Do I Look Guilty To You?

New Mexico's grand jury system overwhelmingly produces indictments. Ham sandwiches beware

Imagine, for a moment, that it's a chilly December night, and a pretty young brunette has come to your apartment. Your courtship of her began when you were picking up a paycheck and told her you had all that money but nobody to spend it on. She accepted when you asked her out for dinner. After that, the two of you spent time together—hiking, cooking, talking. On this particular night, you share a joint. When she leaves your apartment around midnight, you give her some pot for the road. A similar handoff occurs a month later.

What you don't know is that this woman is working undercover for the Los Alamos Police Department. She landed the job a few months earlier, by chance and a lucky T-shirt. And she's been gathering the evidence that will be used to indict you.

In the late 1980s, Alice Psota applied for a job at the Los Alamos County jail. Before taking the physical exam, she peeled off her sweatshirt to reveal a T-shirt that read, "All this and brains too."

Psota passed the test—and caught the attention of Alan Kirk, who worked for the Los Alamos Police Department.

During her interview, Psota wore business attire, she says, but Kirk asked about the T-shirt.

"Is it true?" he inquired, according to Psota's recollection.

"And I said, 'Damn right!'" she recalls.

Kirk asked her to meet him at a restaurant in Santa Fe, and her life as an undercover narcotics agent began. He told her about a drug problem in the ranks of Los Alamos' public works department, she says, and assigned her to bust the narcotics ring.

In the course of her assignment, Psota, then in her 20s, got to know 33-year-old Robert Welsh, a custodian at the county library.

"I found he was in the drug world, so I befriended him, I guess," Psota tells SFR.

She remembers him as a lonely man with a sense of self-grandeur. He eventually mistook her attention for genuine attraction.

"Was I romantic to him? No," Psota says now. "Did he take me to dinner? Yes. Did he sell me marijuana? Yes."

According to court documents, Welsh gave Psota marijuana twice—once in December 1988, and again in January 1989, during another nighttime rendezvous at his apartment.

An investigation began, and on May 24, 1989, a Los Alamos grand jury indicted Welsh on two felony counts for distribution of a controlled substance.

An indictment isn't a guilty verdict—it's just a formal accusation that clears the way for an actual trial. But when faced with serious charges, many people choose to strike plea bargains with prosecutors. Court documents show that, later that year, Welsh pled guilty to one count of marijuana distribution, a fourth-degree felony punishable by 18 months in prison and a $5,000 fine.

He received a more lenient sentence than some of those snared by Psota's undercover operation: a conditional discharge in which he had to pay $15 a month for one year to cover the cost of meeting with a probation officer.

Welsh's indictment nonetheless set a course for the rest of his life. County officials sent him out of view, painting basements of county buildings and, Welsh recalls, he was later asked to leave what would be his last full-time job. County records show that he resigned in January 1992.

Welsh's story illustrates the impact a mere indictment can have on a person's career and future. The judge in Welsh's case, Patricio Serna, went on to become a justice in New Mexico's Supreme Court, and would note as much in a 2009 opinion. In it, Serna argued that grand jury indictments can cause "lasting injury."

"For a wrongful indictment is no laughing matter," Serna wrote, quoting a previous case. "[It] often works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man's escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty."

Grand juries—charged with determining whether there's enough evidence to hold a trial—have the power to indict people accused of felonies. But grand jury hearings are held in secret, with low standards of evidence and prosecutors running the show. SFR's investigation reveals that few targeted by New Mexico grand juries are cleared of charges. Most defense attorneys—and even a few prosecutors—agree that the grand jury system is inherently unfair to the same people it was established to protect: the accused like Robert Welsh.

But New Mexico's grand jury system mirrors that of many states. It was, after all, a New York judge who coined the famous phrase expressing how easy it is for prosecutors to obtain indictments through grand juries:

"The old adage is that…any prosecutor worth his salt can indict a ham sandwich," says Michael Stout, the former president of the New Mexico Criminal Defense Lawyers Association.

Grand juries work like this: a prosecutor presents evidence—typically oral testimony—to a panel of citizens. The panel must decide whether the evidence against the grand jury's "target" is strong enough to establish probable cause that he or she knowingly committed a felony. It's a lower standard of proof than "beyond a reasonable doubt," the test employed in regular trials. In New Mexico, if eight of the 12 grand jurors find probable cause, they return an indictment—a formal accusation that allows the prosecutor to take the case to trial. If jurors refuse to indict the grand jury target, the target is temporarily in the clear.

