Burn Baby Burn!
New Mexico deemed a "misfit" for failing to afford equal justice to all
Fairness and equality before the law are two obvious concepts that go hand-in-hand with whatever our respective conceptions of freedom might be. While the Supreme Court Justices promulgate flowery-worded rulings on these concepts, the lived reality of what these terms truly entail is quite different for each of us, based on the circumstances in which we find ourselves and who we are ethnically, racially, our sexual orientations, our socioeconomic stations, or even our political and religious beliefs. And, yes, I recognize that we live in a nation where discrimination is technically illegal, but "technically" has very little to do with the lived reality of most; and even less to do with the bureaucracy that masquerades as "fairness" whenever a question is raised as to the legitimacy of the aforementioned fairness and equality. Because it's at this moment when Bureaucracy steps forward, clears the poisonous flem from its throat and proclaims, "No-no-no! There is a system in place to address, correct, and otherwise redeem the rights you are afforded 'equally' under the law."
But, for anyone who isn't part of the bureaucratic pantomime of general efficiency, what do you say to such an absurd statement? Yes, obscene gestures might make us feel better, but, really, that's precisely the response that bureaucracy wants from us—because our creative hand gestures with middle fingers elongated to their full extent never serve as anything more than a temporary laxative—so as never to have to address the real problem.
Recently, I received an email notification from the United States Supreme Court, informing me that my Writ for Certiorari was officially "DENIED" without comment. I was by no means disappointed by this notification; in fact, I expected it as par for the course on an otherwise predictable trajectory of foreseeable outcomes. And, because I had anticipated the denial, I was eager to pursue the next course of legal action that must be taken in the ongoing pursuit of exoneration from my wrongful conviction, which, as it so happened, included acquiring the necessary transcripts I need to present my newly discovered constitutional claim before the respective state courts.
First, for all the lawyers, paralegals, or law students in the room, you're probably thinking, "how is it possible that after twenty years of numerous court incursions that you don't already possess an copy (in paper or digital format) of the entire record of your case?"
Excellent question!
To which I say, do you want the short version or the long version? Let's assume you want the short.
The record was never provided to me despite numerous, documented inquiries on the matter. My direct appeal was handled by Kathleen McGarry, who, when I requested the record from her, stated that the record was only "on loan" to her from the district court and that she wasn't permitted to make copies. After that my case went briefly to the Public Defender's Office, first to the attorney John Walker and subsequently to Lisa Schatz-Vance when the former retired, and again the same request was made and responded to by Schatz-Vance that no record was available and that she would request access to the district attorney's archives—which was only granted on a very limited basis and didn't bring the entire record out from the shadows and into the light. Then followed Schatz-Vance's resignation, which was followed by the appearance of John McCall, who, claimed to have been forwarded "some transcripts when the case was handed over" to him, but when his stint was completed and the records were requested of him, he forwarded my family records and transcripts for a different Mario Chavez whose case and files had nothing whatsoever to do with my own. Naturally, we contacted him about the discrepancy but our entreaties were never responded to.
At that point I was temporarily representing myself and I filed a new state habeas petition, outlining the constitutional confrontation clause claims that just recently ran up the federal judiciary flagpole to die before SCOTUS. Most of that process was with counsel, Jason Bowles, who, again, likewise never had access to my entire record. In the brief time period, however, when I was representing myself, I filed a motion with the district court, requesting that a copy of the record be provided to me as I was indigent and in need of the record for the purpose of properly representing the claims already presented, and, so as to better familiarize myself with the totality of the circumstances of my conviction. I'll save you the suspense, the court said, "DENIED," and again, without the fanfare of an explanation—which, in fact, would have been relevant given that I had cited plenty of legal precedent and law stipulating that I had a right to the very record that substantiates my conviction.
I have said this before, based on what a friend once said to me, "conspiracy theories are lazy thinking, don't do it!" Which is certainly a reasonable bedrock of logic on which to stand, but at some point even coincidences stop being coincidences, right?
