Sunday, October 23, 2016

What The Prosecution Said

Statements so hurtful that went beyond factual allegations.

Statements about me as a person that wounded badly.

Statements that utterly shocked the judge.

I begged to be able to call my Chief, to keep him on speakerphone throughout the rest of the trial, because I could not believe what I was hearing, and he needed to hear it himself.

To finally believe it, what I had been telling him for months.

I wanted to call my Deputy Chief.

I wanted to call Ronald, Barbara, or Marcella.

Someone from The Public Defender Commission.

Someone from the New Mexico Criminal Defense Lawyer's Association.

The Hobbs News-Sun.  Someone who could see the prosecution acting the way I had told everybody they act.

Somebody please come help.  These people will make any claim whatsoever.

This D.A.'s office spends more time concentrating on Kirk Chavez, than they do preparing for murder cases.

However, the judge said I didn't need to call anybody.  He was mad. He said something else, but I will not repeat it here, because it would embarrass the prosecution very, very badly.

But after he made that comment, he did raise his voice at the prosecution, "Now let's get back into the court and try this case."

He already had called his bailiff in to testify as to the false allegations:  She raised her right hand, under oath, "I saw no contact, Your Honor."

"We're done" said the judge, "bring in the jury."

I've practiced in front of over 200 judges, that day the judge handled a bad situation better than I have ever seen.

And then I sat down.

My client looked at me, "you o.k?

I said, "yeah, I'll be fine."

The Timeline Alone

The timeline alone in this matter, which was set by Judge Sanchez, will be proof positive.

And it will be attested to by bailiffs, court interpreters, and court security.  And video.  And trial audio.  And finally one piece of proof that will place the icing on the cake.

"An investigation must be reasonable from its inception, and at any time that reasonableness is no longer present, it must be concluded.  Law enforcement's presence in the lives of private citizens must come to an end when the reasonableness of such presence has been shown not to exist."

In other words, interview the right people, and you will know that there is no reasonableness to this, and then get out of my life.

A prosecutor made a rash remark he should have never made in open court, and now to call out people hoping to find evidence, any evidence, of something that did not occur is unreasonable.

To look for "witnesses" for two weeks.  Hoping to make a case.  C'mon.

I was given Orders by the Judge, and the orders were clear.  And I only had a minute to complete the orders because we had a lot to do.  "Your Honor, before we seat the jury, may I have a moment to let the witnesses know that You have permitted me to interview them alone."

"Yes, but make it fast, so we can get the jury seated and get openings done before lunch."

"Yes, your Honor."

I was back in the judge's presence within a minute or two.

 So much to do that morning.

Voir Dire.


House cleaning.


All in a very short time frame.

There would have been no time to get into any more than cursory instructions with anybody.

Because we were all busy.  Working until lunch, fast and hard.

That is until the lunch break, when the witnesses fled the courtroom without having been given permission, because they overheard an opening statement.

"Why did you all leave?" I asked.

"Because I could hear you in there in court talking to the jury. I heard it all.  All that stuff you were talking about, I've already cleared all that up.  It's not fair your talking to them about all that stuff, I've cleared all that up."  She said this in the interview, as she was pointing back to the courtroom.

Her gesture, her point, it's all on video.

"You're not supposed to be listening to that.  You can't listen to that."  I replied.

She was mad.  She did more talking than me.  I asked a few questions.  Market value?  Permission to drive a bike?  She gave replies, but it was all mixed in with anger from what she had wrongfully overheard.

Now, this is the simple, simple, simple truth.  Look at the video.  The video will tell you this is the truth.  Look at the timeline, the timeline will tell you this is the truth.  Interview the people who were not impeached on that day, to include those wear badges, and they will tell you that is the truth.

Listen to the trial.

Any more intervention into my life to try to assist a young district attorney because he made statements he should never have made, is wrong.

It is so very, very wrong.

The slippery-slope you are creating is very, very slippery.

