Taos DAs Plead “the Fran Gallegos Rule”

Hometown Subpoenas

Taosenos Beg for Forgiveness (rather than ask for permission)!

In the “Hometown Subpoena’ case District Attorney Donald Gallegos and Deputy District Attorney Emilio Chavez were charged by the State Disciplinary Board of the Supreme Court with issuing about 100 subpoenas without asking a judge or a grand jury for approval as is standard practice. The hometown subpoenas were issued in the Kit Carson robbery case. More than $200,000 was stolen by the alleged “Ma Barker” gang. Some of the $100,000 in checks were recovered but not the cash as far as I know (though I may be incompetent like the others mentioned below). Most of us are human though I’m not sure about the DA’s office.

The Disciplinary Board claims the two Taos prosecutors violated rules of professional conduct when they issued subpoenas prior to charges being filed. But maybe not, according to attorneys for the long-time prosecutors, says The Taos News, Nov. 8, 2013.

Reporter Andrew Oxford writes:

“In responding to the allegations, however, attorney William Riordan said `the rules governing the issuance of subpoenas in the rules of criminal procedure are not clear in giving direction to the attorneys in the criminal area as to their use, especially pre-indictment.’
“The issue has not been addressed in case law until now, Riordan wrote.

“The lawyer representing Chávez maintained he was not seeking to circumvent the grand jury process, suggesting he was merely seeking to expeditiously further an investigation.

“Gallegos also denied wrongdoing.

“The lawyer representing him wrote in a formal response to the allegations against him the district attorney `did not sign the subpoenas or order their issuance.’
“He merely approved of [assistant district attorney] Chávez’s actions after being provided a legal basis to support the actions,” lawyers Ahmad Assed and Richard J. Moran wrote in the response.”

In his decision to quash evidence gained by the improper subpoenas in the KCEC-Ma Barker case, Judge John Paternoster said, “It is objectively unreasonable for the prosecutor to believe that his conduct was lawful.” Paternoster claims there is no case law, lawful forms, etc. to justify the use of these ill-gotten subpoenas, subpoenas now dismissed as sort of “clerical errors” by the defendants from the DA’s office. Paternoster wrote a carefully crafted opinion backing up the decision in the case, which he knew would be appealed (it has) and subject to scrutiny (it is).

Though Paternoster has graduated from law school, served in the NM AG’s office, as Taos DA and Judge for many years in the 8th Judicial District, today he is subject to the “Gallegos rule” and expected to bow before the wisdom of New Mexico politicians, like DA Donald and DDA Chavez, whose excuse for misconduct are more akin to former Muni Judge Fran Gallegos, who said, “I’m incompetent, but I’m not a crook,”

According to The Taos News, then candidate for sheriff, Jerry Hogrefe, “when asked about subpoenas issued with his name but never signed by a judge,” said, `I had no idea they didn’t have the authority to do that and they didn’t either.’” Jerry may be called as a witness in the “I don’t know nuthin case.” So Donald and Emilio have Fran and Jerry on their side as
they march into the maw of the Disciplinary Board hearings. Even if they did something wrong, they didn’t know it and shouldn’t be penalized.

Course former Magistrate Judge Erminio Martinez, the District and Magistrate court’s favorite bail bondsman today, set a precedent locally when he tried a Questa resident, accused of stalking him himself,  the judge. Judge Martinez acted as prosecutor in the case on behalf of the victim, himself, while he himself was the sitting judge. Nor did the bail bondsman know (?) that the rules of professional conduct forbid Magistrate Judges from double—dipping until the Supreme Court sanctioned him himself. At the time of the sanctions, Martinez had served twice as long as Emilio and almost as long as Donald has today.

Apparently,  the more experience you have, the less folks should expect of you, like the veteran cop and sheriff-elect, Jerry Hogrefe. In Taos County ignorance of the law is an excuse, contrary to most jurisdictions, at least outside New Mexico.  Now I think I understand why it’s  better to beg for forgiveness than ask for permission. If our elected leaders do it, why shouldn’t the average driver who rolls through a stop sign do the same?

Ya Me Canse. Enough I’m tired (of thinking).