From time to time we receive letters about various events, happenings, miscarriages of justice, and various things that public officials don't want anyone talking about. We check the content and when we can verify the stories we like to publish them in their entirety.
The following is one such letter. As you know, we've got a problem with DWI here in New Mexico. Part of the problem is the most frequent offenders tend to somehow avoid incarceration. Sometimes it's not only the habitual offenders that somehow get off easy but those who have friends in powerful places.
On the DWI Front
New Mexico State Statute 66-8-102.1 NMSA 1978 reads “no other disposition by plea of guilty to any other charge in satisfaction of the charge shall be authorized if the results of a test performed pursuant to the Implied Consent Act disclose that the blood or breath of the person charges contains an alcohol concentration of: A. eight one hundredths or more”
It is the policy of the 2nd Judicial District Attorney’s Office headed by District Attorney Kari Brandenburg that no charge of DWI will be allowed to plead guilty to a lesser charge including any driving offenses that the offender may have committed. NO MATTER WHAT THE BREATH SCORE!!!
What all of this means is that if you are stopped for a traffic offense, like speeding, and then charged with DWI you cannot go to court and plead guilty to the speeding and have the DWI charge dismissed.
So why is it that Kari Brandenburg’s doctor was allowed to plead guilty to Careless Driving and have his DWI dismissed when he had a breath score of .08?
On August 7, 2007 Dr. Michael Flax was driving northbound on the frontage road to I-25. Dr. Flax struck a car that was stopped for a red light at Martin Luther King Ave. Dr. Flax struck the car so hard that it forced the car to hit the car in front of it resulting in one of the drivers being transported. An Albuquerque Police Department DWI officer saw the crash and stopped. When the officer talked to Dr. Flax she was concerned that he might be drunk. Dr. Flax was given Standardized Field Sobriety Test which he failed miserably. Dr. Flax could not even say his alphabet or count correctly either. The officer arrest Dr. Flax and he was later given a breath test. Dr. Flax blew a .08 and .07.
Dr. Flax was given “the deal of the century” and was allowed to enter into a plea that no other violator of a DWI would have been offered in Bernalillo County. Dr. Flax plead guilty to Careless Driving and the DWI charge was dismissed.
This was actually a case that was not the fault of the Metro Court Judge. Elizabeth Jaenicke is a special prosecutor that was brought in from another county to handle this charge because the DA’s Office was concerned that there would be a measure of impropriety if the case was handled by Kari Brandenburg’s office. ADA Jaenicke gave Dr. Flax a plea bargain that no Metro ADA would have been allowed to give. So was she called in to handle this case just for that reason? Having a special prosecutor gives Kari Brandenburg a certain amount of deniability. DA Brandenburg can say that her office was not responsible for this plea.
This plea bargain was in direct violation of the law and the policies of the 2nd Judicial District Attorney's Office. My question is whether the special prosecutor Elizabeth Jaenicke is incompentent or was she told to fix the case?
So folks unless you are rich like the Dasklos Family or the doctor of the District Attorney I suggest that you don’t drink and drive. They shouldn’t drink and drive either, but they know that they are above the law.
Showing posts with label District Attorney's Office. Show all posts
Showing posts with label District Attorney's Office. Show all posts
Feb 20, 2008
Feb 7, 2008
Arraignment Kirby
We got a heads-up that former Officer Ben Kirby is set to be arraigned Friday (today) at 10 am. Apparently, he's being charged with assisting escape, tampering with public records and conspiracy to tamper with public records.
Looks like the DA found it a bit too difficult to answer the whole "who's the other conspirator" question that according to our Eyes, was raised by an astute member of the grand jury. For a while it looked like Officer Fisher was going to be on the hook for the conspiracy role in the whole fiasco, but as of early January that option seemed to be taken off the table (read it here).
The DA has obviously changed tactics and decided to directly charge the former officer which is interesting in its own right, but what about the escapee? Amateur (or immature) race car driver, developer, and general traffic menace Jason Daskalos was the prisoner who made his own prison break. Despite his acquittal on DWI charges, to our knowledge he hasn't been charged with his own escape.
