Presumption of guilt in Duran case is frightening

COMMENTARY: Lynch mobs, whether drunken or political mobs, care little about legal niceties. Consider the mob surrounding Secretary of State Dianna Duran.

Harvey Yates

Courtesy photo

Harvey Yates

Duran has been convicted in the press for gambling (an activity promoted by New Mexico), for withdrawing unexplained money from ATMs, for personal use of campaign funds, and for breaching the Campaign Reporting Act. House Minority Leader Brian Egolf has called for her impeachment. Speaker of the House Don Tripp has begun the procedure for her impeachment. And all of this happened before Duran had the opportunity to appear in court.

If our own liberties are to be protected, we must constrain the mob and assure that an accused is afforded protections developed over the centuries, and which lie at the foundation of our criminal justice system. We should not presume Duran’s guilt before all the evidence is in and judiciously considered.

I am wary of the swirling political currents that diminish our regard for fairness, and I am concerned that Attorney General Hector Balderas has contorted criminal procedure to gain his goal.

An April Albuquerque Journal editorial reported that Balderas asked Democrats for money to knock Republicans out of office. Politically charged Democrats want Duran to resign. Then a new secretary of state would be elected in 2016 — a presidential-election year when infrequent Democrat voters will vote. Some Republicans want the potential political albatross, Duran, to be cut-loose before the next election year.

The man supplying the mob with stimulants is Balderas. His approach to this matter has been inappropriate, if not illegal.

Balderas caused several grand juries in the state to issue subpoenas for documents. Because there were multiple grand juries firing out subpoenas, it appears likely that Balderas simply arranged that sitting grand juries issue subpoenas for information on Duran, much in the nature of a fishing expedition. If so, he appears to have breached the law. In order to convene a grand jury he was to have alleged facts that warranted convening it, and thereafter the grand jury, if it deemed appropriate, was to issue subpoenas.

Returned subpoenaed documents were to have been controlled by the grand jury. They include much personal information. The procedure is designed to protect the accused. It appears that the AG’s office subverted this process by taking direct control of subpoenaed documents.

Subpoena recipients were restrained from communicating with others. This too is a procedure designed, in part, to protect the accused. But, in the name of “transparency,” Balderas abandoned the grand-jury system and filed a “criminal information” in court revealing Duran’s private information. The press has fed off this information. Thus, Balderas avoided grand-jury protections afforded an accused, maximized adverse publicity against Duran, diminished her capacity to raise money to pay lawyers, and increased her cost of defense. Though Balderas went public with received information, the subpoena recipients fear to talk. They are constrained by orders in the subpoenas.

Once Balderas filed a “criminal information,” Duran became a defendant. Then the judge was to control the issuance of subpoenas. Yet, contrary to the law, it appears that the AG’s office continued to have a grand jury issue subpoenas.

Campaign finance reports reveal that many legislators breach the intent of the campaign reporting act — some egregiously. KOB recently exposed Rep. Moe Maestas’ failure to follow the act. Examine Rep. James Madalena’s reports. Campaign funds were used for eye vision care, Direct TV, a surgical co-pay and tires for his car.

So let’s have an impeachment party and include legislators who have egregiously violated the Campaign Finance Act. Let’s wait until Balderas gets subpoenas issued from multiple grand juries, and he exposes the legislators’ private information through “criminal information“ filings. But the impeachment process needs to begin before the legislators have a chance to defend themselves. This won’t do much for New Mexico’s status among those who regard the rule-of-law as important, but it will increase the tourist business — public lynchings add to the aura of New Mexico.

Duran, like others, deserves to suffer the consequences of her conduct, but Duran’s conduct does not give license to Balderas to contort the law. That would constitute malfeasance in office — an impeachable offense.

Yates was chairman of the Republican Party of New Mexico in 2009 and 2010. He has more than 55 years of experience in the oil and gas industry and wrote a book, Crony Capitalism, about former Gov. Bill Richardson’s administration. This column was originally published by the Albuquerque Journal.

This BBSNews article was syndicated from, and written by Heath Haussamen. Read the original article here.