By Marty Mayfield
KRTN Multi-Media
The Disciplinary Board of the Supreme Court of New Mexico has determined that incoming District Judge Emilio Chavez and Eighth Judicial District Attorney Donald Gallegos abused their subpoena power by issuing subpoenas without judicial or grand jury authority.
According to the disciplinary board’s report there is no New Mexico case law, rule or statute that authorizes the issuance of pre-indictment subpoenas. Rule 5-511 NMRA, which governs the issuance of subpoenas in criminal cases, states in part that “(1) every subpoena shall: (a) state the name of the court from which it is issued; (b) state the title of the action and its criminal action number….” Clearly, this contemplates a case having been filed under the caption of which the subpoena is to be issued. Without a case having been filed, there can be no parties to the action as required by Rule 5-511(A)(3) NMRA.
The report went on to say that there was no case in controversy, no action, no criminal action number or party to represent at the time the pre-indictment subpoenas were issued. There is no legal ambiguity as to the law in New Mexico regarding the issuance of pre-indictment subpoenas. Clearly, such practice is not permitted and to engage in such conduct is a violation of the Rules of Professional Conduct.
Chavez was found to have violated six rules of professional conduct in regards to the pre-indictment subpoenas. While Gallegos was found in violation of three of those rules mainly in regards to being Chavez supervisor and having knowledge of the misconduct. The board acknowledged that while Chavez and Gallegos may have acted with good intentions of gathering information with which they could solve a crime in their community, it is not acceptable for any officer of the Court, and certainly not one with the power of a prosecutor to use their position to obfuscate the rules as Chavez and Gallegos have done.
The board panel headed by Margaret A. Graham and Edward L. Rose, recommend that Gallegos receive a formal reprimand pursuant to NMRA 17-315(B) 2015. They recommend that Chavez receive a Public Censure pursuant to NMRA 17-315(C) 2015 and the both Gallegos and Chavez should be assessed one-half of the cost of this action with their individual deposition costs being assigned to them separately pursuant to Rule NMRA 17-106(B) 2015. The costs are required to be paid with 30 days of the imposition of the sanctions by the Supreme Court of New Mexico.
Governor Martinez appointed Chavez to the bench for the Eighth District Court to replace retiring Judge John Paternoster. Will these sanctions affect Chavez as he takes the bench is unclear and he will be able to appeal the disciplinary recommendations to the New Mexico Supreme Court.
Below is the link to the disciplinary boards findings and recommendations.
Chavez-Gallegos-disciplanary-Matter-pdf
