Grand juries focus of legal controversy

At issue: Grand juries and how the secret panels are selected in Curry and Roosevelt counties.

On one side, the defense lawyers who make a living challenging the system.

On the other side, District Court Chief Judge Teddy Hartley and District Attorney Matt Chandler who say the system is fair.

The defense lawyers say dozens of pending criminal cases could be in jeopardy because the district court has failed to follow state law for excusing grand jurors.

Among the cases in question, the high profile murder trial of longtime and recently recaptured fugitive Noe Torres.

Hartley says he is confident the lawyers are wrong. The lawyers, however, are betting the question will soon be before the state's appellate courts for a final determination.

Attorney Kirk Chavez said he's had "numerous" inquiries from defense lawyers across the state interested in challenging the grand jury system in Curry and Roosevelt counties. He contends state law is clear on the central question of whether anyone but the court may excuse grand jurors from service.

Yet, for years — until the system was changed this summer — 9th Judicial District Attorney staff have been excusing grand jurors. Chandler and Hartley say it was being done only in a clerical capacity. The defense lawyers say it crossed the line.

"This is a very serious violation of the grand jury rules and will likely lead to a lot of litigation in the near future," said Matthew Coyte, a spokesman for the New Mexico Criminal Defense Lawyers Association. Coyte is the attorney who successfully sued Curry County, winning $450,000 for the abuse of Orlando Salas while being held at Clovis' juvenile detention center.

Coyte is joined by Clovis lawyers Dan Lindsey and Chavez.

"Although the grand jury is the tool of the prosecutor," said Lindsey, "it must be done fairly, and the law requires that (only) a district judge excuse grand jurors ... the law was clearly not complied with."

Lindsey recently convinced Hartley to throw out a grand jury's vehicular homicide indictment against former Clovis police officer Stephen Gallegos. Hartley ruled Chandler interfered with the grand jury in that case.

The grand jury originally submitted a verdict of "no probable cause" on the vehicular homicide charge, but changed its vote after Chandler began to "impermissibly ask and answer questions," about their deliberations, Hartley ruled.

Chandler said he didn't believe he did anything wrong.

Chavez is a former deputy district attorney who worked for Chandler. He charges Chandler's staff has been hand-picking grand jurors from groups impaneled by the court. Stacking the deck, Chavez said in a recent interview, to turn the grand jury from a tool into an unofficial arm of Chandler's office.

Chandler denies the allegation and the court has supported him.

Indeed, Chavez was hit with three contempt of court citations while trying to argue the point in a recent hearing before Hartley.

"I was disrespectful and perhaps unprofessional," Chavez said. "And for that I apologize. It doesn't change what has been happening."

Chandler says his staff contacted grand jurors only to let them know when to meet and excused them if a juror faced a hardship. It is a practice conducted by district attorneys in Curry and Roosevelt counties since 1979, according to Chandler.

"It is common practice across the state for district attorneys' offices or district court clerks to excuse grand jurors that cannot serve due to a hardship," Chandler wrote in a recent email responding to questions about the issue. "If a grand juror is excused, then the next alternate on the random list is called and asked to come to the hearing."

It may be common practice for court clerks to excuse grand jurors, said all three defense lawyers, because the clerks work for the court. It isn't common practice for a district attorney or his staff to excuse grand jurors for any reason, according to Lindsey.

"I'm not aware of any district where this was taking place or something would have happened by now," said Lindsey. "It's going to be scrutinized very heavily by the supreme court."

Said Coyte: "It would be inappropriate for a district attorney to pick and choose grand jurors. You would totally destroy the usefulness of the grand jury system."

New Mexico's Supreme Court has ruled repeatedly that grand juries are an arm of the court, not the district attorney's office.

"A supervisory duty not only exists, but is imposed upon the court, to see that its grand jury and its process are not abused, or used for purposes of oppression and injustice," the court's justices wrote in a unanimous landmark 2009 decision recently cited by Hartley. The decision goes on to note U.S. Supreme Court rulings that establish "The grand jury is not meant to be the private tool of a prosecutor..." and "The grand jury does not function as an arm of the prosecution."

Grand juries serve one function in criminal cases: determining probable cause.

"Their primary purpose is to make a charging decision," said Barbara Bergman, professor of law, an associate dean at the University of New Mexico and chairperson of the New Mexico Supreme Court's evidence rules committee.

Bergman said many district attorneys in New Mexico prefer using a grand jury because it is quicker and easier than going through a preliminary examination hearing in open court.

Although the target of a grand jury investigation must be notified, they are seldom present to confront accusers.

Without a defendant and their attorney involved in the process, "It can be done pretty quickly and pretty easily," Bergman said.

Unlike a jury at criminal trial, a grand jury may also consider and vote to indict using inadmissible hearsay evidence "because no one controls them," Bergman said.

Grand juries and their deliberations are secret by law. Jurors take an oath not to disclose evidence, testimony or the final vote from cases they review. There are stiff penalties provided for jurors who violate the oath and anyone who attempts to solicit such information from a grand juror.

In New Mexico, a grand jury is impaneled by a district judge every three months. They meet sporadically and as often as the need arises during those three months — basically when the district attorney seeks criminal indictments.

A panel consists of 12 people and a sufficient number of alternates to replace those who must be excused for reasons such as work conflicts or illness. And that is where the conflict has surfaced in Curry and Roosevelt counties.

For years "as is the custom in Curry County and in the 9th Judicial District," according to Hartley, the job of notifying grand jurors of when to meet, excusing them and replacing them from among a list of alternates was given to the district attorney's staff.

When Chavez challenged that process in February by filing a motion to quash client Enrique Deleon's murder indictment, Hartley ruled against him.

Hartley said his decision was based on a similar case heard by the state supreme court. Hartley noted while the appellate court "did not condone" the practice of anyone other than a judge excusing grand jurors, it refused to throw out the indictment simply based on a technicality.

He also ruled that in order for an indictment to be quashed, there had to be a showing of fraud or prejudice.

"The Court," Hartley wrote in his ruling, "finds that there was no showing of fraud or prejudice to this defendant (Deleon) in the conduct of the grand jury proceeding."

Nonetheless, days after Hartley's ruling on Feb. 27, the judge summoned Chandler and District Court Clerk Manager Shelly Burger and her staff to a meeting and ordered the grand jury procedure changed immediately.

Hartley said he ordered the change out of concerns raised from the Deleon case; specifically, he said, that grand jurors were being excused by someone other than the court.

Burger said there has been a transition period to ease into the change, but effective July 1, only the court clerk's office contacts grand jurors to let them know when to meet or excuse them from a session for hardship reasons. The clerk's office also selects the alternate to replace any excused juror from a list approved by Hartley.

Hartley said he is confident his ruling in the Deleon case will stand up to any appeal. But Chavez said that is the twist in all this legal maneuvering — there might not be any appeal.

Chavez asked Hartley if he could appeal his ruling while the Deleon case was pending. Hartley denied that request, based on case law that only permits such a procedure in extreme situations.

The problem, said Chavez, is once there is a decision in the case — guilty or not — there is no appeal on the issue of a grand jury indictment.

The grand jury only determines probable cause, Chavez said. A decision by a court makes that issue moot.