DWI Defense Attorney Had 88% DWI Dismissal Rate Involving Officers Under Federal Investigation; 40 More Cases Dismissed Bringing Total To 195; APD Investigation Team Announced; Case Dismissal Time Line; APD Had No System To Track Cops Failure To Appear; Medina “Pivots, Deflects, Lays Blame, Takes Credit” And He Should Be Removed As Chief

On Friday January 19, it was reported that the Federal Bureau of Investigation (FBI) executed search warrants and raided 3 homes of Albuquerque Police officers and the home and the law office of prominent DWI criminal defense attorney Thomas Clear, III.  All 6 are allegedly involved in a bribery and conspiracy scheme spanning a decade to dismiss DWI cases. DA Sam Bregman ordered the dismissed 159 DWI cases because of the scandal and the Albquerquerqu Police Department has opened its own criminal investigation with an Internal Affairs investigation of the 5 officers.

The 5 cops implicated have been identified as Officers Honorio Alba, Joshua Montaño, Nelson Ortiz, Harvey Johnson and Lt. Justin Hunt with all placed on paid administrative leave. The FBI searched the homes of Alba and Johnson and the law offices of Thomas Clear III and the home of Clear’s paralegal Ricardo “Rick” Mendez. The US Department of Justice and US Attorney’s office have confirmed the APD police officers and the criminal defense attorney are at the center of a federal investigation involving the dismissal of hundreds of pending DWI criminal cases by the APD Officers ostensibly for some sort of remuneration to have the cases dismissed.

NEWS UPDATE:  On February 9 it was reported that APD Lt. Justin Hunt  resigned from APD. He was one of five officers placed on leave about two weeks ago. The police department confirmed Hunt worked in the DWI unit from 2011 to 2014. Review of cases dismissed revealed Hunt’s name came up in 18 DWI cases since 2011 with 15 of those were tossed out.  Court records also  show Thomas Clear III, who advertises himself as a criminal defense lawyer, was Hunt’s attorney in a 2014 divorce.

https://www.kob.com/new-mexico/albuquerque-metro/albuquerque-police-lieutenant-resigns-amid-investigation-into-dwi-unit/

DWI DEFENSE ATTORNEY THOMAS CLEAR III HAD 88% DISMISSAL RATE  INVOLVING  OFFICERS UNDER INVESTIGATION

On January 3, the Albuquerque Journal published on its front page an extensive article with the banner headline “Attorney, five officers and a pattern” written by its staff reporters Matthew Reisen and Colleen Heild.  Following are pertinent, edited excerpts of the article:

“Defense attorney Thomas Clear III was better than most at getting DWI cases dismissed. He had become well-known for it among clients and peers, as well as for his higher fee to handle such cases. … [A] Journal analysis of cases dating back more than a decade reveals that Clear’s above-average dismissal rate in DWI cases nearly doubled when the cases were filed by a select group of DWI officers with the Albuquerque Police Department.

Both Clear and those officers saw plenty of other cases go to trial, end in plea agreements or be deferred, records show. When they were on the docket together — almost 9 out of 10 times [or 88%] — it appears as if Clear’s clients couldn’t lose. More than 100 DWI cases reviewed by the Journal appear to follow a pattern: five specific officers dropping the ball — in a variety of ways — almost exclusively when Clear was the defense attorney.

A look at [Clear’s] track record in Albuquerque’s Metro Court shows:

Clear was listed as the defense attorney in 86 DWI cases that were resolved or closed from Jan. 1, 2021, to Nov. 1, 2023, in which he won dismissals of the client’s charges 45% of the time, or 39 cases. A primary reason for dismissals involved the officers failing to appear in court or their unavailability to testify. Others were dismissed because of issues with the evidence or because the six-month rule had expired.

The dismissal rate, in general, for DWI cases filed in Bernalillo County hovered between 26% and 30% over that same time period, according to statistical reports gathered by the Administrative Office of the Courts.

