Concerns Grow Regarding District Attorney's Office

An assistant district attorney’s missed deadlines in the Baby Favi case made headlines. That same fortnight, I read of three more missed deadlines, one by the same ADA. Not good.

That ADA has left, after many years with the Third Judicial District Attorney’s DA’s office. Everyone says he was a good, conscientious attorney. His resignation letter said he just couldn’t stand having such a heavy caseload that he couldn’t do his work properly. “I was shocked, given his deep commitment to the office,” a defense attorney said.

Few Las Crucens choose to move to Alamogordo, Deming, or Carlsbad. (Silver City, maybe.) A dozen ADAs from here are now ADAs in those towns. Some live here, commuting long hours. Why? Not because they love audio books.

Former ADAs, defense counsel, and folks in law enforcement, or other positions dealing regularly with our DA’s Office, are worried. Many say the DA’s Office is so understaffed that it endangers timely, competent prosecution of cases. (The Attorney-General’s Office is aware of local concern.) City detectives are taking a higher percentage of misdemeanor cases to the City Attorney’s Office for filing in Municipal Court. The Sheriff’s Department no longer runs as many arrest warrants or search warrants past the DA, saying response times aren’t quick enough. (Third Judicial District Attorney Gerald Byers says DASO has “our on-call number and my cell-phone.”)

Defense counsel complain that management won’t let ADAs make basic decisions on plea bargains. That means cases drag along, victims get no closure, and defendants wait longer in jail. Byers, whom we elected in 2020, says he tightened things up because each plea agreement goes out over his signature, and younger attorneys miss things – and don’t know what they don’t know.

There are just two deputies (plus Byers) with experience trying major felonies. Byers says there are two more on the way, new hires with extensive experience in other states, awaiting New Mexico licenses.

Critics emphasize turnover. Both former ADAs and defense counsel say some cases have had six or seven attorneys in charge of them over a few years. One defense lawyer said, “What’s really shocking is, I start talking to someone and before I know it, he’s gone, or she’s gone.” One source said several young lawyers “who would have become really good prosecutors” left, partly for lack of mentoring. Byers says he has increased training and has weekly meetings to improve communications.

Morale is reportedly poor. Three women recently received settlements based on alleged mistreatment by Byers when he was chief deputy. That also sparked an effort to unionize, rare among lawyers. (Byers stresses that he treats everyone the same. My guess is that his conflict with the younger lawyers was largely generational.) To everyone’s surprise, Chief Deputy A.J. Salazar was fired recently. He’s served formal notice he may sue. Byers, of course, could not discuss specific personnel.

“I remember when I was the little guy, and I try to treat people with respect, and stand up for people. I tell lawyers, “Don’t say it to your secretary if you wouldn’t say it to a judge,” Byers said.

Byers had responses to each allegation; but because people avoid saying to his face what they say to others, he’s unaware of the extensive criticism. He’s smart and experienced. My hope is that whatever has happened, and whoever bears how much fault, Byers takes these concerns seriously and improves matters ASAP.

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[The above column appeared this morning, Sunday, 26 September 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.]

[I kind of hated writing this column, because I know, like, and respect Gerald Byers. Still, the more folks I talked to, the less able I was to duck writing it.

The consistent themes repeated in so many conversations, most with people having firsthand knowledge, was compelling. Too, judges had forcefully expressed themselves in actions and written decisions.

In Mr. Byers’s defense: the pandemic has been a tough time for everyone; and the D.A.’s Office here had been weakened by partisan changes and other challenges for years. Under Susanna Martinez and Amy Orlando, the office allegedly charged people with unreasonably big offenses to bully them into plea bargains. Mark D’Antonio ran on plans to mix vigorous prosecution with consideration of treatment and other solutions other than prison, depending on circumstances. When he beat Orlando, she reportedly left files in disarray, and many of her people fled without giving Mark a chance. Mark, in turn, was a good lawyer with good intentions, but not the greatest manager in the world; an early on he trusted some people he perhaps ought not to have trusted. During much of D’Antonio’s second term, Gerald ran things; and perhaps the unionization efforts and lawsuits should have suggested that his management style didn’t sit well with a lot of young lawyers. Byers then ran unopposed.

