Doña Ana County's Judicial Elections

Judicial elections, low on the ballot and little publicized, will make a difference to many of our lives during the next decade or so.

Electing the three prosecutors appointed by Governor Martinez would short-change the court with regard to Family Law -- and could result in unfair criminal trials, the appearance of unfairness, and/or costly administrative headaches when these judges get disqualified. Or extra expenses on appeals.

Martinez, who came into office deriding the alleged "cronyism" of her predecessor, has appointed three cronies. Each had worked a long time with her and with District Attorney Amy Orlando, and each has experience solely or mostly in criminal cases.

A civil or criminal judge should have no close connection with (or bias toward or against) anyone in a case s/he’s hearing. A judge who has worked closely with a lawyer for many years, and still socializes with the lawyer, might be required to recuse herself from a case involving that lawyer. All three appointed judges have such a relationship with District Attorney Amy Orlando.

Watching Orlando and the three Republican judicial candidates at a recent Tea Party meeting strengthened my concern. Each judge stressed experience working with Martinez and Orlando. Body language, camaraderie, and remarks like, "We’re all concealed carry" underlined their closeness. As one of the judges said, "You’ve heard a little about everyone working for Susana Martinez."

Governor Martinez could have and should have appointed judges with more varied expertise. Her judicial appointees around the state are all, with one exception, prosecutors – and she also fired some public defenders. (Could a defendant be prosecuted by a prosecutor, judged by a prosecutor, and defended by someone appointed by a prosecutor? I think I’ll buy shares in a private prison company.)

In addition, Martinez made these appointments without regard to the court’s needs. Of the Third Judicial District’s eight judges, theoretically two each focus primarily on the Civil, Criminal, Family Law, and Juvenile Court, although it’s never quite that neat in practice. Martinez might logically have appointed judges with diverse backgrounds, to make sure someone had expertise in each area. By appointing three prosecutor pals, she gave us an overload of criminal law experts -- but no one with background in family law, complex civil litigation, or juvenile court.

Family Law requires sensitivity and insight. Experience with family law cases would surely help. Divorce and custody hearings are among the ways the court is most likely to impact the average citizen’s life. Most of us get through life without being charged with a non-traffic offense or being party to a civil case that actually goes to trial, and the majority of us are no longer juveniles. Sadly, a lot of folks get divorced – or, having been divorced, need a sensitive and experienced judge to handle emotionally charged custody disputes with a former spouse.

The Martinez trio lack family law experience.

In appointing Susan Riedel, for example, Martinez knew that the court’s need was for a family law specialist. Other applicants, including Marci Beyer (who is running against Riedel now) were more qualified. Riedel’s experience was solely in criminal law. A bipartisan nominating commission reviewed the applicants and reported. Martinez nevertheless chose her former assistant.

Despite its importance to us average citizens, Family Court usually gets the most junior judges, the ones with no choice. Applicants for judgeships often claim an interest in or commitment to whatever the court needs at that moment, but then, as they get seniority, move to the area that really interests them. I’d rather see a judge stay in family law and get good at it, not switch to criminal or civil cases the moment s/he starts learning a little about family law.

Beyer says that if elected she’ll stay in family court. Unlike her opponent, Susan Riedel, she actually knows a good deal about family law. (Riedel told the Nominating Commission that she intended to stick with family law, but it hasn’t worked out that way.) When I looked in the phone book under "Attorneys" for Mary Rosner’s name, the listing said "Rosner Family Law Center." Rosner told me she too intended to stay in family court, although she had substantial experience in other areas before specializing in family law for the past 17 years. (Her opponent, Jacinto Palomino, practiced only criminal law, almost solely as a prosecutor.) Gee, we could elect two judges, Beyer and Rosner, to do that important work who actually know something about it, care about it, and would stick with it.

In practice, each judge will sometimes have to handle all sorts of cases. Beyer, Rosner, and Darren Kugler each has a wider range of experience than the three Martinez appointees they’re running against.

If we screw up electing a state legislator, we can correct the error in two years. Screw up on the judges, and we’ll be saddled with our mistakes for a long time.


                                              -30-

[The foregoing column appeared this morning, 16 September, in the Las Cruces Sun-News, entitled "Court Needs Better Balance, More Family Law Judges."]

There's more to say on this subject.

Notably, there's something one Martinez appointee said to the Tea Party, where perhaps she assumed she was among only committed partisans.   The Tea Party event was billed as a "candidate forum"; but to avoid confusion, Tea Party leaders invited only the candidates they agreed with, the Republicans: Amy Orlando and the three Martinez-appointed judges.

