Evidence against ex-Torrance sheriff may be thrown out
Judge: Warrant used to seize items ‘troubling on a number of levels’
The fraud case against a former Torrance County sheriff may be doomed after an Albuquerque judge threatened to suppress much of the state’s evidence, finding that the warrant used to seize it was “troubling on a number of levels.”
Prosecutors with the New Mexico Attorney General’s Office called 11 witnesses during a 2½-day preliminary hearing as they attempted to prove to state District Judge Charles Brown that there was probable cause to support formal charges against beleaguered Torrance County
politician Heath White.
But at the end of the hearing, Brown called the case a “rush to judgment,” slammed State Police for using an ethically questionable tactic, said the search warrant was full of misrepresentations and omissions, and ultimately asked parties in the case to submit briefs arguing over whether the evidence should be thrown out. Without the evidence, Brown said, he would be unable to find probable cause to bind White over for trial on any of the charges in the case.
White served two terms as sheriff and went on to win election as a magistrate judge. He was suspended from the judgeship in May, shortly after the AG’s Office filed its case accusing him of multiple felony charges.
“It’s right to hold public officials to a high standard,” Brown said, “but the investigation that results in their removal must also be held to those high standards.”
It’s not clear when Brown will make a final ruling. White’s attorney, Sam Bregman, has until Tuesday to file his written argument.
The AG’s Office contends White kept close to $20,000 in county property at his home after his term as sheriff ended and used county money to purchase equipment that he placed on his own vehicle.
But his defense attorney holds that White had been keeping the property at his home because the county did not have a place to store it. Key in last week’s hearing was a series of emails that White sent to the county seeking to return numerous items.
“They haven’t proven one single thing that he took. When they showed up at his house, you know what he said? ‘That’s county property. That’s county property. Oh, and, by the way, I’ve already given you a lot of county property back. I’m still working on it,’ ” Bregman said.
Prosecutors say the emails — sent after the investigation was launched — may indicate that White knew he was “unlawfully in possession of county property and was seeking to avoid prosecution for his illegal conduct.” And they point out that the county manager had asked all employees to return property before leaving their posts.
Bregman argued during the hearing that authorities should have given White the benefit of the doubt.
“I just want to know what happened to the old days when someone would walk up and say, ‘Wait a minute. This guy is saying he wants to give it all back. Why don’t we just go give him a chance before we run and ruin his life?,’ ” the defense attorney said.
In a statement Wednesday, a spokesman for the AG’s Office said prosecutors have requested that the court “focus on clear evidence of public corruption and apply the proper standard of review.”
And in a response filed last week, prosecutors said that a preliminary hearing is the wrong place to entertain the suppression argument and that White has the option to bring up the issue if the case moves forward. To do so at this stage leaves the case open to appeal, which could leave White in limbo for years, the AG’s Office argued.
And prosecutors contend that suppression would be inappropriate because there is not ample evidence that the case agent “deliberately made a false statement or made a false statement with reckless disregard for the truth.”
“What matters is not whether the information in the affidavit turns out to actually be true, but whether the affiant believed the information to be true.”
It’s not clear which specific statements in the warrant the court determined to be false. However, White apparently did not have an ownership stake in an Edgewood feed store as alleged by the agent, although prosecutors say he claimed to on his LinkedIn profile.
“There’s nothing in the rules that prevents a judge from … issuing any order they believe justice requires,” Brown said.
Brown said elements of the case “shocked the conscience of the court,” and he pointed specifically to an instance in which police told White’s wife that he was having an affair when there were “no facts to support it.”
“It may be legal,” Brown said, “but it’s wrong.”