The Criminal Conviction that Became a State Secret
the Deputy District Attorney fighting to keep the secret where it is
Public scrutiny is the legitimizer of anything "official" when it comes to the government. It's essentially the nation's check against institutional corruption. Which is why there is something unsettling about governmental dictates and judicial proceedings that are hushed or otherwise secreted away into dark corners, because without transparency there is no legitimacy. There are, of course, exceptions in areas of national security, such as military capabilities, a nation's water and food supplies, or power and communication grids. But, what about a criminal conviction far removed from anything "terrorist"? Would it cause you to raise an eyebrow to learn that state courts (not military courts, mind you) had taken it upon themselves to hide their actions in the adjudication of a criminal conviction from public scrutiny? Would you believe that judicial records could be sealed without a motion, hearing, or written justification signed by a judge? And, what would you say to a Deputy District Attorney who attempts to oppose said transparency after the fact?
Recently, as I was preparing the exhibit list for the filing of my habeas petition in the Second Judicial District Court (SJDC) in New Mexico, I sent a message to the Clerk's Office of the New Mexico Supreme Court (NMSC), asking for digital copies of the brief-in-chief and the subsequent decision in relation to my direct appeal (S-1-SC-29978). A routine request for digital copies that should have yielded the aforementioned documents, but instead yielded a rather bizarre response:
Please be advised that we have searched our files and have determined that the New Mexico Supreme Court does not have public case records responsive to your request. To the extent you may be seeking records from a sealed Supreme Court case, please be advised that Rule 12-314 NMRA protects sealed records from public inspection and disclosure. Such sealed records are only available to the parties of the case or other parties authorized by Court order.
"Sealed," really? I admit, I knew nothing about Rule 12-314 NMRA, but as I read the rule and began to process what was before me, it became clear that I had inadvertently stepped in something smelly, sticky and otherwise unpleasant, having to do with the adjudication of my case. To begin with, for years I had wondered why I could never find my direct appellate decision in West Law, NexusLexus or FastCase. Suddenly it was clear that the reason my case had never been searchable was because it had been decided upon on April 5, 2010 and then subsequently shielded from public view as a state secret. But, according to the rule cited by the Clerk, "[t]he Court shall not permit a court record to be filed under seal based solely on the agreement or stipulation of the parties. The Court may order that a court record be filed under seal only if the Court by written order finds and states facts that establish the following":
(a) the existence of an overriding interest that overcomes the right of public access to the court record;
(b) the overriding interest supports sealing the court record;
(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;
(d) the proposed sealing is narrowly tailored; and
(e) no less restrictive means exist to achieve the overriding interest.
see Rule 12-314 (G)(1) NMRA.
First, I reviewed the entire NMSC docket in search of any motion, hearing, or subsequent court order that could potentially explain the "overriding interest" that made my criminal conviction a state secret. There was nothing there, so I immediately sent an IPRA request to the Court, asking for all information pertaining to the initial sealing of the case—i.e., motion, response, and order. The forthcoming response, however, simply stated: "We have searched our files and made inquiries within the Court and have determined that the New Mexico Supreme Court does not have public records responsive to your request."
Of course, the Court isn't saying that it doesn't have records responsive to my request, it's simply stating that it doesn't have "public records" responsive to my request. Which is another way of saying, that either: (a) the pertinent records and subsequent order themselves were sealed; or (b) the "sealing" took place extra-judicially by the previous overseers of the state's highest court (e.g., a previous Clerk or Justice). Because, simply put, there are too many failsafes and redundant backups on court records to suggest that someone other than a Clerk or Justice could have maliciously sealed an entire case without leaving some kind of digital fingerprint.
It's important to note, however, that when the Clerk's Office (Elizabeth A. Garcia, Esq.) initially informed me that copies of the requested documents weren't publicly available due to the "sealed" nature of my case, in every way it appeared that the Clerk (or her staff) was simply relating to me what was apparent on their end. Which is to say, that, I'm not implying that they were being difficult or irresponsive. She (or they) were simply stating an observable fact from their file system and, accordingly, relaying that information. Moreover, it's understandable that the who-how-and-why of my case becoming a state secret is not something that current civil servants want to get involved with. Additionally, the current Clerk responded a week after the initial inquiry and response, stating, "[p]lease be advised, we have reviewed the sealing of S-1-SC-29978. The case has been unsealed. However, the sealed pleading filed on November 8, 2006, will remain sealed at this time."