The system dates back to the Middle Ages. In 1215, when British subjects penned the Magna Carta, they turned the grand jury into a buffer between the king's prosecutors and those accused of crimes—a jury of peers that would determine whether the charges had any merit.

"[The grand jury] was supposed to be not just an arm of the king, but it was supposed to be an independent body…a check and balance on the power of the state," John Day, a defense lawyer based in Santa Fe, explains. The Magna Carta would eventually become a basis for the United States' Bill of Rights, in which the Fifth Amendment allows citizens charged with felonies the right to a grand jury hearing.

But according to SFR's analysis, local grand juries rarely refuse to indict. The First Judicial District, which encompasses Rio Arriba, Los Alamos and Santa Fe counties, is a case in point. As of Sept. 12, grand juries in the district have handed down 774 indictments and just 37 "no bills" (the term for a grand jury's refusal to indict). That means only 4.5 percent of the 811 people targeted by grand jury investigations were cleared of charges.

Some other districts use grand juries sparingly, relying more heavily on preliminary hearings—public proceedings in which a judge decides whether there's enough evidence for probable cause. Defense lawyers interviewed overwhelmingly prefer preliminary hearings, which are similar to regular trials in that the defense is allowed to cross-examine witnesses in a public venue.

"Personal appearance and cross-examination is the greatest engine of truth ever created by the American justice system," says Mark Donatelli, a longtime criminal defense lawyer in Santa Fe. So far this year, however, just 43 preliminary hearings held in the First Judicial District have produced findings of probable cause.

In contrast to the active role defense lawyers play in preliminary hearings, at grand jury hearings, a defense attorney may only appear if his client chooses to testify, and is limited to whispering advice in the client's ear. In short, defense lawyers can be relegated to sitting there "like a bump on a log," says Daniel Marlowe, a local defense lawyer. "You can't object" to questions asked by prosecutors, he adds, calling it a "one-sided presentation of the facts" meant to secure indictments.

"I personally think grand juries are draconian," Marlowe tells SFR. "[Prosecutors] can base it on hearsay testimony. [Then] they can throw you in district court and make you defend yourself."

A prosecutor's official role in a grand jury room is that of an "aide" who examines witnesses and assists jurors. State law requires prosecutors to be "fair and impartial" assistants to the grand jury, but many see their grand jury role as a naked conflict of interest.

"Obviously, they try to present their case in the most favorable light to them," says local criminal defense lawyer Andras Szantho. "That's just kind of the way the system is set up."

Angela "Spence" Pacheco was elected First Judicial District Attorney in 2008. In this year's primary election, she handily beat Lloyd Drager, who positioned himself as the tough-on-crime candidate by criticizing Pacheco's conviction rate, particularly as it related to drunk driving cases.

Drager was an assistant district attorney at the time of Welsh's case—when, past news articles show, police officers were pressuring the district attorney to pursue drug cases like Welsh's with more fervor. Pacheco, who will run unopposed in the November general election, is petite and energetic. On a recent September day, SFR interviewed her as she escorted three recent hires—all new attorneys—to the state Supreme Court to obtain their law licenses. She later told SFR that the second step in training new prosecutors is to teach them to preside over grand juries.

Although her office's frequent use of grand juries produces frequent indictments, Pacheco says that's simply because they bring strong cases.

"Our office is not about getting convictions," she says, "because you can't get a conviction at the cost of someone's constitutional rights."

But some defense lawyers argue that the secrecy and structure of grand jury hearings can make them seem inherently unfair.

In 2003, amendments to the state law governing grand juries ushered in a significant change, limiting the evidence allowed during grand jury hearings to "lawful, competent and relevant" evidence. But Pacheco says not "all hearsay is bad."

"Hearsay is not problematic in grand jury," she says. "You may use hearsay in grand jury—and the only reason we would want to use hearsay in grand jury is because, if we called every witness that witnessed an event, it could be very lengthy. And it becomes a problem in that we would never get anything accomplished."

Jason Flores-Williams, a criminal defense lawyer from Santa Fe, is a vocal critic of Pacheco's office's conduct in grand juries. A tall, brooding man with a shaved head and booming voice, Flores-Williams represented death row defendants in New Orleans before returning to his hometown.

For over a year, he has defended Jody Deere, an Oklahoma man accused of raping an acquaintance, Angela Damron, in 2009. Damron had been drinking heavily, and a report by a sexual assault nurse later noted that she had traces of cocaine and anti-depressants in her system. She met up with Deere at The Underground at Evangelo's. The charges state that he drove her to his ex-wife's home and raped her on a couch, where she awoke the next morning naked from the waist down. Flores-Williams maintains that Damron, who had had sex with Deere before that night, consented to the sex.