When considering Clear’s cases with the five officers under federal scrutiny, the dismissal rate spiked to 88%.  Clear’s dismissal numbers don’t include the 152 misdemeanor cases dismissed by Bernalillo County District Attorney Sam Bregman’s office because they involved the four APD officers who have been recently flagged for potential credibility issues.

During their time with the DWI unit, officers Alba, Johnson, Montaño, Ortiz and Lt. Hunt had plenty of cases that weren’t dismissed when other defense attorneys were on the case. Those typically ended in guilty verdicts at trial, deferred sentences and plea agreements. Hunt no longer handles DWI cases.

However, of the 104 cases those arresting officers filed and Clear defended — dating back to 2009 — 92 were dismissed. Montaño had 42 of the cases, Alba had 27, Hunt had 25, Ortiz had six and Johnson had four.  Many of the cases were dismissed after the officers missed pretrial interviews. There also were dismissals for not providing discovery and not meeting court deadlines. …  . ”

The link to read the entire unedited Journal article is here:

https://www.abqjournal.com/news/attorney-had-high-dwi-dismissal-rate-with-officers-under-investigation/article_938b75a4-bc60-11ee-9134-4b51cfcb273c.html

40 MORE CASES DISMISSED

On February 6, it was reported that  40 more cases have been dismissed by the Bernalillo County District Attorney’s Office in connection to the FBI investigation into accusations that members of the Albuquerque Police Department’s DWI Unit were getting paid to get cases dismissed. The latest case dismissals include some repeat DWI offenders. The cases had nothing to do with drunk driving. One was for aggravated fleeing from an officer and the other was for drug possession. The cases are ones the DA’s Office said it can’t prosecute now due to the officer’s credibility being called into question.

All of the dismissed cases were filed by DWI-unit officers Honorio Alba Jr., Joshua Montaño, Harvey Johnson Jr. and Nelson Ortiz are being investigated by the FBI and APD in a corruption probe. All 5 police officers have been placed on paid administrative leave during the federal investigation. Criminal  defense attorney Thomas Clear III and his paralegal, Ricardo “Rick” Mendez are also  targets of the federal investigation. An analysis of the cases file by  the officers and where the case were  dismissed revealed that the cases were dismissed exclusively when Clear was the criminal defense attorney.

https://www.krqe.com/news/crime/more-cases-dismissed-in-connection-to-albuquerque-police-dwi-scandal/

https://www.abqjournal.com/news/bernalillo-district-attorney-has-now-dismissed-195-dwi-cases-related-to-apd-corruption-probe/article_f3e4df12-c54d-11ee-b075-bbc990fa9043.html

APD INVESTGATION TEAM ANNOUNCED

On Friday, February 2, APD Chief Harold Medina held a press conference to address the “ongoing administrative investigation” involving  159 DWI case dismissals and the 5 police officers implicated in the DWI dismissal scheme. Medina said  “We are looking at everyone in the department who may have had a role in the alleged scheme among DWI officers.”

Medina announced he chose Commander Kyle Hartsock, who oversees APD’s Criminal Investigation Bureau, to head up the investigation into the five officers.  Medina said Hartsock, who previously worked for the Bernalillo County Sheriff’s Office and the District Attorney’s Office, has an “outside perspective with no ties to current or former DWI officers.”  Medina also said he has “hand chosen” the group to investigate made up of Hartsock and Deputy Commanders Josh Hawkes and Ken Johnston and none have any history with the DWI unit.  Medina said Hartsock has daily calls with the FBI and  passes  along any criminal findings to the federal agency as the internal probe continues.

Medina said this:

“We wanted our best investigative team, and we know that so much of our great investigations have come out of our violent crime section, so I just want to announce that Commander Hartsock will be the commander who’s in charge of this investigation.”

Commander Kyle Hartsock for his part said this:

“We will ensure that any officer or any personnel belonging to the city of Albuquerque that was either involved in any part of this scheme, or knew about it and didn’t report it, will be held accountable.”