It's hard to imagine Kirby dragging a struggling Daskalos away from the paddy wagon against his will. Perhaps it's time for the DA to show a little equity in prosecution. Shouldn't all of the parties involved in a crime be prosecuted for that crime?
Looks like the DA found it a bit too difficult to answer the whole "who's the other conspirator" question that according to our Eyes, was raised by an astute member of the grand jury. For a while it looked like Officer Fisher was going to be on the hook for the conspiracy role in the whole fiasco, but as of early January that option seemed to be taken off the table (read it here).
The DA has obviously changed tactics and decided to directly charge the former officer which is interesting in its own right, but what about the escapee? Amateur (or immature) race car driver, developer, and general traffic menace Jason Daskalos was the prisoner who made his own prison break. Despite his acquittal on DWI charges, to our knowledge he hasn't been charged with his own escape.
It's hard to imagine Kirby dragging a struggling Daskalos away from the paddy wagon against his will. Perhaps it's time for the DA to show a little equity in prosecution. Shouldn't all of the parties involved in a crime be prosecuted for that crime?
Jan 7, 2008
Fisher - Off the Hook
We told you right before Christmas that the Eyes had it that Officer Matt Fisher was being implicated as the co-conspirator in the Jason Daskalos DWI duck-out from APD custody (read it here). Today our Eyes found out that Officer Fisher is off the hook so to speak.
Apparently, there are no plans to indict Officer Fisher at this time. Of course there were no plans to indict former Officer Ben Kirby until he had the temerity to sue to get his job back.
Speaking of Kirby... We're wondering exactly where this development leaves the DA's case against the former officer. We're not a lawyer but don't you need more than one person for a conspiracy? You'll remember that our Eyes had it that the Kirby grand jury came to a screeching halt when a juror decided to ask exactly who the other conspirators were (read it here).
We'd think at this point the DA is going to have a tough time of getting around this particular elephant in the room. Either they're going to have to start naming people involved in the conspiracy or settle for indicting a ham sandwich - 'cause they don't seem to be able to get Kirby without it.
Apparently, there are no plans to indict Officer Fisher at this time. Of course there were no plans to indict former Officer Ben Kirby until he had the temerity to sue to get his job back.
Speaking of Kirby... We're wondering exactly where this development leaves the DA's case against the former officer. We're not a lawyer but don't you need more than one person for a conspiracy? You'll remember that our Eyes had it that the Kirby grand jury came to a screeching halt when a juror decided to ask exactly who the other conspirators were (read it here).
We'd think at this point the DA is going to have a tough time of getting around this particular elephant in the room. Either they're going to have to start naming people involved in the conspiracy or settle for indicting a ham sandwich - 'cause they don't seem to be able to get Kirby without it.
Dec 13, 2007
Indictment Follies or Indictment Folly
If you've watched enough Law & Order (and we have) you know that a District Attorney can indict a ham sandwich. That's why we were so interested when we heard about the goings on with the grand jury looking in to conspiracy charges against Officer Ben Kirby.
Kirby is the officer that was fired for taking Jason Daskalos who was in custody on charges of DWI (later determined to be not guilty), on a detour from the paddy wagon. Just this past year officer Kirby filed a wrongful termination suit against the city and shortly thereafter was notified that he's the target of a grand jury investigation (read it here) on suspicion of tampering with public records and conspiracy.
According to our Eyes the promised grand jury investigation began on Wednesday. Apparently the proceedings came to a screeching halt when one of the grand jurors asked the same question we've been asking - if conspiracy is the charge, who is the co-conspirator? Seems like a logical question to us but at that point our Eyes tell us that the DA's office decided to continue the case rather than answer the question.
We don't know why the ADA decided to do what they did but it would seem to us that you'd have a hard time proving conspiracy without conspirators. We haven't seen the DA's case and we certainly can't begin to tell you why they waited over a year to move on a case that they'd already decided not to prosecute, but their case must be shaky indeed if they can't handle the question of conspirators in a conspiracy case.
Kirby is the officer that was fired for taking Jason Daskalos who was in custody on charges of DWI (later determined to be not guilty), on a detour from the paddy wagon. Just this past year officer Kirby filed a wrongful termination suit against the city and shortly thereafter was notified that he's the target of a grand jury investigation (read it here) on suspicion of tampering with public records and conspiracy.