The original indictment against Deere was dismissed after the state failed to properly notify Deere that he was the target of a grand jury investigation. But the state, floating the argument that Deere had date-raped Damron, brought the case to another grand jury and called Santa Fe Police Det. Charlie-Ann Martin to testify. In a recent hearing before First Judicial District Court Judge Michael Vigil, Flores-Williams questioned Martin's testimony.

"My main concern is the testimony of Charlie-Ann Martin, the officer," Flores-Williams told Vigil. "During grand jury testimony, she talked a lot about­—in an almost expert-like capacity—about, 'Well, these are the date-rape drugs; this could be here; this could be there.'" (The nurse's report found no traces of date-rape drugs.)

"And there was no evidence?" Vigil asked.

"There was no evidence whatsoever," Flores-Williams replied. Even Cynthia Hill, the deputy district attorney prosecuting the case, admitted that "Officer Martin is definitely not an expert on that issue."

The jury couldn't agree on a verdict, and Vigil called a mistrial. The state plans to retry the case—but Flores-Williams is still upset about the evidence allowed in the grand jury.

"The cop is just kicking it back, spewing about…the dissolution rate of drugs in the system!" he tells SFR. "'Oh, I've been doing this for 20 years and, of course, I'm a chemist!'"

"That the district attorney uses this sort of testimony would be semi-funny, if it didn't rip apart families, destroy lives and condemn human beings to the darkness of prison," he later emailed SFR. "The lack of integrity here is appalling."

Flores-Williams and Pacheco would agree on one thing, though: a preference for preliminary hearings. But Pacheco says preliminary hearings can cost more and often take longer, so using  them more would happen only in a “perfect world.”

Under the current system, she says, "If we were to take the majority of cases to prelims, the court would come to a standstill."

Neither the First Judicial District Jury Management Division nor the state Administrative Office of the Courts was able to provide a cost comparison for grand jury versus preliminary hearings, except to say that all jurors are paid the same—$6.25 an hour to spend one day a week hearing felony cases. Currently, the district employs two sitting grand juries in Santa Fe County and one in Rio Arriba County, each with 12 members, plus alternates.

Donatelli, however, points out that preliminary hearings might lead to more efficient plea bargaining because both sides will know the strength of their cases after testing the evidence.

"Those systems that have had experiences of preliminary hearings swear by them…," he says. "I think, if they tried it out, they'd find it would result in lower cost of prosecution."

Plea bargaining is already common practice, though, and Pacheco says Santa Fe grand jurors don't allow her prosecutors to strong-arm them.

"They are very independent," she says, adding that she's seen grand jurors—carefully looking over statutes—drop charges requested by her office and add ones they think are more applicable.

"They would hang me!" if they thought her office was abusing the process, she jokes.

Day—like many defense lawyers interviewed for this story—believes that, under Pacheco's watch, "not many cases get in the system that shouldn't." But as a former prosecutor in the Eighth Judicial District, he knew all the "tricks" for getting indictments—like sending tough cases to a grand jury right before lunchtime—and recognizes the potential for abuse.

"The system is just inherently geared toward these young, relatively inexperienced prosecutors [who] have tremendous amounts of power over the system," he says. "And if they don't have good supervision or if their supervision is twisted or warped, then you get these abuses."

But in the end, he notes, it's up to grand jurors to act as a check on the state.

He should know: a grand jury in Taos recently cleared his client of child abuse charges for allegedly shaking his infant son to death—a case that would normally take "split seconds to indict." But thanks to changes in 2003 requiring prosecutors to present "exculpatory evidence"—evidence that suggests that the accused may be innocent—Day was able to get the prosecutor to present testimony by a medical expert who explained that the science behind "shaken-baby" syndrome is unreliable.

"Grand jurors have more power than they realize," Day concludes. "They tend to be treated like sheep by a lot of prosecutors. If the system's working properly, the grand jurors should be able to exercise independent, skeptical judgment."

Serna's 2009 Supreme Court opinion further clarified the use of exculpatory evidence in grand juries. Donatelli, for one, saw firsthand the need for the ruling. He recalls a client's experience of "horrific abuses by a grand jury" called by the state attorney general's office in 2007. His client, Penny Granich, allegedly drove her husband's truck off the cliff at Overlook Park in White Rock. Her husband died. Granich survived, but was badly injured.

