(dissenting).
{31} I respectfully dissent from the majority’s opinion. I would affirm the district court’s ruling as a proper exercise of its discretion based on the evidence before it. DAs Berenson and Trabaudo were properly disqualified from this case, as was their office.
{32} I believe that by using the amorphous standards of review given us by Gonzales, the majority have given insufficient deference to the findings of the district court. 2005-NMSC-025, ¶¶ 22-25, 138 N.M. 271, 119 P.3d 151. The opinion sets the bar so high as to disregard the DAs’ personal involvement with Defendant. This gives rise to real concern as to whether their involvement with his case could appear to be above reproach. I believe ADA Berenson, had she not left the case, would have been properly disqualified. Furthermore, the district court’s findings regarding ADA Trabaudo’s direct involvement with both ADA Berenson and the timbre of the DA’s office’s feelings about Defendant are similarly entitled to our deference. Based mostly on speculation that with the passage of time, there are now prosecutors in the DA’s office whose connection to this case would be minimal, I might concede that the taint could dissipate and be isolated today; however, I find myself satisfied with the district court’s decision in 2006.
{33} We are required to “give great deference to a trial court’s factual determinations.” Gonzales, 2005-NMSC-025, ¶ 21, 138 N.M. 271, 119 P.3d 151; see Pennington, 115 N.M. at 379, 851 P.2d at 501 (“The local district court is in a far better position than an appellate court to evaluate and weigh the evidence on the matter.”). Out of seventeen findings of fact, twelve deal with ADA Berenson, ADA Trabaudo and both their personal involvement with Defendant’s solicitation case and with each other. The facts as determined by the district court are sufficient to support its legal conclusions.
{34} There is enough evidence in this case to establish an interest sufficient to disqualify ADA Berenson, which would then require the State to prove that the entire office should not be disqualified. The majority cites to Cope, a Kansas case that is distinguishable from the case here by the total lack of personal contact between the threatening defendant and the prosecutor’s office in question. 30 Kan.App.2d 893, 50 P.3d 513. Cope is valuable, however, when it reminds us that with respect to an individualized threat,
[i]t is true that a targeted victim of a crime would be personally and emotionally vested in the outcome of the crime charged. The key in deciding whether a prosecutor should be disqualified is whether the prosecutor has a significant personal interest in the litigation which would impair the prosecutor’s obligation to act impartially toward both the State and the accused.
Id. at 516. The court in Cope also noted that a conflict of interest was not created between the defendant and the district attorney’s office because he “never directly threatened the district attorney’s office.” Id.
{35} I find this ease to be distinguishable from the cases that the majority relies on. For instance, the majority relies on Resnover for the proposition that the prosecutor does not have to recuse himself when the prosecutor believes that the defendant has threatened his life. This case involves more than just a perceived threat to the prosecutor: there was an actual threat. The prosecutor in this case acted on the threat by reporting it, resulting in subsequent prosecution against Defendant. Although the charge relating to the threat against ADA Berenson was later dropped, ADA Berenson testified at Defendant’s sentencing for the conspiracy. Furthermore, the court in Resnover held that the prosecutor did not have a conflict of interest based on a lack of constitutional law to support the defendant’s assertions. 754 F.Supp. at 1388-89. Defendant, in this case, does not rely on any constitution for his arguments.
{36} My focus in this case is on the actions of the DAs following the threat. What troubles me is that even though ADA Berenson was not a named victim in the conspiracy for which the district court was sentencing Defendant, she testified at his sentencing. On a motion to review conditions of release that was later withdrawn, ADA Trabaudo felt it necessary to bring another possible, yet separate threat against herself to the district court’s attention in an effort to keep Defendant from posting bond. The district court found that the DA’s office had not been properly screened, and even if it had, screening measures would have been inadequate. I feel compelled to consider all of the circumstances of the case — including what occurred after the threat was communicated and what the district court considered to be an “egregious” threat that generated much publicity. See People v. Conner, 34 Cal.3d 141, 193 Cal.Rptr. 148, 666 P.2d 5 (1983) (in bank) (affirming the district court’s decision to disqualify the entire district attorneys office from prosecuting charges against the defendant, when the defendant had made a threat against a district attorney and the district attorney had witnessed a shooting of a deputy sheriff by the defendant).
