-----------------------

Kangaroo court-"A mock court in which the principles of law and

justice are disregarded or perverted," Merriam-Webster Collegiate

Dictionary.

A kangaroo court is exactly what Judge Paul Onuska conducted during a suppression hearing styled State v. Anthony Peters, CR-418-4.

I was an assistant district attorney in Farmington at the time. I had been a prosecutor for about 12 years, but was new to New Mexico. My fellow prosecutors warned me that Onuska could not be trusted, that he had a special dislike for prosecutors, and besides being grossly unfair, he is extraordinarily obnoxious. Every warning proved true-in spades.

I got the Peters case a couple of days before its suppression hearing date, after its first prosecutor resigned to return to California. Reading over the file, it seemed simple enough. The cop, Ofc. Shawn Scott of the Aztec Police Department, had observed a Chevy Blazer run a red light. He stopped the Blazer, and walked up to the waiting driver. The driver, Anthony Peters, smelt of alcohol, but denied he'd had anything to drink. While Peters was looking for the vehicle's insurance and registration, Scott observed a half-empty bottle of schnapps on the back floorboards. This was in apparent violation of Aztec's "Open Container" statute, which makes it an offense to drive a vehicle with an opened alcoholic beverage container in the passenger compartment. Seeing the half-empty bottle of schnapps on the back floorboards gave Scott "probable cause" (i.e. a legal right) to later return to the Blazer to retrieve the bottle.

Ofc. Scott's report stated he asked Peters to walk to the rear of the Blazer where he administered a field sobriety test to see if he was intoxicated. Scott concluded that Peters was not intoxicated. He left Peters behind the Blazer, and returned to the vehicle to examine the bottle. While he was bending down inside the Blazer to get the bottle, Scott smelt marijuana. This gave him "probable cause" to look for the marijuana, which he found in a tin under the driver's seat.

Ofc. Scott arrested Peters and took him to jail. At the jail, as per jail policy, Ofc. Scott inventoried Peter's possessions, which would be locked up apart from Peters for their safekeeping. According to Scott, while going through Peters' wallet, which he got out of Peters' hip pocket, he found a wrapper with methamphetamine in it. This is a felony, and this was the stuff Peters and his attorney, Val Jolley, wished to "suppress," that is, have the judge declare had been seized contrary to the US Fourth Amendment, thus barring its introduction into evidence at trial.

In a drug case, if the drugs are suppressed (kept out of evidence), the defendant wins.

Almost as soon as the hearing started, Onuska was leaning on me to dismiss this case. When I pretended to not to understand Onuska's desire that I dismiss the case, he got exasperated, and spent most of the hearing ridiculing me, reminiscing with the defendant's attorney (and his old friend), Val Jolley, about the good old days, and sneering at the defendant (a three time felony loser). Onuska was blatantly one-sided in his demeanor and rulings (go to Onuska's special rules for a couple of typical examples). Throughout the hearing he displayed a shocking ignorance of search and seizure law.

For example, very early in the hearing, Jolley advised Onuska that during the preliminary hearing (heard before Magistrate Carla Dial), Ofc. Scott had admitted he was mistaken about the law, and stated he did not have a right to go back to the Blazer to inspect the schnapps bottle.

Onuska thought the officer's admission somehow had a legal bearing on this hearing, and indeed, made the State's case untenable. In fact, as every freshman law student knows, the subjective intent of the officer as to what the law is has no bearing on the legality of his search. When informed by Jolley of Ofc. Scott's previous admission, Onuska asked me "that's what he admitted, didn't he? You want to keep arguing about this?"

The ignorance of his question floored me. I've been a narcotics prosecutor for a number of years, where search and seizure legal questions frequently arise, I have researched and written a number of appellate briefs on the subject, and have written a booklet for drug interdiction officers that covers much search and seizure law. I am quite well versed on this area of the law, and I don't expect a district judge to be as on top of it as am I. But I do expect a district judge who hears criminal cases to at least know the rudiments of this legal area. Onuska proved, throughout the hearing, that he did not have a clue.

Jolley called an old friend of Peters, who testified that he was the owner of the Blazer, and that he and Peters were returning from camping. He testified that the Blazer's back windows were so caked with mud that it was impossible to see through them. Moreover, he testified that camping gear covered the floorboards. According to Peters' old friend, it was physically impossible for Ofc. Scott to have seen the bottle of schnapps, and if Scott claimed otherwise, then Scott was a liar.

If this was true, it would defeat the State's case. The only legal reason Ofc. Scott had for going into the Blazer was to get the bottle of schnapps which he'd seen through the window. If Scott couldn't see through the window, that meant he had no "probable cause" to go back into the Blazer. In that case, all the evidence found in the Blazer was illegally seized, and thus inadmissible as evidence at trial.

