Sunday, May 22, 2016

Mark D'Antonio Should Continue as our District Attorney

In 2012, Democrat Mark D'Antonio beat District Attorney Amy Orlando, Susana Martinez's protegé

Martinez/Orlando mandated a scorched-earth policy: get rid of paperwork that might help D'Antonio and his people get oriented. D'Antonio invited everyone to reapply and hired all but one of those who did so; but Martinez people viewed staying as “disloyal.” Most top staff left. 

Four years later, James Dickens, a ten-year Martinez assistant, then Orlando's chief deputy, is challenging D'Antonio – in the Democratic Primary. In 2012, Dickens didn't apply to work under D'Antonio. He joined Republican Diana Martwick, 12th District DA, despite the long commute to Alamogordo. Dickens registered Democratic in 2013.

After winning a tough election against incumbent Orlando, D'Antonio brought serious and positive change. Do I agree with his every decision? No – but I'm not a prosecutor. 

Martinez/Orlando reportedly charged defendants with higher-level crimes than the facts warranted, knowing that lingering in jail facing those charges would soften up some defendants to plead to anything. (In 2015, the Court of Appeals overturned defendant Flores's conviction for letting his infant child die, because Martinez/Orlando had violated his Constitutional right to a speedy trial.)

A district attorney should aggressively prosecute crimes, particularly violent crimes, and should represent the community and victims' interests. But s/he also has a duty to justice. As one lawyer said, “D'Antonio was quoted the other day as saying 'people charged with crimes have rights.' I never heard that from Martinez or Orlando. And it's not a sign of weakness. It's a sign of respect for our system.”

That's a key difference. Respecting everyone's rights doesn't equate to “soft on crime.” Actually, it makes for better protection for the community. Trampling on defendants' rights means sometimes watching folks like Flores walk free. 

This race raises two interesting questions: what's Dickens doing in the Democratic primary? and has he committed a serious ethical violation?

He says he became a Democrat because on key issues Democrats, more than Republicans, are working toward the kind of world he wants for his children. (See my blog for details.) He sounds convincing.

But until last month all his campaign contributions were to Republicans, ranging from Martinez to 2014 sheriff candidate Craig Buckingham, and including several Martinez judicial appointees (all fellow former prosecutors under her). 

Would Dickens bring back Martinez-style handling of the office? One lawyer notes that while Dickens may have good instincts personally, the entire legal environment he's grown up in has been questionable: Martinez/Orlando, then the 12th District. A major campaign contributor is Matthew Gaddy - who gave Martinez big bucks both times she ran and helped fund the vicious attempt to recall three of our city councilors.

The ethics issue concerns Dickens's use or abuse of the electronic Case Management System. Attorneys are meant to use CMS for state business. Dickens looked into 48 Las Cruces cases during January-March, then told the Sun-News about it. The files contained confidential information. He used state resources for his own political purpose. D'Antonio, in a letter to Dickens's boss, called this “a serious ethical breach . . . potential criminal activity.” Dickens told me he could have had legitimate reasons for looking at some cases. (48 seems a lot.) He then asserted it was no big deal. 

Experienced neutrals are reluctant to comment, but one called the action “very unusual” and a New Mexico D.A. stated, “I can tell you I wouldn't do it.”

