Jones v. Murdoch

• Decision Date: 22 January 2009
• Docket Number: No. 30,977.,30,977.
• Citation: 200 P.3d 523,2009 NMSC 002
• Parties: In re Grand Jury Presentation Concerning James Bort Jones. James Bort JONES, Petitioner, v. Hon. Albert S. "Pat" MURDOCH, District Court Judge, Respondent, and Second Judicial District Attorney's Office, Real Party in Interest.
• Court: New Mexico Supreme Court

200 P.3d 523

2009 NMSC 002

In re Grand Jury Presentation Concerning James Bort Jones James Bort JONES, Petitioner, v. Hon. Albert S. "Pat" MURDOCH, District Court Judge, Respondent, and Second Judicial District Attorney's Office, Real Party in Interest.

No. 30,977.

Supreme Court of New Mexico.

January 22, 2009.

Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, Marc M. Lowry, Albuquerque, NM, for Petitioner.

Gary K. King, Attorney General, Jocelyn M. Torres, Assistant Attorney General, Santa Fe, NM, for Respondent.

Kari Brandenburg, District Attorney, Michael P. Fricke, Assistant District Attorney, Albuquerque, NM, for Real Party in Interest.

Gary K. King, Attorney General, Santa Fe, NM, for Amicus Curiae Office of the Attorney General.

Trace Rabern, Attorney and Counselor at Law, Santa Fe, NM, Law Offices of Michael L. Stout, Michael L. Stout, Las Cruces, NM, for Amicus Curiae NM Criminal Defense Lawyers Association.

OPINION

SERNA, Justice.

{1} In this extraordinary writ proceeding, we are called upon to clarify how the target of a grand jury investigation may alert the grand jury to the existence of exculpatory evidence. In doing so, we are mindful of the delicate balance we must strike between the constitutionally independent powers of the grand jury, district attorney, and judiciary. And in striking that balance, our ruling today recognizes that each entity has an equally important role to play in ensuring that the rights of the target are observed without compromising the purpose or integrity of the grand jury investigation.

{2} As New Mexico's grand jury statutes—including the Legislature's most recent enactment, NMSA 1978, Section 31-6-11(B) (1969, as amended through 2003)—recognize, fundamental to a reliable indictment is a fair presentation of the evidence upon which the State asks the grand jury to indict, and the withholding of potentially exculpatory evidence strikes at the very heart of the grand jury's assessment of probable cause to indict. While some irregularities in a grand jury proceeding are subject to judicial review after the grand jury returns an indictment, a post-indictment remedy may be inadequate to cure the very real damage that an ill-advised indictment may inflict on a target's reputation even if the indictment is later dismissed or if the accused is innocent. Moreover, prosecutorial interference with the grand jury's fact-finding function also threatens the structural integrity of the grand jury process by undermining the grand jury's ability to accurately and independently assess the government's evidence of probable cause. Unless the grand jury is empowered to consider all lawful, relevant, and competent evidence bearing on the issue of probable cause, the grand jury cannot perform its historical role of determining whether those accused of wrongdoing by the government should suffer the burdens of a criminal prosecution. We therefore take the opportunity presented by this case to ensure that our grand jury system operates in an informed and efficient manner that is consistent with the constitutional and statutory provisions governing grand jury proceedings in New Mexico.

THE FACTUAL AND PROCEDURAL BACKGROUND OF THIS CASE DEMONSTRATES THE NEED FOR PRE-INDICTMENT PROCEDURES TO ALERT THE GRAND JURY TO THE EXISTENCE OF TARGET-OFFERED EVIDENCE

{3} Petitioner is the target of a grand jury investigation who asked the prosecuting attorney assisting the grand jury to forward a letter from Petitioner to the grand jury. Petitioner sent the letter under the provisions of Section 31-6-11(B), which permits the target or the target's attorney to "alert the grand jury to the existence of evidence that would disprove or reduce an accusation or that would make an indictment unjustified, by notifying the prosecuting attorney who is assisting the grand jury in writing regarding the existence of that evidence." However, a dispute arose between Petitioner and the prosecutor concerning the extent to which the information in the letter was appropriate for consideration by the grand jury under Section 31-6-11(B). Ultimately, Petitioner filed a petition for a writ of mandamus in the district court asking the grand jury judge to require the prosecutor to give the letter to the grand jury for its consideration. After several months passed without action by the judge, Petitioner then petitioned this Court for a writ of mandamus to compel the prosecutor to forward the letter to the grand jury. During the course of the first oral argument before this Court on the petition, Petitioner abandoned his request for mandamus relief against the prosecutor and instead asked this Court to construe his request for relief as a petition for a writ of superintending control to compel the grand jury judge to resolve the dispute between the target and the prosecutor.

