mock court in which the principles of law and
justice are disregarded or perverted," Merriam-Webster
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
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
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
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
Onuska: Anthony Peters-one of our friends from years
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
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
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
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
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
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
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.