Assistant DA says judge's admonishment result of a 'misunderstanding'

A Portales man accused of drunken driving will not face charges after a district court judge admonished an assistant district attorney for "judge shopping," court records show.

Assistant 9th Judicial District Attorney Matthew Andrasko says it's all a misunderstanding. He said he took a felony drunken driving case dismissed by one judge to another court because he has compelling new evidence for a lesser misdemeanor charge. The lesser charge is routinely handled by magistrate court, not district court.

But District Court Chief Judge Teddy Hartley said in court documents the move was "one of the clearest examples of prosecutorial misconduct that this Court has encountered."

Hartley's statement is part of a Jan. 8 ruling in the case of a 22-year-old Portales man.

The man was originally charged with felony drunken driving causing great bodily harm. He ran a stop sign in Portales in April 2010, hitting a car and injuring a pregnant passenger. Andrasko declined to discuss specifics of the case. Defense attorney Dan Lindsey said the woman was injured but has since recovered. The woman could not be located for comment.

Lindsey said the suspect's blood-alcohol level was measured at .18, far above the legal limit. He sustained a fractured skull in the crash and what Lindsey termed "irreparable brain damage."

Hartley originally dismissed the case after a court-appointed psychiatrist deemed the suspect incompetent and not a danger to society.

The prosecution and defense stipulated, or agreed, the man was incompetent to stand trial and not a danger, according to court records.

Hartley initially dismissed the case without prejudice, a legal term meaning charges could be re-filed if the suspect were found competent or a danger to society.

Three days after Hartley dismissed the case, Andrasko instructed New Mexico State Police to refile the charges, this time as a misdemeanor DUI, in Portales Magistrate Court.

Hartley, who wasn't available for comment, responded by changing his ruling to dismissal with prejudice, a legal term that means the charges can't be filed again.

"The Prosecutors engaged in 'Judge Shopping' so that a different judge would consider the competency and dangerousness of the Defendant," Hartley wrote. "This was made clear in a letter addressed to Magistrate Judge Linda Short … in which Assistant District Attorney Matthew Andrasko stated, 'If Mr. Lindsey would like to raise competency, then he can do so via a motion that would allow this court (referring to Magistrate Court) to transfer this case to the Hon. Drew D. Tatum for competency review.'"

Tatum is the district court judge assigned to the Portales division while Hartley conducts court in Clovis and Portales.

"This Court does hereby formally admonish the Prosecutors for their actions in this matter," Hartley concluded.

On Friday, Andrasko said he intends to file a request early this week asking Hartley to reconsider. Andrasko said he has new evidence that is "pretty compelling" regarding the suspect's competency.

Andrasko said the decision to file the lesser misdemeanor drunken driving charges was "in the interest of justice" after he and others reviewed the testimony of the suspect's employer.

At an Aug. 24 hearing, Andrasko said the man's boss at a local dairy testified he had been working as night manager more than a year. "That's a very complex job," Andrasko said, "which led us to believe at the time that he was competent."

"We decided we had enough to refile the charge."

Andrasko said he wasn't present at a Dec. 13 hearing that prompted Hartley's scathing ruling. Andrasko said he was out of the state on orders for his Air Force Reserve job and another assistant district attorney handled the case.

Andrasko said he didn't know why the unnamed assistant district attorney didn't present the compelling new evidence to Hartley at the Dec. 13 hearing.

"I can say the judge didn't have all the information at that Dec. 13 hearing," Andrasko said.