The Hon. Susan Riedel volunteered at one point that there was something more she'd like to say:.  She continued:
"My opponent is Marci Byer. You’ve probably seen a gazillion signs [unintelligble - for?] . . . Marci Bayer
I will tell you that those signs are paid for by Judge Murphy.  Her husband represents Judge Murphy in his criminal case.  That’s where the funding is coming from."

There are several things very wrong with that statement by a candidate in a judicial election -- not merely  that it is almost certainly inaccurate and that it's doubtful that Ms. Riedel believed it herself.

First of all, judicial elections are supposed to be a little more seemly.  When I asked one of the Democratic candidates about her opponent, she stated immediately that while she'd be happy to talk about her credentials, it would be inappropriate in a judicial eleciton to make negative comments about her opponent.
Ms. Riedel's comments may have amounted to defamation.  Defamation is communicating to third parties something bad about someone that purports to be factual when you either know it's false or know you haven't got a clue whether or not it's true.

I know only what I've read in the newspaper about the Murphy case.  I've no knowledge as to whether or not he committed any crime.   I've never met him or spoken with him.  But last time I checked, in our country he's innocent until proven guilty.  He is also entitled to representation by a lawyer.

Ms. Riedel does not know (nor does Ms. Beyer) whether or not Murphy has contributed even a nickel to Beyer's campaign -- although word is that he's not exactly rolling in cash these days.  Ms. Riedel knows she doesn't know.  She also knows that campaign contributions are recorded -- even if the judicial candidates don't get to see those records.  Yet she stated as fact that Murphy had supplied the money for Beyer's signage.

I telephoned Ms. Riedel to ask her about what she'd said, and that conversation was interesting too.

When I asked whether she had said that the money for Marci Beyer’s signs came from Judge Murphy, she replied carefully, "I have heard that."
"Have you said that?" I persisted.
"I have heard that," she repeated.
I asked again whether she had not only heard it but said it, to the Tea Party the other night.
"I don’t think that’s how I said that," she stated, adding, "People say" the money came from Murphy, and she indicated that she’d only said that people said it and that she didn’t know.
I asked whether there were individual "people" who had said that to whom she could steer me so that I could investigate further, and she said "No, I’d just heard that Judge Murphy was paying a lot of money for that representation."
So, I asked, such money would go to Ms. Beyer’s husband, not to the campaign?
She said she was not saying Judge Murphy had contributed to the campaign, did not believe he had, could not properly know, and could not even know who was contributing to her own campaign." She also said, then or later, that if she had left the impression she meant as a fact that Judge Murphy’s money had funded the signs, she was wrong.

When I told her I’d been at the Tea Party meeting, she took me to task a little for not having told her that initially.  (As a journalist and as a lawyer, that ain't how I interview someone.  Even if I knew that a witness was having an affair with Greta Garbo, and had videotape of them together, I'd probably start by asking if he knew who she was.  With people you don't know, you can learn a bit from how they handle questions you happen to know the answers to.  You don't start out by proudly announcing how much you actually know already.)  For the record, I'm not saying that Ms. Riedel was lying to me on the telephone.  It may be that she had spoken very carelessly at the Tea Party meeting and in the conversation with me she simply recalled inaccurately what she'd said. 

With regard to my concern that Martinez had appointed only her former co-workers in the DA's Office as judges here, she said: "I can tell you what I tell many people, that Governor Martinez appointed people who she felt could do the job. You expect a governor to appoint as judges people she knows well enough to trust."

As to the relationship with present D.A. Amy Orlando, and whether it might result in disqualifications, she referred to the fact that "Chief Judge Driggers moved me to the cirminal division of his own accord.."

When the conversation returned to the Tea Party event, she said that my quote of her words (that Judge Murphy was the source for all those Beyer signs around town) was "Not what I said." She said that she said "I have heard, and you may hear, that . . ."  I told her that with all due respect I had to disagree, and that her memory might be flawed, and that her statement to the Tea Party had not been as careful as her statement on the phone to me.  She then said something like "What was heard might have been different." Then she said that if she had "given the impression" that Murphy was paying for the signs, "I was wrong to give that impression."

She also said that she had demonstrated her abilities as a judge during her time on the bench so far, and that I should ask counsel who’ve appeared before her about her fairness and about her competence in the family law area. I told her that while that was a good idea, there were some limits on the time I could put into a single column. I reiterated that the column is opinion, not a news report – and that it would make clear I wasn’t discussing their specific records on the bench, because I didn’t know much one way or the other.

She asked what my political views were. I said they depended on the issue but tended to be more toward the progressive than toward the Tea Party end of the spectrum, and that I was probably a registered Democrat at this point but had in the past been registered as an Independent. I also told her that while my column expressed my point of view, and wasn’t a news story, I tried always to be fair, and she said she’d hold me to "fair"and that "I hold myself to fair every day on the bench."

