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(Editor’s Note: We faxed and mailed this letter to Onuska on

9/5/02. So far we’ve received no answer.)

The Committee For Judicial Integrity

“The only thing necessary for the triumph of evil is for good men to do nothing.”–Burke
P.O. Box 952, Goliad, Texas 77963

5 Sept. 2002

Judge Paul Onuska

920 Municipal Dr., Suite #2

Farmington, N. Mex. 87401

FAX: (505) 326-0224.

Dear Judge Onuska:

As I informed you in a previous letter, as a public service for those voters who wish to make an informed vote on your retention this November 5, my committee is preparing a website detailing some of your misbehavior as district judge.

In the interest of fairness, I am giving you a chance to explain your decisions in those cases. Additionally, once my web page is up, I am extending to you a standing invitation to respond to my allegations. Naturally, you are not obliged to answer my questions, but unlike criminal law, your silence will be held against you!

Concerning Stat e v. Anthony Peters, Cause No. CR-418

In the Peters suppression hearing you several times made clear that you believed the State’s sole witness, Ofc. Shawn Scott, then of the Aztec P.D., was honest and truthful. You also made very clear your scepticism of the defendant, Anthony Peters, who was a three-time felony loser. At the end of the hearing, as the parties were getting up to leave the courtroom, you gave encouragement to Ofc. Scott, telling him twice to “keep at it.”

Two critical things Ofc. Scott testified to–and he was adamant about this–was 1) that while he was standing outside Peters’ Blazer, waiting for Peters to get his papers for the traffic stop, he clearly saw through the back window of the Blazer a half-consumed bottle of schnapps lying on the back floorboards; and 2) that he found the bindle of meth that was the subject of the suppression hearing, in Peters’ wallet, which he got from Peters’s pocket, while booking Peters into jail.

Peters’ and his witnesses testified that the window to his Blazer was caked with mud, and Ofc. Scott could not have seen through the window. Moreover, they claimed, there was camping gear that covered up the bottle.

Peters also testified that Ofc. Scott, while booking him into the San Juan County jail, left the booking area, went out to the parked Blazer and searched it once again, and then returned with a bindle of meth he had found in a wallet that was in the Blazer. Peters claimed that he did not own this wallet and didn’t know about the meth. Peters swore that Ofc. Scott did not find the meth bindle in his wallet.

Obviously someone was lying.

Question 1: Why is it that during the hearing you made it clear you believed Officer Scott, and did not believe Mr. Peters, but in your “Findings of Fact,”–the report the appellate courts would use if the D.A.’s Office tried to appeal your decision–you found that Peters’ version was true, and thus Scott’s testimony was false? Why did you think Ofc. Scott had lied to you on the stand?

Question 2: I charge that you knowingly signed a false Statement of Facts because you knew it would kill any chance the D.A.’s Office had in appealing your legal decisions in that case. What do you say about that?

Question 3: If that is not true, if in fact you truly believed Ofc. Scott’s testimony was perjurous, that he was a rogue cop out to falsely charge an innocent man, why did you not report him to his boss, Aztec P.D. Chief Clay Morris; to the D.A.; and to the F.B.I.? Indeed, why did you praise Ofc. Scott’s honesty, and encourage him to “keep at it,” at the end of the hearing, if you believed he was a rogue cop who had just lied to you on the witness stand?

Question 4: Why were you so sarcastic to Mr. Peters during his testimony, since–if you Findings of Fact are to be believed–you concluded he was an innocent man, truthfully telling you what happened, who was being set up by a bad cop? Why didn’t you announce from the bench at the conclusion of the suppression hearing, the finding that you later made in the written Findings of Fact: that you believed Peters and his witnesses and thus disbelieved Ofc. Scott?

Some days before the suppression hearing, the D.A.’s Office and Peters’ attorney, Val Jolley, agreed to let you read the transcript of the magistrate court’s preliminary hearing, in order to cut down on the need for further in-court testimony. The prosecutor was identified on the front of the transcript, and a number of times in the pages that followed, as “Suzanna Gee” or “Ms. Gee.” And yet, during the suppression hearing, you asked Jolley and me if Jolley and I had not attended the same preliminary hearing. If you had read the transcript, you would have known, of course, that I did not attend that hearing.