{4} At the conclusion of the first oral argument before this Court, we issued an order for simultaneous briefing, which directed the parties to explore alternatives for effectuating the Legislature's intent in enacting the 2003 amendments to Section 31-6-11(B). To provide the parties with guidance, our briefing order advised the parties that the Court's request for further briefing was premised on our conclusion that the 2003 amendments to Section 31-6-11(B) were intended to give the grand jury more information about evidence bearing on the issue of probable cause. We also directed the parties to proceed on the premise that any information about evidence that a target wants to bring to the attention of the grand jury must be submitted through the prosecuting attorney and that it is the prosecuting attorney's responsibility to screen the offer of evidence from the target to ensure that it meets the evidentiary requirements of Section 31-6-11. Within those confines, we asked the parties to focus on the extent to which the courts should be involved in reviewing a prosecutor's decision to reject a target's offer of evidence for the grand jury's consideration. Because of the far-reaching implications for grand jury practice in New Mexico, we also asked for simultaneous amicus curiae briefs from the Attorney General of New Mexico and the New Mexico Criminal Defense Lawyers Association (NMCDLA). Before proceeding further, we take this opportunity to express our appreciation to amici curiae for their invaluable assistance during the briefing and argument of this case.

{5} For the reasons that follow, we conclude that the integrity of the grand jury system requires a pre-indictment procedure for resolving disputes between the target and prosecuting attorney concerning whether to alert the grand jury to the existence of evidence the target wants the grand jury to consider. But before discussing the particulars of that pre-indictment procedure, we address a series of related arguments raised by the district attorney and attorney general challenging this Court's authority to act under the procedural posture of this case.

THE EXISTING DISPUTES BETWEEN THE PARTIES PRESENT CONTESTED ISSUES FOR THIS COURT TO RESOLVE

{6} The district attorney argues that there are no contested issues before this Court because during the first oral argument before this Court Petitioner effectively withdrew the letter he sent to the prosecutor under Section 31-6-11(B). The district attorney further argues that there is no dispute before the Court because "the District Attorney has consented to submitting much of Petitioner's evidence to the grand jury . . . [and] Petitioner has not alleged that the District Attorney refused to present any evidence that he has requested to the grand jury." The district attorney, therefore, argues that this Court would, in effect, be rendering an advisory opinion. See City of Las Cruces v. El Paso Electric Co., 1998-NMSC-006, ¶ 18, 124 N.M. 640, 954 P.2d 72 (quashing certification from federal court because question was moot and the Court avoids issuing advisory opinions); see also Williams v. Sanders, 80 N.M. 619, 621, 459 P.2d 145, 147 (1969) (Watson, J., dissenting) (noting that a writ of superintending control should not be used for advisory opinions).

{7} Although there are instances when this Court may choose to render an advisory opinion, see City of Las Cruces, 1998-NMSC-006, ¶ 18, 124 N.M. 640, 954 P.2d 72 (noting that the Court may choose to address a moot issue if it is likely to recur or raises an issue of substantial public importance), we need not decide whether this case presents an exception to the prohibition against advisory opinions because there is an actual controversy between the parties. Even though the district attorney maintains that Petitioner withdrew his letter during the first oral argument before this Court, the record of the first oral argument reveals that Petitioner's counsel only indicated that he was "happy to redraft the letter in the form of simple questions as to the evidence if there [was] a problem with the tone of the letter." Because counsel conditioned his offer to redraft the letter on whether "there [was] a problem with the tone of the letter", and because this Court never definitively ruled that there was a "problem with the tone of the letter", we disagree with the district attorney's characterization of the statements of Petitioner's counsel as an actual withdrawal of the letter. Nonetheless, during the second oral argument before this Court, Petitioner's counsel indicated that he had redrafted the letter to excise objectionable argumentative language and had forwarded the letter to the district attorney twenty-four hours before the second oral argument before this Court. Despite the fact that Petitioner has now apparently substituted his original letter for a redrafted letter that purportedly contains no argumentative language, it still appears that a dispute exists between the parties regarding whether the grand jury should be alerted to some of the specific evidence offered by...