Attorney had high DWI dismissal rate with officers under investigation

Defense attorney Thomas Clear III was better than most at getting DWI cases dismissed. He had become well-known for it among clients and peers, as well as for his higher fee to handle such cases.

But a Journal analysis of cases dating back more than a decade reveals that Clear’s above-average dismissal rate in DWI cases nearly doubled when the cases were filed by a select group of DWI officers with the Albuquerque Police Department.

Both Clear and those officers saw plenty of other cases go to trial, end in plea agreements or be deferred, records show. When they were on the docket together — almost 9 out of 10 times — it appears as if Clear’s clients couldn’t lose.

More than 100 DWI cases reviewed by the Journal appear to follow a pattern: five specific officers dropping the ball — in a variety of ways — almost exclusively when Clear was the defense attorney.

It has been more than two weeks since FBI agents raided Clear’s Albuquerque law office and the homes of his paralegal Ricardo “Rick” Mendez and three APD officers on Jan. 18.

There have been no charges filed or arrests. The federal search warrants are under seal. Those under scrutiny have not commented publicly.

U.S. Attorney for New Mexico Alex Uballez reported in a Jan. 25 letter that the criminal investigation focuses on alleged wrongdoing by “certain” APD officers and others. He gave no specifics. Uballez acknowledged in the letter, which was sent to APD Chief Harold Medina, that “this secrecy appears to be in tension with the public’s understandable interest and concern and desire for an immediate accounting.

“Such a public accounting will someday be warranted,” Uballez added. The current “secrecy,” he wrote, “protects the integrity of the ongoing investigation and ensures that we can hold accountable all those who have done wrong while wearing a badge.”

Officers Honorio Alba Jr., Joshua Montaño, Nelson Ortiz, Harvey Johnson and Lt. Justin Hunt remained on paid administrative leave Friday while the APD and FBI pursue parallel investigations. Medina has confirmed that APD learned of similar allegations over the past year but until recently lacked important details to launch an internal investigation about the alleged scheme.

Clear, who could not be reached for comment, has continued to do defense work amid the investigation, although he said at one recent Metro Court hearing that his work computers had been confiscated.

Since at least 2018, Clear had served on the state Public Defender Commission, which oversees the independent state Law Offices of the Public Defender. The day after his office was searched, he resigned. As commission chairman, he routinely appeared before legislative committees representing the LOPD.

Reputation

Clear’s website has offered numerous Google reviews extolling his work and thanking him for his help, along with that of his paralegal, Mendez.

At least one reviewer said he was told to “ask no questions,” when retaining the firm. That and several other reviews have since been deleted.

A look at his track record in Albuquerque’s Metro Court shows:

Clear was listed as the defense attorney in 86 DWI cases that were resolved or closed from Jan. 1, 2021, to Nov. 1, 2023, in which he won dismissals of the client’s charges 45% of the time, or 39 cases. A primary reason for dismissals involved the officers failing to appear in court or their unavailability to testify. Others were dismissed because of issues with the evidence or because the six-month rule had expired.

The dismissal rate, in general, for DWI cases filed in Bernalillo County hovered between 26% and 30% over that same time period, according to statistical reports gathered by the Administrative Office of the Courts.

When considering Clear’s cases with the five officers under federal scrutiny, the dismissal rate spiked to 88%.

Clear’s dismissal numbers don’t include the 152 misdemeanor cases dismissed by Bernalillo County District Attorney Sam Bregman’s office because they involved the four APD officers who have been recently flagged for potential credibility issues.

During their time with the DWI unit, officers Alba, Johnson, Montaño, Ortiz and Lt. Hunt had plenty of cases that weren’t dismissed when other defense attorneys were on the case. Those typically ended in guilty verdicts at trial, deferred sentences and plea agreements. Hunt no longer handles DWI cases.

However, of the 104 cases those arresting officers filed and Clear defended — dating back to 2009 — 92 were dismissed. Montaño had 42 of the cases, Alba had 27, Hunt had 25, Ortiz had six and Johnson had four.

Many of the cases were dismissed after the officers missed pretrial interviews. There also were dismissals for not providing discovery and not meeting court deadlines.

Records show one of the cases occurred in 2021 after Johnson arrested a young Albuquerque woman for DWI — her second such charge in less than a year.

Stressed about the consequences, the woman sought advice from coworkers at a local brewery.

She told the Journal recently that a coworker who had two DWIs dismissed one year apart referred her to his attorney: Thomas Clear III. He said Clear would get her DWI dismissed.

The woman recalled her boss telling her that Clear “knows people.” She hired him and months later, Clear called her out of the blue: “Hey, can you give me a thousand bucks — now.”

She said she only had $500 and Clear said that was fine and asked if she could bring it to him. A receipt Clear gave the woman shows the date of the payment.

