SANTA FE, N.M. — Charges of misconduct against Taos County District Attorney Donald Gallegos and his top assistant should be dismissed, a hearing committee for the Disciplinary Board of the New Mexico Supreme Court says in a recommendation to the full board.
The “specification of charges” against Gallegos and assistant prosecutor Emilio Chavez was filed by the Disciplinary Board late last year and grew out of at least 94 pre-indictment subpoenas for cell phone, medical and utility records that were issued mainly by Chavez in 2012-13 without any judicial oversight or prior approval by a grand jury.
Many of those subpoenas were connected to the investigation of the April 2014 armed robbery of the Kit Carson Electric Cooperative in Taos, during which $120,000 was taken. The cellphone records obtained with the subpoenas issued by the DA’s office were used to corroborate a police theory that the robbery was an inside job.
Santa Fe attorney Todd Coberly, who represented one of the Kit Carson robbery suspects and who brought the complaint to the Disciplinary Board, had no comment on the decision. The Disciplinary Board itself brought charges against Gallegos and Chavez in October.
At issue was whether prosecutors had improperly become investigators before anyone had been charged or named in criminal proceedings, instead of just helping a grand jury determine facts while considering indictment.
The subpoenas did not conform to any New Mexico state law or federal law and “did not conform to the Stored Communications Act,” stated the filing by the Disciplinary Board, which investigates allegations against lawyers.
State District Judge John Paternoster dismissed the indictment against Coberly’s client in April 2014 based on “gross prosecutorial misconduct” and also fined prosecutor Chavez $999 in December 2014 for “abuse of power.” Both of those rulings are being appealed.
“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 decided.
But the 20-page recommendation issued Thursday states “there was and is no definitive New Mexico legal authority (court rule, judicial opinion, statute or other authority) authorizing or prohibiting a prosecutor” from issuing pre-indictment subpoenas to obtain documents.
When the subpoenas were being issued, the recommendation states, “Chavez and Gallegos were operating in an unsettled legal ‘gray area'” and each “held a reasonable and good-faith belief that his actions were legal and proper.”
“I’m glad it’s over at this point,” Gallegos said Thursday, while noting that Disciplinary Board attorney William Slease has the right to appeal the committee finding. Slease was attending a conference and unavailable for comment.
“We have worked hard on behalf of the people, and we will continue to do so both ethically and legally,” Gallegos said.
The prosecutors have made assurances “that they will refrain from the practices which were the subject of this proceeding pending issuance of definitive guidance by the appropriate judicial authority,” states Thursday’s finding by the three-member hearing committee consisting of Christopher A. Holland, Howard R. Thomas and John Sugg.
The committee held a two-day hearing in February, with Gallegos and Chavez the only witnesses. “No evidence was presented that the subpoenas … were not reasonably related to ongoing criminal investigations,” and Chavez’s research on the subpoenas “was thorough and skilled and reasonable under all the circumstances,” the committee decision states.