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DA’s Office in Santa Fe fined for recent missteps

September 2, 2018 GMT

State District Judge Mary Marlowe Sommer has fined the District Attorney’s Office in Santa Fe a total of $1,758 for several errors made by prosecutors in July and August, court records say.

Among those errors were rule violations in a case involving teens accused in a parking lot shootout at Santa Fe Place mall in June. Police and prosecutors had cited the case as a troubling sign of increasing gang activity in the city. But prosecution delays ultimately led Marlowe Sommer to drop charges against some of the teens, who had been detained without a hearing more than three weeks longer than state law allows.

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“The unfortunate thing is some attorneys make mistakes and we have to live with them,” District Attorney Marco Serna said in an interview. “But the goal is to correct those mistakes. We are making changes in the office to address those issues and prevent them from happening in the future.”

Serna confirmed Friday he’s expecting another $500 fine from Judge T. Glenn Ellington for additional violations of rules surrounding discovery, the procedure in which evidence that will be presented at trial is exchanged between prosecutors and defense attorneys. Paperwork on that fine has not yet been processed, he said.

The District Attorney’s Office was issued three fines of $350 for violating discovery rules in the cases of three juveniles charged in the mall shooting.

In her order imposing the fines, Marlowe Sommer said Serna’s office — represented by former Assistant District Attorney Marcus Lucero — failed to turn over evidence within 10 days of filing complaints against the youth.

The judge also wrote in her order that the prosecutor’s motion requesting a continuance in the case said the inventory of a vehicle the teens had been riding in hadn’t been completed. But at a later conference in the case, she said, the prosecutor told her the inventory had been done.

“The state demonstrates a lack of preparation and follow-through on a case in which the Child is in detention,” Marlowe Sommer wrote.

She also found it concerning, “in light of the District Attorney’s position on gang-violence,” the judge said, that the District Attorney’s Office didn’t oppose a defense attorney’s motion requesting release of the teens who had been held past a deadline.

Serna called Marlowe Sommer’s statements about the vehicle inventory “a moot point.”

“Either way,” he said, the prosecutor handling the case “didn’t provide the proper discovery period.”

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“I don’t think this case was handled the way it should have been handled by the attorney,” Serna said. “That ultimately falls on my office, and as a result, [the case] was dismissed.”

He was surprised by the incident, Serna said, because Lucero, who now works for the New Mexico Public Defender’s Office, was “an excellent attorney.”

He didn’t have an opportunity to discuss the issue with Lucero, Serna said, because the fines were imposed on Lucero’s last day in the District Attorney’s Office.

Lucero did not respond to a message left Friday at the Public Defender’s Office requesting comment on the juvenile cases.

In another case, Marlowe Sommer ordered the District Attorney’s Office to pay $708 to cover the costs associated with calling a jury pool for a jury selection hearing that she canceled at the last minute following a dispute over the office’s late disclosure of an expert witness in the case.

In that case, Marlowe Sommer wrote in her order, former Assistant District Attorney Michelle Garcia said she’d sent defense attorneys four emails about the expert witness. However, the judge wrote, “only after the court asked pointed questions” of Garcia was she able to “decipher” that none of the emails Garcia referred to actually addressed the witness.

“The state’s explanations for the late disclosure lack merit,” the judge wrote.

Asked if he’d discussed this matter with Garcia, Serna said, “I don’t recall if I did or I didn’t. If I didn’t, it’s just I had other things on my plate.

“Luckily,” he added, “I have chief deputies who can discuss things with the attorneys they supervise. I know I had a discussion with one of the chief deputies, and it was addressed by the deputies with Ms. Garcia.”

Serna said money to pay the fines will come from “a miscellaneous fund” in his office.

He downplayed the importance of the fines Friday, saying, “These things, unfortunately they happen.”

Defense attorneys also have been fined, he pointed out.

Serna reiterated a statement he made earlier in the week, saying he felt judges in the First Judicial District were being strict about enforcing deadlines to prepare attorneys on both sides for more stringent case management rules he has been told will be implemented in January in the district, which covers Santa Fe, Rio Arriba and Los Alamos counties.

Serna acknowledged the rules his employees violated were not new ones.

On Thursday, Marlowe Sommer recused herself from another case involving Garcia, essentially accusing the former prosecutor of lying about why she was late to a hearing in the case.

The judge did not find Garcia in contempt of court Thursday but said she and Garcia had “trouble communicating” and that their relationship had deteriorated to the point where she felt it was appropriate to remove herself from any case Garcia would be prosecuting.

Thursday was Garcia’s last day as an employee of the District Attorney’s Office.

Serna declined to say whether he had fired her.

Reached by phone Friday, Garcia said she “will be making a statement about this in the future.”