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Anson Stevens-Bollen

The Advocate and The Hardliner

Choices for district attorney present starkly different visions for the office

October 19, 2016, 12:00 am

The last time a Republican ran for District Attorney in the tri-county area comprising Santa Fe, Los Alamos and Rio Arriba, Gerald Ford sat in the White House. Now, for the first time in 40 years, residents of the Northern New Mexico region will choose their top prosecutor in a general election.

Democrat Marco Serna, a millennial native son with a recognizable name, takes on Yvonne Chicoine, a Republican with a wealth of experience working for political organizations and governments before recently switching to a legal career. They’re running to take over for Jennifer Padgett, Gov. Susana Martinez’ appointee to replace Angela “Spence” Pacheco, who retired last year after seven years in the position. Whoever wins will oversee 27 attorneys and 43 support staff across three offices and hold ultimate prosecutorial authority over all state offenses in the region.

The two candidates present starkly different visions for the office. Serna sees a pulpit to expand cooperation between prosecutors and treatment programs, part of a mission to funnel addicts out of the criminal justice system. His ideas resonated among Democrats in this drug-ridden district, particularly Rio Arriba County, whose voters helped propel him above two opponents in a close primary race. Chicoine, who kicked off her Santa Fe career working for Republican state representatives, wants to “restore respect for the rule of law,” which she says has been tarnished in the district by selective prosecution. She ran unopposed in June.

Chicoine is the clear underdog. About 64 percent of voters in the district are registered Democrats, while just 17 percent are Republicans. Even if the 17 percent of voters identifying as independents all vote for Chicoine, she still faces a challenge. (The rest are registered under third parties.)

The First Judicial District

Location: Santa Fe, Los Alamos and Rio Arriba Counties

Voters: 67 percent Democrat, 17 percent Republican

Area: 7,916 square miles

Staff: 27 attorneys and 43 support staff

Whoever wins inherits a heavy backlog of cases, a problem exacerbated by a hiring freeze resulting from budget cuts that took place during this month’s special legislative session, according to Padgett, the outgoing district attorney. Padgett adds that a lack of pretrial services, diversion programs and specialty courts also present challenges to her successor.

Marco Serna pulls his SUV up a long gravel driveway in a small neighborhood less than a mile north of the Penitentiary of New Mexico. It’s a sunny Thursday afternoon and he’s knocking on doors in the 70th voter precinct, an expansive patch of mostly-undeveloped land between La Cienega and Eldorado.

Serna gets out of his car and waves down David Babcock, a registered Democrat, before the retired home designer is able to drive away. Babcock notes that he’s in a hurry, but gives the candidate a moment to make his pitch.

“I’m really focusing on nonviolent drug offenders,” Serna tells his prospective constituent, who is listening through his rolled-down car window. “Trying to impose treatment with our sentencing, even with habitual offenders, rather than incarcerating them, is key,” Serna says, touting a 70 percent success rate for the Delancey Street rehab center at San Juan Pueblo.

Marco Serna

Party: Democrat

Law school: St. Mary’s University (San Antonio, Texas)

Last job: Medicaid Fraud Unit of the Attorney General’s office

Platform:

“When you have people who suffer from addiction, so much good can be done by getting them into long-term treatment, rather than putting them in prison.”

“Some of those people, they need to be locked up,” Babcock interjects.

“Well, I agree with you. The violent offenders—”

“The habituals too. And the thieves.”

“Here’s the thing with habitual offenders,” Serna replies. “With a lot of them, it is theft, carjacking and burglaries, and after a certain point I agree with you. But your second or third offender, if we were to just get them into treatment, my view is we would see a decrease in crime across the board.”

Babcock, having heard enough of Serna’s stump speech, asks the Democrat his position on the death penalty. That evening, the House of Representatives would stay up through the night debating a bill supported by Gov. Martinez proposing to reinstate capital punishment. The chamber passed the proposal 36-30, but it later died in the Senate.

"If we were to just get them into treatment, my view is we would see a decrease in crime across the board."
                             -Marco Serna

“That little girl in Albuquerque, that 10-year-old girl, that’s what tells me they gotta put it back in,” Babcock says, referring to the case of Victoria Martens, whose rape, murder and dismemberment this summer horrified New Mexicans.

