Sunday, December 4, 2016

Belated Justice - Jury Finds against County Treasurer

Justice appears to have been done. Finally.

As most readers know, David Gutierrez has been our County Treasurer for nearly eight years. In 2014, he requested to ride along with a female employee (whom he'd sexually harassed before, I've heard) to the bank, then had her drive back by an odd route and ultimately offered her money for a couple of hours in a motel room. He then tried to convince his deputy to delay reporting this misconduct so that he could “smooth things over” with the victim.

Make no mistake: this was not sex, but a use of his power as her employer to embarrass her. In many states, what he did would not only be sexual harassment but a crime, solicitation of prostitution. Unfortunately, New Mexico's statute doesn't cover his precise conduct.

I'll disclose I have a history with this case: I worked with the County Democratic Party to help it throw him off the central committee and censure him. We also encouraged him to resign. I felt strongly that the Democratic Party should lead the effort to recall him. I also looked into the recall procedure and discussed the criminal statute with an Assistant D.A. 

I felt strongly about it because people shouldn't abuse power, particularly to harm those under their control. (As a lawyer in a big law firm, I thought that how others treated secretaries and other employees beneath them in the system was a major indication of their character.) That's particularly so with a “public servant.” It's particularly so when the employee is under some further disadvantage, such as being female or a member of a minority ethnic group.

I also thought Gutierrez was arrogant in refusing to resign when he had admitted such misconduct. It rankled that we were paying him.

There was also further information the jurors didn't hear. Once I wrote about this incident, I got several calls from people who wanted to tell me more about Gutierrez. They drew a portrait of an office in which the boss's undue interest in pretty women was systemic and unpleasant. 

It's right that the jury didn't hear such further accounts. Those were not under oath. The jurors' task was to decide just this case, on its own facts. 

I did not attend the trial. I have not researched the details of this public corruption / gross immorality provision, and offer no opinion on how an appeal would come out. (The prosecution may appeal the dismissal of a companion criminal charge.)

But the quotes I read from the defense seemed childish. His story that his proposition wasn't serious, but was meant to compliment her and cheer her up? Cow manure. His testimony is inherently weak – and doubly unconvincing because he apparently didn't say that when his deputy questioned him.
His attorney's “Donald Trump did it” argument in closing? Inappropriate. Also probably a more promising argument in Georgia than in Doña Ana County, where candidate Trump didn't do so well. Even most Trump supporters had to hold their noses over that aspect of his character – or deny it to themselves, or conclude that Trump's character flaws were part of God's plan.

Kudos to D.A. Mark D'Antonio and the trial attorneys for prosecuting Gutierrez and winning. I wondered why things took so long. There were reasons: the need for an actual request from the county, uncertainty about the victim's full cooperation, local judges recusing themselves, and the eventual judge's busy schedule. 
I'd rather have seen this many moons ago; but the wheels of justice turn at their own pace, not mine.

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 4 December, and on the newspaper's website, and will appear presently on the KRWG-TV website.] 

[The length of time Mr. Gutierrez sat in office after admitting this misconduct not only shows something about him but indicts community leaders, including this columnist, for at least laziness in not facing the significant time-challenge of recalling him from office.  Some folks didn't care.  Some folks, including me, pushed it for awhile, but couldn't generate enough enthusiasm and went back to doing other things.  We're all busy, and pressed for time, and recalling him would have been a significant chore requiring many participants.  But we ought to have done it, rather than paying him a salary for an unnecessary year or two and letting him suppose his conduct was all right.]

[As to why he wasn't tried and convicted on the crime of soliciting prostitution:  New Mexico doesn't have a criminal offense named specifically "Solicitation of Prostitution"; but there's a statute on "Promotion of Prostitution":

30-9-4. Promoting prostitution.  

Promoting prostitution consists of any person, acting other than as a prostitute or patron of a prostitute:   

A.   knowingly establishing, owning, maintaining or managing a house of prostitution or a place where prostitution is practiced, encouraged or allowed, or participating in the establishment, ownership, maintenance or management thereof;   

B.   knowingly entering into any lease or rental agreement for any premises which a person partially or wholly owns or controls, knowing that such premises are intended for use as a house of prostitution or as a place where prostitution is practiced, encouraged or allowed;   

C.   knowingly procuring a prostitute for a house of prostitution or for a place where prostitution is practiced, encouraged or allowed;   

D.   knowingly inducing another to become a prostitute;   

E.   knowingly soliciting a patron for a prostitute or for a house of prostitution or for any place where prostitution is practiced, encouraged or allowed;   

F.   knowingly procuring a prostitute for a patron and receiving compensation therefor;   

G.   knowingly procuring transportation for, paying for the transportation of or transporting a person within the state with the intention of promoting that person's engaging in prostitution;   

H.   knowingly procuring through promises, threats, duress or fraud any person to come into the state or causing a person to leave the state for the purpose of prostitution; or   

I.   under pretense of marriage, knowingly detaining a person or taking a person into the state or causing a person to leave the state for the purpose of prostitution.   

Whoever commits promoting prostitution is guilty of a fourth degree felony.

The only subsection remotely applicable would be 30-9-4(D): "knowingly inducing another to become a prostitute."  At least arguable, had the victim consented to prostitute herself for Mr. Gutierrez, he'd be guilty of this; but she didn't.  Could he have been indicted for "Attempted Promotion of Prostitution"?]


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