This witness' testimony, however, was obviously improbable. Why, for example, would Ofc. Scott waste his time searching the Blazer unless he had some reason to believe it had contraband? How likely is it that the windows would get so caked with mud no one could peer through them? This witness was dead certain that the side windows were too muddy to see through, and that there was camping equipment on the floorboards that hid the schnapps bottle. But why would he have known or cared about those facts prior to his friend's arrest? And finally, why would Scott lie? If he got caught, he not only would lose his job in disgrace, but he might well be prosecuted. Scott had nothing to gain and everything to lose by lying.

Jolley called his client, Anthony Peters to testify. Peters testified that after Ofc. Scott stopped him for running a red light, he got him out of the Blazer, and then Scott proceeded to root around the Blazer, for no reason at all. He said Scott eventually returned to where Peters was waiting, and announced he was under arrest for possession of marijuana, saying "there is marijuana all over the place in there."

On cross examination, Peters admitted he had three felony convictions-for larceny, embezzlement, and attempted criminal sexual penetration (attempted rape), and that he'd done time in the penitentiary.

Peters denied that Ofc. Scott had found meth in his hip pocket wallet. Peters claimed that while he was being booked into the jail, Scott left the booking area, and went outside to the Blazer (which had been towed to the jail). When Scott returned, he had a wrapper of meth, which he said came from a wallet he'd found inside the Blazer. Peters said Scott was lying when he claimed to have found the meth in a wrapper in his wallet taken from his hip pocket.

At the close of Peters' testimony, Onuska asked the following questions.

Onuska: Anthony Peters-one of our friends from years ago?

Jolley: Yes sir.

Onuska: Yes. I thought the name was familiar.

Peters: Excuse me your honor. The name might be familiar because I've been going through domestic violence proceedings here recently.

Onuska (sarcastically): No, Mr. Peters. The name rings a bell because Mr. Jolley and I used to chase you. He was the deputy district attorney and I was the district attorney whenever you were arrested for some of your endeavors. Do you remember that?

Peters: I uhhh . . . .

Onuska gave no hint that he believed a word Peters was saying.

The State called Ofc. Scott. Scott had already testified at the preliminary hearing a few weeks before, before Judge Dial. His testimony had been transcribed and made available to Onuska before the hearing.

Scott was asked some of the same questions he was asked at the preliminary hearing, and he gave the same answers: that he was adamant that he could see through the back window of the Blazer, and he saw the schnapps bottle on the back floorboards.

Breen: Did you have any problems looking through the . . .side window?

Scott: No, I did not. I didn't have any problem.

Onuska must not have been listening, nor did he appear to have read the preliminary hearing transcript, because when both sides finished questioning Ofc. Scott, he then asked Scott when he saw the liquor bottle, and Scott again told him he saw it through the side window while he was waiting for Peters to find the car's insurance and registration papers.

Up to now, the only legal reason Onuska had voiced for keeping the meth out of evidence in a future trial was that the officer, after the fact, had changed his mind and no longer thought his search was legal.

About half way through the hearing, Jolley told Onuska that the Aztec Open Container ordinance that prohibits driving a car with an opened bottle of an alcoholic beverage, was repealed by implication when Aztec adopted the New Mexico Uniform Traffic Code, which contains a narrower open container ordinance. That ordinance makes it illegal to have an open container in the passenger compartment, like the Aztec ordinance, but with this exception: if the driver is not the owner of the vehicle, the open container must be on his person to be a violation. Peters was not the owner of the Blazer.

If the adoption of the Uniform Traffic Code superceded the older Aztec open container ordinance, then Scott's search of the Blazer was probably illegal. (As it turns out, I later learned, and advised Onuska, the Aztec open container statute is in a separate chapter of the city code from the chapter dealing with traffic offenses. It is unlikely, then, that the adoption of the Uniform Traffic Ordinances was intended to supercede the open container ordinance. The significance is that had the state been allowed to appeal that point, there is a good chance Onuska's ruling would have been reversed, and Peters would have had to go to trial.)

During the course of the hearing Onuska could not have been friendlier or more respectful of Ofc. Scott. Indeed, Onuska was as respectful of Scott as he was disdainful of Peters. At one point, Onuska commented to Jolley about Scott, "I mean, you could tell by his demeanor and credibility that he was as truthful as they come on that point."

This is a major admission by Onuska, because he later signed Findings of Fact -a written report intended for the Court of Appeals and the Supreme Court-that could only be true if Ofc. Scott had lied on the witness stand about being able to see the schnapps bottle through the side window.