Accordingly, the case has now been unsealed; but, it's unclear how that could even be possible when referring back to Rule 12-314 (I), "[a] sealed court record shall not be unsealed except by Court order or pursuant to the terms of the sealing order itself." I'm left to assume, again in accordance with Rule 12-314 (G)(2), that the initial sealing order stipulated that the "order itself, the register of actions, [and] individual docket entries [were] to be sealed" in accordance with the same rule, at (3), and therefore, it is not knowable why or under whose authority a capital criminal conviction has been shielded from public view for all these years without notice or explanation to the convicted person or the public at large.
The next relevant question is, what's the sealed pleading from November 8, 2006? For this I began to revisit the docket in the district court (D-202-CR-2004-03558), and surprisingly, there it appeared, as clear as day: 04/04/2005 SEALED DOCUMENT (MEMO): FILING ORDER ON MARIO CHAVEZ, SEALED LOCATED IN LOCKED CABINET, CRIMINAL DIVISION. This brought to memory a certain pre-trial hearing for conditions of release on 7/22/2005, where the then-DDA Gerald Byers made a rather strange comment to the court related to why a bond should be denied. All the normal things that prosecutors say were said—e.g., a threat to society; the severity of the charges; a potential flight risk, etc.—then added, "secret evidence" to his list of reasons. My recollection of the matter is that he added it as somewhat of a sarcastic afterthought—kind of like parting kick or punch to an opponent who's already down for the count.
Both dockets (SJDC and NMSC) show that on two different occasions the mysterious sealed pleading was unsealed by previous appointed counsel, neither of whom were willing to share with me what they had discovered. The latter of the two inquiries came about through a motion filed on 04/25/2016 by Lisa Schatz-Vance (formerly of the Public Defender's Office), and when I directly inquired as to the contents of the mysteriously sealed record, she stated that it contained "irrelevant phone records," and the more I pushed the less forthcoming she became (shortly thereafter she resigned and was removed from my case). But her answer never made much sense; because, why would phone records need to be sealed in their entirety? And, why would something that was "irrelevant" need to be secreted away in a locked cabinet for all these years?
Rule 5-123 NMRA is the district court's sister rule to the aforementioned rule cited by the Clerk of the New Mexico Supreme Court. It reads almost verbatim, and likewise specifically states, at (E), that a "motion to seal court records [is] required." Yet, I have thoroughly searched the respective dockets and have discovered no such motion. Additionally, the same rule states that, "[e]xcept as provided in Paragraphs C and D of this rule, no portion of a court record shall be sealed except by court order...the motion is subject to the provisions of Rule 5-120 NMRA, and a copy of the motion shall be served on all parties who have appeared in the case..."
Paragraphs C and D refer to proceedings commenced under such legal codes or acts as the Children's Mental Health and Development Disabilities Code, the Adoption Act, the Adult Protective Services Act, the Family in Need of Court-Ordered Services Act, the Abuse and Neglect Act, the Assisted Outpatient Treatment Act, and there are a few other obvious categories. Paragraph D refers to redacting documents to keep personal information like social security numbers, dates of birth, and account numbers safe from public inspection and misuse. It's unclear, however, how a capital murder case would somehow qualify for exemption to public scrutiny and inspection under either paragraph of exceptions.
Naturally, I reached out to my trial attorney Joseph Riggs to see what he might remember about "secret evidence" and his response, after being provided with a brief summary of recent events, was as succinct as it was illuminating: "I have absolutely no idea. I've never heard of a pleading being sealed like this. I never had that happen in my career (perhaps only briefly at the beginning of a case while a witness's identity was sought to be concealed for a short period of time—never after a case ended)." Which, strongly implies that whatever is hidden inside a "locked cabinet" didn't get there through the legal avenue of motion-hearing-and-written-order; which, in itself, creates an interesting queue of questions begging for answers.
Historically speaking, heads of state have always had the executive authority to have people detained or executed without a warrant, arrest, hearing, or the nuisance of public scrutiny. In certain kingdoms and time periods, all it took was a scribbled signature on a piece of paper or a spoken name in the shadows to condemn someone's life to a cage or death—then came democracy and the rule of law. Modern kingdoms, however, require a little more subtlety to sinister actions taken; more specifically, they require strict adherence to the letter of the law when the target of its malevolence resides within its borders—of course, a head of state can still use its military and intelligence divisions when said target is not within its borders.