I also asked Jacinto Palomino about Martinez’s appointment of three of her former assistants. He replied, "We worked for Susana 14-15 years, so she knew our work ethic, our work product, and our legal skills and knowledge. Why wouldn’t she appoint people she knew, thinking ‘I know their judicial temperament.’ So it makes sense, as opposed to a stranger."

He also cited specific cases that he felt showed his legal skills and knowledge.  These included one in which he had successfully appealed a decision that 9-1-1 calls were hearsay -- gaining a decision that those could be played as evidence without requiring the caller to appear and verify them. 

He added that "I have one of the lowest recusal/excusal rates" here, which shows one, that I’m fair and impartial and, two, that the defense attorneys feel they’ll get a fair shake from Jacinto Palomino."  He did confirm that his experience was solely in criminal law (as did Ms. Riedel as to hers), but noted that he had represented defendants in some court-martial cases with JAG.

I spoke to some defense attorneys who stated, almost in the same words, that (1) he was a very nice guy and (2) he wasn’t the smartest judge they’d seen here. One also opined that he "tries to be fair." However, I can’t claim to have done an extensive survey.  Not having appeared before him or watched him conduct a trial, I can have no opinion.

Then there's Amy Orlando.  She said several things about her opponent, Mark D'Antonio.  That election, of course, is not a judicial election, so some of the ethical constraints don't apply; and when she said somethinig that seemed highly unlikely (that he'd already offered jobs to 14 local attorneys, 10 of them defense attorneys) she carefully prefaced it (as Ms. Riedel did not) with "I have heard" or "People have told me."   She also tried to frighten the people by describing very unpleasant people she alleged (more or less accurately, I presume) he had represented.   There too she added the disclaimer that criminal defendants had a right to a lawyer; but her obvious hope was that the good folks at the meeting would go home frightened that electing D'Antonioo would put all sorts of horrible people on the streets.

Her main point seemed to be that defense attorneys shouldn't be prosecutors.  Mark D'Antonio has been a U.S. Attorney (a federal prosecutor), and had been an FBI agent before that.  Thus he has prosecutorial experience.  I would imagine that his range of experience would enable him to do a superior job prosecuting criminal cases for us.   Who better to negotiate with a defense lawyer or see through a defendant's claim of innocence than a defense attorney who's seen the proceedings from the opposite chair?  Who better to know which prosecutorial tactics are dead losers than a man who has had to parry them?

Further, if you believe -- as many do -- that the Martinez-Orlando era has been a sad one for the district attorney's office, and you hope to present an inviting alternative, who better than a man who's not only prosecuted and defended but has been an FBI agent as well?   That should enable him to prosecute all the more effectively; and he may have finer judgment about when justice would be better served by compromise and when it requires whole-hearted prosecution seeking a maximum sentence.  A district attorney has a duty not merely to seek the highest possible conviction rate but to serve the public, a duty that may require a more nuanced mind than Ms. Orlando's.

After the candidates spoke, Harvey Anderson got up and introduced himself as the person who'd put the Confederate flag on the float this summer.  Somewhat startlingly, the place erupted in applause.  Orlando appeared to share the enthusiasm.  (Palomino, by contrast, seemed somewhat uncomfortable, as most any normal citizen would be in the 21st Century.)  Maybe she did so sincerely (and lacks a certain sensitivity, even decency, that I would hope for in a public prosecutor).  Maybe just she did so for political reasons.  One might reasonably say, well, she was at their meeting and seeking their help getting elected, so what's a little hypocrisy among friends?  I can't say that.  Racism is something I feel I have to speak up about, even when it might cost me a friend or a beating.  

Maybe it's not fair to expect Ms. Orlando to speak up on a subject like that.  However, it is fair to think Ms. Orlando ought at least to have sat there stone-faced, with her hands in her lap, nonverbally declining to join the fun.

The confederate flag issue is interesting.  After Anderson's appearance at the NAACP to discuss it, I called both an NAACP leader and Anderson the next morning.  Since my columns appear fortnightly, I haven't had space to publish one on that; but I'll post one on this blog on Saturday.  Basically, I disagree with the lady who told me at a Progressive Voter Alliance meeting that the flag was intended as a coded notice to racists that they had a place in the Tea Party.   She might be right, but after talking with Anderson I believe the initial intention was more mischievous and generally defiant than specifically racist, although it was highly tasteless and insensitive.    The way the Tea Party handled the reaction did clearly demonstrate racism as that term is commonly used today -- although not as that term would have been used 50 years ago.