A Father’s Concern Is A Judge’s Misconduct

The New Mexico Supreme Court has imposed a public censure of a district court judge for conduct on behalf of his crime victim daughter

This disciplinary proceeding arose out of a criminal case, Cause No. D-307-CR-2018-00203, in which Judge Martin’s daughter was the victim of an aggravated assault by use of a firearm. The criminal case proceeded to a two-day jury trial commencing on July 26, 2021. On the evening after the first day of trial, Judge Martin had a telephone conversation with Assistant District Attorney (ADA) Samuel Rosten. During that conversation, Judge Martin advised the ADA that he should use the phrase “brandish a firearm” or something similar in the court’s jury instructions rather than asking the jury to find that the defendant “pointed a firearm” at Judge Martin’s daughter. The next day, ADA Rosten submitted an amended jury instruction, for the court to consider, alleging that the defendant “brandished and/or pointed a deadly weapon” at Judge Martin’s daughter.

The jury found the defendant guilty of aggravated assault by use of a deadly weapon as charged in count I and a special verdict finding that a firearm was used in the commission of count I.

After the verdict, Judge Martin and his daughter met with the ADA to discuss the case. During that meeting, Judge Martin admonished the ADA about whether or not the defendant had been remanded into custody after the verdict.

After the defendant was sentenced, an appeal was filed in the criminal case, and this disciplinary proceeding followed.

Conversations with the prosecutor

A. On or about July 26, 2021, during a telephone conversation with Assistant District Attorney Samuel Rosten (“Mr. Rosten”), and after reviewing the proposed jury instructions filed in the court’s electronic filing system in Cause Number D-307-CR-2018-00203, a case in which Judge Martin’s daughter was the alleged victim, Judge Martin advised Mr. Rosten to use the term “brandished a firearm” in his jury instructions rather than asking the jury to find the [d]efendant “pointed a firearm” at the alleged victim, Judge Martin’s daughter.

B. On or about July 27, 2021, after the verdict in Cause Number D-307-CR-2018-00203, Judge Martin engaged in a conversation with Mr. Rosten and his co-counsel Assistant District Attorney Spencer Willson (Mr. Willson) after they were informed that Judge Martin and his daughter wanted to speak to them. Both Mr. Rosten and Mr. Willson left the courtroom to speak with Judge Martin and his daughter in a room down the hall from the courtroom. Before Mr. Rosten and Mr. Willson arrived, [Judge Martin] and [his] family had been advised that the defendant had been remanded to custody, but once Mr. Rosten and Mr. Willson arrived, [Judge Martin] did admonish Messrs. Rosten and Willson, “Good thing he was remanded, otherwise I would have told you to go back in there and try again.”

The court

We recognize that when the family member of a judicial officer becomes enmeshed in the legal system, it can be stressful for everyone involved. This is especially true when the family member is the victim of a violent crime. The natural impulse of parents is to provide comfort, reassurance, and protection for their children. In this case, Judge Martin may have felt that he was acting in the best interest of his daughter, however, judges, unlike other parents are held to a higher standard. See Rule 21-001. Based upon his experience, Judge Martin recognized a mistake of law in the ADA’s proposed jury instructions. Judge Martin believed that he was acting in his daughter’s best interest by pointing out the mistake. Judge Martin’s actions created an appearance of impropriety, which should not be ignored.

In regard to the conversation between Judge Martin and the ADA after the verdict, we must again conclude that this creates an appearance of impropriety. While we recognize that emotions may have been running high after the verdict, we again must counsel the judiciary that judges are held to a higher standard. See id. Due to the imbalance of power between a judge and a litigator, a judge must always promote confidence in the judiciary. See id. Therefore, Judge Martin’s admonitions to the ADA created both an actual impropriety and an appearance of impropriety.

Finally, with respect to the third allegation that Judge Martin allowed his daughter, who was both the victim and the witness in the criminal case, to use his chambers while waiting for her opportunity to testify, this also creates an appearance of impropriety. The trial in the criminal case occurred during the COVID-19 pandemic, and pursuant to this Court’s order, the Third Judicial District courthouse was under restrictions, which limited the public’s access to the facilities. Therefore, Judge Martin inappropriately allowed his daughter to remain in his chambers until called to testify. Because of the limited public access to the court facilities, this may not have created an actual appearance of impropriety, it did however create a potential for an appearance of impropriety. Therefore, Judge Martin’s conduct cannot be condoned.

(Mike Frisch)