I’ve reported since his arrest in June that the criminal case against House Minority Whip Dan Foley might be weak.
Now the Roswell Daily Record is reporting that the case against the GOP representative from
“At this point, there is no case filed,” Deputy District Attorney Michael Sanchez told the newspaper. “We need to find out all of the facts first.”
Asked if the case will be refilled at some point, he told the newspaper, “I’m not going to say it will or it won’t.”
Legal experts tell me it’s likely the district attorney’s office got the case and found there wasn’t enough evidence to proceed. They’re now conducting further investigation to determine whether a case against Foley exists.
The charges of disorderly conduct, obstructing an officer and resisting arrest – all misdemeanors – stem from a fight between two teens at a basketball tournament in
The case was dismissed by the charging officer in municipal court after one judge recused himself and another refused to do so, even after it was revealed that he gave a campaign contribution to Foley several years ago, his son is a close friend and backer of Foley, and the judge made public statements about a pending motion in the case that may have been inappropriate.
The officer wrote on the dismissal that the case would be refilled in magistrate court. Instead, it has ended up in the limbo of the district attorney’s office.
You can read the police report by clicking here, but there are two holes in the case. First, a number of legislators say they have never seen Foley chew tobacco. During sessions, they spend a lot of time together. More important to the case, no officer reported seeing Foley spit tobacco at the cop.
What is stated in the report is that the officer who first tried and failed to stop Foley from running onto the basketball court noticed “that Mr. Foley’s chewing tobacco had been spit on my white duty polo shirt.” But he didn’t notice it until later, after Foley was taken down by two other officers and handcuffed.
The officer stated in his report that Foley “also possessed chewing tobacco on the front of his shirt,” a stain that is apparent in Foley’s booking mug, but that’s hardly proof, at least in the legal sense, that it came from Foley’s mouth.
The second hole is that Foley says officers were wearing T-shirts and shorts that, on the front – the side of their uniforms facing Foley during the incident – don’t identify them as officers. In addition, Foley says the officers didn’t verbally identify themselves.
There’s some question about whether charges of obstructing an officer and resisting arrest will stand if Foley didn’t have reason to know – again, at least in the legal sense – that the men approaching him were officers.
The political dimensions
The pressure on the district attorney has to enormous in this case. Roswell Republicans are split into two factions that have bitterly fought with each other in recent years. Filing charges against Foley would have political consequences. So would closing the case.
What would be best for Foley in the criminal sense – if the district attorney found insufficient evidence to file charges – might be the worst case for his political career. If Foley is innocent, as he asserts, it would be better for him to get such a verdict from a jury. Otherwise, the allegations, arrest mug and police report could follow him forever, along with allegations that the case was buried for political reasons.