The rules of the court, precedential appellate rulings, and statutes and codes legalized through the legislative process are all different forms and facets of the rule of law. In fact, the only reason that the enforcement of law is achievable is because of certain safeguards on the government's ability to dismantle or otherwise interfere with said liberties and lives. As previously stated, the principal safeguard is transparency—i.e., the public's inherent ability to observe and collectively challenge the governmental authority and power enforced on its behalf. But, when transparency is befuddled or otherwise denied by secret court orders and sealed pleadings and proceedings without legitimacy or showing of cause the nobility of freedom and justice are no more. What we're left with are questions and doubts as to whether or not a condemned someone was actually condemned rightfully.
Another attorney with personal knowledge of my case and this specific issue, Jason Bowles of Bowles Law Firm, has stated that, "Our courts have strict rules on sealing pleadings in a criminal case and the presumption is always against sealing and for open and public trials." Moreover, he added that "[he has] seen no grounds as to why anything should have been sealed in these proceedings and no justification for any sealing. This raises substantial questions in my mind, of due process and fair and open proceedings, where an individual is fighting for his liberty."
Attorneys and readers of this publication who have taken an interest in this case have unanimously commented that the related events are "extremely unorthodox," "fascinating," and otherwise "troubling", in that, apparently judicial pleadings can be sealed without notice, apparent justification, public scrutiny, or any adherence to law. In response to this rather bizarre and Kafkaesque reality, I drafted a motion to unseal for the district court's consideration. In adherence to Rule 12-309 (C) NMRA, I sent an otherwise cordial e-mail to the Deputy District Attorney Gerard W. Treich Jr., inquiring as to whether the State would be opposing my motion to unseal; and what I expected was no response at all, but what I received was odd, to say the least.
See, actual e-mail correspondence and subsequent response filed with the aforementioned motion as Exhibit R:
Readers can make their own assessments on the propriety of Mr. Treich's comments. What's clear, however, is that as a pro se petitioner I'm apparently prohibited from communicating with a public official via e-mail (because he doubts the authenticity of my address or identity) and because I'm incarcerated, which in itself is ingenuine at best. For years I have utilized the very same e-mail address for all communications with Second Judicial District Court, the New Mexico Supreme Court, the Federal District Court, the United States Court of Appeals (Tenth Circuit), and the United States Supreme Court. In only one instance has my identity ever been questioned—proof of identity was requested and immediately provided—but didn't prove to be an impediment to further communications. Moreover, as can be seen, the Deputy District Attorney copied two individuals at the Law Office of the Public Defender in his response, even though they don't represent me.
As one local attorney familiar with these events has commented, perhaps "[he] is careful and [ ] his comments about you not contacting him are more his unease about bar rules in dealing with unrepresented parties." Okay, I acknowledge that the little DA's unwillingness to communicate could potentially be just that: a generalized worry that he could be violating the rules of ethicality when it comes to communications with unrepresented litigants. But, I have my doubts.
Call it life experience, wisdom, or just a hunch, but when someone's response becomes emotional the reasoning behind the response usually has nothing to do with whatever is being stated. My message to the Deputy District Attorney was brief, cordial, and to the point. I specifically indicated that I was simply complying with the rules of the court and in no way was I asking him for counsel, favors, or action—all I asked for was the State's position on a routine motion. So, not only is his response bizarre, but what he did next boggles the mind.
He sent the following letter to the Warden (the actual letter will be presented in a subsequent post)¹:
(Dated June 3, 2025)
Re: E-mail from Mario Chavez, NMCD# 65079 D-202-CR-2004-03558
Dear Warden Lazarin,
I'm writing to inform you that I received the enclosed e-mail from Inmate Mario Chavez, NMCD# 65079 using the gmail address of mariochavez65079@gmail.com. I was surprised to receive an e-mail directly from an inmate, and I was particularly concerned that he was not represented by Counsel. I was not aware that the Department of Corrections provides access to e-mail services to inmates.
