Lawyer Jason Flores-Williams' motion is below:
MOTION TO DISMISS DUE TO SEVERE, INCURABLE PREJUDICE CAUSED BY NEW MEXICO GOVERNOR SUSANA MARTINEZ’S INFLAMMATORY PUBLIC LETTER TO UNITED STATES ATTORNEY GENERAL ERIC HOLDER & UNITED STATES SECRETARY OF STATE JOHN KERRY
Defendant Charlie Hill, by and through counsel, files this motion to dismiss for violation of his Fifth, Sixth, and Fourteenth Amendment rights. Further, for Governor Martinez’s violation of the Separation of the Judiciary and Executive Branches as clearly delineated in Articles II, III of the United States Constitution. Grounds are set forth herein:
1. On December 18, 2014, Governor Susana Martinez wrote, signed and sent a letter to Attorney General Eric Holder and Secretary of State John Kerry. (“Exhibit A.”)
2. The letter was under the imprimatur of the State Seal of New Mexico.
3. The letter makes grossly prejudicial statements regarding an open and pending prosecution, describing Mr. Hill as:
a. “Cop killer.”
b. “Patrolman Rosenbloom’s surviving killer.”
c. Member of a “terrorist group.”
5. In stating that Mr. Hill is a member of a terrorist group, Governor Martinez makes unproven and false legal assertions.
6. In publicizing this inflammatory letter, Governor Martinez willfully prejudiced a pending adjudication.
GOVERNOR MARTINEZ INVADES THE JUDICIARY, EVISCERATING DUE PROCESS
7. For a sitting Governor—sworn to impartially uphold the U.S. Constitution—to publicly inject her beliefs into a pending criminal adjudication is to permanently, incurably infect the proceeding with prejudice.1
8. As the chief executive of this State, Governor Martinez’s remarks carry great weight, much more than a non-public figure.
9. In publicly condemning Mr. Hill as a “Cop killer,” Governor Martinez abandoned her role as executive and assumed the role of judge and jury.
10. By decreeing an American citizen to be guilty without trial, Governor Martinez disregarded due process, the presumption of innocence, and the constitutional separation between the Judicial and Executive branches.
11. The communication could have been kept confidential, but Governor Martinez chose to make the letter public, even though this matter had been under seal.
12. Proper remedy may have once been change of venue, had the Governor not: 1)Broadcast the letter to media; 2)Unnecessarily addressed the letter to two of the most well-known public officials in the world; 3)Placed the letter on the imprimatur of the State Seal; 4)Employed killingly prejudicial language; 5)Used the Office of the Governor to comment directly on what she acknowledges are charges that are active [and will], remain pending.
13. There is now no venue that can be free of the prejudicial stain.
CONSTITUTIONAL LAW 101
14. Governor Martinez’s public letter reads like a bad law exam. Her actions violate Mr. Hill’s due process rights, his right to the presumption of innocence, his right to a fair trial, his right of confrontation, his right to an impartial jury, and the separation between judicial and executive branches.
15. See Article II and Article III of the United States Constitution (erecting a wall between the Executive and Judicial Branches.)
16. See Federal Rule of Evidence 403 (exclusion of evidence due to prejudice.)
17. Sheppard v. Maxwell, 384 U.S 333 (1966). (Judge’s duty to protect Defendant from negative influence of pretrial publicity.)
18. Parker v. Gladden, 385 U.S 363, 364 (1966). In Parker, the bailiff said: “Oh, that wicked fellow. He is guilty.” If the Supreme Court reversed a murder conviction for the prejudicial taint of a bailiff’s statements, then a sitting Governor publicly calling a Defendant a “Cop killer” certainly constitutes a violation of the Sixth Amendment.
19. In Turner v. Louisiana, 379 U.S. 466, 472-473 (1965), the Supreme Court upheld the right of confrontation as a safeguard of due process. Governor Martinez’s accusations—and that’s all they are—have been presented to the public as official opinion without being subject to cross-examination or the rules of evidence. In some ways, the letter did exactly what it was supposed to do, circumvent the judicial process.
20. The Supreme Court has held that when statements or actions made in the context of a pending adjudication "involve[s] such a probability that prejudice will result that it is deemed inherently lacking in due process," Estes v. Texas, 381 U.S. 532, 542 -543 (1965). Here, such grave and systemic prejudice has been inflicted on the proceeding that due process has been made meaningless. As in Estes, the case against should be dismissed/overturned for violation of the Fourteenth Amendment as pertains to pretrial publicity.