Byers is steering the ship now. No outsider can distinguish with certainty whether a captain is restoring order after another captain’s lax discipline, and prudently cleaning house, or is wrongly firing good folks while running others off, intentionally or otherwise. But facts, plus hearing so many firsthand accounts, generated the opinions I expressed in the column. Regretfully. 

I hope it helps.  I know folks say to me things most of them haven't said to Mr. Byers.  Few want to irritate a powerful official.  (Most of the folks I spoke with had supported Mr. Byers's candidacy.  I hope he will read this as an effort to help him improve the office.] 

 

[These guys below, got nothing to do with any of this, but just wandered in to grab some grub and lighten my week, and this post:] 

 

Kind of a Sad Story

Dona Aña County prudently aborted its sole-source deal with Kelly Barker. (See Sunday columns April 11 and May 30, 2021.) Currently, Barker is still soliciting donations to her “nonprofit,” Uncaged Paws, but allegedly using its funds for other purposes.

Former associate Kathy Tarochione says she’s seen through Kelly. She’s apologized to people she helped Barker attack, and is now willing to talk frankly about Barker. (They bought and own a house together. Barker – understandably – reacted badly to Tarochione’s candor. Tarochione recently moved out, after accusing Barker of elder abuse.) Tarochione says Barker deposited a check from the nonprofit into their joint account for paying the mortgage. Barker’s bank records raise questions. People considering donating deserve to know the truth, whatever it is.

Ms. Barker didn’t respond to me in April, then told a third-party she wouldn’t talk, on advice of counsel. September 1st, I wrote her lawyer. Nothing. Five days later I wrote again. He responded asking many detailed questions, most silly, an obvious delay tactic. I quickly responded, answering the questions that were reasonable. He never offered anything to counter Tarochione’s revelations and other criticism.

Regarding personal use of nonprofit funds, Barker’s lawyer replied only, “What does ‘for personal purposes’ mean?” If neither he nor his client knows, the nonprofit might be in serious trouble. (Barker’s nonprofit is no longer in good standing with the State, perhaps for not filing required documents.)

We’d known Ms. Barker suffered a $50,000+ fraud judgment in a Michigan court. More recently, a woman alleged in detail a course of fraudulent conduct by Ms. Barker, claiming to be out more than $200,000. (There’s some evidence, including a promissory note.) A wealthy Detroit businessman told me he loaned Barker upwards of a million and got scammed. (As with the fraud judgment case, money going to Dubai was part of the story.)

Tarochione says Barker lied to the mortgage company by failing to disclose federal tax liens and the promissory note. I’ve seen the lien and note.

Tarochione also said Barker was collecting unemployment. Tarochione says when she asked Barker how she got unemployment, not having been employed, Barker said, “They don’t know that.” A “Final Collection Letter” from NM Workforce Solutions has warned Barker the Department will record a lien against her property and may take other legal action regarding the $18,274 it says was “overpaid” to her.

I believe the AG’s Office is investigating Uncaged Paws for fraud. (That does not necessarily mean Barker is guilty, but only that complaints have been received.) Barker procured a COVID-19 EIDL loan, and allegedly used some of the funds in impermissible ways. One focus of the Economic Injury Disaster Loan Program is protecting employees, of which Uncaged Paws has none. Bank records appear to confirm Tarochione’s charge that Barker used the EIDL loan for other purposes.

I can’t say Ms. Barker is trying to defraud donors. I’m not the DA. I can’t subpoena her records, or force her to talk to me. People are making various allegations, and various authorities are investigating her or have warned her. Ms. Barker has refused to deny or explain her conduct, and her lawyer tried to mislead me with his stalling letter, when Barker and he apparently had no intention of frankly discussing these matters.

