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Motion: Judge Ellington can’t be fair in police lieutenant’s time card fraud case

 

SANTA FE — Lawyers representing a high-ranking officer in the Santa Fe Police Department accused of falsifying time cards filed a motion Wednesday to recuse the current case judge, saying he’s biased and cannot impartially preside over the case.

The motion to get District Court Judge T. Glenn Ellington off the case of Lt. Jason Wagner, who is facing three felony counts, comes after Ellington shot down two plea agreement attempts on Nov. 23.

Under the original plea deal with prosecutors, Wagner would have accepted one misdemeanor count of accepting public money for services not rendered, served a year of unsupervised probation and had to resign his SFPD position, with no restitution due to the city.

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State District Judge T. Glenn Ellington. (Eddie Moore/Albuquerque Journal)

After defense attorney John Day and Assistant District Attorney Jason Lidyard took a short recess to add a $592 restitution provision, Ellington balked again and said he took issue with Wagner keeping his law enforcement license.

Ellington also said from the bench that he was aware that Wagner’s rehiring by former SFPD Chief Eric Garcia last year caused tension in the department that preceded Garcia’s resignation this summer.

The recusal motion, filed by Day and fellow defense attorney Megan Dorsey, claims Ellington’s opinions in the case go far beyond what Wagner is accused of.

“The Court’s statements about its opinions as to its desire that defendant lose his law enforcement certification, and that defendant was somehow responsible for alleged turmoil with(in) the Santa Fe Police Department, among other inaccurate statements made from the bench during the hearing, clearly impaired the fairness of the matter in the event the case proceeds to trial,” the motion states.

Santa Fe police Lt. Jason Wagner

Santa Fe police Lt. Jason Wagner

“The public statements establish that the Court could not hear any remaining issues or preside at trial as a fair and impartial tribunal, as the Court has publicly expressed its opinion as to defendant’s guilt — and his responsibility (however misplaced and inaccurate that belief is) for matters far outside the scope of the pending criminal case.” Wagner, the motion says, “has no choice but to seek the requested relief of recusal” of Ellington.

The document also says the district attorney’s office doesn’t oppose the recusal motion, “as per telephone approval” given by prosecutor Lidyard.

Wagner is accused of falsifying time cards between September and November of 2013. He resigned in January 2014 shortly after then-Chief Ray Rael and retired Capt. George Ortiz confronted him with GPS evidence that his police vehicle was at his Rio Rancho home during hours that he claimed to have worked in Santa Fe. Garcia, Rael’s successor as chief, rehired Wagner in July 2014.

District Attorney Angela “Spence” Pacheco later charged Wagner with four fourth-degree felony counts of receiving public money for services not rendered. Ellington dropped one of those counts for a lack of evidence after a preliminary hearing in June.

In July, four high-ranking officers in the Police Department sent a letter to City Manager Brian Snyder alleging Garcia had questionable hiring practices, among other issues, and Wagner’s rehiring was listed as one of their concerns. Garica resigned a couple weeks later and was replaced by current interim chief Patrick Gallagher. Wagner is on unpaid leave.

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