Dennis Kintigh

It has been with tremendous sadness that I have followed the recent developments regarding certain members of the New Mexico state judiciary in various parts of the state. There have been incidents and allegations that have diminished and tarnished the reputation and standing of this branch of government.

Generally, people understand and expect the Legislature to be a partisan and contentious institution. I don’t believe that is a bad thing. Policy concepts that cannot survive the crucible of vigorous debate are probably not valid or worthy of implementation. Sometimes it takes years for policy to be implemented. During that time, each of us in the Legislature will critically examine the concept, and without hesitation challenge those we feel are invalid. It keeps all of us “on our toes.”

Similarly, the executive branch is constantly criticized and held accountable primarily, but not exclusively, by the opposition party. Again, this is as it should be. This cycle of confrontation and partisanship serves us well and is expected in these two branches.

The judiciary is somehow expected to be above all this, however, and therefore immune to this contentiousness associated with the failings and shortcomings of mortal man.

Recent events and recent history have shown us that this is an unreal expectation. We have seen a state district court judge removed for mishandling a courtroom disruption and grossly violating the rights of scores of people. A recently elected appellate court judge resigned after an egregious drunk driving incident. Another district court judge was found to be cavorting with a prostitute. Finally, we have the distressing, troubling, and sad saga of the district court judges in Las Cruces.

The unproven allegations of misconduct in that case are chilling. Statements that are reportedly recorded display an appalling and gross contempt for the rule of law and proper decorum. These allegations must have a full, fair and open hearing.

But sadly, these recent events are not isolated.

Just a few years ago, the chief judge in the largest judicial district was caught possessing cocaine. The question of who provided that cocaine to a sitting judge and what this individual received in payment was never openly asked or answered. A former chief justice of the State Supreme Court attended a “going away party” for a disgraced political figure who had looted the public treasury and betrayed the public trust. This act appeared to only disturb and dismay those who are not licensed to practice law in the state of New Mexico.

External controls are vital

I believe that now is the time for a serious review of how the judiciary and legal profession as a whole is held accountable. At this point, everything ultimately rests in the hands of five Supreme Court justices who are immune to, and independent of, meaningful outside accountability (when was the last time a justice lost a retention election?). I believe it is time to re-examine that approach. This is not a suggestion made lightly. The potential for any review of the current system degenerating into a partisan witch-hunt is real and must be avoided.

The vast majority of judges I have known have been true noble servants of the people. I have gotten to know the chief justice on a personal level and have found him to be gracious and congenial. I like and respect him.

However, history has demonstrated over and over again that power and accountability exclusively held by a small group leads to catastrophe. The judiciary and the legal profession are too crucial to the success of our state for us to fail to have a system in which independent and outside individuals are the final arbitrators of misconduct.

Many are familiar with James Madison’s observation that, “If men were angels, no government would be necessary,” but few realize the phrase continues with, “If angels were to govern men, neither external nor internal controls on government would be necessary.” While the judiciary in many ways governs society, sadly, like the rest of government, it is not populated with angels. External controls are absolutely vital.

Kintigh, R-Roswell, represents District 57 in the N.M. House of Representatives.

Dennis Kintigh

America’s citizens should be able to assume that Endangered Species Act (ESA) listings are based on “best science,” as determined by an altruistic scientist — an honest arbiter. Sadly, this ideal model isn’t how it works in real life.

My background is engineering and law enforcement. When the proposed ESA listing of the Sand Dune Lizard threatened my community’s well being, I got involved. It was my first in-depth involvement with the ESA process. It was interesting and enlightening. More importantly, it was disturbing.

Over the last several months I worked with a group of scientists to conduct a detailed review of the proposal to designate the Dunes Sagebrush Lizard as an “endangered species.” On Aug. 15 we presented a 20-page critique of this proposal to Congressman Pearce. The report can be found at the Artesia Chamber of Commerce website.

In the criminal justice system science is critical. Because of its importance, it is getting increased scrutiny. Likewise, the concept of the “wise man” scientist decision-maker, isolated from politics or outside influences, has to be questioned. This is what we did with the proposed listing for the Sand Dune Lizard.