Again, I can’t say how all these issues should come out. I hope that if Barker has explanations or defenses she shares them some time.

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[The above column appeared this morning, Sunday, 19 September 2021, in the Las Cruces Sun-News, as well as on the newspaper's website on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM or http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.]

[This is the sort of column I’d prefer not to write. Writing it, I’d have liked to hear from Ms. Barker her side of events. No one knows how often, before publishing a column, I hear additional facts or a different slant and significantly modify the draft column. In situations like this, where someone either has nothing to say, doesn’t think what s/he’ll say can withstand a few questions, or thinks I’m evil, I try to make allowances. I always try to look at documents and people’s accounts critically. After Kathy “stopped drinking the Kool-Aid” and became willing to talk about Kelly, I listened critically; but most everything she said she had a document to back up. And I know few people who have suffered a judgment for defrauding people, and few people regarding whom I’ve heard so very many accounts involving carelessness or dishonesty. (By the way, for more context, see my two earlier columns: "Some Concerns about Dogs" (11April) and "Barkhouse Walks, but Sole-Source Process Raises Questions about County Management" (30 May).

The County worked on a sole-source contract with Ms. Barker to do important work spaying and neutering strays and flying puppies to other states. At first, when folks unearthed documents from her past and gave sometimes moving accounts of her conduct, county management at first seemed inclined to circle the wagons against critics, with Ms. Barker inside, but didn’t do that, partly because problems surfaced. Kathy also reports dismissing a lot of the evidence critics provided as just other dog rescuers who were jealous. (One acquaintance wrote me that Kathy was apologizing on-line on Next Door, but also that she had a lot to apologize for. At least initially, he didn’t trust her apology.  It's worth noting that Kelly and Kathy apparently had met only on line until this year, when Kelly invited Kathy to move here, work with her, and buy a house together.) By the way, Kathy Tarochione has resumed podcasting, at https://m.facebook.com/nmcareslive.) 

Kelly must be a terribly persuasive person. Whether it’s the intense loyalty she generated in people here in the short time she’s been here, or the apparent willingness of otherwise sensible people to lend (or invest money with) her on questionable deals, she’s got something. And I’d like to think that her repeated ventures into the non-profit world (from “Global Flying Hospitals,” which the documents say was formed to fly people from other countries to hospitals, to “Uncaged Paws,” which flies dogs to new homes are meant to do some good. Contributors say she does some good.  Although one source quotes Ms. Barker as saying, early in her time here, “I don’t care so much about dogs, I’m a businesswoman,” a county employee who dealt with her, while wishing the county had done more research before working on a contract with Ms. Barker, says “she really loves dogs, I’ll say that!”

All interesting, but sad.]

 

Reflections on 9/11

I was at my usual seat in the wonderful Library of Congress reading room, when they announced it was closing immediately.  There’d been attacks. There might be more. D.C.’s streets were incredibly clogged with traffic fleeing the Capitol area. I was especially glad to be on a motorcycle. At supper that evening at a rooftop restaurant, we could see smoke from the Pentagon. The next morning, September 12^th, I photographed the Lincoln Memorial uniquely deserted. No tourists. No joggers turning around. Just one janitor pushing a broom along a lower stair. Surrounded by hordes of troops and cops.

Much of the world, including Muslims, was appalled. The U.S. would find and punish those responsible. The world sympathized. But the Bush Administration used 9/11 to justify invading Afghanistan and Iraq. (Saddam Hussein was a colossal jerk, but no lover of Al-Qaeda, which loathed secular leaders such as Saddam.) This was a huge gift to Islamic militants, whose rhetoric about the U.S. wanting to kill Muslims was sounding hollow, until the U.S. started doing just that.

Twenty years. As we mourn those who died September 11^th, and in those wars, and again thank the people of Gander, we must strive for enhanced international understanding.

The world is not descending into some apocalyptic battle between Muslims and Christians, or between Good and Evil.

