Judge: DA office off case because cops recorded lawyer call

November 24, 2021 GMT

FARMINGTON, N.M. (AP) — A New Mexico judge has ruled that a district attorney’s office must be replaced as prosecutors in a homicide case in which Farmington police violated the defendant’s constitutional rights by recording him talking with his attorney.

However, state District Judge David Pederson declined in his Nov. 5 ruling to also dismiss charges against John ”Johnny” Marlowe Davidson in the 2020 fatal shooting of Justin Tapaha, saying that would be too harsh as it could deprive the victim’s family of justice, the Farmington Daily Times reported.

Davidson is charged with second-degree murder and of shooting at or from a motor vehicle and causing great bodily harm.

In addition to ordering the San Juan County District Attorney’s Office to hand off the prosecution of Davidson, Pederson granted defense motions to suppress illegal interview room recordings of Davidson’s calls to his attorney and to suppress evidence from Davidson’s cellphone and its contents.


Davidson’s attorneys filed an Aug. 2 motion to have the case dismissed, arguing that the Farmington Police Department violated their client’s constitutional rights by recording a privileged 30-minute conversation involving Davidson and the attorney he had at the time.

Pederson said Farmington police intentionally misled Davidson to believe he was not being recorded and that removing the DA’s office was needed to provide Davidson a fair trial “free of tainted evidence.”

“The illegal eavesdropping by FPD has tainted the entire process of prosecuting the case and in the modern era it is almost unfathomable that law enforcement would do it,” Pederson wrote.

There’s no way to determine what illegally gathered information Farmington police shared with the DA’s office because information from the call is included in multiple court documents and police reports, Pederson wrote.

The Farmington Police Department said in a statement that providing justice for Tapaha and his family was a “paramount priority” for the agency but also said there was no intent to deprive Davidson of his constitutional rights.

Chief Deputy District Attorney Dustin O’Brien said in a statement that the DA’s office did not believe disqualifying the office was necessary but that litigating the judge’s ruling would delay prosecuting the case.

Defense attorney Steve Murphy said the judge’s decision was appropriate.

“It’s just a shame to me that in this day and age, that anyone would ever think it would be appropriate to record anyone talking to their attorney,” Murphy said.

Pederson ordered the DA’s office to designate another prosecutor by Dec. 6 or he would reconsider the dismissal of the homicide case.