The link to the quoted news source is here:

https://www.abqjournal.com/news/albuquerque-police-outline-history-of-dwi-case-outcomes/article_31716d9c-c06b-11ee-84da-7fbcb7fceffb.html#tncms-source=home-featured-7-block

TIME LINE OF CASES DISMISSED

The federal investigation surrounds accusations of APD  officers being paid to get DWI cases dismissed. During the February 2 press conference, Chief Harold Medina spoke in general terms about the dismissal of cases. He said he  learned about the claims involving the DWI Unit  in December of 2022 but it wasn’t until over a year in October of 2023 that he  called  the FBI about the cases.

Chief Medina confirmed that the DWI Unit’s members are being investigated, but he would not confirm specifically what the officers are accused of actually doing. Notwithstanding, Chief Medina said one way a DWI case gets dismissed is by police officers simply not showing up to court hearings. The chief said every missed court notice received is looked into. Medina said the problem is an officer missing court hasn’t always triggered a notice or that notice hasn’t always gone to the right place.

During the February 2 press conference, Chief Medina presented the following  timeline of APD’s total DWI cases and the cases dismissed:

  • 2015: 21% of 1,753 DWI cases were dismissed or 375 cases.
  • 2016:20% of 1,339 DWI cases were dismissed or 268 cases.
  • 2017: 40% of 1,291 DWI cases were dismissed or 527 cases.
  • 2018:40% of 1,422 DWI cases were dismissed or 576 cases.
  • 2019:43% of 1,633 DWI cases were dismissed or 711 cases, but Internal Affairs started to track all missed court dates
  • 2020:33% of 1,133 DWI cases were dismissed or 378 cases.
  • 2021: 37% of 1,103 DWI cases were dismissed or 410 cases.
  • March 2022: Pretrial interview standards changed after APD requested help over shortage of officers/officers being stuck in court
  • 2022:19% of 1,020 DWI cases were dismissed or 196 cases.
  • 2023:3% of 1,027 DWI cases were dismissed or 35 cases.
  • 2024:There are 7 open Internal Affairs investigations

Between 2015 and 2018, an average of 436 DWI cases were dismissed annually. In 2019, APD’s Internal Affairs Unit (IA) began investigating all missed court hearings. This was as a result of changes in APD’s federally mandated reform efforts under the Court Approved Settlement Agreement (CASA). Since 2019, Internal Affairs has investigated 304 times when an officer missed a hearing and confirmed misconduct in 163, or 54%, of those instances.

In 2019, there were 103 Internal Affairs investigations, the highest yearly total, with 29 of them confirmed misconduct. In the years that followed and with the Bernalillo County the District Attorney’s Office briefly put in charge of pretrial interviews of police officers, the investigations into missed hearings ebbed and flowed.

2020 saw 78 investigations with 43 sustained, and 2021 saw 37 investigations with 24 sustained. In March 2022, the New Mexico Supreme Court suspended pretrial interviews. That year, there were 75 investigations into missed hearings, with 56 of them, or 75%, sustained.

Hartsock said some of the investigations into dismissals were not sustained because the officer had a good reason to miss the hearing. If an investigation into an officer’s missed hearing found misconduct, they would be subject to a letter of reprimand.

For every additional sustained misconduct, the discipline moved up to a more serious level. A Discipline Level 1 is a “termination” for cause.  In 2023, the investigations into dismissals plummeted to 4 cases, with each one being sustained.

Medina declined to say if any of the sustained cases involved the officers being investigated by APD and the FBI. He added that, so far, he has not seen “a great pattern” of sustained violations against the officers.

Albuquerque police spokesman Gilbert Gallegos  said APD received no notices of officers’ missing court dates in 2023. Gallegos said the notices stopped coming in “at some point” after September 2022.

