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Disciplinary Board not afraid to act

As president of the New Mexico Criminal Defense Lawyer’s Association, I am compelled to respond to this newspaper’s Oct. 11 editorial accusing the state’s Disciplinary Board of being a “hammer of the defense bar” in finding that an assistant district attorney in Taos and his supervisor, the Taos district attorney, violated several Rules of Professional Conduct and are facing possible disciplinary action for issuing unlawful subpoenas.

The “defense bar” has no influence over the Disciplinary Committee, which far more often punishes defense lawyers than prosecutors for violating ethical rules.

While defense attorneys are not happy that these prosecutors broke the law, we are glad that the committee is showing impartiality in its decisions. We are glad that, if a prosecutor violates ethical rules, the committee will not be afraid to take action. This newspaper should not get in the way of a system that holds all licensed attorneys accountable for their actions.

Your editorial minimizes the prosecutors’ conduct by calling it “a costly error in judgment.” On the contrary, the prosecutors knew what they were doing was wrong and they did it anyway.

In more than one case, Assistant District Attorney Emilio Chavez and others, under the supervision of District Attorney Donald Gallegos, issued well over 100 subpoenas for cell phone records and other confidential records.

In an attempt to hide their improper actions, the assistant district attorneys indicated on the subpoenas that the recipient should not inform anyone else about it. These subpoenas did not conform to any state law, any rule of state court or any federal law, and their issuance violated the constitution of New Mexico.

No citizen of New Mexico would want his or her privacy invaded by such unlawful means.

This disciplinary action by the Disciplinary Board is remarkable for its uniqueness. Improper conduct by prosecutors is pervasive and often hidden. Worse, it has serious consequences for defendants, and can result in wrongful convictions, imprisonment and even death.

An Innocence Project study found that prosecutorial misconduct is a leading cause of wrongful convictions. Another study, by the Northern California Innocence Project, found that misconduct occurs in all kinds of cases, from DUIs to homicides.

As the prosecution of the late Sen. Ted Stevens demonstrated, even the high and mighty can be victims.

Stevens’ convictions for failing to report improper gifts were later thrown out by a federal judge when it was disclosed that prosecutors had failed to disclose evidence.

Unfortunately, history shows that the courts cannot be relied upon to correct prosecutorial misconduct. Courts rarely reverse convictions, even when the misconduct is repeated, intentional and egregious.

In Taos, these were not young and inexperienced lawyers who just made a mistake. As stated by the Disciplinary Board, they “displayed a pattern of misconduct” and have “substantial experience in the practice of law.”

The citizens of the Eighth Judicial District deserve to know that their elected district attorney and his staff can be trusted to adhere to the law. They are the ones entrusted to enforce the law and they should be held accountable, just like the rest of us, when they break it.

We praise the Disciplinary Board for doing the right thing.

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