But in too much of our world there’s an important struggle between the people who are curious, open, tolerant, and reluctant to judge others and the convinced, close-minded, incurious folks who rarely welcome change. I’m interested in what you believe, feeling no need to convert you to my spiritual ideas or be converted to yours. But if you are excluding, harassing, even killing others because of your beliefs, you’re wrong not only in my eyes but to most of those who follow the faith you are abusing. That’s true of the vicious and deluded members of ISIS – and folks who would kill doctors who perform abortions, or punish women for ending pregnancies.

Buddha, Jesus, and Muhammad all saw the injustice, poverty, corruption, and sickness around them, and saw priests and leaders using others’ religious faith to further their own personal ambitions. Each articulated a new set of principles meant to improve the world, each spent periods in solitary contemplation, and each gathered a small band of followers to spread the word, and was persecuted by the authorities for that. Each tried to live as he preached. The words of each were taken to heart by many; but, eventually, religious empires called churches, mosques, or temples were founded on their words.

Jesus neither enslaved nor killed anyone, and never mentioned abortion, but His words have been used to justify wars and slavery, and harassing women for their personal choices. Muhammad taught equality of men and women as a basis for spirituality, and tried to improve women’s lot. (Female infanticide was common then, and he abolished it.) Born poor, and orphaned young, Muhammad understood poverty and social exclusion. His words are as irrelevant to harassing women as Jesus’s are to forbidding birth control.

I don’t say we do not face danger from extremist Islamic terrorists. We do. We also face danger from extremist “Christian” and “patriot” terrorists, who trample on Christian spirit and espouse conditional patriotism: they love the country they would like ours to be, although not the freedom, equality, and diversity that makes us US.

We have a wonderful country to protect.

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[The above column appeared this morning, Sunday, 12 September 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.]

[Aside from all that we all feel about 9/11, and aside from my being in D.C. then, the World Trade Center made it kind of personal. All my teenage years, and beyond, my father was the head of public relations for the Port Authority. (He was the guy who managed things when the Beatles first visited the U.S. and flew into JFK, our family had been pictured on a U.S. postage stamp about that airport early on, and he got the reporters’ phone calls on Saturday morning if some clown landed a plane on the George Washington Bridge or something.) He’d been in meetings when the towers were first conceived and approved, and claimed to have pointed out in one meeting (as the PR guy likely would), that if they made the towers just 100 feet taller, they’d be the tallest buildings in the world. His office had moved from 111 8^th Avenue to the World Trade Center once the towers were up. I’d visited him there. Of course, by 2001 he’d been long retired from the Port Authority, and dead for five years; but I thought of how he’d have felt about the attack.]

[One thing I recall is that D.C. felt like a war zone for days, with helicopters flying overhead constantly. Another is how the attack saved Bush’s presidency. A Washington Post analysis days earlier had suggested he had little chance of re-election. Then, suddenly, his popularity in polls was record-setting. Countries don’t like being attacked, or told what to do by outsiders. That’s pretty universal, but our leaders so often fail to recognize it, and imagine that because the U.S. is so admirable and strong that locals won’t mind if we occupy their country for awhile, directing affairs. It’s for their own good. Somehow the dumb locals never quite seem to recognize that.]

[I feel sorry for Afghanis. I’d not care to live under the Taliban. (Or in Texas.) Women have experienced two decades of a more modern life. Young Afghanis have grown up in relative freedom. Now, it all goes dark. Over time, in their own way, factions we helped the Taliban unite will rebel, and the country will fracture into different factions, largely along ethnic lines. Meanwhile, the Taliban will be hospitable to terrorist groups that mean us no good, and mean moderate Islamic folks no good. It is not as clear to me as it always was with Viet Nam what history will say about all this, but I doubt history’s verdict will be kind to our leaders.]

[Meanwhile, I wish we could recover something of unity. We have urgent problems to solve, as a nation and as an international community, and distract ourselves with personal ambitions and petty squabbles.]

