NCSWA Indictments and Special Grand Jury Report

By Jake Arnold
 
​​The cases alleging perjury in grand jury testimony by Rio Arriba County Commission Chair Alex Naranjo and former County Manger Tomas Campos are on a procedural hold with District Judge Jason Lidyard recusing himself from presiding over either of them.
 
With that action by Lidyard, the cases will now be assigned to one or a series of other First Judicial District judges.  According to prior experience such matters involving prosecution of public officials, criminal cases brought them against them most often lead to a series of additional recusals (excusals by either defendants or prosecutors) until one of the other First District Judges ends up with the case. Each side has the option to exercise a one-time excusal of a judge ultimately assigned to a criminal case.
 
In recusing himself from the Naranjo and Campos perjury cases on July 24, 2023, Lidyard did not disclose why he chose to do so.  He simply stated, via standard court recusal form, that he had "good reason" to do so, without mentioning any specific details.
 
Consequently, as a result of Lidyard's recusal and the expected sequential process of multiple, pro forma assignments to a series of other First District judges, further procedural actions in these cases are on hold.  Until another judge does ultimately take these cases, no arraignments/first appearances can be set, no summons for the defendants to appear at such hearings can be issued, and no defense attorneys can enter their notices of appearance on behalf of the defendants.
 
Also, on Thursday 7/27/23, upon receiving notice of Lidyard's recusals, the clerk of the First Judicial District Court re-assigned the Naranjo case to District Judge Mary Marlowe Sommer and re-assigned the Campos case to District Judge Glenn Ellington.
 
Campos did tell the Santa Fe New Mexican newspaper that he is represented by top notch criminal defense attorney Tom Clark in this matter, but Clark had not submitted a notice of appearance on Campos' behalf as of 7/26/23; presumably because the procedural states of these cases are in limbo for the immediate future.
 
Naranjo did not publicly identify, in his comments to that newspaper, any attorney who may be representing him in his companion case.  But on Thursday, 7/27/23, attorney Elden Pennington did file an entry of appearance on Naranjo's behalf.  But Clark has not yet filed an actual entry of appearance on behalf of Campos.
 
The tortured history of the legal proceedings leading to the indictments against Naranjo and Campos goes back to June, 2019, when longtime political activist Antonio ("Ikie") DeVargas of La Madera submitted a petition submitted to Lidyard, signed by several hundred Rio Arriba County residents, seeking to have Lidyard convene a special grand jury to investigate alleged wrongdoing (criminal or simply malfeasance in nature) on the part of the North Central Solid Waste Authority, that governmental agency's employees and/or board members .
 
Naranjo, as a county commissioner, was formerly and is now once again, a NCSWA board member.  Campos, as a former county manager, was once a NCSWA board member.
 
The NCSWA owes its existence to a joint powers agreement executed by Rio Arriba county, the City of Espanola and other units of local government including two Native American pueblos.  Pursuant to that agreement, representatives of those entities sit on the NCSWA board. However, shortly after the emergence of the of the Covid pandemic, the state Supreme Court suspended all state grand jury proceedings until the pandemic no longer made such proceedings impossible to continue.
 
Finally, in early 2023, grand jury proceedings could once again resume and Lidyard issued an order to convene a special grand jury in response to the 2019 DeVargas-initiated petition. Any such grand jury proceeding requires the involvement of a state prosecutorial agency (local District Attorney's Office or the state Attorney' General's office).
 
As it so happened, the First Judicial District Attorney's Office prosecutors attempted to scuttle the convening of a NCSWA special grand jury by Lidyard and a procedural battle between DeVargas, his attorney Richard Rosenstock and Lidyard transpired. The DA's prosecutors argued that a 2022 state Supreme Court ruling severely limited the functions of grand juries and the ability of prosecutors to use grand juries as a vehicle to bringing cases against targets.
 
Lidyard rejected that move by prosecutors since the 2022 state Supreme Court order in question applied solely to "regular" grand juries and not to "special" grand juries convened on the basis of a citizen petitions, as authorized by the state constitution.   Therefore, a NCSWA special grand jury sought by DeVargas and his co-petitioners was eligible for him to convene.
 