I have also enclosed my Reply to Mr. Chavez. In the reply, I describe only court procedures regarding Habeas Corpus matters and inform Mr. Chavez that I will not respond to any future e-mails from him. In fact, I have blocked the e-mail address that he appears to have used. I suppose it is possible that Mr. Chavez authorized someone else, outside of the Department, to send the e-mail on his behalf.
Mr. Chavez is, of course, free to mail pleadings to me if the District Court decides to move forward on his 5th Habeas Petition, and if the Court decides to allow him to represent himself after an appropriate Faretta Hearing.
Best regards,
Gerard W. (Jerry) Treich, Jr. Deputy District Attorney
Really? This public official has nothing better to do with the taxpayer money that pays his wages than write letters to wardens complaining about an e-mail regarding a motion filed in the court? But, of course, the underlying gist of this letter has nothing to do with the aforementioned e-mail, the motion, or the petition in the court; and everything to do with a petty little man so accustomed to abusing his power that he doesn't even realize when he's gone too far. In fact, anyone who understands how the abuse of power works understands that it's subtle, sometimes brazen but almost never overt, because deniability is an absolute must. What does the little DA want from the Warden? That's easy, he wants cooperation and, if he can get it, a crash test dummy to do his dirty little deeds: (1) infringe on my ability to communicate; (2) deny access to legal research; and, (3) curtail access to the courts. All of which is entirely within the Warden's discretion to give or take at any given moment.
I'm under no illusions that due process can't be ignored, privileges revoked, and perpetual prejudice lived. Keep in mind that I spent three years in a level 6, maximum security lockdown facility without as much as a misconduct report or any due process afforded whatsoever. And when a sympathetic administrator finally told me the truth about why I was there, he said, "because someone powerful called in a favor, I'm sorry." Which brings us back to the crux of this story: why is the little DA behaving so bizarrely over a motion to unseal? If you're thinking there's something more to this, I agree.
In fact, I was speaking with a legal advocate and friend from back home about the Deputy District Attorney's actions and, he said, "el fiscalito tiene nervios de acero con el corazón de pollito."
Yes, I said, it certainly appears so.
Moreover, the public should be concerned about a petty man with a badge who decides to block an e-mail address from a pro se litigant who did nothing more than comply with the rule of the court and ask for the State's stance on a routine motion. And, yes, obviously I could have sent him an old-fashioned paper, handwritten letter; or even a fax; but, when everything is done electronically (including court pleadings) and the little DA's e-mail is, after all, public information; and, let's not forget that he's a "public servant," why would I think anything would be wrong with an e-mail? Which, of course, brings us to a much more important question: why is it the State's position to oppose a motion to unseal when it's obvious that whatever was sealed was done so in direct contravention of the law?
These are just some of the questions that I hope to unravel as I sift through the pleadings of this case. If the Warden doesn't secret me away into a little dark dungeon there will be more to come; and, if he does, well, keep in mind that the truth can be hidden but never unwritten. The very nobility of freedom and justice often demands sacrifices, and those sacrifices are often made by the most insignificant of us. The fact of the matter is, a criminal conviction cannot be a state secret anymore than we can permit public officials to abuse their power. It's unlikely that the actual District Attorney Sam Bregman—and current candidate for Governor—has any idea what his little deputy is up to. But, as Mr. Bregman's candidacy progresses the actions of his little deputies may call into question his ability to effectively govern if there is no oversight on how and why the State's prosecutorial power is wielded. Closed inquisitorial proceedings may go back as far as the late twelfth century of Rome, and other nations have certainly used them in ecclesiastical and secular courts throughout history, but I would like to believe that today's America will not tolerate these abominations.
FOOTNOTE:
1. The Deputy District Attorney makes reference to the current habeas petition now before the Second Judicial District Court as the "5th Habeas Petition." This is blatantly false. The first habeas petition was filed pro se in 2010, and subsequently lingered on the docket for nearly a decade under the representation of the LOPD. The second habeas petition was filed on March 25, 2020, with two additional supplemental filings on May 26, 2020 and June 24, 2020, respectively. Supplemental filings are not subsequent habeas petitions, which the little deputy knows. What we're seeing is a preview of his future argument to the court for why my petition shouldn't move forward. Moreover, his comment discounts the fact that it has taken me until January of this year to finally acquire a complete copy of my trial transcript—which only came about as a collateral consequence of my Pro Se Petition for Writ of Mandamus. All of this the little deputy would have known had he read my current petition before the court (at ¶150).
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