The U.S. Supreme Court has set the standard for examining assertions and claims by scientists. In the case of Melendez-Diaz v. Massachusetts, the courts established the need for scientists to be subject to confrontation. The court concluded, “…Nor is it evident that… ‘neutral scientific testing’ is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation (emphasis added),” and “…there is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology.”

This is not to imply that the researchers working on endangered species issues are not to be trusted. For, again, the court nailed the point when the put in a footnote that “… we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa… (this) refute(s) the suggestion that this category of evidence is uniquely reliable and that cross-examination of the analysts would be an empty formalism (emphasis added.)”

Confrontation brings clarity, and confrontation is missing in the existing system.

How we truly get ‘best science’

Currently when there is a proposition to designate a species as “endangered” the case is presented in a “proposed rule” prepared by U.S. Fish and Wildlife Service (USFWS) staff. “Proposed rule” is an interesting term because it is in fact an advocacy document much like an affidavit. However, unlike an affidavit, no one stands in front of a judge, raises their hand and swears that everything is true. Nor is the author subject to confrontation to explain the basis for their claims and assertions.

In my law-enforcement days, I have written many affidavits for search warrants, arrest warrants, and wire taps. I knew I would probably be sitting in a chair answering all kinds of questions. I assure you it is not a pleasant experience, but one that ensured accuracy in my statements. We need something like this in the ESA process.

Furthermore, the confrontations must occur before a truly independent decision-maker. It makes no sense for the head of the organization that prepares the advocacy document (in this case the director of the USFWS) to be the evaluator of the criticisms of that position or its basic validity. The analogy would be, if while I was the Roswell chief of police, my detectives had written an affidavit for an arrest warrant and then I, as chief, conducted the preliminary hearing. The inherent conflict is glaring.

Confrontation before an independent decision-maker is at the heart of the American justice system. It is ominously missing from the ESA process, and that needs to be corrected, because that is how we truly get “best science.”

When decisions are being made that have potential grave consequences to communities and the industries that support them, as is the case of the Sand Dune Lizard listing, the science behind the proposal must be held to the highest possible standards. As our review of the Sand Dune Lizard proposed rule discovered, neither best science nor high standards have been met.

Kintigh, R-Roswell, represents District 57 in the N.M. House of Representatives.

Dennis Kintigh

Sadly most New Mexicans do not know how critical the oil and gas industry is to the economic health of our state. Currently 16 percent of the state’s revenue comes directly from the oil and gas business. Another 11 percent comes from interest on the permanent fund, which is filled with moneys from oil and gas sales.

These figures do not include corporate income tax from oil companies, sales tax on equipment purchases for the oil fields, or income tax on the 23,000 individuals directly employed in the oil and gas industry. Whether we like it or not, this state’s economic health is dependent upon oil and gas operations more than any other activity.

Today this critical revenue source is in jeopardy because there is a concerted effort to have the sand dune lizard (Sceloporus arnicolus) listed as an endangered species. This lizard has a very limited habitat. Unfortunately for New Mexico, the habitat is smack-dab in the middle of the oil operations of Southeastern New Mexico.

While I do not believe an endangered species listing for the sand dune lizard will immediately doom oil and gas operations, there will be an impact, and in these troubled economic times when there is little margin for error, the effect will ripple through all state services. With such serious consequences, it is critical that this issue be examined carefully and seriously.

Petition for endangered species listing

In 2002 the Center for Biological Diversity, a powerful nonprofit advocacy group, filed a petition with the U.S. Fish and Wildlife Service demanding that the sand dune lizard be listed as an endangered species. The scientific basis for the petition was a series of studies conducted by the University of New Mexico biology department in the mid 1990s.

The final report, dated 1998, asserts that the lizard is threatened by cattle ranching activity and oil and gas development. The threat from cattle ranching was due to the destruction of the lizard’s crucial habitat, the shinnery oak. Ranchers had been spraying to eliminate the shinnery oak because, during certain times of the year, this plant is toxic to cattle.

This practice, which began in the 1970s, has been stopped on federal lands for well over a decade.

Oil and gas operations continue, and the claim is made that these activities pose the gravest threat to the lizard. This claim is boldly set forth in the petition by the Center for Biological Diversity, and apparently supported by the UNM research. The petition includes comments like “Past and ongoing oil and gas development has already resulted in substantial losses of habitat for and reductions in abundance of the sand dune lizard,” and “The sand dune lizard is at immediate risk of extinction.”