Serna says he opposes the death penalty due to the protracted appeals process for the condemned, which often drags on for decades and costs millions of dollars. He rattles off the other arguments invoked by opponents of capital punishment: It’s not a deterrent and there’s no way to reverse death. (Serna tells SFR he would seek the death penalty in extraordinary cases if the Legislature brings it back. “Do I have discretion? I do. But I still have to enforce the law,” he explains.)

The points don’t seem to stick with Babcock. “Some of these are clear-cut cases,” the voter says. Serna, ready to move on to the next home, asks the man if he has any other questions.

“I like that you’re a Democrat. I like that little conversation we had now. You’re straightforward, and it’s not like your hands are going to be tied. You’re not going to push any laws,” Babcock says. “I’ll vote for you. And I’ll vote for Hillary.”

Serna, who grew up in Northern New Mexico and is a 2008 graduate of St. Mary’s School of Law in San Antonio, Texas, got his first job in New Mexico working on risk management for the state’s General Services Department. In his first two weeks, he got a taste of a federal trial, interviewing two witnesses. “I did a lot of cool things, to be honest,” he says of his time in the Risk Management Division. But Serna’s cases there, he says, too often wound up in mediation, and since law school he always felt most comfortable in the courtroom.

He applied for prosecutor and public defender openings before landing a gig in Valencia County as an assistant district attorney. Like most prosecutors, he started at the magistrate level, working DWIs and domestic violence cases. In 2011 he earned a promotion to supervise Valencia County’s domestic violence unit. He eventually moved over to Sandoval County, another jurisdiction covered in the district, becoming head of the violent crimes unit in 2013.

During that time, he tried two cases that continue to stick with him. The first is a child molestation case involving a man who allegedly performed oral sex on a 3-year-old girl while she slept. Parents did not report the alleged assault by someone they considered a family friend until after the girl described the incident to her mother, who had inquired about her daughter’s unusual behavior. The accused claimed that the girl may have dreamt the scenario. The trial resulted in a hung jury, with 11 of 12 jurors convinced of the man’s guilt.

“What really brings me back to this case is the young girl, the victim. She was so courageous through this process. She had to sit on the stand in a courtroom full of strangers, look at a jury box full of adults, attorneys who were asking her questions. And she was so courageous through the whole thing. I was heartbroken because justice, in my opinion, wasn’t served that day,” Serna says. “I think about that case on a weekly basis, because you wish you could’ve done better.”

Another case Serna often mentions is the murder trial of Jack McDowell, a retired state police officer convicted in the stabbing death of James Chavez, a Rio Rancho man, in 2011. Serna’s team presented the case that McDowell and his son John, both affiliated with the Bandidos motorcycle gang, attacked Chavez over drugs and a love interest. The older McDowell is currently serving a 30-year sentence for first-degree murder. “I was very proud to put him in prison,” he tells SFR. John McDowell pleaded guilty to a reduced charge of aggravated battery.

Serna resigned from his last job, working for the Attorney General’s Medicaid fraud unit, in January to run for office. He says he’s getting by on savings and a few legal consulting contracts.

During the primaries, Serna campaigned to the left of his opponents, incumbent Padgett and former assistant attorney general Maria Sanchez-Gagne. Padgett knew the office firsthand. Sanchez-Gagne had more than 20 years experience working as a prosecutor. To set himself apart, Serna emerged as the advocate.

His public comments almost always focused on a self-described “outside-the-box” approach to lower-level crimes arising out of addiction. Initiating long-term treatment programs, as he explained to Babcock, would be a priority in his administration. He vowed to expand pre-booking diversion programs, namely Santa Fe’s Law Enforcement Assisted Diversion (LEAD) program, to Los Alamos and Rio Arriba counties. (LEAD grants police officers discretion to divert property and drug crime offenders, specifically habitual ones, straight to treatment programs, skipping prosecution.)

Marco Serna’s door-to-door game is strong.
Steven Hsieh

On the trail, Serna says he also wants to bring more cooperation between the district attorney’s office and nonprofit organizations, including the Delancey Street Foundation and the Solace Center, a crisis center for victims of domestic violence, sexual assault and child abuse.