District courts, at least in New Mexico, are bastions of a vast variety of legal disputes. From civil to criminal these courts address and adjudicate everything from marriages, divorces, lawsuits, name changes, property disputes, to capital criminal cases like murder, which is to say, that the district court clerks are responsible for countless records on countless issues and cases that carry with them the kind of life, limb, and liberty consequences that demand, not only that records be maintained with the highest level of care and scrutiny to detail as possible, but, that these records be readily available to the public, on demand, for the obvious purpose of transparency.
The public has a general expectation that if ever it should require certain documentation or transcripts from a legal proceeding, that, the clerk's office will provide the records—for a fee, obviously. In fact, this isn't just a general expectation, it's actually the law.
New Mexico statute 30-6-20 (A), (C), stipulates that district judges "shall select an official court reporter to record the proceedings of his [or her] court as required." Then states the obvious, that "[a]ll notes, records, and evidence taken by the reporter shall be deposited with the district court clerk of the county in which the proceeding is docketed." And, in the case that someone should ever require any of the "notes, records, [or] evidences" the very same statute clearly states that these same "court reporters shall, upon request, furnish typewritten transcripts of testimony and proceedings recorded by them in any cause."
So imagine my surprise when we contacted the Second Judicial District Court Clerk's Office in pursuit of the elusive records that easily fall under the court's purview, providing a detailed list of dates for the case number of, yours truly, only to learn that, "we're sorry, but, we don't have these records."
"What do you mean you don't have the records? We just provided you with the case number and dates for proceedings that took place in your court—is this not the Second Judicial District Court?"
"Yes it is," the woman said, "but we don't keep records for cases that old. For that we'll put you in contact with the retired court reporter who actually recorded those proceedings, and, if she has them still, you then pay her the price that she asks."
"If she has them?"
"Well, yeah, the records you want are from almost twenty years ago—she may not have them anymore."
I was so flabbergasted (which, please forgive the momentary segue, so as to say that "flabbergasted" is a fantastic word that I don't get to use nearly as much as I would like) by her nonchalant admission that the district court clerk doesn't actually keep the "notes, records, and evidences" that, legally speaking, it's required to safeguard and likewise make available to the public upon request, that, I missed a golden opportunity for a real zinger. Something like, "so what you're telling me is that, the documentation of the liberty that this court wrongfully deprived me of is sitting "maybe" in some retired person's spare bedroom, basement, or attic?"
Instead, all that was said was, "Is that legal?"
"Oh yeah, we've been doing this for years," she said. "Just send me an email with the dates and documents that you want and I'll forward them to the retired clerk, Bernadette Perea, and she will respond to you, and, like I said, you pay her if she's able to provide copies of anything."
A very similar dialogue took place over email, once we had the clerk's email address, because I wanted to have actual documentation that the clerk's office was actually telling us that in order to get public records we are expected to depend on a retired court reporter who may or may not have the records we are requesting, and then, pay her the price that she asks, rather than the price the district court actually charges for copies. Because surreal doesn't even begin to scratch the surface of how bizarre, corrupt, and legally impossible this sounds.
Do I need to speak the obvious? Like, what if this retired person's home were to burn down, flood, or otherwise be destroyed by some natural disaster? Or, what if she were to go to prison, Panama, or otherwise find herself permanently removed from life as we know it? And, even more obvious, where in the statutes of the law pertaining to district courts in New Mexico (statutes 34-6-1 to 34-6-48) does it say that court records should be kept in some retired person's basement so that they can make a side hustle off of peddling public records? Because if ever a statute needed to be vetoed or revised—this is the one!
Two weeks go by and still there was no response forthcoming as to the list of dates and documents we had requested, so we sent an email inquiring as to when her response would potentially find its way to us. We received a prompt response stating that the requested information had been forwarded to the retired court reporter, and in case that person didn't respond in a timely manner, we were afforded the email address for Bernadette Perea so that future inquiries could be directed to her directly.
The retired court reporter did respond, but only to inform us that "per statute" she's only required to save documents for seven years. She wrote, "Old software is not compatible with new. By statute we are only required to save [records] for seven years. This is nearly 20 years old. If it was appealed, the appeals court may have the transcripts or the [a]ppellate public defender may have them also, unless [you were] represented by a private attorney, then that person may still have them. Do you know what year it was appealed?"
"What statute?" we immediately replied, but, of course, there was no answer.
