On February 3, the New Mexico Supreme Court issued an “Order to Show Cause” to prominent DWI criminal defense attorney Thomas Clear, III. Clear is being ordered to show cause by the NM Supreme Court why he should not be held in contempt of court and disciplined for his alleged nefarious conduct in the racketeering, bribery and kickback scheme to law enforcement officers to get DWI cases dismissed. The bribes were given in exchange for referring clients to Clear and helping Clear to get the criminal charges dismissed in court. The bribes were in the form of cash, money orders, gifts, trips or free legal advice. The officers alleged to be involved are with the Albuquerque Police Department (APD), the Bernalillo County Sheriff’s Department (BCSO) and the New Mexico State Police Department .
The New Mexico Supreme Court has licensing authority over all lawyers licensed to practice law in the State. The New Mexico Supreme Court’s Order to Show Cause is essentially identical in nature to the one filed just days before by Chief U.S. District Judge Kenneth Gonzales. Clear has practiced in both federal and state courts over the last two decades. Clear has not been criminally charged nor has he said anything publicly to address the allegations since the FBI executed search warrants a year ago at his law office.
16-804 of the New Mexico Rules of Professional Conduct entitled Misconduct, states:
“It is professional misconduct for a lawyer to:
- Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another;
- Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
- Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
- Engage in conduct that is prejudicial to the administration of justice;
- State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or N.M.R.A. 16-804.”
The New Mexico Supreme Court is giving Clear until February 10 to show cause, in writing, why he “should not be subject to discipline, up to and including suspension” for his alleged conduct. Chief U.S. District Judge Kenneth Gonzales has given Clear 30 days to respond in writing, and two weeks if he is charged with a crime.
FEDERAL INVESTIGATION
It was on Friday January 19, 2024 that the Federal Bureau of Investigation (FBI) executed search warrants and raided the homes of 3 Albuquerque Police officers and the home and law offices of prominent DWI criminal defense attorney Thomas Clear, III. All those targeted with a search warrant are allegedly involved in a bribery and conspiracy scheme spanning a decade to dismiss DWI cases. Bernalillo County District Attorney Sam Bregman ordered the dismissal of over 200 DWI cases because of the scandal due to the main witness’ credibility being called into question which in all the cases are APD officers.
The bribery and conspiracy investigation has evolved during the last year into the largest corruption case in APD’s history. A total of 12 APD Police officers have been implicated in the scandal. Seven have resigned during the Internal Affairs investigation, 3 are on paid leave and one has been terminated. One by one, the accused Albuquerque police officers have been turning in their badges and resigning rather than talking to Internal Affairs investigators about their involvement in the scheme to dismiss DWI cases.
On January 24, Bernalillo County Sherriff John Allen announced that one BCSO deputy implicated was immediately placed on administrative leave.
The New Mexico State Police has not announced if any State Police Officer has been placed on leave in that no State Police Officer has yet to be identified as being involved in the bribery and conspiracy scandal.
MENDEZ CRIMINAL INFORMATION AND PLEA AGREEMENT
It was on January 24 that a federal criminal Information charging document was filed by the United States Attorney identifying and charging only one person, Ricardo “Rick” Mendez, 53, the private investigator for attorney Thomas Clear III. Mendez plead guilty to all the charges on the same day the criminal Information was filed. The 8 count Criminal Information charges one count of Racketeering under the federal Racketeer Influence and Corrupt Organizations Act (RICO), 5 counts of Bribery of an Agent, 1 Count of Interference With Commerce by Extortion Under Color of Official Action, Aiding and Abetting and 1 Count of Conspiracy To Commit Interference With Commerce By Extortion.
According to the criminal Information filed, Mendez and officers and deputies at APD, BCSO, and the New Mexico State Police worked with at least two private defense attorneys in a “DWI Enterprise” to ensure drunk driving suspects would get their cases dismissed in exchange for bribes consisting of cash, money orders, gifts, trips or free legal services. No attorneys and no APD, BCSO nor State Police Officers were named in the charging document nor have they been charged separately to date. The FBI and US Attorney say the investigation is ongoing and charges will be filed against others when the investigation is completed.
In his Plea and Disposition Agreement, Ricardo “Rick” Mendez admitted he helped orchestrate the scheme with law enforcement officers who would refer arrested drunken drivers to Mendez and defense Attorney Thomas Clear, III. Mendez admitted that he subsequently helped Clear get the cases dismissed in court. The suspects would pay higher than usual legal fees to Clear, and the officers received cash, gift cards, free legal services and other financial gain in exchange for not filing criminal charges or missing DWI hearings.
The links to relied upon or quoted news sources are here:
https://www.koat.com/article/albuquerque-new-mexico-supreme-court-dwi-scandal/63657743
COMMENTARY AND ANALYSIS
The filing of “Order To Show” pleadings by both the New Mexico Supreme Court and Chief U.S. District Judge Kenneth Gonzales were done “sua sponte”, meaning on their own initiative without any prompting by any source or party to litigation. Both actions are truly remarkable and unheard of in their own right. The court’s actions reflect, as they should, just how serious the federal and state courts take attorney nefarious or criminal conduct that cannot be tolerated at any level.
Criminal Defense Attorney Thomas Clear, III, has not been formally charged with any crime nor has he been found guilty of any crime. A “Co-Conspirator 1” is identified in the federal criminal Information charging Clear’s investigator and para legal Ricardo “Rick” Mendez with racketeering, bribery and conspiracy in the kickback scheme.
Based on the admissions and guilty plea contained in the January 24 Plea and Disposition agreement, Mendez has identified Thomas Clear, III as “Co-Conspirator 1”. Both Courts are confronting Clear with the allegations and demanding explanations of his involvement. For that reason, its more likely than not that Clear will respond to both the Court’s Order to Show orders by asserting his 5th Amendment constitutional right against self-incrimination and demand due process of law. In particular, its likely Clear will tell both courts he has not been charged, he has not been found guilty of any crime and that neither court can impose discipline until he is charged and found guilty. Both court’s will have to decide if they have enough evidence to go forward with discipline including but not limited to suspension or disbarment from the practice of law.
After over a year of front page news and investigation by the FBI and the Department of Justice, it was a major disappointment, but not at all surprising that federal charges for government corruption have yet to be brought against any of the identified law enforcement officers implicated in the scandal nor any of the attorney’s involved. The US Attorney’s office has a reputation of being overly cautious in bringing criminal charges, especially against law enforcement.
The blunt truth is that U.S. Attorney’s Office has done a major disservice the citizens of Albuquerque by not indicting nor charging any of the law enforcement implicated nor the attorneys alleged to be involved. After over a full year investigation, its likely the US Attorney’s office and the FBI have more than enough to proceed with charges and more than enough evidence to secure convictions, with the cooperation of Ricardo “Rick” Mendez, yet the public is told stay tuned.
There is little doubt that this whole DWI dismissal bribery scandal has shaken the public’s faith in our criminal justice system and APD to its core. Now the public is learning that BCSO and New Mexico State Police Officers may also be involved, yet no charges have been filed against law enforcement officers suspected of taking bribes nor the attorneys.
The only way that any semblance of faith can be restored and for people to begin trusting APD and law enforcement again is if all the police officers involved in this scandal are held accountable and the lawyers involved are also held accountable. That will only happen when there is aggressive prosecutions and convictions, the police officers are involved are convicted and they lose their law enforcement certification and disbarment occurs with the attorneys involved in the RICO “DWI Enterprise”. The Order To Cause proceeding filed by both courts are a first good step.