A glaring contradiction

However, the research concedes that oil and gas operations have occurred in this area for five decades, yet the lizard continues to thrive. Interestingly the UNM report notes there is a significant difference in lizard population between areas where oil wells exist and where they are absent. When I dug deeply into the 1998 UNM report, I confirmed that is correct.

Curiously, the data reveals the population levels for areas with wells in 1997 were higher than the population levels in 1996 for areas where wells were absent. The population increased 2.4 times for the area with wells between 1996 and 1997, yet only increased by only 1.6 times in those areas where wells were absent. I could find no explanation for this glaring contradiction of the advocate’s petition.

This fact alone, independent of the half century of co-existence by the lizard and oil operations, is reason enough to stop the listing of the sand dune lizard until further independent, professional, thorough and peer-reviewed research is conducted. We need much more data before any decision should be reached.

The stakes are too high to endanger the economic life of our state. We simply cannot afford to jump to conclusions in this matter. Not at this time.

Kintigh is a Republican House member from Roswell.

Dennis Kintigh

Urban legend: An apocryphal, secondhand story told as true and just plausible enough to be believed, about some horrific, embarrassing, ironic or exasperating series of events that supposedly happened to a real person.

It is interesting, and a little troubling, how certain misconceptions get a grip on the public’s mind. One glaring example of this is the widely repeated claim that the state prisons are full of people who have been convicted of simply possessing drugs.

As someone who spent 24 years carrying a gun and a badge, most of that time working drug cases, including 14 years in Southeast New Mexico, I have known this was completely false. People don’t go to the pen for simply holding some dope.

In New Mexico, simple possession of up to a half pound of marijuana is only a misdemeanor that does not allow for a prison sentence – only time in the county jail, if that.

One of the most recent manifestations of this myth was in September 2009 when a New Mexico “think tank” published a report damning the state’s drug laws because 853 people were supposedly sitting in prison for only a drug possession conviction. That report motivated me to write a letter to the Corrections Department because the department was the source of that statistic.

The written response I received showed that the 853 number was for inmates who had a drug possession conviction plus other criminal convictions. In fact, the number of people incarcerated for simple drug possession was 92. That is 92 out of almost 6,000 inmates.

Repeat offenders

However, even the 92 number is misleading.

The Corrections Department sent me the names of the 92 inmates. Through the Internet I was able to review the cases for these individuals. Randomly checking their cases revealed what I already knew. Even though they were listed as convicted of a simple drug possession, they were, in fact, in prison because of probation revocation or for being a habitual offender.

What is a habitual offender, you might ask? Well that is someone who has already been convicted of at least one felony and is now convicted of another felony. The first subsequent conviction requires a mandatory one-year sentence even if the sentence of the subsequent conviction is suspended. The second subsequent conviction results in a mandatory three-year sentence. The third one requires an eight-year mandatory sentence.

All of these habitual offenders who are convicted of drug possession are in fact repeat offenders.

The long and difficult road to recovery

The individuals who are incarcerated because they have had their probation revoked had to work at getting into prison. In case after case judges have sentenced individuals to rehab or drug court and they have failed to comply. Finally, these persons are sent to prison because they have refused the second, third and sometimes even fourth chances offered to them.

One new thing I did learn is that some of these drug possession inmates are in the Corrections Department system because a judge has ordered a 60-day psychological evaluation at the facility in Las Vegas, N.M. After the evaluation, they come back to the court for final disposition.

People just do not go to prison for simply having a bag of weed. Those who advocate for eliminating incarceration as an option fail, or refuse, to recognize that fact.

The effort required to turn drug lives around is huge. It requires a change of heart that must come from deep within.

The threat of incarceration has been, for some, the crucial motivation necessary to start down the long and difficult road to recovery. Without that threat they would never begin the journey to true freedom. Instead, they remain a prisoner to their self destructive lifestyle. Where is the compassion in that?

Kintigh is a Republican House member from Roswell.

Dennis Kintigh

Today in New Mexico movie production companies receive checks from the New Mexico state treasury equal to 25 percent of their approved expenditures. In fiscal year 2009, which ended June 30, this one program cost you, the taxpayer, $82 million.