A New Mexico law passed in 1981 by the Legislature already grants state’s attorneys authority to divert prosecution for first-time nonviolent offenders. But Serna says that law, which imposes a six-month to two-year probationary period for participants, doesn’t go far enough. He tells SFR, “When you think of people who are addicted right now, a lot of these guys are habitual offenders. That program doesn’t help them. It imposes prison time. What do we accomplish by that?”

Serna says finding funding for his ideas amid a statewide budget crunch will be his biggest challenge. Yet, he says he won’t delay lobbying state, city and county governments on the topic. Reducing incarceration, Serna argues, will save money in the long run.

Peter K Enns, a Cornell University professor and author of Incarceration Nation, which tracks the rise of the United States prison population, says Serna’s rhetoric reflects a national reckoning over strict sentencing for drug offenders with roots in the crime waves of the ’80s and ’90s.

Bipartisan efforts on Capitol Hill to shrink America’s prison population by reducing mandatory minimums gained momentum during Barack Obama’s presidency, although those efforts have recently hit a snag. Obama, meanwhile, has recently commuted the sentences of hundreds of federal drug offenders.

Democratic New Mexico Sen. Martin Heinrich co-sponsored a bill to increase resources nationwide for combatting heroin and opioid addiction, which passed the US Senate but is currently stalled in the House.

“My sense is that [Serna’s campaign] is very much in line with the national interest in criminal justice reform,” Enns tells SFR. “It appears that in some areas district attorneys are also noticing that public attitudes and the criminal justice political climate have changed.”

Serna’s platform stops short of supporting drug decriminalization. “Your opioids, your heroin, methamphetamine, absolutely not. Marijuana, I wouldn’t actively support it, but I wouldn’t actively oppose it,” he says.

On another topic of national interest, officer-involved shootings, Serna offers perhaps his biggest turn from the current administration. Under Padgett, the district attorney ultimately gets to decide whether a police shooting was justified. She recently broke from a controversial practice of using secretive grand juries to investigate these cases. Serna wants to completely remove the district attorney’s involvement after police use deadly force, instead inviting a special prosecutor to take the reins.

“Why would we have the DA’s office, who works with these individuals day in and day out, not only investigate them, but determine whether we would prosecute them? There is an inherent conflict of interest,” Serna tells SFR.

Yvonne Chicoine thanks city police officers as they arrive at Derailed, a bar attached to the Sage Inn, where her campaign is holding an appreciation event for area law enforcement. Long tables stretch along a back wall, offering mostly-untouched sandwiches and donuts. Another table is topped with t-shirts, stickers and a stuffed chicken. The plush poultry references a mnemonic slogan Chicoine often uses to explain the pronunciation of her name: “Please remember this November. This chick will win. Vote ‘chick-win.’”

The Santa Fe Police Officers Union has endorsed Yvonne Chicoine in the race.
Steven Hsieh

About a dozen people show up to the event, among them Sgt. Troy Baker, president of the Santa Fe Police Officers Association. Chicoine recently earned the endorsement of that union, as well as that of the local chapter of the Fraternal Order of Police.

Baker says Chicoine is the only attorney he knew of in the district attorney’s office to prosecute a case of battery on a police officer, claiming that other staffers in the office turned a blind eye to crimes against his colleagues.

“We know what we’re getting with her because we worked with her in the DA’s office. Our staff has individually had to deal with most of the previous administration there. If we get battered in our job, none of them would prosecute battery of a police officer. They would say, ‘Well, that’s your job.’ And that’s, to put it lightly, bullshit,” says Baker.

Yvonne Chicoine

Party: Republican

Law school: University of New Mexico

Last job: Appeals division of the Attorney General’s office

Platform:

“We’re diminishing the rule of law if as a prosecutor I decide I’m not going to enforce certain laws.”

(A SFR review of data from the Administrative Office of the Courts found that more than 340 cases of crimes against police, from battery to aggravated assault, have been filed in the district since 2007. Twenty-five resulted in conviction.)

