Former assistant district attorney files whistleblower lawsuit

·5 min read

Jun. 11—A former state prosecutor has filed a whistleblower lawsuit claiming she was fired for raising concerns about conflicts of interest in a case involving state Court of Appeals Judge Gerald E. Baca, Fourth Judicial District Attorney Thomas Clayton and his predecessor, former District Attorney Richard Flores.

Attorney Pilar Murray says in the lawsuit filed Wednesday in state District Court that Baca, then a northeast New Mexico district judge, refused to recuse himself from a case involving a defendant he'd represented while in private practice.

Her bosses, Clayton and Flores — both employed at one time by Baca's law firm, according to the lawsuit — fired her when she wouldn't let the issue drop.

"For her there was this tremendous frustration with what appeared to be a good old boys network operating in Las Vegas, New Mexico's elected offices," said Murray's attorney, Levi Monagle.

Gov. Michelle Lujan Grisham appointed Baca — who had been a judge in the District Court since 2013 — to a vacancy on the Court of Appeals in March.

Flores served 16 years as district attorney before deciding not to run for a fifth term in 2020. Clayton was elected to the post in November.

Baca did not respond to message seeking comment, but Administrative Office of the Courts spokesman Barry Massey said, "Courts exist to resolve these types of disputes, and it would be inappropriate to comment on the merits of the lawsuit because this is a pending legal matter and the judge is not named as a defendant in the lawsuit."

Flores did not respond to a message seeking comment. Clayton said he couldn't comment on pending litigation and referred questions to an attorney, who also declined to comment.

According to her complaint, Murray was hired in the 4th Judicial District Attorney's Office in July 2019. During an arraignment the next month, Baca, who was presiding over the case, posed questions that gave her reason to believe he was not impartial when it came to defendant Daniel Yara, who faced three felony counts.

Murray said in her complaint she soon learned Baca had represented Yara on several occasions before taking the bench, and she believed the judge lacked impartiality when it came to the defendant.

When she raised the issue with Clayton — then the chief deputy in the District Attorney's Office — he informed her "it is the policy of this office never to recuse Judge Baca," the lawsuit says.

Clayton directed her to "invite" Baca to remove himself from the case, Murray's lawsuit says, "but prohibited her from filing a motion stating the reasons why."

On an audio recording of a status hearing in the case, Murray can be heard raising the issue. She said she noticed during a previous hearing the judge seemed familiar with bad blood between Yara and the alleged victim in the case. Yara was charged with aggravated assault with a deadly weapon after being accused of threatening his neighbor with a knife.

Murray told the judge she wanted to know how he could have known about the history between the two men and directed staff members to research the issue. They found Baca had represented Yara on at least one case in 2004.

"I'd like to know if the court would consider excusing itself in the case because you previously represented Mr. Yara and you seem to remember the contentious history between the [the defendant and the victim]."

According to the audio recording, Baca said he didn't remember saying anything during the hearing and didn't remember Yara's history. He asked Murray to file a motion on the issue within 10 days.

Murray said she would, according to the recording.

But in her complaint, Murray says she didn't file one "because she had been prohibited from doing so by her supervisor" — Clayton.

Murray's complaint contends the issue came up again a few months later when Baca presided over another arraignment of Yara on new charges of burglary and bribery of a witness.

According to the lawsuit, Murray raised the issue again and Baca refused to recuse himself from that case as well. The complaint says the decision "deepened" her belief Baca was operating in violation of the Code of Judicial Conduct.

The code says judges should recuse themselves when there is a conflict, but doesn't specifically say a judge must recuse if he or she ever represented a party. Massey said the code allows for some discretion.

According to the complaint, Murray in February 2020 wrote her bosses an email, asking to be removed from Yara's case and repeated her belief it was a conflict of interest for Baca to preside over the case.

Less than a month later, Clayton entered her office and fired her, according to the complaint. When she asked for a reason, she was given a letter that said she served at the pleasure of the district attorney.

Yara's case was resolved by a plea agreement in April in which he pleaded no contest to aggravated assault with a deadly weapon. He received 18 months of probation and a conditional discharge, meaning if he successfully completed probation, he would not have a felony conviction on his record.

Murray, who is in her 50s, had been an attorney for more than 10 years before moving to Las Vegas from Alamogordo to work in the District Attorney's Office, Monagle said.

Since she was fired in the middle of the pandemic, she's had difficulty finding a new job, Monagle said. She asking to be compensated for past and future wages and emotional distress.

"Pilar did what we teach our kids to do, what we teach our law students to do, what we teach everyone to do in a democratic society," Monagle said. "You see what you perceive to be misconduct, and you report it. She was punished for that. If we believe these values of equal justice for all, equal treatment under the law are worth upholding, we need to protect whistleblowers and make sure the nail that sticks up doesn't get hammered down."

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