Three days later, according to court records, Johnson didn’t show up for a scheduled pretrial interview. Clear sent her an email congratulating her that the case was dismissed.

The U.S. Attorney’s Office this week declined to confirm if the case is part of the FBI investigation.

Meanwhile, the young woman, whom the Journal isn’t identifying because she fears retaliation, said Clear never made her pay the rest of what she owed him — more than $4,000.

In the months following the dismissal, she said Clear also wouldn’t return her calls when she wanted her arrest record expunged.

The moment her boss suggested Clear — and the way in which he did so — made her suspicious long before the news broke of the FBI investigation. But, she said, she wanted her DWI dismissed and didn’t ask questions.

“I’ve just been reading a bunch about everything that’s going on, and it is unsettling,” the woman said.

Attorneys weigh in

Kari Morrissey, a defense attorney, said she has a high dismissal rate on DWI cases, but it’s because she wins at trial or has the case dismissed because of probable cause issues. It’s not because officers don’t show up, she said, which was a problem decades ago.

Morrissey said “it’s extremely rare” for cases to get dismissed for an officer no-show when that officer is part of the DWI unit. That’s because, she said, hearings and trials are a lucrative part of why officers join the unit — the overtime pushes a $60,000 salary to upwards of $140,000.

Morrissey said she has had DWI cases with Alba, Montaño and Hunt and “they always show up.” She called Clear’s 88% dismissal rate with those officers “highly unusual.”

Morrissey said Clear has built a reputation among defense attorneys for his high DWI dismissal rate as well as being “overly friendly” with officers. She said, in her opinion, the people who should have spotted a pattern are the Metro Court judges.

Ahmad Assed, a longtime defense attorney, reiterated Morrissey’s point that officer no-shows on DWI cases were a problem “decades ago” but said policies were put in place to fix the issue.

Nowadays, he said it is “absolutely very difficult” to get a case dismissed for an officer’s no-show.

“It’s not easy, not easy,” Assed said, adding that there would have to be “significant circumstances” to warrant a judge to dismiss a case for an officer’s no-show.

Assed, who has represented hundreds of clients in DWI cases, said he couldn’t estimate his dismissal rate. He added, with a laugh, “I can tell you it’s not 88%.”

Assad said he would be interested in the dismissal details on each of Clear’s cases, but “the percentage in itself gives me pause.” He called the number an “extremely high rate” and something defense attorneys, in general, don’t experience.

“To understand that officers aren’t showing up, to the tune of 88%, that would be a particularly disturbing number, not understanding — and certainly giving the benefit of the doubt — the circumstances behind every one of those cases,” Assed said.

He said judges give “every opportunity” for officers to be present — even if they have missed prior hearings — including allowing prosecutors to call the officers to “get them over there.”

Assed said DWI-unit officer no-shows are particularly “a rarity.”

Officer check-in systems

Since the FBI investigation began, Medina said he has taken steps to ensure accountability for APD officers who miss hearings or trials.

Medina on Friday released a letter to City Council in which he reported that 20 cases were dismissed in 2023 because officers failed to appear for a trial or motion hearing in a DWI case.

The letter stated that the DA’s office has had the responsibility to notify the APD of missed appearances but hadn’t received such notices since September 2022 because of a “system failure” at the DA’s office.

“We only recently started receiving the notices again,” Medina wrote.

A spokeswoman for the DA’s office wasn’t available for comment Friday evening.

Medina said he also has assigned Criminal Investigations Division Cmdr. Kyle Hartsock to conduct the internal investigation into allegations involving the DWI unit.

“We are looking at everyone in the department who may have had a role in the alleged scheme among DWI officers,” Medina said.

Hartsock, who previously worked for the Bernalillo County Sheriff’s Office and the DA’s office, has an “outside perspective with no ties to current or former DWI officers,” he said.

Camille Baca, Bernalillo County Metropolitan Court spokeswoman, said the court hasn’t had a system to track an officer’s failure to appear. She said APD Lt. Lawrence Monte asked them to develop such a system “as a courtesy” since the investigation came to light.

“As you know, the prosecution and defense are responsible for getting their own witnesses to court,” Baca said. “That is not the court’s responsibility.”

Baca said the courts have relied on an “officer check-in system” — developed in 2007 – which allows officers to check in through courthouse kiosks or online. Then, she said, judges, staff and attorneys can use the system in real time to see if officers have checked in and where they are supposed to be.

Baca said liaisons can update the system to notify staff if an officer cannot appear for various reasons.

How effective the new system will be, she said, is to be determined.

“With the system not yet in place, it’s, of course, too soon to measure its effects,” she said.

Baca added, “Since the logs are not for the court’s use, that question may be better posed for law enforcement down the road.”