Full Recovery

Yet the first version of the bill doesn't do much to give victims of white-collar crimes more protections.

The House Judiciary Committee considered Cook's initial try at HB 569 during a March 9 hearing. Cook, the committee chairman, is now redrafting the legislation, just two weeks before the session is scheduled to conclude.

A career felon sentenced by a Santa Fe judge to 34 years in prison after being convicted of 10 counts of securities fraud and racketeering in 2007, Soutar won an early release from that sentence in a highly unusual 2012 hearing after lawyers convinced then-Attorney General Gary King that Soutar could repay investors he defrauded in an art market scheme.

An SFR investigation published last year showed that attorneys working on behalf of Soutar had ties to King, whose office secured Soutar's conviction in a joint prosecution with the Regulation and Licensing Department's Securities Division, then privately negotiated with the prisoner's lawyers for the release.

Gov. Susana Martinez used the case in political advertisements against King, who denied undue influence. Yet victims like James O'Hara, an employee of Soutar's Santa Fe art market, remained convinced that King acted inappropriately.

O'Hara says Soutar owes him $5,400 in unpaid wages. His brother Dermot was also never repaid the $32,500 he'd invested in the market, even though he was a key witness who helped prosecutors secure Soutar's original convictions.

One victims list compiled by officials in King's office stated that Soutar, nicknamed the Casanova Con Man by America's Most Wanted, owed 21 individuals and nine companies between $654,000 to $1 million, including the O'Haras. Soutar later paid eight individuals, two companies and the state about a third of that amount. The O'Haras never got paid. Records show that a top official in King's office told the victims' advocate handling the case to cut the family off from information about the restitution process.

They filed an unsuccessful tort claim notice with the state. The office of State Auditor Hector Balderas reviewed the case, noting that normal procedures hadn't been followed. The review outlined the few options the victims might take against King and his staff, including reporting his actions to a district attorney or reporting him to the state bar. It's unlikley either option would allow the O'Haras to recover the money they lost. They didn't file a lawsuit against Soutar because they believed the AG's office was working to get their money back.

"I've pursued every mechanism available to me," James O'Hara told committee members.

In the context of a criminal case, "victim" is a word with strong legal muscle in New Mexico—stronger than in many states. In 1992, New Mexico voters ratified Amendment 24—the Victims' Rights Amendment—to the state constitution. The amendment grants 11 specific protections—like "the right to restitution from the person convicted of the criminal conduct that caused the victim's loss or injury"—to victims of violent crimes including homicide, rape and arson.

But the amendment doesn't include victims of white-collar crimes like the O'Haras, notes Patrick McNertney, a former prosecutor with the Securities Division who helped secure Soutar's conviction and vehemently opposed his release. He thinks forgery, embezzlement and securities fraud should also be listed. "That's been a glaring hole for too long," he says.

Cook's first draft of the bill doesn't include such changes.

Officials who work for Balderas, now attorney general, wrote in an analysis that the proposed bill "sets up an adversarial relationship between crime victims and the prosecutor, because every victim is now a potential plaintiff in a civil lawsuit against the prosecutor."

Tucumcari District Attorney Tim Rose spoke against the bill at the hearing. Cook's colleagues appeared to favor the idea of more redress for crime victims who think their constitutional rights have been violated.

"I think this is a cool bill," said Rep. Moe Maestas, D-Bernalillo, a former prosecutor. Maestas also noted that he thinks victims' advocates should be more independent from prosecuting offices. He agrees that victims should have recourse against prosecutorial misconduct—but not through lawsuits.

Santa Fe Reporter