{37} The district court’s findings further note that ADA Trabaudo took the call regarding Defendant’s solicitation of harm to ADA Berenson and was the one who informed her trial partner of the threat. Wben ADA Berenson was prepared to testify and be interviewed by the public defender, ADA Trabaudo helped her prepare for the interview. ADA Trabaudo was involved in conversations with the AG’s Office prosecuting the solicitation case in which she opposed consolidating this case for a plea with the solicitation case. She told ADA Berenson when Defendant was released on parole as her prosecutorial duty to a victim. When Defendant had a review of his bond, she participated in opposing his release with an office that was “frantic” to keep Defendant in jail to make sure he was not released on bond. At another bond hearing, ADA Trabaudo argued against bond even after Defendant withdrew his motion, indicating that she, too, had been the object of another conspiracy by Defendant to kill her because of her prosecution of Defendant. This is enough evidence to support the district court’s conclusion that ADA Trabaudo should be disqualified as well. In that communication to the court she indicated that the DA office investigators were working with police to investigate the threat against her. Despite this involvement in both the present case and the solicitation case, no effort was made to screen the remainder of the DA’s office from the controversies — in fact, we know that when Defendant came up for bond, the remainder of the DA’s officer was “frantic” that he not be released. This is not the separation between those involved and the office that Pennington talked about. 115 N.M. at 376, 851 P.2d at 498 (“There may well be circumstances in which concern about the appearance of impropriety would justify disqualification of the entire district attorney’s staff.”).
{38} The majority speaks of the “particular standard of professional conduct” for prosecutors in situations like this. I believe that more well articulated standards exist than those general standards such as are mentioned in paragraph 20 of the majority opinion:
In conducting a criminal ease the prosecuting attorney must be fair and impartial, and see that [the] defendant is not deprived of any constitutional or statutory right, because he is a quasi judicial officer.
This rule, founded on justice and fair dealing, we think is intended not only to restrain the offer of illegal evidence or the violation of the orderly rules of procedure by prosecuting officers, but also to require their recusation in those cases in which their interest, directly or indirectly, may be such as to cause them to sacrifice impartial justice to personal advantage.
The district attorney is a quasi judicial officer. He represents the State, and the State demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. Therefore he should not be involved or interested in any extrinsic matters which might, consciously or unconsciously, impair or destroy his power to conduct the accused’s trial fairly and impartially.
Sinclair v. State, 278 Md. 243, 363 A.2d 468, 476 (1976) (internal quotation marks and citation omitted) (requiring an evidentiary hearing when a defendant has presented a case for conflict of interest and seeks disqualification of the prosecuting attorney).
{39} Henee, I see the district court’s conclusions of law (which were more directed at the office as a whole) as springing from the findings that both prosecutors individually had enough personal stake to be disqualified, and that the State did not carry its burden to show otherwise once ADA Berenson was disqualified. With such a personal interest, a reasonable appearance of impropriety would exist that their involvement with this case and the solicitation to murder would make them act in ways reflecting their personal and not professional duties. This is a reasonable conclusion from the evidence.
A conflict of interest exists in the prosecution of a criminal case whenever the circumstances of the case evidence a reasonable possibility that the prosecutor’s office may not exercise its discretionary function in an evenhanded manner. However, a conflict of interest warrants recusal only if the conflict is so grave as to render it unlikely that the defendant will receive fair treatment during all portions of the criminal proceedings.
Cope, 50 P.3d at 515-16.
{40} “[A]ll portions of the criminal proceedings” are not going to be impacted. Id. at 516. Charging decisions, discovery, bond arguments are all by the boards. This appeal concerns the embroilment of two prosecutors and their office in extra-curial situations. It involved Defendant to a point where their further participation in the case, and that of their office, could reasonably be questioned. It was questioned, and resulted in the proper exercise of judicial discretion disqualifying them and their office. I therefore dissent from the majority opinion.