Copyright © 2013 Albuquerque Journal
A high-profile online prostitution case against a former University of New Mexico president was derailed Wednesday when a divided New Mexico Supreme Court refused to overturn a district judge who decided a website is not a “place” under the law criminalizing promoting prostitution.
A top prosecutor, however, said the decision does not necessarily foreclose going forward with the case by some different means.
“The ruling doesn’t necessarily mean the case is over,” Mark Drebing, chief deputy district attorney in the 2nd Judicial District, said afterward.
After hearing arguments from the parties, the court deliberated for about half an hour before Chief Justice Petra Maes announced the decision. She did not say whether a formal opinion would follow to clarify the ruling.
Newly elected Justice Barbara Vigil dissented from the majority, which included Court of Appeals Judge Michael Bustamante sitting by designation.
Lawyers for former University of New Mexico President F. Chris Garcia and retired Fairleigh Dickinson University physics professor David Flory hailed the decision as an end to their clients’ much-publicized travails after they were criminally charged with promoting prostitution by the Albuquerque Police Department in 2011.
Defense attorney Robert Gorence, who spoke with Garcia shortly after the hearing, said his client was “joyous that this witch hunt has finally ended.” Responding to Drebing’s initial comments, Gorence said, “I don’t think they remotely could go forward.”
Flory’s attorney, Teri Duncan, said the court made the correct ruling.
“Our position is that Dr. Flory did nothing criminal, and we hope the state will accept the Supreme Court ruling and that will be end of it,” she said.
Drebing said prosecutors will meet, probably next week, to evaluate their options. But he insisted there are other charges that could be considered, possibly including conspiracy to promote prostitution. He also said the office will consider a preliminary hearing rather than a grand jury proceeding, acknowledging that the Supreme Court ruling would apply to that proceeding as well.
Police alleged in a criminal complaint that the Southwest Companions website, which operated with a high degree of secrecy, was devoted to connecting prostitutes and customers on the Internet.
The search warrant affidavit used to raid Garcia’s UNM campus office said Garcia, known as “Burque Pops,” was a moderator responsible for quality control and shielding the site from law enforcement. Garcia, UNM president in 2002 and 2003, was a well known pollster, political scientist and election commentator who maintained an office on campus.
In the office search in June 2011, detectives took sex toys from a briefcase and a cabinet, 21 pornographic videos, nine sex books, a folder containing criminal statutes on prostitution and a computer. Garcia was taken into custody but was later released.
The case languished for months before prosecutors readied a presentation to a grand jury. The defense took advantage of a relatively new state Supreme Court ruling that allows the presentation of evidence tending to show innocence before a case is indicted.
They argued, and District Judge Stan Whitaker who was supervising the grand jury ultimately agreed, that the statute did not envision a website as a “place” of prostitution.
Supreme Court Justice Richard Bosson, who appeared the most skeptical of the government’s position, suggested to Deputy District Attorney Michael Fricke, the white collar crimes division chief arguing the case, that any ambiguity about what constitutes a “place” should be resolved by the Legislature, not the court.
A bill in the current Legislature endorsed by Gov. Susana Martinez, HB 295, would include electronic and online activities as a form of promoting prostitution.
Whitaker’s ruling meant prosecutors were required to inform the grand jury about his interpretation of the law.
The 2nd Judicial District Attorney’s Office filed a sealed writ – akin to an appeal – with the Supreme Court almost three months later, contending Whitaker lacked authority for his ruling and asked the high court to tell him he had overstepped his role.
Fricke defended the delay in filing the writ, which was unsealed by the court, because he said the prosecutors needed a transcript to be prepared.
But the time lapse provided one line of attack by the defense.
“How long can they leave someone twisting in the wind?” Gorence asked during the hearing.
Most of the questioning, however, dealt not with timing but with “place.”
Fricke likened the Internet website to a bulletin board. That prompted Bosson to ask if the university would be subject to criminal sanctions for a solicitation on its bulletin board, or if a newspaper like the Journal could be prosecuted for publishing similar material.
Fricke said it was a matter of criminal intent, but returned to the theme that Whitaker usurped the role of the grand jury – and that he had done so in the absence of any facts.
“I think the judge should have let this process play out,” he said.
— This article appeared on page A1 of the Albuquerque Journal