At the close of the hearing Onuska made the following oral findings from the bench:

" . . . I find that the 1990 traffic uniform code was in effect. I find specifically that the man (Peters) was not in possession of this alcohol under the terms of the statute, that it was not 'on his person' at the time of these events. And therefore, I agree with the officer and I don't think he is mistaken. He didn't have any right to re-enter that vehicle at that point in time. Should have sent him on his merry way. Motion to dismiss is granted."

As the parties were getting up to leave the courtroom, Onuska called out some encouragement to Ofc. Scott.
Onuska: Officer? Keep after it.

Scott: What sir?

Onuska: Keep after it. Tell the chief I said "hi."

The prosecutor announced that the state would appeal Onuska's decision, and as is required, requested "Findings of Fact and Conclusions of Law."

The appellate courts will accept as true the fact findings of the trial court, unless there is no evidence to support them. Thus, if the trial court accepts the word of a three-time felony loser over the opposite testimony of the Bishop of Rome, the appellate courts are required to make their decisions based on the trial judge's findings that the three-time loser's version is correct and the Bishop of Rome is a liar. On questions of law, however, appellate courts have no prohibitions against reversing.

Implicit in Onuska's verbal findings at the conclusion of his hearing was that he accepted as true the testimony of Ofc. Scott. If he believed Peters and his friend, then it wouldn't matter which open container ordinance was in effect, because Scott would have found the schnapps bottle only after he entered the Blazer to search, which would be illegal regardless of which Open Container Ordinance was in effect. Additionally, as noted, during the hearing Onuska praised Scott for being "as honest as they come," and at the conclusion of the hearing, he publically encouraged Scott to "keep at it." Onuska made it clear he accepted Scott as a man of integrity.

A couple of weeks later, Onuska signed Findings of Fact and Conclusions of Law directly opposite his implicit oral findings at the hearing. At every point where Peters or his friend contradicted Ofc. Scott, Onuska found that the facts were as Peters and Co. said it was.

Here is a portion of Onuska's written Findings of Fact:

8. The windows to the Blazer were tinted and mudsplattered and the back seat was filled with camping equipment, sleeping bags and a foam mattress, with trash on the floorboard, which would have prevented Officer Scott from seeing the alcohol container while he was looking through the side window at the time of the initial stop.

12. During the Defendant's booking at the San Juan County Detention Center, a plastic bundle containing suspected amphetamine was found in a wallet that had been found in the Blazer by Officer Scott, and the Defendant was also charged with Possession of a Controlled Substance.

The only way Onuska's Findings of Fact can be true is if he believed Scott had repeatedly committed felony perjury in Judge Dial's court and in his court, in an effort to railroad an innocent man into the penitentiary.
If Onuska honestly thought that, he'd be guilty of being hopelessly naive and foolish, and should not be retained for that reason alone. But there is no reason to believe that he honestly does believe Scott lied to him. His compliments to Scott from the bench rebut that idea, as does his disdain for Peters, who was, if Onuska's written Findings of Fact are to be believed, an innocent victim of a rogue cop. If Onuska truly believed Scott had lied on the witness stand to set up an innocent man, he should have reported this to Scott's boss, the chief of police for Aztec; as well as the D.A.'s Office for prosecution; and the F.B.I. for federal prosecution. Onuska did none of these things. Yet more evidence that Onuska's Findings of Fact are a pack of lies is that a few days after he issued his Findings of Fact, I wrote Ofc. Scott's boss, Aztec Police Chief Clay Morris, a letter effectively accusing Onuska of lying in his report for the appellate courts in order to prevent a successful state appeal. I sent a copy to Onuska. He never tried to refute the letter. Additionally, on Sept. 5 of this year, we faxed Onuska another letter (Questions for Onuska) that raised these same questions; again he has no answer.

Our system of justice is predicated on the trust we have in the integrity and judgement of trial judges. If a trial judge lies in his Findings of Fact, there is no way to reverse his lies. That is why a dishonest trial judge is so destructive to the rule of law. Onuska's violation of the public trust in the Peters case is reason enough to not retain him. Indeed, it should be reason enough to remove him from office.

Want to hear this hearing for yourself? New Mexico District Court hearings are recorded on audio cassettes. You can order copies of these tapes from the San Juan County District Clerk's Office, tel. 334-6151. Ask for tapes one and two from State v. Peters, Cause No. CR-418-4; dated 5/28/1996. Also order the court's Findings of Fact and Conclusions of Law at the same time. Tapes cost $4.00 each. This hearing lasted about one hour.