Lidyard did convene this special NCSWA grand jury and its proceedings commenced on April 24, 2023.  That grand jury, as do all other state grand juries, had a legal term of 90 days during which it could deliberate, hear/see evidence and choose to indict (or not indict) "targets" or witnesses who may have perjured themselves when testifying before it. The term of this special grand jury expired on July 22, 2023.
 
Three days earlier, on 7/19/23, the grand jury handed up indictments against Naranjo and Campos for perjury to Lidyard. The indictments state that Campos perjured himself in grand jury witness testimony on May 31, 2023, and that Naranjo perjured himself in grand jury witness testimony on June 28, 2023. In their respective grand jury witness testimonies, both Naranjo and Campos claimed they were completely unaware of allegations or reports of any NCSWA wrongdoing discussed at board meetings when they were members of that board.
 
The indictments state that the conclusions of perjury for both defendants were based not on testimony of other witnesses, but on a documentary record that included minutes of NSCWA board meetings in which both Naranjo and Campos participated. Those minutes (included as exhibits in the report) demonstrate that both defendants were acutely aware of NCSWA wrongdoing/likely criminal conduct by NCSWA employees/officials.
 
Based on those indictments, Lidyard, the following day (7/20/23), initiated fourth degree felony criminal cases for perjury against both Naranjo and Campos. The next day (7/21/23) the special NCSWA grand jury submitted a 22-page report on its deliberations, recommended actions by the court/prosecutors, indictments requested, and as a series of findings pertinent to the history of the NCSWA over the past decade since its creation. 
 
It is unclear if all or portions of this report was the work of grand jury members, the prosecutors from the DA’s Office, or both. The report is highly critical of the DA's Office, claiming that the DA's prosecutors effectively tried to stonewall the grand jury when it sought assistance or evidence from that agency.  The report reveals what may be a hostile relationship from time to time between the grand jury and the prosecutors.
 
So, while Lidyard has the report in hand and did initiate the actual criminal cases against Naranjo and Campos, he is now out of the picture and the expected series of recusals and likely excusals of the other First Judicial District judges is now underway--a process that could last for an indefinite time period.
 
In one curious and mistaken understanding of what is legally possible regarding action against other NCSWA figures that appear in the report (certainly composed by grand jury members rather than the prosecutors) the report recommends "indictments" against those other NCSWA figures for "malfeasance."
 
No crime of "malfeasance" is included in any New Mexico criminal statutes.  Whomever composed that portion of the report's text may have been confused about a different, and extremely rare procedure that can be initiated by a special grand jury in conjunction with the prosecutor assisting a special grand jury and the district judge supervising its proceedings.
 
This unusual procedure allows for a finding of "malfeasance" or dereliction of duty in the conduct (or lack thereof) on the part of a currently sitting elected official--a county commissioner for example.  Key to this provision is that the targeted individual must be an elected official and the articulated finding of malfeasance must be related to/be in progress during that official's current term of office.  This procedure cannot apply to non-elected officials, onetime officials no longer holding office, and cannot apply to misconduct during an elected official's previous term(s) in office.
 
If this unusual procedure were to come before the supervising district judge, he/she could suspend that elected official from office pending a civil trial to resolve the recommended removal from office for malfeasance. That trial would proceed as a civil case, but the rules governing its adjudication would follow the rules of criminal procedure.
 
The targeted elected official would then be subject to a ruling of removal by the district judge, or conversely, the judge could issue an effective "acquittal" and the targeted elected official could resume his/her term in office.
 
None of the individuals identified in the special grand jury report are erroneously recommended for "indictment" or "malfeasance" could be subject of this arcane provision of the statues.  Only one of them (from a total of six altogether) was an elected official--a former Rio Arriba County commissioner who is longer holding elective office.  The other five are/were NCSWA employees/board members but are not/were not elected officials.
 
Another intriguing aspect of the special grand jury report is that the members of this body "recommended" an indictment against three individuals.  The grand jury did just hand up indictments against two of them, Naranjo and Campos, but did not do so in the instance of the third individual that this special grand jury sought to see prosecuted, former Espanola City Council John Ricci (no longer holding elective office), who was once a NCSWA board member.
 
It is not clear if the decision not to proceed with an indictment against Ricci, when the special grand jury handed up indictments against Naranjo and Campos on 7/19/23, was that of the DA's prosecutors or a decision by the grand jury members having reconsidered their initial recommendation as stated in their report. Both special grand jury members and/or the DA's prosecutors could have composed different portions of this report.