The legal fallout from cell phone records subpoenas issued to investigate a Taos robbery has intensified as the Disciplinary Board of the New Mexico Supreme Court Wednesday issued a list of charges against Taos District Attorney Donald Gallegos and assistant prosecutor Emilio Chavez.
The Disciplinary Board’s “specification of charges” notes that District Judge John Paternoster heard arguments in January from Todd Coberly, representing a defendant in a robbery, to quash an indictment based on “gross prosecutorial misconduct,” and that Paternoster did dismiss the indictment that in April. Prosecutor Chavez has filed an appeal in the case, and that is pending.
Chavez issued most of the subpoenas used to obtain robbery suspects’ cell-phone records without going through a grand jury or taking a request for a search warrant to a judge.
“The subpoenas did not conform to any New Mexico state law or federal law” and “did not conform to the Stored Communications Act,” states the filing by the Disciplinary Board, which investigates allegations against lawyers.
Gallegos violated the Rules of Professional Conduct by failing “to ensure that the subordinate lawyer (Chavez) conformed to the Rules of Professional Conduct” and “by engaging in conduct prejudicial to the administration of justice,” the documents allege. The Disciplinary Board is calling for a hearing on the matter.
Taos police theorized that the April 2014 robbery of a Kit Carson Electric Cooperative employee in the co-op’s parking lot was an inside job, and a detective worked with the District Attorney’s Office to secure subpoenas for records from out-of-state cell phone service providers. Those records ultimately lead to the grand jury indictments of Issac Martinez, Carla Casias and several co-defendants. The co-op heist netted $110,000.
Defense attorney Coberly argued that among other irregularities, the stand-alone subpoenas for cell phone records were illegal because they were not issued by a court or grand jury but by assistant prosecutor Chavez, making the prosecutor in effect an investigator and not just a prosecutor aiding a grand jury.
“A stand-alone subpoena, in improper form, issued and signed by a prosecutor in aid of a police investigation, before a criminal cause is properly commenced … is simply without precedent, analogy or lawful authority in New Mexico law,” Paternoster found. The judge also found “the subpoenas were not an isolated instance as there were approximately 49 other such subpoenas issued in 2013,” mostly by Chavez.
Gallegos could not be reached for comment Thursday. Assistant prosecutor Chavez said he had not seen the charges and had no comment but that he has retained Albuquerque attorney William Riordan to represent him.
Gallegos and Chavez have 25 days to respond and then a hearing will be scheduled. The hearing board will be composed of two attorneys and one lay person.