The Checks Against Corruption

Holding "the governors accountable to the governed."

The U.S. Supreme Court has ruled that, "[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."¹ In New Mexico, freedom of information is established under the Inspection of Public Records Act (IPRA), where its purpose "is to ensure…that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees." There's an axiom that, everybody wants the truth but nobody wants to hear it (or see it), to which, I would add, especially when the truth threatens to reveal someone's wrongdoings. Because the unfortunate truth that we often don't want to see or confront is the corruption that masquerades itself as truth, justice, and equality all under the umbrella of legitimacy that is the law. Wrongful convictions are one these truths that nobody wants to see, because in most instances when the truth is finally revealed it usually points to public officials in various capacities whose atrocious behavior and actions knowingly ignored the safeguards meant to prevent wrongful convictions in the first instance. A reality that I am currently living as I unravel the dereliction of duty and outright malice that has already claimed two decades of my life.

Obviously, in order for the idealized concept of a government of the people and for the people to manifest into a lived reality there must be transparency of the governmental actions that take place on behalf of the people. Which is why record keeping is such a crucial element and requisite to all notions of freedom and equality under the law. Without public access to records there is no way for We the People to assess or challenge the legitimacy of any particular governmental actions taken on behalf of the people under the law—that, in all actuality, is an extension of the people. Which brings us to the crux of the bizarre reality that the very public records that I have been writing about for months that would effectively demonstrate that I am wrongfully convicted are mysteriously missing.

Initially, when I approached the Second Judicial District Court (SJDC) Clerk's Office to request the records I would need to demonstrate to the court the reality and truth of my wrongful conviction, dereliction of duty certainly reared its head, but not malice. It was odd, obviously, that the response to my request for the transcripts of the proceedings that took my freedom was apparently not in the Clerk's possession. Apparently, it was the unwritten policy of the Court Clerk's Office to delegate its statutory document retention duties to former employees of the court to peddle back to the public if ever requested. Odd, yes, but certainly not malicious; and even when the responses from the former employees were subsequently just as odd—in that, they supposedly couldn't access the respective files because "the old software is not compatible with [the] new"; and, "by statute we are only required to save for seven years"—I still wasn't convinced that malice was a part of the equation.

Granted, I knew from experience, from when I had requested transcripts four years prior, that the Clerk's Office had the ability to convert older transcript files into newer PDF files, because that was what needed to happen in 2020. Though I became suspicious with their "seven years" response by "statute" because (1) I could find no such statute or court rule that said anything of the sort, and, (2) when I asked them what statute they were referring to they proceeded to cut off all communications by ceasing to respond to my emails. Which made me think, well, what are you hiding?

Apparently, they are accustomed to deterring people with nonsense about imaginary statutes and the incompatibility problem of "old files" and "new software." Which, of course, led to my official IPRA request on 11/04/2024, directed to the SJDC Clerk's Office—you know, the actual custodian of public records. Professional responses about how they comply with the IPRA law were forthcoming, but then came the oddities: "your request has proven to be too broad and burdensome for the SJDC to process"; followed by repeated time extensions where they kept needing more time to process a request on the records and proceedings for a single case. Because let's be clear, it's not as though I was requesting to see the records and proceedings for every case prosecuted by a particular District Attorney, or adjudicated by a particular judge—that could be "broad and burdensome"—all I was requesting was records on a single case. And then there was the additional oddity of why the official responses started to come through the Record Custodian's General Counsel—because, why would their lawyer be involved? Unless, of course, they knew they were violating the law.

Once their general counsel was involved I began to understand that they had no intention of producing the requested records. And true to my expectations, that's what happened: they claimed to have 1306 pages of case filings and documents; provided an invoice in the amount $457.10 for those documents; and then informed me that the remainder of my IPRA request was being forwarded to the New Mexico Supreme Court Clerk's Office (for the transcripts) since that was the court that handled my direct appeal.

Almost immediately I received correspondence from Clerk's Office of the state supreme court, informing me that it was the responsibility of the district court to provide transcripts of records from proceedings that took place under its purview and jurisdiction, then provided me with a complimentary copy of the docket file for my direct appeal. A docket that clearly showed that the transcripts of proceedings from my trial had been filed on 4/05/2007, with an additional supplemental filing of transcripts made on 4/09/2009—yes, two years apart from one another, and more than a year after my trial had concluded. The description on the docket didn't specify which volumes were filed first, and then added to subsequently through a supplemental filing, it just stated that there were 25 volumes in total—though, not clear whether the docket was saying that 25 volumes had been filed; or whether it was just informing that 25 volumes made up the entirety of the record. The Clerk's Office for the Supreme Court immediately offered to burn the files onto a CD and send them to me for $1.00, which I eagerly accepted. But when we received the files there was only volumes 1-20, and when I inquired about the remaining five volumes there was no response.

When we opened the transcript files and proceeded to the Master Index, however, it clearly confirmed that the entirety of the proceedings was in fact 25 volumes. Moreover, the index informed us that the initial proceedings we had requested, weeks prior to the official IPRA request (11/04/2024), which included the jury instructions, the verdicts, and the sentencing were all part of the missing five volumes. Which could only lead to one of two rational conclusions: either, (1) the entire "transcript of proceedings," as defined by Rule 12-211 NMRA, (B) which includes "pretrial, trial, and post-trial proceedings" which are statutorily required under the same rule to be designated in every case as part of the record for appellate purposes where a sentence of death or life imprisonment is imposed were never provided to the state supreme court for direct appellate purposes and review; or, (2) someone with power had persuaded certain public officials to ignore their duties under the law by making certain records appear "unavailable" to prevent certain uncomfortable truths about the odd and unorthodox nature of my conviction to come into the light.