Saturday, October 22, 2016

What Needed To Be Done

I have received numerous texts, e-mails, and calls about what should the prosecution have done.

It's easy: You stand up in court and say "Your Honor, way we approach the bench."

You approach.

And then you say: "Your Honor, something has been brought to the State's attention.  We believe that you may want to meet with a witness in chambers."

The Court would agree.

You do not stand up and make claims of fact, when you do not know the facts.

The Court would have heard the witnesses, and then I would have turned over to the judge "definitive proof" of what really occurred.

"Definitive proof."

And the Court would have said: "Nothing here.  Let's move back to the courtroom, so State call your first witness."

And the matter would have been forgotten.

But in this case, statements were made in the Court that had no truth to them, and were said as fact and allegations against opposing counsel in a public courtroom which means that the prosecution is in so very, very deep.

I admire the Honorable Judge Mark Sanchez that day for what he did.

He stood up for all that is right and good.

He looked the prosecutor in the eye and said "what is going on with you?"

When the "definitive proof" is shown to anybody, the prosecution in Lea County will hold their head in shame.

And the first person who knew that something had gone terribly amidst with the prosecution was Judge Sanchez.

For this, I will be forever grateful.

To make the claims that the State made in open court, and not have all the facts, was as bad as gets in the halls of justice.

And then to up the ante, by calling in who they called, to please find any piece of credible evidence, ups the shame of it all to the higher level.

You cannot threaten or intimidate a witness with an opening statement, that she overhears while sitting in the witness room.

It is the violation of the rule that is the crime, not what is being lawfully said in the courtroom.

And when will the video show the witness leaving, right after my opening statements.  She was two steps ahead of the jurors.  Long before I hadn't even left the courtroom.

How do I know this?  Because she told me.  Or you could say she told me and my definitive proof.

And definitive proof of that fact, and everything else she said, will be delivered after the State has placed all their cards on the table.

All in boys?

I am.  You just have no idea what I'm holding.

As a friend of mine once said, "it's time to fly the pirate flag."

Those chips in the middle of the table look like a lot of hopes and dreams.

Hey, I call.

Now, let me push this little button here, and it will show the King and the Ace I am holding.


Now all those hopes and dreams your were holding for others, well their mine now, and because of the way you treated me, they ain't ever getting them back.  They are all mine.

Friday, October 21, 2016

How Would A Witness Know To Break For Lunch When a Bailiff Has Not Yet Told Them to Break For Lunch?


I will tell you how, because I was told by the witness.

The witness defied the judge and had been listening to the proceedings when she was told not to, and heard the judge tell the jurors it was time to break for lunch and what time to come back to court.

Right after opening statements.

The witness had broken the most sacred of court rules.

How would I know such a thing?

Because there is one piece of proof that will blow the whole thing out of the water.  It will show liars to be liars.

It will be beautiful.  It will be infinite.  It will be perfection.

"Your Honor, if the State wants a mistrial, I agree.  Because I know what the witness told me, I also want an evidentiary hearing."

The prosecutor told the judge exactly when he felt things had happened....right before lunch....right before the witnesses fled from the court.  Before the bailiff told them anything.  As a matter of fact, the prosecutor said it was me that made them flee.

It is all on record. There can be no changing of the record.

Problem is.....that wasn't the truth.  Problem is...that will not be what the video shows.  Before lunch, as the jury was leaving, I was in the court having just finished opening statement.  The minute I saw the witnesses were gone, I briefed the judge who hadn't even left the bench.  That's how quickly he was briefed.  The bailiff and I searched and searched.  Walked around and around the courthouse.  All around the courthouse, inside and outside.

Because what the prosecutor claimed......never, ever, occurred.  He made claims that you should never, ever make in court without fully knowing the facts.

Here, there is proof beyond any reasonable doubt on my side.  Beyond any doubt at all.

The Work Product Doctrine is a wonderful thing.  The in camera review is a wonderful thing.