Question 5: Why did you not bother to read the preliminary hearing transcript?

Question 6: At the very beginning of the suppression hearing, before you had heard a word of testimony, you made it clear that you considered the State’s position untenable, and a waste of the court’s time. Since you had not read the preliminary hearing transcript (which both sides agreed you could read prior to the hearing), where did you get your information about the facts of the case?

During questioning of Ofc. Scott in the suppression hearing, you asked Scott about his discarding the liquor in the schnapps bottle in question. (Scott testified he poured out the liquor after booking Peters into jail.) After Ofc. Scott admitted his understanding of Aztec P.D. policy on this point had been mistaken, you asked him rhetorically, “And we had it sorted out as a result of your chief having to give a statement about how you’re going to handle evidence in the future?”

In fact, Scott’s chief, Clay Morris, had given a sworn deposition concerning Aztec P.D.’s policies involving the handling of evidence. Peters’ attorney, Val Jolley had taken the deposition, in the presence of Assistant District Attorney Suzanna Gee and the attorney for the City of Aztec’s insurance carrier. But this fact was not generally known, and the D.A.’s Office had not agreed to turn over that statement to you to read prior to the suppression hearing. It is, of course, a violation of judicial ethics for a judge to receive ex parte information from one party without the other party’s consent.

Question 7: How did you know about Clay Morris’ deposition, and that he had testified about Aztec P.D.’s evidence destruction rules? Who provided you with the information about Morris’s sworn statement? What authority did you have to discuss this case, including evidence, with others without the consent of all the parties?

Question 8: Did you engage in ex parte communications without the consent of one of the opposing parties, namely the D.A.’s Office?

During the Peters hearing, I offered you a Xeroxed appellate case which would be helpful to you in deciding a legal question that arose during the hearing. You were very cross and chastised me for failing to follow one of your rules: namely that attorneys must provide you with appellate cases which “might be useful” before the hearing starts–not during the hearing. You recognized that I was new to your court, but you were extremely irritated that I didn’t know about this rule. Later in the hearing, the defendant’s attorney (and your old friend), Val Jolley, offered you a Xeroxed appellate case. Instead of chastising him as you did me (after all, he’s practiced in your court for many years, and should know all your rules very well), you were overjoyed to get the case he was handing you (your exact words were: “Oh I figured you would have a case Mr. Jolley! I figured you would have a case!”)

Question 9: So, does the rule that attorneys are to provide you with appellate cases prior to a hearing only apply to prosecutors, or only to attorneys who are not your friends, or what? Why the difference in how you treated Jolley and me when we did precisely the same thing in court? I charge that this is yet another example of your willingness to use your court to help your friends at the expense of other parties with litigation before you, that indeed, it is further evidence of the kangaroo nature of the court you were running that day. What say you to that?

Concerning the juvenile docket call on 25 Sept. 1996.

You recall that your regular juvenile prosecutor, Sandra Price, was suspended by the D.A., Alan Whitehead, a couple of days before this docket call was set. Since Mrs. Price was no longer available, the docket was left to Yvette Sais, our youngest prosecutor, fresh out of law school, who had just joined our office a few weeks before.

The day before the docket call, Ray Archambeau visited you in your chambers and informed you that he and Miss Sais had agreed to pass his client--Finch’s case--to a later docket, so Miss Sais would have time to confer with Mrs. Price about the plea offer. You had no objection to this reset at that time. This was, after all, an extremely long docket, which didn’t end until well after 5 p.m., so the passing of a single case to another docket should not have been a problem.

The next day, with the courtroom packed, you called the Finch case first (and out of order), and then belittled Miss Sais for not having called Mrs. Price and gotten ready for a plea that morning. Every time Mr. Archambeau tried to explain, you cut him off. You then abruptly recessed court so Miss Sais could phone Mrs. Price, and stormed off the bench–leaving most people in the courtroom to conclude that Miss Sais incompetent.

Question 1: Why did you strongly object to resetting this case in court, when you had no objections to the reset the day before? Since you so strongly opposed resetting the case, why didn’t you say something about resetting it when Archambeau told you that was his and Miss Sais’s plan?