I believe this program is an abuse of your tax dollars. As the state representative for District 57 (northern Chaves, northern Lincoln and northern Otero Counties), I have introduced a bill to repeal the film industry subsidy, also sometimes called the film industry tax credit.

The supporters of this subsidy claim that it stimulates an industry that creates jobs. I agree that some have benefited, but how many and at what cost?

Film subsidies have been the subject of numerous studies. Some claim the public treasury gets $1.50 back for every $1 paid out. Other studies show the return is only 14 cents. If you would like to see the reports, I encourage you to visit my web site, denniskintigh.com, and click on the icon for New Mexico film subsidy. There you will find reports both for and against the program.

The current economic situation is a difficult one that has compelled the Legislature to trim budgets and furlough state employees. New Mexicans have sacrificed while tens of millions of dollars have gone to out-of-state film producers. In this time of declining revenue, does it make sense to give away so much public money for a program about which there is so much debate? Can we not find economic incentives that offer a better assurance of a positive return on investment?

After serious and careful study, I have concluded the film subsidy is not an appropriate expenditure of our dwindling tax revenue.

This subsidy is supported by some of the most powerful forces in and outside the state. From the governor to Hollywood producers to union officials, this subsidy gets articulate and forceful support. But political clout does not equal public good. The ultimate responsibility of the Legislature is to ensure the wise use of your tax dollars.

Kintigh is a Republican House member from Roswell.

Dennis Kintigh (Photo by Heath Haussamen)

I have been surprised at the minimal attention given to the recent indictment of the heads of CDR Financial Products — David Rubin, Zevi Wolmark and Evan Zarefsky, all of California.

CDR was the focus of attention when Gov. Bill Richardson’s nomination to be secretary of commerce was derailed. The governor’s name was withdrawn after it became known there was an ongoing federal probe into the relationship between CDR and the New Mexico Finance Authority (NMFA) and contributions to political action committees controlled by Gov. Richardson.

That investigation concluded in the late summer of 2009. U.S. Attorney Greg Fouratt sent a private letter to attorneys representing individuals under investigation stating no charges would be filed. The letter, which was leaked to the news media and for which Mr. Fouratt was criticized, contained the little-noted clause that stated that the decision to not file charges was “limited solely to each party’s conduct in NMFA’s award of financial work to CDR in 2004.”

In light of the indictments returned in the southern district of New York, it appears the clause was underappreciated.

The entire CDR controversy is long, complex and, for many, just too hard to understand. That is unfortunate, as I believe it is a significant issue that could have tremendous impact on New Mexico. Previous news articles have focused on the activities of NMFA, GRIP bonds, friends of the governor and contributions to political funds controlled by Gov. Richardson.

Indictment basics

At this time I would like to look closely at the actual indictment returned on Oct. 29 in the southern district of New York (SDNY). An indictment is a formal, written accusation of wrongdoing.

The SDNY is a federal court that covers a portion of the State of New York. The SDNY includes Manhattan, the Bronx and other counties near New York City. Populous states like New York often have multiple federal court districts, but here in New Mexico we have one federal district for the entire state.

The U.S. Attorney’s Office for the SDNY has long been considered a flagship office for the prosecution of federal financial crimes. This makes sense, as Manhattan is where Wall Street and many major financial corporations are located.

This CDR indictment alleges that nine specific crimes (or counts) were committed by Rubin, Wolmark and Zarefsky. The indictment is the result of an investigation by the FBI and the IRS in which evidence was presented to a federal grand jury. That grand jury concluded there is “probable cause” to believe the named defendants committed the specified crimes.

In my 24 years in the FBI, I have never seen a “ham sandwich” indicted, as is routinely alleged by those who wish to trivialize a federal grand jury indictment. This is very serious. Top officials in the Department of Justice signed off on this document.

The CDR indictment

The actual indictment is 39 pages long. The beginning has a very useful background section that explains the role of “brokers” in the issuance of municipal bonds.

Towns, school districts, housing authorities and other government agencies, referred to as “issuers,” raise money for specific projects by selling bonds. These bonds are loans the agency will pay off over time. The money raised by selling these bonds is spent over time. The “issuers” will routinely invest the unneeded proceeds to earn money.