According to our Eyes the promised grand jury investigation began on Wednesday. Apparently the proceedings came to a screeching halt when one of the grand jurors asked the same question we've been asking - if conspiracy is the charge, who is the co-conspirator? Seems like a logical question to us but at that point our Eyes tell us that the DA's office decided to continue the case rather than answer the question.
We don't know why the ADA decided to do what they did but it would seem to us that you'd have a hard time proving conspiracy without conspirators. We haven't seen the DA's case and we certainly can't begin to tell you why they waited over a year to move on a case that they'd already decided not to prosecute, but their case must be shaky indeed if they can't handle the question of conspirators in a conspiracy case.
Nov 13, 2007
Target Kirby: Timeline for Retaliation
We've been following the story of Officer Ben Kirby for some time now. Kirby is the officer that got canned for springing developer Jason Daskalos from the DWI paddy wagon last year. A couple of weeks ago we told you that Kirby had become the target of a grand jury investigation into his actions (read it here).
We mentioned in that post that the timing of the investigation seemed curious. We'll we've gotten a little more information on the events following the notorious trip and it's got us even more intrigued. As we told you (here), the decision to target officer Kirby for indictment comes almost immediately after the city was notified that Officer Kirby intended to sue the city in order to get his job back. What's more interesting is that Chief Ray Schultz indicated in a letter to the Director of the NM DPS Center Thomas Lyon, that the District Attorney's office had reviewed the case and decided not to prosecute officer Kirby. The DA's decision was included in a letter concerning the revocation of Kirby's Officer Certification way back in March.
Let's take a quick look at the timeline:
Our Eyes tell us that originally, the grand jury was to meet last Thursday and that at the last minute the session was canceled. The rumor is that the DA wanted to present evidence pertaining to the here to fore unnamed co-conspirator and that conspirator was Jason Daskalos for assisting an escape.
Now we don't know what's going on here. It seems strange that Daskalos could be charged as a conspirator in his own escape. We'd think he'd be charged with unlawful flight from prosecution or some such legalese.
However one thing is sure, whether Daskalos is in the DA's crosshairs or not, Ben Kirby certainly is and from the timeline above it looks as if they mean to get him. More importantly, it appears as if they went after him criminally and for decertification after he had the temerity to sue for his job back. Can you say prosecutorial misconduct? Can you say retaliation?
We mentioned in that post that the timing of the investigation seemed curious. We'll we've gotten a little more information on the events following the notorious trip and it's got us even more intrigued. As we told you (here), the decision to target officer Kirby for indictment comes almost immediately after the city was notified that Officer Kirby intended to sue the city in order to get his job back. What's more interesting is that Chief Ray Schultz indicated in a letter to the Director of the NM DPS Center Thomas Lyon, that the District Attorney's office had reviewed the case and decided not to prosecute officer Kirby. The DA's decision was included in a letter concerning the revocation of Kirby's Officer Certification way back in March.
Let's take a quick look at the timeline:
- August 25, 2006 - Kirby springs Daskalos
- October 25, 2006 - APD terminates Officer Ben Kirby
- March 21, 2007 - APD requests NMDPS Decertify Kirby
- September 5, 2007 - Kirby files lawsuit requesting reinstatement
- September 11, 2007 - DPS sends notice to Kirby at APD that he is subject to continued action regarding his law enforcement certification
- October 22, 2007 - Kirby is notified that he is the target of a grand jury investigation
Our Eyes tell us that originally, the grand jury was to meet last Thursday and that at the last minute the session was canceled. The rumor is that the DA wanted to present evidence pertaining to the here to fore unnamed co-conspirator and that conspirator was Jason Daskalos for assisting an escape.
Now we don't know what's going on here. It seems strange that Daskalos could be charged as a conspirator in his own escape. We'd think he'd be charged with unlawful flight from prosecution or some such legalese.
However one thing is sure, whether Daskalos is in the DA's crosshairs or not, Ben Kirby certainly is and from the timeline above it looks as if they mean to get him. More importantly, it appears as if they went after him criminally and for decertification after he had the temerity to sue for his job back. Can you say prosecutorial misconduct? Can you say retaliation?
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