Judge recuses herself after prosecutor is late

Marlowe Sommer: ‘Trouble communicating’ with lawyer problematic in child rape case

District Judge Mary Marlowe Sommer recused herself from presiding over a child rape case Thursday, citing a contentious relationship between herself and the prosecuting attorney, with whom the judge said she had “trouble communicating.”

The judge’s decision to leave the case came at the conclusion of a show-cause-hearing at which Assistant District Attorney Michelle S. Garcia was tasked with convincing the judge she should not be held in contempt of court for showing up late to a prior hearing in the case.

“I do think the relationship between the court and Ms. Garcia is to a point where I would feel I would have to recuse myself in every instance,” Sommer said Thursday, adding she would stay on the case if it is reassigned to another prosecutor.

“I won’t recuse myself if she won’t be on the case,” the judge said.

District Attorney Marco Serna said after the hearing that Thursday was Garcia’s last day as an employee of his office.

Serna declined to say whether he fired Garcia, but added: “She made a clear misrepresentation to the court and that’s just unacceptable and I won’t stand for it.”

According to court records, Garcia said she was late to the hearing — by about seven minutes — because a pretrial detention hearing on another case in Judge T. Glenn Ellington’s courtroom had not started on time.

But Sommer wrote in her order that the log notes for Ellington’s courtroom indicated that hearing ended about an hour before the proceeding in Sommer’s courtroom began.

“Therefore, the Court does not understand why ADA Garcia’s explanation for being late was that she was held up in another matter in Judge Ellington’s courtroom,” Sommer wrote in the order.

Garcia took the stand during the hearing, detailing a phone call she felt she had to make to prevent the potential release of a dangerous defendant on the day in question, plus the need to make copies of documents to prepare for her hearing in front of Sommer.

The judge seemed unconvinced by Garcia’s explanation.

“I mean no offense, but I’m going to tell you the truth … what you just answered was a reconstruction … you had to reconstruct this whole thing so you had

an answer on why you didn’t appear,” Sommer said.

Sommer did not make a finding of contempt, instead electing to remove herself from the case.

Garcia was represented at the hearing by Paul Kennedy — a high-profile attorney who regularly represents Gov. Susana Martinez.

Kennedy argued prosecutors in the District Attorney’s Office “don’t have enough resources to cover every case every moment that they are in court.”

But Sommer rejected that argument, telling Kennedy: “I’m actually having trouble right now with the District Attorney’s Office,” and expressed frustration that some cases were “four DA’s deep” and “have substitution after substitution.”

Kennedy and Garcia declined to comment after the hearing.

Marlowe’s strife with Garcia is one of several instances recently in which Serna’s office has been on the receiving end of criticism from criminal-division judges in the First Judicial District.

Ellington dismissed a murder case on speedy-trial grounds in June, citing disorganization and delays on the part of prosecutors from Serna’s office. In early August, Sommer dismissed the charges against a group of teenagers accused of exchanging shots at Santa Fe Place, citing prosecution delays.

Serna’s office was recently fined in the mall shooting case and at least one other, for failing to comply with court deadlines.

The New Mexican filed a public records request for the details of those fines on Aug. 21, but as of Thursday had not received the documents.

Serna said Thursday those occurrences are “just part of the process” and don’t indicate any particularly contentious relationship between his office and the judges.

“Judges are gonna address issues and they are addressing issues and we are responding in our office making changes so we can address those issues,” Serna said. “There is no contention behind it.”

Serna said judges in the First Judicial District also have levied financial penalties against defense lawyers, adding he believes the judges are trying to prepare his attorneys and others who practice in the court for stricter case management guidelines, currently in effect in the Second Judicial District. He said he has been told the new rules will be implemented in Santa Fe come January.