Industry Rule Number 4,080: Always wait until they have shown every one of their cards, and then, and only then, show your cards.

Be patient.

So very, very patient.

And then the embarrassment will set in.

The prosecutor has made claims that they can't support, and they have called on people to hopefully find evidence, any evidence, that it is true.  Because the minute they made the claims, they were in deep.

So very, very deep.  

They will not find anything because there is nothing to find.  You cannot make occur what didn't occur.

The wrongness of it all.

The shame of it all.

You Rob A Person

When they beat you fairly and squarely and you claim they cheated.

In my last jury trial, when the jury went into the deliberation room, I told the d.a. that he done a good job.

A wonderful job.

Because he had.

I told his co-counsel a few days later that she had done a wonderful job.  I told her that she had walked around the room like a boss.

Because she had.

How they took a victory away from me and desecrated it with lies shows that they robbed me.

Not a single witness testified in my favor.  No, all the witnesses were correctly impeached, so that they had no credibility at the end of the day.

That's all.

No cheating.  No games.  No breaking of rules.

The prosecutors robbed me of the one thing that all people are proud of:

Hard Work.

Thursday, October 20, 2016

Prosecutorial Treatment of Witnesses

When it comes to our statutes dealing with threatening and intimidating witnesses, how do our prosecutors fare.

How often are they prosecuted?

Do you believe it happens?  Every experienced defense attorney will tell you it happens a lot.

Let's take a look at one clear cut version of a prosecutor and her cohorts working in a pretrial interview with a witness.

Here's the case:  Please read it, and come back to join me.

Now, that you have read it, let me ask you.  Do you think that the prosecutor's office began an investigation on that prosecutor for threatening or intimidating a witness.  Trying to change the witness's testimony?


Do you think the prosector's office called out state police to begin an investigation on the prosecutor for violation of criminal statutes such as threatening or intimidating a witness?


Do you think the prosecutor was trying to sway the testimony?

I do, but I don't believe the prosecutor had any criminal intent.  I believe the prosecutor may have been unethical and should have maybe have answered to the ethics board, but a criminal investigation? Absolutely not.

Do you think the prosector's office farmed this case out to another prosecutor's office to see if criminal charges should be forthcoming?


The Police Interrogation

Like most defense attorneys, I've watched numerous police interrogations on video and listened to them on audio.

They can be, in fact, intimidating, deceptive, and/or extremely confrontational.

So why are these interrogations not considered to be intimidating and threatening to a witness under our statutes.  Does it have to do with criminal intent?

There can be no denying that during many interrogations, law enforcement is trying to sway (or even change) how a witness first informs law enforcement of how they are going to testify if left to their own devices.

But law enforcement is given leeway to angle the witness, to remind them of the law of perjury, to remind them of what it means to be an accessory to a crime.

Furthermore, I've seen law enforcement get very angry with witnesses, threatening to take them to jail, threatening to make an arrest,

threatening....threatening.....threatening....intimidating...intimidating....and intimidating.

Maybe law enforcement believes that their free from the intimidating and threatening a witness statutes because the witness is not officially named as a witness when the interrogation takes place.

But that's no answer, because our statute also protects those who are likely to become a witness in a case.

Yes, every defense attorney reading this knows that there are interrogations with police officers and witnesses that sometimes get heated.

So why are these interviews not viewed under the threatening and intimidating a witness statutes.

Maybe because the criminal justice system sees them as part of the process.  A long-standing process.

However, when law enforcement starts to question defense attorneys for doing far less than what law enforcement does during interrogations, well that is wrong.  When defense attorneys simply present to witnesses the evidence they believe will impeach the witness in a non-aggressive manner.

(And I assure you, far less aggressive than law enforcement officers in their interrogations.)

When law enforcement begin to question the defense bar, or threatening the defense bar, well that is simply one part of the criminal justice system trying to weaken the other side of the criminal justice system.

Now, that is wrong.