Links to quoted news sources with statistics are here:

APD’s full press conference involving FBI Investigation, Feb. 2

https://www.krqe.com/news/albuquerque-metro/albuquerque-police-department-to-provide-timeline-of-dwi-dismissal-scandal/

https://www.abqjournal.com/news/albuquerque-police-outline-history-of-dwi-case-outcomes/article_31716d9c-c06b-11ee-84da-7fbcb7fceffb.html#tncms-source=home-featured-7-block

APD HAD NO SYSTEM TO TRACK OFFICERS FAILURE TO APPEAR IN COURT 

During the February 2 press conference, APD Chief Medina asserted  DWI cases have long involved a game for defense attorneys to get cases dismissed as defense attorneys  push for multiple continuances until an officer misses a hearing and the case is dismissed by the courts for the prosecution failure to appear with  a witness.  Medina also admitted APD  has not had reliable system or  records of whether APD officers were showing up to court hearings.

APD policy is clear and it dictates a “missed court notice” should be generated when there is a failure to appear by a police officer. According to APD’s standard operating procedure, a supervisor in the department’s court services unit is supposed to review and a “failure to appear email” is supposed to be generated and entered in the internal affairs database if there wasn’t a valid reason for not showing up to court.  Medina said this simply does not always happen and he said “This has been a constant struggle.”

While Medina admitted APD has not had its own reliable system of tracking when officers don’t show up to court, he pointed toward a failure, or a systems gap, of more than a year by  the Bernalillo County District Attorney’s Office system that notified APD  when officers missed court.  Medina said APD stopped getting emails from the DA’s office in September 2022, claiming the DA’s office told APD at the time their system “crashed” or “failed.” Medina said this:

“We’re not gonna get into details, but yes, we are working to figure out why we weren’t getting as many notifications or where our notifications are going. That look at it. Not pointing fingers anywhere. We just don’t know,”

Spokespersons for both current DA Sam Bregman and his predecessor former DA Raúl Torrez said all communication about officers failing to appear is a simply a courtesy.  Both said it’s not up to them to tell APD what their officers are doing or not doing.  A spokesperson DA Sam Bregman said the office has consistently contacted officers directly if they failed to appear. A spokesperson for former DA Raúl Torrez said they were letting the law enforcement agency itself know. The metro court does  have a check-in system  which is offered as a courtesy, but it does not track which officers are repeatedly not showing up for court.

Medina credited the changes made in 2022 for curbing the number of dismissed cases. Medina said this:

“I’m asking the community to bank on the trust that we’ve built over the past several years, and give us time. It gives us time to get to the bottom of exactly what is occurring, ,,, We are looking at everyone in the department who may have had a role in the alleged scheme among DWI officers. … If this misconduct occurred for a decade or longer, we are going to get to the bottom of it.”

Links to quoted news sources are here:

https://www.krqe.com/news/investigations/albuquerque-police-didnt-receive-notice-officers-missed-court-for-16-months/?ipid=promo-link-block1

https://www.krqe.com/news/albuquerque-metro/albuquerque-police-department-to-provide-timeline-of-dwi-dismissal-scandal/

https://www.kob.com/new-mexico/was-there-a-system-to-track-apd-officer-court-appearances/

MEDINA BLAMES DA OFFICE

On February 1, APD Chief Harold Medina sent an 8 page single space letter to the Albuquerque City Council attempting to answer questions they had raised.  Medina identified one particular problem that he believed contributed to the dismissal of DWI cases and wrote this:

“Another shortfall in the criminal justice system has traditionally been the lack of ‘accountability for tracking missed appearances in court. The District Attorney’s Office currently has the responsibility to notify APD of missed appearances. … “

DA BREGMAN SLAPS DOWN CHIEF  MEDINA

On February 6, Bernalillo County District Attorney Sam Bregman, after reviewing Medina’s February 1 letter to the City Council,  issued a  strongly worded statement that reads in part:

“In a letter dated February 1, 2024, to the City Council, the Chief of Police stated “the District Attorney’s Office currently has the responsibility to notify APD of missed appearances.” This is simply not true and has never been true. The Federal DWI investigation is about alleged misconduct by DWI police officers. Instead of focusing on that issue, the Chief is blaming the District Attorney’s Office, the Law Office of the Public Defender, and the Metropolitan Court for the dysfunction and mismanagement of his DWI unit. 

