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Report: Evidence issues may taint years of drug cases

Silver City Daily Press,
BYLINE: Stewart McClintic,
Silver City, NM

Potentially hundreds of convictions could be overturned after an audit of the Region VII Drug Task Force, based in Deming but led by the Silver City Police Department, showed mishandling of evidence in cases dating back as far as 2011.

Homeland Security agents and officers with the Las Cruces Police Department conducted the investigation, which found that Region VII officers involved had been mishandling evidence for years — with some evidence not sealed, some mislabeled, and some not labeled at all, while others showed evidence of rodent damage. The end result, according to Sixth Judicial District Attorney Francesca Estevez, is that many cases filed by her office could be overturned.

The drug task force at issue is comprised of local law enforcement agencies, Homeland Security, the New Mexico State Police and other federal agencies.

Estevez, who is also up for re-election, serves on the task force board but has no administrative authority, and said that the evidence problems are a major issue, although she couldn’t say how many cases might be affected. Many cases, Estevez said, could be overturned, but others will not be because of other overwhelming evidence.

“What happens when evidence is tainted? It’s a big problem for a prosecutor. First, it opens the door to corruption,” Estevez said. “So we have a huge mess at this task force, the result of which is some of our cases had to be dismissed. And the other worry is many of the cases have been adjudicated, they have pleaded to the charges. I don’t know if defense attorneys are going to try to overturn convictions. As soon as I found out about this, my ethical duty kicked in to do something about it.”

The report of irregularities, issued by Southwest Border High Intensity Drug Trafficking Area New Mexico Regional Director Mark Payne, showed that from 2011-2015, seized and sealed evidence, including hundreds of bundles of marijuana, many bags with grams of methamphetamine, and firearms underwent rodent damage, were unsealed, or were either mislabeled or not labeled at all.

“So what happened was [Payne’s office] discovered this disarray of files and absolute disarray of evidence files. The task force had to be audited by outside agencies to organize and sift through the evidence to see if anything was missing,” Estevez said. “Even if everything was accounted for, we still have the legal problem of how do we go forward on cases that were pending? So we’ll dismiss cases, and that’s a terrible position to be in because of law enforcement conduct.”

Estevez said that this is not about being on one side or the other, but rather about the principle and the law in handling this situation.

“I’ll probably be a very unpopular DA now amongst the cops,” she said. “I’ve disclosed what is my ethical duty, to the defense bar and to the public, certain police conduct that has tainted our ability to prosecute cases.”

Officials with the Region VII Drug Task Force did not respond to the Daily Press’ request for comment by press time, but Southwest Border HIDTA New Mexico Deputy Director Jose Ramirez explained that “HIDTA is not responsible for the investigation, and I don’t know if I would call it an investigation. Audit is a more appropriate term.”

“The HIDTA program is a grant program that provides funding to what we call initiatives throughout the state. So what will happen is HIDTA will conduct a drug threat assessment in the state,” Ramirez said. “HIDTA does a threat assessment, and then law enforcement agencies will come together to submit a proposal to the HIDTA executive committee, where they state they will address that drug threat and then ask for money to cover that cost over time.”

So in this instance, Ramirez said, the Silver City Police Department would be the lead agency to supply a commander, which he likened to a chief for the task force.

“Although that position is reimbursed to [the] town of Silver City, it was still a commander employed by the town of Silver City, so it was their employee that was running the task force there,” he said.

However, that position has been vacant for a while, and Ramirez declined to comment further on future actions because HIDTA, although it funds the task force, was not involved in conducting the audit.

Silver City Police Chief Ed Reynolds declined to comment Thursday.

Western New Mexico University Criminal Justice Department Chair Andrew Warren said the report is a big deal because of its implications.

“It doesn’t surprise me. I’m reluctant to be critical of defense bar because that’s what I am [a defense attorney],” Warren said. “I have a lot of respect for Francesca in particular for bringing this issue to light.”

Warren said that defense attorneys, or the “defense bar” — those who defend accused criminals in court, may not have known about the evidence custody issues unless actually presented with an evidence bag that was tampered with, damaged or mislabeled in some way.

“In their defense they may not be offering the stuff that’s unmarked,” he said. “It makes a big difference — if it is not being used in trial, then you can’t blame the defense bar for not catching it. The defense bar can’t be blamed for what they don’t have a chance to know about. Therefore, Francesca deserves kudos for this.

“It’s a big deal, that’s for sure, and a great tragedy,” Warren added.

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