Silver City detective sues district attorney for defamation over Giglio notice

SILVER CITY — A single sentence written by a chief prosecutor can end a police officer’s career.

When a district attorney or U.S. attorney informs a sheriff or police chief that they won’t call an officer as a witness because they lack credibility, the message — known as a Giglio letter — diminishes an officer’s credibility, effectively limits the duties they may perform and jeopardizes their job and law enforcement certification.

“Everything, everything is at stake,” Los Lunas attorney Art Nieto said in an interview.

As a defense lawyer, Nieto has received many Giglio notices.

The 1972 U.S. Supreme Court ruling in Giglio v. United States requires prosecutors to present the defense with any information that may challenge a witness’ credibility. Following from that, prosecutors must inform defendants’ attorneys if a police officer who will be a witness at a criminal trial has been found to be untruthful, such as by a judicial finding.

The officers’ names are added to a database with disclosure requirements that follow them even if they attempt to transfer to another agency.

Nieto is now representing a police officer suing to restore his name after being named in a Giglio letter.

John Hiebert, a detective with the Grant County Sheriff’s Office, filed a lawsuit against District Attorney Norman Wheeler, his chief deputy and an investigator at the office last month. Hiebert alleges the office defamed him and violated his civil rights when Wheeler informed Sheriff Raul Villanueva the office would “no longer rely upon (Hiebert) as a witness in any criminal case.”

Wheeler alleged Hiebert had provided sworn testimony that contradicted statements he had made to prosecutors outside court.

Since that message arrived, Hiebert, with nearly 20 years of service behind him, has been on paid administrative leave with little recourse, according to Nieto.

“Most instances of Giglio are clear-cut: The officer’s been charged and it’s open and shut,” Nieto said. “This is real muddy. I’ve never seen anything like this.”

The issue arose after Hiebert testified at a pretrial detention hearing in June. According to his complaint, Hiebert disclosed to prosecutors that he had encountered the defendant, Zeb Ortiz, while investigating an earlier, unrelated incident.

Hiebert also disclosed that Ortiz was a relative of his girlfriend, but had not recognized him at the time of that investigation. He said he did not file a criminal complaint in that instance because he had not found probable cause to charge Ortiz.

Hiebert met Ortiz again two months later when investigating a report of Ortiz firing at an individual from his pickup truck. In June, Hiebert provided testimony against Ortiz in that case, detailing the evidence against him and stating that, in Hiebert’s view, Ortiz would not comply with conditions of release and that GPS monitoring was not enough to protect the alleged victim or community. Ortiz was ordered detained through his trial.

But in August, Wheeler told Sheriff Villanueva that Hiebert’s testimony contradicted what he had told his staff about his previous contact with Ortiz.

“This information may impact on the credibility of Detective Hiebert,” Wheeler wrote.

The lawsuit states there was no judicial determination that his testimony had been untruthful, that the DA had drawn a false conclusion about Hiebert’s statements and that, as a result, Hiebert is facing the loss of his job and career.

The complaint alleges that Wheeler, investigator Mackenzie Spurgeon and Chief Deputy DA Cynthia Clark defamed Hiebert and used the Giglio process inappropriately. It further claims Hiebert was denied a due process right to clear his name. The complaint seeks compensatory damages, legal fees and other relief.

Wheeler’s office said it had not yet been served with the lawsuit and had no comment.

“The problem with Giglio is, there are really no parameters on when a prosecutor is supposed to make a determination,” Nieto said. “There’s this name-clearing theory in federal employment law when it comes to your employer. What we’re trying to show is that there’s a similar right under the New Mexico Constitution, when it’s a government actor that’s tarnishing your name and not necessarily your employer.”

Hiebert has been in limbo since August and expects to be fired soon, Nieto said. “The sheriff felt his hands were tied and he did what he had to do.”

Wheeler, an experienced prosecuting attorney, was elected as the 6th Judicial District Attorney in 2024. His district includes Grant, Hidalgo and Luna counties.

Clark has also been a prosecuting attorney in multiple districts, a staff attorney for the 6th Judicial District Court in Silver City and served as a Grant County Magistrate judge for two years. Instead of running for the bench, she joined Wheeler’s office as his chief deputy in January.

Despite their experience, Nieto suggested the Giglio notice might have been a consequential mistake.

“I don’t think the district attorney appreciated what all the consequences were going to be at all,” he said. “So we’re trying to make him have a clue, with this lawsuit.”