… .”

BERNALILLO COUNTY METROPOLITAN COURT ISSUES STATEMENT

On January 25, the Bernalillo County Metropolitan Court issued the following statement regarding its “Officer Check-In System” on DWI cases:

“Being that it is not the Court’s responsibility to get witnesses to hearings, Metro Court does not currently have a system in place to notify law enforcement of officers’ attendance in court. However, just this week, the Metropolitan Court was asked by local law enforcement to develop such a system as a courtesy. It’s important to remember that most court records are public records in which specific dismissal information, if applicable, can be found through various resources such as through the court’s website or by visiting the courthouse.

… .

Realizing that officers are often scheduled in multiple courtrooms at once, the Metropolitan Court continues to utilize its “Officer Check-In System,” which the court developed in 2007. Through it, officers can “check-in” at one of the court’s kiosks as they enter the courthouse or check in online if appearing for a virtual hearing. Judges, staff, and attorneys are then able to use the system to see, in real time, if an officer has checked in and in which courtrooms an officer is scheduled to appear. Law enforcement court services liaisons are able to update the system from outside of the courthouse to notify judges and courtroom staff if, for example, an officer is running late or ill. Metro Court is one of only a handful of courts in the country with this technology.”

Link to quoted source material is here:

https://www.koat.com/article/albuquerque-police-update-fbi-investigation/46630667

FBI INVESTIGATION LIKELY IMPACT ON DOJ CONSENT DECREE

On November 16, 2023, it was a full 9 years that has expired since the city entered into the Court Approved Settlement Agreement (CASA) with the Department of Justice (DOJ) after the DOJ found a “culture of aggression” and a pattern of excessive force and deadly force.  Over the last 9 years, APD has devoted thousands of manhours, the city has spent millions of dollars on the reform process, creating and staffing entire divisions and roles and rewriting policies and procedures.

The Court appointed Federal Monitor has been paid millions and has performed extensive audits on APD’s performance measures and has  filed 18 audit reports on APD’s implementation of the reforms.  APD is now on the verge of being in full compliance of the reforms that will result in the case being dismissed.

Damon Martinez is the former U.S. Attorney for the District of New Mexico who negotiated the consent decree with the city of Albuquerque and APD. After he left office, he went to work for APD as a policy advisor, he no longer works for the city and is a candidate for Bernalillo County District Attorney. On February 2, Martinez said the FBI investigation of the 5 APD officers  could be a setback for consent decree compliance delaying the dismissal of the case.

Based upon the facts that are known publicly right now, Martinez believes that the court will want to go back and look at two specific areas of the consent decree reforms:

  1. The specialized unit section, which would involve the DWI Unit. Martinez said this “Does APD have information that their officers are not showing up to court? Is that information showing that there’s violations by certain officers of that standard operating procedure? And then what is APD doing about it,”
  2. Misconduct, specifically how internal affairs operated when they got news of possible wrongdoing by officers. Martinez said this: “I believe the court is going to look at what APD did with that information specifically. Was Internal Affairs advised and how did they conduct themselves?”

https://www.koat.com/article/federal-investigations-impact-on-albuquerque-police-doj-agreement/46601193

COMMENTARY AND ANALYSIS

Great emphasis has been placed on the number of DWI cases  dismissed and the failed system of being able to track none appearances by the police. What seems to have been placed on the back burner is to what extent the corruption goes into APD and exactly how much or what remuneration was paid the get the cases dismissed.

