlier in the “hometown or bad subpoena” case, Chavez excused himself, claiming he saved the State time and money by skipping district court and grand jury formalities.
Chavez said “no witness statements were taken” on that day June 6, 2014 it the DA’s office. Apparently, Attorneys John Day, Justin Lea, and Todd Coberly showed up along with a number of the accused or witnesses, whose presence created an ‘atmosphere” of “intimidation” and “a circus in the lobby of the State’s Office,” according to Chavez. He further described those present, rather ominously, that day as members of “gangs” i.e. BST (Barrio Small Town). Just as some play the “patriot card,” or “racism card” so the DA likes to play the “Gang” card from time to time.
Maybe BST mistook the KCEC HQ for VCA (Varrio Cruz Alta). After all the KCEC Trustees are a political gang what with gerrymandered districts, long tall travel budgets, and “parking lot” threats.
“We issued subpoenas to allow Detective Wentz to talk to them (witnesses),” said Chavez. From what this reporter could understand, the DDA is not allowed to inject himself into the prior investigation of criminal matters that he will be prosecuting. Allegedly, he did the same thing when he contravened the Kit Carson Robbery case by issuing subpoenas first and begging for forgiveness later.
The Judge seemed puzzled about how to render sanctions and referred to the ambiguity in the rules. He did say, “We are talking about preserving public credibility of the legal system.” And “I regret I was not in a position to offer guidance before this thing went radioactive.” Paternoster said he would rule on the motion after reading written submissions from the attorneys.
Perhaps the Disciplinary Board can instruct Attorney Chavez on the proper use of subpoenas during his hearing. Meanwhile, Taos Friction hears the DA’s office may have flubbed the “Plumber’s Crack Case” due to the use of a federally approved administrative subpoena to garner records of checks and bank statements, the metadata approach, but in a state court matter. The State of New Mexico, a stickler, requires, once again, district court or grand jury approval for subpoenas. Hey Donald and Emilio will get it right one of these days.
The Coup de Grace occurred in the earlier decision about the Hometown Subpoenas: “It is objectively unreasonable for the prosecutor to believe that his conduct was lawful.”—Judge John Paternoster
The District Attorney (like Taosenos, who violate planning and zoning regs) apparently believes it’s better to beg for forgiveness than ask for permission from the court when it comes to issuing “Hometown Subpoenas” in the $200,000 Kit Carson robbery case.