N.M. SUPREME COURT

In the Matter of Thomas A. Rutledge and 1. William Quickel Attorneys Licensed to Practice Before the Courts of the State of New Mexico.

FORMAL REPRIMAND

In October 1996 an incident occurred at a Hobbs High School football game, which led to the arrest of several members of the black community. Among those arrested was a juvenile named Michael Hodge, who was charged with Resisting Arrest, Eluding, or Obstructing an Officer. Shortly thereafter, Hodge filed a tort claims notice alleging that his civil rights had been violated by the Hobbs Police Department. There was significant media interest in the case and, in addition, an investigation into the alleged civil rights violations of Hodge and the others arrested was launched by the U.S. Department of Justice and the Federal Bureau of Investigation. Hodge's case was assigned to Special Master M. J. Collopy on February 14, 1997. It is the local custom in Lea County that concurrence to the assignment of a Special Master to a case required by NMRA 10-111(C) is presumed if no party raises a timely objection to the appointment. NMRA IO-III(G) permits parties to request the Children's Court to "remove the special master from acting in that proceeding" at any time for good cause shown. Between February 1997 until the conclusion of the Hodge trial in June 1997, no objection was made to the appointment of Special Master Collopy nor was there any request for his removal from the proceeding. Additionally, Mr. Collopy had served as a Special Master in Lea County since 1981 and, during that sixteen (16) year period, attorneys for the State of New Mexico had never once questioned his ability to be fair and impartial, even in cases where the credibility of Hobbs police officers was an issue.

A full evidentiary hearing was conducted in the Hodge case on June 2, 1997. At the conclusion of the hearing, Special Master Collopy found that the State of New Mexico had not met its burden of proving the crime alleged against Hodge beyond a reasonable doubt and announced that he would recommend a dismissal of the charges. He also noted in his decision, in response to an argument by Hodge's attorney, that although Hodge's civil rights "may well have been violated... that is not for this court to determine."

This latter comment was related to Hobbs Police Chief Tony Knott by a news reporter who had attended the hearing. Chief Knott became annoyed at the comment and contacted your office to complain that his officers "did not get a fair shake" at the hearing. He requested you to find a way to obtain a new hearing or other judicial relief that would set aside the findings of the Special Master.

The "police blotter" in Lea County is a public document open to general inspection. All "contacts" between police officers and members of the public - be they suspects, alleged offenders, victims, or witnesses - are subject to being recorded in the blotter, whether or not a crime or infraction is ever charged as the result of the "contact." The names of various relatives of the Special Master had appeared in the blotter over a period of fourteen (14) years. Chief Knott surmised that because of these "contacts," which he presumed to have been "negative," the Special Master must necessarily be prejudiced against his department and/or biased with regard to his officers' testimony and that it was this suspected bias which had led to the acquittal of Hodge.

Based upon this information, the two of you conferred and determined that an "Exception" to the report of the special master could be filed pursuant to Children's Court Procedural Rule 10-III(E), NMRA. Rule IO-III(E) provides a mechanism whereby an aggrieved party may request the children's court judge to review the proposed findings, conclusions, recommendations, or proposed orders of the Special Master by pointing out the item(s) to which exception is taken, making appropriate references to the record of proceedings, citing any authority in support of the party's position, and including a statement of the relief sought.

Standard 3-1.2(c) of the ABA Standards of Criminal Justice (The Function of the Prosecutor) notes that "the duty of the prosecutor is to seek justice, not merely to convict." While the prosecutor also has an obligation to provide legal advice to police regarding their functions and duties in criminal matters (Standard 3-2.7[a]), the Commentary to this rule directs that "[p]rose-cutors should, however, take care to avoid any relationship with police which might cast doubt upon the independence and integrity of the office of the prosecutor."

It was also determined that your "Exception," since it had no justification in law or fact, served no substantial purpose apart from embarrassing or burdening third persons in violation of Rule 16-404 of the Rules Governing Discipline. There was ample evidence in the record that your action caused an adverse impact upon Mr. Collopy and his family. Although the hearing committee did not feel that the "third party" language of Rule 16-404 would encompass a judicial officer or his family, the Board panel saw nothing in the rule or its commentary which would exclude such non-parties to the case.

In addition, Mr. Rutledge, you violated Rule 16-501(B)(1) of the Rules of Professional Conduct by your ratification of Mr. Quickel's conduct. While Mr. Quickel is not exonerated because of his reliance upon your advice, your failure to adequately supervise him in this matter was unfortunate. See Matter of Howes, 940 P.2d 159 (N.M. 1997).

Prosecutors, since they represent all of the people, bear a heavy responsibility to conduct themselves in a manner which fosters confidence in our legal system. This reprimand will hopefully remind you and your fellow prosecutors that a bending of procedural and ethical rules in an effort to achieve a conviction will not be condoned.

This Formal Reprimand will be filed with the Supreme Court in accordance with Rule 17-206(D) NMRA 1998 and will remain as a part of your permanent records with the Disciplinary Board, where it may be revealed upon inquiry to the Board concerning any discipline ever imposed against you. In addition, the text of this reprimand will be published in the State Bar of New Mexico Bar Bulletin.

The costs of this action in the amount of $3044.15 have already been paid by you.