The fact that she suggests the appeals court may have these elusive records is confusing on many levels. For one, according to the docket the "records" were transferred to and from the state supreme court prior to and after the direct appeal was concluded. All other appeals take place in the same district court through habeas corpus proceedings, which happens to be the very court clerk we just contacted in pursuit of these elusive records. Second, whether or not a particular attorney (private or public) ever had a copy of these records is irrelevant to the question now being asked, since it is not statutorily the responsibility of attorneys to safeguard public records, it's the responsibility of court clerks. Third, even assuming for a moment that there does exist a statute that permits private citizens (i.e., retired court reporters) to destroy public records after seven years, let's consider what this would imply. Basically, a person like myself who contends that his liberty was stripped from him in violation of laws and constitutional rights—violations by the State that he alleges caused his wrongful conviction—can be thwarted by a statute that essentially says, "you have seven years to navigate through state and federal appellate courts, and even though the appellate process takes decades to traverse we have the right to destroy public records relevant to your ongoing litigation after seven years." And fourth, regardless of whether the files in question are accessible through the "new" software is not the problem of the aggrieved person who has actively been fighting his wrongful conviction for the last two decades.
The New Mexico Constitution Article VI, Section 2, provides that the appellate process for anyone convicted of a crime is absolute. There is even legal precedent¹ in New Mexico for granting a new trial for a court clerk's "inability to produce a transcript," where three factors were weighed: (1) "whether the appellant has complied with all the procedural requirements in order to perfect his appeal"; (2) "whether the inability to obtain the transcript is without fault on the part of the appellant"; and, (3) "whether a substitute or alternative form of record may be had." And, the US Supreme Court² has likewise addressed a correlated issue on "the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." Further stating, that "there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal."
In one of its flowery discourses the Supreme Court³ labeled these types of actions by States who "deny adequate relief to the poor" where they "may loose their life, liberty or property because of unjust convictions" as "invidious discriminations." And further stated that:
Many States have recognized this and provided aid for convicted defendants who have a right to appeal and need a transcript but are unable to pay for it. A few have not. Such a denial is a misfit in a country dedicated to affording equal justice to all and special privileges to none in the administration of its criminal law. There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.
Apparently, New Mexico is "a misfit in a country dedicated to affording equal justice to all" given it's unwritten policy and imaginary statute determining that public records can effectively be pulled out from under someone as they traverse the decades long process of pursuing justice and exoneration. It's said that nobody is above the law, but the reality sings a much different tune. Consider the legal ramifications and consequences under federal law for someone who "alters, destroys, mutilates, or conceals a record document, or other object, or attempts to do so, with intent to impair the object's integrity or availability for use in an official proceeding": they face a fine and/or imprisonment for up to 20 years under 18 U.S.C., Section (c)(1). But when a court clerk in New Mexico does the same with the records needed in official proceedings the consequences are nonexistent, despite statutes that clearly delineate the law on the preservation, restoration and destruction of records—statutes clearly stating that "no public records shall be destroyed if the law prohibits their destruction"—yet, this is precisely what takes place when the custodial responsibilities of court clerks are delegated to private citizens who are permitted to say, that "old software is not compatible with new," as though that were somehow an acceptable response.
Freedom without fairness and equality is an empty edict. Equality or fairness before the law doesn't mean perfection, but at the very least it should mean that records of criminal proceedings aren't stored in someone's spare bedroom or basement. At the bare minimum it should mean that when a convicted person places a claim before the court and asks for a copy of the official record to substantiate his claim, that that record be produced without question or delay. Because when this doesn't happen, we're not just a "misfit in a country dedicated to affording equal justice to all," we're a hypocrite before the world and a criminal at large. It is absolutely "invidious discrimination" for a criminal defendant to first be denied a copy of his legal proceedings; and then, told that even though his appellate proceedings have never ceased, and his case never having been inactive, that the records have been essentially deleted is in itself the very definition of criminal. Because when this happens, there is no system or method to address, correct, otherwise validate our rights under the law—there is just Bureaucracy's laughter echoing down the hallways of our state and federal judiciaries—which presents the question, is this justice in America?
FOOTNOTES: 1: State v. Moore, 87 N.M. 412, 534 P.2d 1124, 1125 (N.M. App. 1975) 2: Brett v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) 3: Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)
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