FOR THE RECORD: This story incorrectly stated the New Mexico Attorney General’s Office was seeking an extraordinary writ from the state Supreme Court. The Bernalillo County District Attorney’s Office filed the writ.
When District Judge Stan Whitaker in June found that an online message board could not be a house of prostitution, it was a bucket of ice water on prosecutorial plans to take a high profile case to the grand jury.
A yearlong police investigation into an alleged multistate operation where prostitutes and patrons could meet online focused on two figures from the world of academia. One was former University of New Mexico President F. Chris Garcia, who police said was known as “Burque Pops” online, and the other was Fairleigh Dickinson University physics professor David Flory, who allegedly created the Southwest Companions website.
Whitaker’s ruling said members of the grand jury would have to be told of his view of the law regarding promoting prostitution. Chief Deputy District Attorney Mark Drebing told the Journal at the time that the ruling “significantly impacts” the state’s case.
Prosecutors took the functional equivalent of an appeal — an extraordinary writ — to the New Mexico Supreme Court, where oral argument now is scheduled Feb. 6. They said Whitaker had exceeded his authority in requiring the grand jury to be informed of the ruling, and they said his decision relied on facts not in evidence.
The criminal complaint relied on a legal theory that Flory was promoting prostitution by providing a “virtual house” for prostitutes to use and by requiring users to verify that they were not law enforcement.
Although the issues have been briefed by both sides, the court issued an order just before Christmas telling attorneys the questions it wants them to address.
And some of them are fairly pointed.
The court wants to know, for instance, “Why did it take one (1) year from the date of arrest for the state to proceed to the grand jury?”
“Why did it take the state eighty-seven (87) days to petition the Supreme Court?”
“Is there an alternative remedy available to the state?”
“Was the Internet or a computer conceivably contemplated by the Legislature as a place where prostitution could be encouraged” at the time the statute making promotion of prostitution a fourth-degree felony was revised in 1981?
Does Jones v Murdoch — a 2009 Supreme Court case dealing with information provided to a grand jury pre-indictment — “apply to factual issues or does it also apply to legal issues”?
Garcia and Flory were arrested by Albuquerque police in June 2011 on charges of promoting prostitution. They posted bond, went home and waited.
They waited so long that Garcia’s attorney, Robert Gorence, demanded that prosecutors apologize for buying into “APD’s flawed investigation” and “explosively damaging” allegations that led to the one-time UNM president being barred from campus.
He called on District Attorney Kari Brandenburg to make a statement clearing Garcia.
Brandenburg responded that the case would go forward, and a few days later Flory and Garcia received notice that they were the targets of a grand jury investigation.
The case was scheduled to go before a grand jury last June, but was put on hold after Whitaker’s decision that the jury had to be told that an online message board could not be a house of prostitution.
The Attorney General’s Office, acting on behalf of the District Attorney’s Office, then filed the extraordinary writ asking for the high court to take superintending control of the case. Attorneys Teri Duncan, who represents Flory, and Gorence filed a joint response asking for the writ to be dismissed, contending the writ was filed too late to be heard and that Whitaker correctly stated current New Mexico law.
The Supreme Court hears the oral argument on Feb. 6. The high court sometimes, but not always, issues a ruling on writs following brief deliberation in private, and while counsel are still in the courtroom.
The court’s ruling will determine the prosecution’s course of action.
— This article appeared on page A1 of the Albuquerque Journal