Question 2: Why did you call the Finch case first, out of order? Was it to insure that there was as big a crowd present as possible, to better humiliate Miss Sais?

Question 3: Why did you create the impression with the people in that packed courtroom that Miss Sais was derelict in her duties, when you knew full well she had done nothing wrong?

Question 4: Why did you keep interrupting Archambeau and Miss Sais whenever they tried to explain that they had agreed to reset this case, that this agreement had been run past you the day before, and you had voiced no objections?

Question 5: After throwing your temper-tantrum, and storming off the bench and out of the courtroom, upon your return, why didn’t you apologize to the people in the courtroom for your boorish behavior, and for wasting their time?

Question 6: Do you believe your behavior in court that morning is acceptable? If not, why have you not apologized to Miss Sais?

Concerning your reasoning in the Kevin Ogden case.

You recall that Vicky Chavez, a Farmington Police Community Service Officer, was murdered by Kevin Ogden. Ofc. Chavez was in her Farmington Police uniform, and was seated in her marked police car when Ogden walked up to her and killed her with a shotgun blast. As a Community Service Officer, she was not armed, but was under Farmington P.D. discipline and orders, and had many of the same duties and responsibilities as Farmington Police Officers.

It was apparent that Ogden murdered Miss Chavez because he considered her to be a police officer going about her duties.

The D.A.’s Office charged Ogden with first degree (capital) murder, and alleged that the aggravating factor that made it a capital crime was the fact that he murdered Miss Chavez while she was a “peace officer” going about her duties. You ruled that she was not a “peace officer,” and therefore Ogden could not be charged with first degree murder.

Question 1: Why did you rule that the murder statute that makes it a capital offense to murder a peace officer going about his duties did not apply to Miss Chavez? If a Police Community Service Officer wears a police uniform, drives a marked police car, and has the same responsibilities as the rest of the police, why aren’t they entitled to the same protection under the law as the rest of the police?

Question 2: The N.M. Supreme Court, of course, unanimously reversed you on that question in State v. Ogden, 118 N.M. 234. Do you now think the Supreme Court got it right, or do you still think you were correct?

Why do attorneys chose to excuse you from their cases at a far higher rate than any other judge in your district?

In the two and one-half years running from 1999 to the end of June 2002, you were excused by attorneys whose cases were assigned to your court 266 times. Judge Caton, in contrast, was excused only 96 times, Judge Birdsall had 93 excusals, Judge Rich 83, and Judge Foutz only 38. Your closest competitor for excusals, Judge Harrison (who is retiring) had 199 excusals, or 67 fewer excusals than you.

Question: I asked a San Juan County attorney why he thought you have such an extraordinary number of excusals. His reply, “because Onuska’s a jerk.” What is your explanation?

Why do you ‘recuse’ yourself far more than your fellow judges?

The district clerk’s records also reveal that in all of 1999 through June 30, 2002, you “recused” yourself from an astonishing 323 cases, meaning you declined to hear those cases. The district clerk then had to reassign the cases you refused to hear to other judges. Your recusal rate is far higher than your colleagues. For example Judge Harrison, who came in with the second highest number of recusals (and is not standing for retention), had 246 recusals, or 77 fewer recusals than you. Judge Birdsall came in third with 203 recusals (many, I’m told, were former clients of his–an excuse you do not have), Judge Rich had 172 recusals, Judge Caton had 143 recusals, and Judge Foutz had the least at 114.

Question 1: Do you agree with me that if you had not exercised your recusal option so often, that you would have had even more excusals by attorneys?

Question 2: Is it true you recuse yourself if you don’t like one of the attorneys in a case?

Question 3: Is it true that you recuse yourself in cases where opposing parties are members of prominent families, or are important businesses in the area, and you think deciding such cases will politically be a lose-lose proposition for you?

Concluding question.

Should the voters retain on the bench a judge who uses his position to favor his friends at the expense of other parties; treats attorneys who appear before him with extraordinary rudeness; who showboats, throws staged temper tantrums, and then leaves the courtroom, in order to humiliate an attorney appearing before him, and at the expense of holding up the business of the court; and who issues “findings of fact,” i.e. reports to the appellate courts, which he knows are false?

Yours truly,

Terry Breen