Think of it like getting a home improvement loan to cover numerous repairs, and you put the money in a savings account until you need to move it to your checking account. These “savings account” investments are done with financial institutions like banks and insurance companies, who are called “providers.” The individuals who represent these “providers” are called “marketers.”

“Brokers” like CDR are supposed to get the best deal for the “issuers” by getting multiple offers from numerous “providers” as bids submitted by “marketers.” In a perfect world, a number of “marketers” send in sealed bids promising specific returns on investments to the “broker.” The “broker” then opens the bids and picks the “provider” offering the best deal.

The federal grand jury indictment charges that CDR (the “broker”) rigged the bids with corrupt “providers” through crooked “marketers.” “Issuers” were cheated out of a fair return on the taxpayer’s money, while CDR and their cronies got kickbacks, the indictment alleges.

It is claimed in the indictment that this scheme started back in 1998 and was ongoing until at least November 2006. The first count listed in the indictment is “restraint of interstate trade and commerce,” which addresses the bid-rigging allegation.

Counts 2 and 3 are conspiracy. “Conspiracy” is an agreement to commit an illegal act. Such an agreement is a crime in itself if some action occurred to fulfill the agreement, an “overt act.” Because it is an ongoing criminal enterprise, events that occur outside the statute of limitations can be presented at trial. The government must prove the agreement existed and that an “overt act” was committed (unless it’s a drug crime).

Count 2 alleges an agreement between CDR and a company only identified as “Provider A.” The overt acts allegedly involve CDR executives and “Marketer A,” the indictment says. Phone calls and events that occurred in late October 2003 are listed in the indictment.

Count 3 alleges a similar scheme involving “Provider B,” Marketers B-1 and B-2 and a “state housing agency.” This count identifies a phone call from New Mexico on May 20, 2004, as an overt act. Although reference is made to a “state housing agency” together with a call from New Mexico, there is nothing in the indictment that links this call to the ongoing Region III Housing Authority investigation and the indictment of former State Rep. Vincent “Smiley” Gallegos.

Marketer A, B-1 and B-2 are not identified, and this is usual because they are probably cooperators who have cut a deal. The identity of Marketer A, B-1, B-2 and Provider A and B will be known prior to trial. The identities of the victim “issuers” also are not revealed because that could lead to figuring out who is cooperating.

Counts 4, 5 and 6 are “Wire Fraud,” which means money allegedly was transferred electronically across state lines to further this criminal plan.

Count 7 alleges “false statements” by Zarefsky to the FBI in November 2006. Two points here are:

• Never lie to the FBI. It’s a crime, even if you’re not under oath.

• This alleged criminal act was committed in late November 2006, which places the conspiracy well within the five-year statute of limitations and allows the prosecutors to bring in all of the alleged criminal acts that occurred six, seven or more years ago.

Count 8 alleges interfering with administration of internal revenue laws. One of the acts presented in this count refers to a “state housing agency” and a phone call on May 19, 2004.

Finally, Count 9 alleges “Fraudulent Bank Transactions” in which the kickbacks to the CDR executives were concealed.

Conclusion

This criminal indictment paints a picture of a sophisticated criminal enterprise which operated in many states, including New Mexico.

While CDR’s involvement with NMFA was not addressed, these charges from New York suggest the existence of a pattern of criminal activity that was occurring at the same time as CDR involvement in New Mexico. So what did happen in New Mexico? Perhaps we will learn much about the inner workings of CDR as the New York case unfolds.

Significantly, in the case in which Richardson and his office were under investigation, Mr. Fouratt’s letter also did not “preclude the United States or the grand jury from reinstituting such an investigation without notification.”

Rubin, Wolmark and Zarefsky will be under tremendous pressure to reach a deal with federal prosecutors. As is always the case, the individuals who come forward first with the most useful testimony will get the best deal. Their attorneys know this.

These charges, together with the recent guilty plea by Saul Meyer in a case by the New York attorney general’s office, plus the Region III Housing Authority case by the New Mexico attorney general, promise to keep allegations of corruption in the forefront of the news.

The next year could be very interesting for New Mexico politicians.

Kintigh is a Republican state representative from Roswell and a retired FBI agent.