Interrupt, advise, end, and notify

Accepting a stipulated agreement and consent to discipline, the New Mexico Supreme Court publicly censured a judge for engaging in 2 ex parte phone calls with a criminal defendant’s father, releasing the defendant following those ex parte calls, and failing to notify the prosecution of the calls. Inquiry Concerning Anaya (New Mexico Supreme Court December 13, 2021).

On Friday, April 3, 2020, the judge received an ex parte phone call on his personal cell phone from Fernando Gallegos, the father of Danielle Gallegos, who had been arrested that day on multiple violent felony offenses. On Saturday, April 4, the judge received and engaged in a second ex parte phone call on his personal cell phone from the father. After receiving the second call, the judge signed an order of release, and Danielle was released that Saturday.

The judge’s release of Danielle disregarded a well-established Santa Fe County Magistrate Court protocol that directed the judge on call over the weekend not to release alleged violent offenders until the next business day to allow the district attorney’s office an opportunity to review the charges and determine if a motion for pre-trial detention was appropriate. The judge had never before violated that protocol.

The Court acknowledged that it was understandable that the judge “might receive an ex parte phone call from a litigant or the representative of a litigant from time to time,” noting that New Mexico judges face challenges when working in the many close-knit communities in the sparsely populated state. The Court emphasized the importance of judges in these close-knit communities maintaining “the independence and integrity of the judiciary to preserve the prestige of the office and the public’s confidence in the judiciary.” It explained:

If a judge receives an attempted ex parte communication, it is the judge’s responsibility to not allow or engage in such communications. The judge should interrupt to advise the person that such communications are prohibited and redirect the person to pursue their matter through proper channels, such as through the filing of motions. The judge must also promptly notify all parties of the communication. By adhering to this requirement, the judge may effectively avoid any appearances of impropriety, as well as actual instances of impropriety.

The Court stated that, when it became apparent Mr. Gallegos’ first call concerned the judge’s upcoming review of Danielle’s conditions of release, the judge should have interrupted the call, told Mr. Gallegos that it was improper to call the judge about the matter, and told him “to consult with an attorney and/or to have the defendant file a motion,” and then the judge should have ended the call and “promptly notified the District Attorney’s Office and the defendant of the ex parte phone call and what was discussed.”

Further, the Court stated, when the judge received the second call, on recognizing the telephone number, the judge should have ignored the call or at least, when he answered it, advised Mr. Gallegos that he could not speak about the case without the prosecutor present and then ended the phone call and notified the prosecutor.

The Court explained why the judge’s release of Danielle after the 2 calls was improper.

The Respondent’s actions deprived the prosecutor of his right to notice and to be heard. He violated his own court’s established protocol concerning weekend arrests based upon these two ex parte calls. Respondent’s actions also created the improper appearance that Respondent abandoned his role as a neutral and detached, independent, fair, and impartial fact finder. Respondent’s conduct furthermore undermined the public’s confidence in our state judiciary by compromising the fundamental integrity, impartiality and independence upon which our judicial system is based. . . .

Although recognizing that the court’s protocol was not a law, the Court explained that the protocol was designed to prevent “the very thing” that the judge had done: deprive “the state’s attorney of the opportunity to review the case before releasing an alleged violent offender into the community. Respondent has an affirmative duty . . . to comply with all court rules and procedures. . . . . Court protocols are set in each court and are specific to each court to help ensure the proper administration of justice. Failing to abide by protocols, policies and/or rules set by a judge’s court threatens to undermine the effective administration of justice in that court and could place the alleged victim(s), witness(es), or the community at risk of harm.”

See “Remedy for an ex parte communication” in the summer 2021 issue of the Judicial Conduct Reporter.

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