Donatelli, before the grand jury hearing, requested that the state introduce exculpatory evidence: the testimony of the bartender who served Granich that night, and that of Granich's sister, who buckled her into the passenger seat when the couple left the bar in the "early morning hours of December 4, 2005." Donatelli also requested that the state tell grand jurors that two separate district attorneys' offices had passed on prosecuting the case, and that the grand jury be told about the wrongful death civil suit pressed by Granich's deceased husband's family "to show the family had aggressively pursued prosecution."

But the prosecutor didn't call those witnesses or present that evidence, according to Donatelli's motion. Instead, the prosecutor had presented testimony of two police officers, one of whom "engaged several times in improper, irrelevant and deeply prejudicial speculation, including speculation about Ms. Granich's mental health." Donatelli claimed that testimony on Granich's medical condition violated federal law because it was obtained without a waiver from her physician.

"The prosecutor permitted him to engage in this gross speculation in front of the grand jury with virtually no correction or admonition," Donatelli's motion states, noting that the prosecutors had also allowed two grand jurors to reveal that they had signed a community petition, circulated by the Granich family, demanding that Penny Granich be prosecuted for the death of her husband. Those jurors were excused, but not before the assistant attorney discussed the petition—making the other jurors aware that it existed.

The grand jury indicted Granich, and the motion to dismiss that indictment was denied. Her case went to trial, where she was found innocent, but that didn't change that she had gone through "hell," Donatelli says. "A mere indictment," he adds, "can be damaging to the reputation and livelihood of the defendant."

During his grand jury hearing, Welsh could have testified, but he says his public defender advised him not to appear. That's typical advice because, "if they say something stupid at a grand jury, you're kind of stuck with that," Szantho says. After the grand jury indicted Welsh, his public defender, Kathryn Hormby, filed motions demanding information about Psota's qualifications. She wasn't a police officer—information about which Hormby could have pressed Psota, who testified at the grand jury, during a preliminary hearing.

"The requested information goes directly to the credibility of the state's primary witness," says Hormby's demand for information—which a judge denied.

Twenty-three years later, one of the people who served on Welsh's grand jury strains to remember specific details about his experience. But he vividly recalls one particular conversation with a prosecutor.

"The chilling thing was…I asked the prosecutor why they went the grand jury route," he says, "and his reply was [that] it [was] easy to get an indictment."

The grand juror, whose name SFR is protecting due to grand jury secrecy rules, voted against the indictment and recalls being angry about it because he felt Psota might have set Welsh up.

"I think he was a very lonely person…" he says of Welsh. "She paid some attention to him, and that really hooked him, you know?"

Psota, however, doesn't recall a skeptical grand jury. She says that once she established her "credibility," they would ask her questions like, "How do you fake smoking weed?"

She has no regrets about the sting conducted against Welsh. He was breaking the law, she says—"Would you want someone plowing the streets stoned?"

Psota recalls receiving death threats as a result of her sting operation. The librarians who worked with him were angry; they felt she should have led him on the "path of the straight and narrow." She left town; now, she lives in another state, a married woman no longer in law enforcement. She says that Welsh was one of her smaller stings, and she was behind uncovering drug use at the Los Alamos National Laboratory.

Welsh is still struggling, though. Now a gangly and affable 57-year-old, he lives in a Motel 6 in Bernalillo and spends his time dutifully washing car windows in a Starbucks parking lot for spare change. The employees like him, and he calls in if he's not going to show up—even though he's not officially employed there. Dragging on a cigarette in his hotel room, Welsh says he didn't want to wash windows on a recent morning because, when he woke up, his legs were "dancing" even though there was no music. The pain in his limbs had flared up again. He walks with a cane and occasionally talks about a computer chip implanted inside him.

His main concern now is "the elements." He's worried the winter will cut down on the money he makes washing windows. Someday soon, he wants to get a "roof over my head."

Welsh admits that he did smoke weed back in the '80s, but says he wasn't a dealer.

He recalls that, at the time of his resignation, he was on his fifth year working for Los Alamos County, and he was set for a Christmas bonus.

"Guess what I got?" he says. "No bonus and a pink slip."

He says he hasn't had a full-time job since.

"It's been pretty much downhill from there," he says.

But he doesn't hold "any malice towards Alice." He asks how she's doing, noting that he once "left flowers in front of her apartment every night."

Letters to the Editor

Mail letters to PO Box 4910 Santa Fe, NM 87502 or email them to editor[at] Letters (no more than 200 words) should refer to specific articles in the Reporter. Letters will be edited for space and clarity.

We also welcome you to follow SFR on social media (on Facebook, Instagram and Twitter) and comment there. You can also email specific staff members from our contact page.