21. The government may argue that considering the context, the letter was fair. The Governor only wanted to move the extradition forward. Mr. Hill will accept this argument if he, too, is allowed to argue context, specifically the socio-historical context as it relates to the treatment of African-Americans throughout American history, starting with slavery, then to Jim Crow, then the prison-industrial complex, Rockefeller Laws, the Drug War and Department of Justice’s recent report on Ferguson.
22. But the law strives to transcend context, so these arguments will not be heard.
SUMMARY: PLAYING CULTURAL POLITICS WITH THE LAW
23. Governor Martinez has politicized a judicial proceeding. In her letter that she broadcast to media, she used every damning buzz word available to appeal to the forces of law and order, which also happens to be her political base. She labeled Mr. Hill a “cop killer.” This is non-factual and unproven. She labeled Mr. Hill a member of a “terrorist group.” This is non-factual and unproven. Moreover, it is a piece of revisionist history that is perfectly in line with her political party’s attempts to demonize every social justice effort or insistence upon human dignity associated with the 1960’s. Were those who crossed the Edmund Pettis Bridge a terrorist group or were they civil rights heroes whose sacrifices made it possible for a Latina to be governor of our state? Were the Black Panthers a terrorist group or a symbol of resistance, hope and human rights? Or, if you were Black or Latino in the inner-city or the south in the 20th Century, was your American life like a repressive police state?
Governor Martinez has used her office and our State Seal to clarify these complex cultural questions for us. Pursuant to her proclamations, Mr. Hill is a member of a terrorist organization, and though serious legal questions concern that terrible night in 1971, is such a horrific person so that no trial is even necessary.2
The undersigned, respectfully, only hopes to show this is a total subversion of our Constitution. Governor Martinez’s letter contravenes the spirit of everything for which we stand: due process, the right to a fair trial, the governmental checks and balances achieved through the separation of the Judicial, Executive and Legislative Branches.
Thomas Jefferson wrote that: "A bill of rights [will] guard liberty against the legislative as well as the executive branches of the government." But that is only if the Judicial Branch enforces those rights. It seems that it is only in the most difficult cases that we are given the opportunity to do so, but the moment has arrived.
The Governor’s actions cannot be allowed to stand. This case should be dismissed.
24. The standard to dismiss a criminal indictment is admittedly high, see Bank of Nova Scotia v. United States, 487 U.S. 250 (1988.) However, we are not analyzing a defect in the indictment, but whether the Martinez letter as a matter of evidence has irretrievably prejudiced the pending adjudication and thereby affected a substantial right. See Federal Rule of Criminal Procedure 52(a), which provides that "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." The Martinez letter affects substantial rights. i.e. due process, the right to a fair trial, etc. It therefore cannot be disregarded under a “harmless error” analysis.
25. This Motion made Pursuant to Federal Rule of Criminal Procedure 12(b)(1).
26. Pursuant to D.N.M. LR CR-47.1, this Motion is assumed opposed. Undersigned counsel has attempted to confer with government counsel, but there was no response. A motion to dismiss is generally assumed opposed.
27. Pursuant to D.N.M. LR CR-47.10, being that the evidence is fully contained herein, Mr. Hill does not request an evidentiary hearing.
28. For these reasons, Mr. Hill respectfully moves this Honorable Court to dismiss with prejudice all counts in the above-referenced cause.
1 The Constitution of the State of New Mexico Article XX Section 1.(Oath of Officer.), reads, "Every person elected or appointed to any office shall, before entering upon his duties take and subscribe to an oath or affirmation that he will support the constitution of the United States and the constitution and laws of this state, and that he will faithfully and impartially discharge the duties of his office to the best of his ability.” Taken from the New Mexico Secretary of State website.
2 The forbidden inferences of Character and Propensity, Federal Rules of Evidence 403 & 404(a). Nb. The Governor has so dominated the narrative in this case that “Charlie Hill” and “Cop Killer” are now inextricably linked in the media.
Dated: March 10, 2015
/s/ Jason Flores-Williams
Attorney For Defendant Hill
Law Office of Jason Flores-Williams (State Bar: 132611) (Fed. Bar: 10-99)
2064 Paseo Primero
Santa Fe, New Mexico 87501