SPECIAL PROSECUTORS EMASCULATED

A few years ago, an investigation was commenced in connection with the New Mexico Highway Department. Some questions were raised about transactions that occurred in Bernalillo County. District Attorney Robert Schwartz said he had a conflict, and asked the Attorney General to act. Attorney General Tom Udall had a conflict and issued a request for proposals (bids) for a special prosecutor to handle the investigation. The "low bidder" got the contract at $85.00 per hour. Things proceeded according to law, a grand jury was convened in Santa Fe County, and another in Bernalillo County. Witnesses were called. Indictments were imminent.

Officers of corporations were in jeopardy. The companies hired lawyers for the likely accused, and also hired lawyers for key employees (who were eye witnesses). A stone wall succeeded in delaying, but not thwarting the investigation.

Defense counsel for the officers then rooted out the illegal investigation and stripped the low-bidding ("crazy things going on")so-called special prosecutor. The defense counsel filed a motion with Bernalillo County District Judge Woodrow "Woody" Smith, seeking an order shutting down the Bernalillo County grand jury investigation (and preventing any indictments). The defense counsel claimed that the special prosecutor had no authority, because the Attorney General gave the special prosecutor too much authority. The Attorney General authorized the special prosecutor the authority to investigate and seek indictments and prosecute.

Judge Smith ruled that the defense counsel were right. The Attorney General gave too much authority to the special prosecutor; the Attorney General, who had a conflict that prevented him from handling the investigation, is required by law to retain authority to investigate and prosecute, and cannot delegate that authority to any private lawyer, however qualified.

The Supreme Court of New Mexico affirmed, with no published opinion.

In spite of his conflict, District Attorney Robert Schwartz announced for the newspapers that he had gone back and reviewed the evidence and that there was no basis for any criminal charges. He did not talk to the investigator for the special prosecution team, nor to the special prosecutor, nor did he review any transcript of the many days of grand jury proceedings in Bernalillo nor Santa Fe counties.

Not to worry. This ruling and outcome was unprecedented and is unlikely to be repeated. Mission accomplished. Disclaimer. We were the low-bidder. Over the 50 odd years since we got into criminal law in New Mexico, we have seen many instances of pure justice. This highway department investigation case was not justice; it was injustice. Figure for yourself.