Baker’s claim buoys the crux of Chicoine’s platform: that there are certain categories of offenses that too many people get away with—three categories, to be specific. After battery of a police officer, the other two are crimes against businesses (shoplifting and embezzlement) and DWIs.

“We have had selective law enforcement in our community for a long time,” Chicoine tells SFR. “It does two things: It fosters lawlessness and stands as an impediment to people who obey the law.”

As an example, she shares an anecdote from her time working as an assistant district attorney under Pacheco. “What I was told when I was there is, ‘Once someone gets their first DWI, we really don’t care. We want to accumulate convictions until we get to the felony level.’” (Serna says first offenders should plead, second offenders are case-by-case, and third offenders should serve time.)

Like her Democratic opponent, Chicoine is relatively new to the field, graduating from the University of New Mexico School of Law in 2007. But she has been involved in creating and influencing legislation for decades.

"We have had selective law enforcement in our community for a long time. It does two things: It fosters lawlessness and stands as an impediment to people who obey the law."
                     -Yvonne Chicoine

Chicoine’s career started in the late ’70s, when she worked as a policy advisor for the American Conservative Union, the DC political organization. In the next couple decades, she helped manage a trademark association and directed trade policy for a paper and wood lobbying group. She moved to Santa Fe in 1995 after marrying her husband, Tom Starke, a Los Alamos physicist who, now retired, now spends his time on DWI prevention programs.

But Chicoine didn’t slow down in the City Different. She helped edit a government operations report for the Gary Johnson administration and worked as a legislative analyst for Republican state representatives before landing a management job at a construction industry trade association. Then, at the age of 48, she went to law school.

In 2007, Chicoine started her legal career in the First Judicial District, the office she seeks to head, where she worked her way up from the magistrate level to trying crimes in district court.

She served as second chair in the high-profile prosecution of Jennifer Stephenson, the mother of Isaiah Apodaca, a 2-year-old Santa Fe child whose legs got caught between a fallen dresser and a bed railing. Acting on a suggestion from doctors, Chicoine and colleagues originally theorized that ligature marks on the boy’s legs came from ropes and charged Stephenson with first-degree child abuse. But after doctors, upon further inspection, decided that could not be the case, prosecutors dropped that charge and sought negligent child abuse and child abandonment.

A jury convicted Stephenson of the second charge, a decision reversed by an appeals court. The state Supreme Court last month upheld the reversal. “I agree with Justice Nakamura’s dissent,” Chicoine tells SFR, referring to Republican Judge Judith Nakamura, who argued that the prosecution had enough evidence to prove Isaiah would have cried through the night, such that Stephenson would have heard it.

After serving about four years in the district, Chicoine moved to a job in the attorney general’s office, working in the criminal appeals division. She prosecuted another headline case during this time, successfully convicting Curtis Jones in a decade-old case of child abuse resulting in death. Chicoine resigned this year to run for district attorney.

Chicoine’s platform presents as a conservative alternative to Serna’s advocacy-based campaign. The district attorney should be busy enforcing the law, she says, not creating programs or lobbying legislators. “If a shortstop is trying to do the second baseman’s job, that creates a void,” she explains to SFR.

Bringing up the recent push to reinstate capital punishment as an example, she says, “I think it is reasonable for the district attorney to comment on the language that might be in the law. But the political decision as to whether or not there should be a death penalty should not be in the equation for the district attorney.”

Chicoine doesn’t support the LEAD program, a Santa Fe city initiative, which she calls the “de facto decriminalization of drugs.” If elected district attorney, Chicoine says she would use the state’s diversion law in certain circumstances, but incarceration would be appropriate for people “who have adopted a criminal lifestyle.” In Chicoine’s eyes, poverty and addiction should not be an excuse for crime.

“If one wants to rehabilitate, one can do it without getting into the criminal justice system,” she says. “There are plenty of people in AA or NA who recognize that and don’t have criminal records.”

In many ways, Chicoine is exactly what you would expect from a district attorney: conservative and tough on crime. If Serna’s primary win in June is any indication, however, voters in the First Judicial District have different ideas in mind.

Asked whether she views her bid as a longshot, Chicoine says, “I think my campaign has changed the discussion.”


 

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