I like both men. Dickens is pleasant, and an experienced prosecutor, but I don't see that he would improve the office. I do see significant risks. I'll vote for D'Antonio.
[The column above appears in the Las Cruces Sun-News this morning, Sunday, 22 May, and will appear shortly on the KRWG-TV website under News --> Local Viewpoints.  I welcome comments, questions, and criticism here or on either of those sites.]
[On circumstances of Dickens's departure from 3rd J.D.: D'Antonio says he invited everyone to reapply.  Those who did reapply had no break in service.  Dickens says: (a) D'Antonio did not immediately make it known that people were welcome, (b) when that invitation was made, Dickens had already talked to the 12th District, and that (c) he wouldn't have been Chief Deputy under D'Antonio.   
D'Antonio says the top lawyers left en masse -- and that Dickens never spoke with him.  D'Antonio never said Dickens could not continue as Chief Deputy, because Dickens never asked, but D'Antonio concedes that the likelihood of Dickens being Chief Deputy was pretty limited.  He also says that knowing Dickens loathed his commute to Alamogordo, he reached out to him twice during the past four years to offer him a job. Once Dickens declined, once he didn't respond at all.
Who do I believe? D'ANTONIO.
First of all, the context: almost everyone close to Martinez left if he or she could afford to.  As D'Antonio puts it, "They were told that if they worked for me they'd be persona non grata, and that she'd get them jobs.  And she did."  She not only appointed many of her ex-prosecutors as judges, others suddenly got employed by entities where she had influence: CYFD, juvenile detention center, and friendly (Republican) DA's such as Martwick in the 12th.  (I've spoken to someone whom Martinez appointed to a judgeship but who later became a Democrat and worked for D'Antonio, and he told me he changed parties mostly because of conduct toward him by Republicans, though he wouldn't get specific.)  Interestingly, in 2013 Martinez judicial appointees Beverly Singleman and Richard Wellborn became Democrats, and Nelson Goodin (according to Wellborn, though Goodin denies it) thought seriously about switching parties.  That's the same year Dickens switched, but there may be no connection.
Secondly, Dickens's account doesn't sound real credible.  He had written a very negative letter about D'Antonio, and so might have special reason for concern; but if he'd had some interest in staying where he was (rather than undertaking a long daily commute!), wouldn't he have asked D'Antonio about his situation?  D'Antonio certainly hadn't told him he had to leave.  If I had a wife and two or three kids and a community and a church, I'd sure make a quick phone call to D'Antonio if I had the least interest in staying on.  So his account lacks credibility, and is almost internally inconsistent.  (He implied to me, but didn't actually state, that D'Antonio had told him he wouldn't be Chief Deputy; and one has to doubt that ceasing to be Chief Deputy was a deal-breaker, because in going to the 12th J.D. he didn't stay a Chief Deputy either.  He just had a longer commute and a Republican boss.)
Third, more context: reportedly Dickens and the ten others who left did not leave any transfer memos to help their replacements on cases, and had no consultation with attorneys who had to start fresh on old cases.  "They left us high and dry," D'Antonio recalls.  (This is supported by an email inadvertently left behind.)  To me (as a lawyer and as a taxpayer) that's not how things ought to have gone down.  (Dickens says he was careful to leave his case-files in good order.)]
[Anyway, the fact that Dickens made no inquiry, left immediately when all the others did, and went (as they did) somewhere Martinez had influence is pretty suggestive that he had no interest in working under Mr. D'Antonio.
Finally, I believe D'Antonio because although we have our differences and he ain't perfect, I don't think he's lied to me.]
[I do think that when I finally get around to reading the entire file, I'll agree with some of the DASO personnel that jailer Chris Barela should have been prosecuted.  My sense of the situation is that some of what Barela did that appears illegal was time-barred, so that D'Antonio could do nothing; and that other things he did that appear illegal didn't put money in his own pocket but passed county resources to others.  That has a lot less impact on a jury than lining his own pockets would have had, and a savvy prosecutor could reasonably conclude that a conviction in a jury trial would be unlikely.]
[At any rate: D'Antonio (who himself had been a Republican until not long before he ran) took on a hell of a tough challenge in 2012, and prevailed.  Thereafter he stuck to his principles despite some harassment from the Governor's Office.  He's been a good DA, although I think he can improve.  Why would citizens -- particularly Democrats -- want to toss him out for someone who may still be a Martinez loyalist?]
[I should also mention that Dickens is very convincing when he talks about why he switched parties.  While carefully avoiding criticism of Martinez, he discusses his personal learning curve about how important community mental health resources can be.  He also notes that the absolutist "We gotta get rid of all the illegals" view didn't suit him too well, because he knows (and has in his family) immigrants from other countries.  Similarly, the absolutist view articulated by the National Rifle Association troubles him.  He notes that everyone has the Constitutional right to bear arms, and says that's fine, but "there are some simple steps to limit" some of the unnecessary dangers that presents to the public.  He favors prudent steps to keep firearms out of the hands of people who aren't sane -- and he didn't see such steps as inconsistent with the 2nd Amendment.  Talking with him, I wished he was still here, working as a prosecutor under D'Antonio.  He had some good suggestions.  (However, he declined to discuss with me some of his views on social issues, and gave an excuse that didn't sound real valid to me.)  Dickens shouldn't be our next D.A.; but I wish Martinez/Orlando hadn't leaned on some capable and experienced prosecutors to refuse to work with D'Antonio.  D'Antonio's fresh approach and their experience and observations might have yielded an even better four years.]
[Sorry to have gone on at such length; but I've tried to be fair to everyone.]


  1. Just one caveat. You write, "Respecting everyone's rights doesn't equate to “soft on crime.” Actually, it makes for better protection for the community. Trampling on defendants' rights means sometimes watching folks like Flores walk free"; and suggest that D'Antonio respects those rights. However, he is quoted as saying that he was disappointed with the overturning of Flores's conviction on the grounds that his right to a speedy trial had been violated. So, is D'Antonio as stand-up or a take-a-pass kind of guy on matters of rights?

  2. Michael - I hear you. My take is that he wants to respect such rights more consistently than his predecessors; but as a prosecutor, he hates seeing a guy walk free because the previous prosecutors screwed up. (Case was tried very quickly after D'Antonio took over.) So he's likely saying it's regrettable the previous administration screwed up, and unfortunate that the Court of Appeal couldn't have just warned; but fact is, Court of Appeal likely felt it had no real choice.