Veterans Courts Help Save Veterans' Lives

Justice should be blind to litigants’ wealth, power, influence, creed, and ethnicity; but maybe she should be compassionate concerning trauma, addiction, and mental health. I don’t mean falling for every defendant’s claim that childhood troubles made him/her do it; but openness to looking behind conduct for causes, and maybe approaching solutions.

We know jailing every addict, vagrant, and emotionally-challenged person who breaks the law doesn’t work. The same people shuffle in, hear the same stern judicial lecture, then go back to prison until their terms end and they repeat the process after days or months of “freedom.” Does them no good, costs us plenty.

Increasingly we have mental health courts, drug courts, family reunification courts, and even veterans’ courts. Veterans are a particularly tragic subset of defendants: many risked their lives for us, some in hellholes such as Khe Sanh and Fallujah; few returned unscathed, and some return very troubled, many suffering from PTSD. Some try coping through substance abuse.

Las Cruces Veterans Court gives them a chance. Qualified “clients” convicted of crimes enter a modified 12-step program in which close supervision and judicial encouragement buttress clients’ determination to address the root problem in a meaningful way. Clients experience both group and individual therapy, surveillance, and “the black-robe effect.” As they progress through a series of modules / phases, their peers judge with unique keenness their accounts of progress and their plans. They also periodically meet with a judge, the rare authority figure who takes a genuine interest in their recovery and their lives, not just their transgressions.

Here, The Hon. James Martin is that judge. A vet himself, somewhat conservative, and a former federal prosecutor, he wasn’t looking for touchy-feely new-age ideas when he became a judge sixteen years ago. When a more senior judge asked him to handle juvenile drug court, Martin viewed that as a court where “a judge would hold a crook by the hand and lead him through recovery,” and thought, “No! No! No! Doesn’t work. Not my job.” But after Judge Robles told him, “just trust it,” Martin attended seminars, talked to the treatment manager and public defenders, and found that the process seemed to work. “The kids helped me,” he says of his four years handling that court.

Once while Martin was paying for gas in Tularosa, a bystander said, “Judge, you don’t remember me, but . . .” then thanked Judge Martin for helping him go from law-breaking kid to a skilled tradesman who was now a father and a successful business-owner, employing others. That wasn’t Martin’s only such experience.

These specialty courts work. Adult Drug Court’s 448 graduates have a 7.7% recidivism rate, compared with 64% for released prisoners. It takes the proverbial village, including court staff, surveillance officers, the Community of Hope, prosecutors and defense counsel, plus other defendants. Clients “have to be ready for recovery,” but if they are, the village can help. Veterans’ court was added because while drug courts don’t take violent offenders, veterans’ PTSD or addiction often sparks violence. Each vet also has a mentor, not involved in his treatment, analogous to an AA sponsor.

I asked how Martin’s work with such courts had changed him. He said it “absolutely” had. “I used to have a less complicated vision of the world. Now the empathy I’m showing has added more shades of grey and more colors to the palette in my view of life.”

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[The above column appeared this morning, Sunday, 5 September 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.]

[ We need to support and expand “specialty courts.” They save unnecessary costs, both human and financial. If a minor crime resulted from mental impairment and addiction, and the person who committed it is serious about dealing with the root problem, yeah, it costs us something to facilitate that, but meanwhile we’re saving on jail costs; and the savings compound, in that rather than paying to house and feed me in jail, the authorities are keeping me out where I can work, be there for my kids, pay taxes, and begin or continue being a functioning member of the community contributing to its welfare. When you factor in the human and financial costs of the public taking care of abandoned kids, and the fact that most prisoners return to prison over and over, you’re not just talking what we save this year, but over decades of a person’s life. And that 7.7% vs. 64% is a pretty powerful statistic, particularly when we note that the court accepts high-risk participants. (I also learned from Court Administrator Sylvia Herrera that our adult drug court was one of the first in the nation, and has functioned successfully since 1998.) ]

"The Tippler"   © peter goodman