QUESTIONS NEEDING ANSWERING

As the FBI criminal investigation continues, there are at least 3 unanswered questions that must be addressed by the investigation:

  1. Did APD Chief Harold Medina, the Deputy Chiefs or Commanders, Lieutenants or Sergeants withhold information about the DWI Unit from the Federal Court monitor believing they could contain the scandal and resolve it on their own? Full compliance and dismissal of the Department Consent will likely be affected by the scandal. What is downright pathetic is how hundreds of DWI cases were dismissed and went totally undetected by the Federal Monitor.   It’s hard to believe that no one reported the problem to the monitor and his auditing team.
  2. Exactly what remuneration was paid by the defense attorney to the cops to get the cases dismissed? Was it cash or some other benefit paid, such as airline tickets, high end tickets to sporting events or entertainment event tickets or lavish trips?
  3. The police union contract mandates the payment of a minimum of two hours overtime pay at “time and a half” for schedule court appearances. Did the accused police officers claim time and a half for court appearances that they never attended, or agreed not to attend, as they were paid by the defense attorney?

It is clear that he Albuquerque City Council should demand a full audit of APD by the Internal Audit Department or the Inspector General and of overtime paid to the police officers implicated.

MEDINA’S POLITICAL SPIN

Ever since this scandal broken on January 19 with the execution of the search warrants,  APD Chief Harold  Medina has been in full “politcal  spin cycle” mode of “pivot, deflect, take credit and lay blame” with his interviews.  His February 2 press conference was a continuation of it. Medina takes credit for the investigation and taking action to hold people accountable for the corruption when it was in fact the federal investigation that forced his hand after he allowed the problem to fester.

APD Chief Harold Medina has admitted that the APD bribery and conspiracy scheme has gone on the entire 6 years he has been in charge of APD both a Deputy Chief and now as Chief.  As the Deputy Chief assigned Field Services by Chief Geier, Medina was directly in charge of the APD DWI unit, but Medina  failed to detect what was going on. Medina is known to be a micro manager and it difficult to believe nor understand that at no time did he ever get information regarding the nefarious conduct of the DWI unit.

OPVERTIME PAY ABUSES

There have been no less than 7 audits documenting the corruption, waste, fraud and abuse in APD police overtime over the past 8 years with one audit done by none other than former State Auditor Tim Keller. Keller and Medina have done nothing to curb the overtime pay abuse and there have been no prosecutions for time card fraud or overtime pay abuse by police officers, especially those assigned to the DWI Unit, even when found by the audits. In fact, there have been many APD Officers in the DWI unit who have been listed over the years as being in the top paid 250 city hall paid employees earing anywhere from $100,000 to $200,000 or 2 or 3 times their annual salary. One of the 5 APD officer identified in the current scandal was assigned to the DWI and paid over $124,000 because of excessive overtime.

KELLER AND MEDINA MUST BE HELD ACCOUNTABLE FOR SCANDAL

APD’s reputation has been trashed to a major extent by the scandal. APD will be viewed by many as having another bastion of “dirty and corrupt cops” who have brought dishonor to their department and the department’s professed values of “Pride, Integrity, Fairness and Respect”The whole scandal places an ethical stain on the department that may never be removed. This is before any charges have been filed, before any one is fired from APD and before we ever know who is responsible. The public must demand that there be a thorough criminal investigation of the police officers involved in the crimes and the APD command staff who should have known what was going on

Mayor Tim Keller and APD Chief Harold Medina have made more than a few stunning admissions. They admit that the APD bribery and conspiracy scheme went on the entire 6 years they have been in charge of APD but they never detected what was going on.  Both admitted that only after they found out the FBI was investigating APD, the decision was made to initiate a city criminal and internal affairs investigation and to proclaim cooperation with the FBI.   Medina admitted that he knew about the corruption as far back as December 2022 when APD first got a complaint related to the department’s DWI unit, yet he waited and essentially did nothing for a full year. 

Mayor Tim Keller and APD Chief Medina must be held accountable and responsible for what has happened.  Until Mayor Tim Keller and his administration and for that matter the City Council take aggressive action to deal with this latest APD crisis, APD’s professed values of “Pride, Integrity, Fairness And Respect” are meaningless words on a wall. The first step to restore APD’s reputation is the immediate termination of Chief Harold Medina. The Albuquerque City Council needs to take any action to hold APD Chief Harold Medina and his command staff accountable for this latest scandal.

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About

Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.