Granted, the latter would imply a conspiracy—and, as someone important to me once said, "conspiracy theories are lazy thinking"—so let's consider the first rational possibility. In that, the entire transcript, which includes the "pretrial, trial, and post-trial proceedings" was never submitted to the state supreme court. Though theoretically possible, for that to have occurred several public officials would have needed to ignore the established, aforementioned Rule 12-211 NMRA, (B) where it clearly stipulates that "within fifteen (15) days after the receipt of the general calendar assignment [for the direct appeal], the district court clerk shall prepare and send the original and two (2) duplicates of the recording and index log to the appellate court and shall prepare and retain one (1) duplicate." The rule stipulates that the term "transcript of proceedings" refers to both audio recordings and the stenographic transcripts of the proceedings. And, even before the district court clerk is mandated to send the entire "transcript of proceedings" to the appellate court, the same rule establishes that "the court reporter shall file with the district court three (3) copies of the designated transcript of proceedings with a certificate of the court reporter that such copies are true and correct copies of the transcript of proceedings." And even assuming that both of these public officials fail in their respective duties and obligations under the law, according to the General Consideration section I, under the listed annotations for Rule 12-211 NMRA, the "[p]roper action of appellate court, when not receiving all of the transcript of proceedings from the lower court, is, prior to deciding the case, to obtain the transcript itself or to notify counsel to call the district court clerk's attention to the fact that some of the transcript was not received."²

It seems highly improbable that all of the above checks-and-balances, put in place to prevent miscarriages of justice, could have simultaneously failed in such a way that nobody noticed—not the appellate court clerk, not the justices supposedly reviewing the capital case, not the trial counsel who is responsible for "designating the record," and not even the appellate counsel—that the entire "transcript of proceedings" was not included with the case. Perhaps if the portions of the record that were missing were inconsequential, but the missing five volumes of transcripts, in this case, contain jury instructions, verdicts, and sentencing—which, for appellate review purposes, especially on a capital case, would have been fundamental for any legitimate review by the appellate court. And yet, we're to believe that every check put in place to prevent miscarriages of justice—not just from outright corruption, but general incompetence and error, as well—all simultaneously failed?

What seems more probable, a perfect storm of sequential failures all occurring within a single capital case; or, a someone or a group of someones who have an interest in preventing certain truths from seeing the light of day having called in a favor to prevent certain portions of a public record from appearing? Either way, this week I filed a Petition for a Writ of Mandamus (S-1-SC-40718), asking the New Mexico Supreme Court to compel the SJDC Record's Custodian Katina Watson to produce the record and make accommodations for me to inspect it. As stipulated in the petition, the Record's Custodian "has denied Petitioner's lawful request to inspect public records in accordance with the aforementioned IPRA statute, and in accordance with the enforcement of the statute in Franklin v. New Mex. Dep't of Public Safety, 517 P.3d 953 (N.M. App. 2022). Furthermore, its denial has not complied with the letter of the law set forth in Sec.14-2-11 Procedure for Denied Requests, as will be demonstrated herein. Finally, the Respondent has demonstrated that she will not uphold IPRA without a Writ of Mandamus compelling her actions. Therefore, the Petitioner requests that this Court enter a Writ of Mandamus commanding Respondent to comply with her ministerial duty to make public records available for inspection upon request in accordance with the legislative intent set forth in NMSA, 14-2-1, et seq., as interpreted in Franklin."

The New Mexico Supreme Court may be interested to know that a capital case somehow managed to be presented for appellate review without an entire "transcript of proceedings" to facilitate that review. Or, at least, that's what the current, respective court clerks would have us believe since there are apparently a myriad of reasons why the record can't be produced for inspection. As the U.S. Supreme Court stated, a functioning democracy requires a check against corruption, and transparency through the ability to inspect public records is that check. When public officials are allowed to use excuses like "too broad and burdensome," invent or cite imaginary statutes, or otherwise manufacture reasons for failing to comply with legitimate requests to inspect public records, not only is that democratic society not functional because the citizenry is not informed, but the supposed official acts of courts, public officials and employees cease to be official. Because if someone can be convicted and sentenced to death or life imprisonment for a capital crime and no complete record of those proceedings is ever produced for appellate review, that is not an outlier of concern it's an outrage against all notions of justice, freedom, due process, and equality under the law that demands immediate judicial or executive branch intervention and action. To do otherwise is to sanction the corruption or general incompetence that somehow manages to evade all the checks put in place to prevent miscarriages of justice, thereby preventing a democratic society from achieving its purpose of transparency—i.e., "to hold the governors accountable to the governed."

FOOTNOTES: 1. National Labor Relations Board v. Robbin Tire and Rubber Company, 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d (1978) 2. Schneider, Inc. v. Shadholt, 1985-NMSC-105, 103 N.M. 467, 709 P.2d 189.

Image courtesy of: Linkedin