Susana Martinez (left, courtesy photo) and Diane Denish (Photo by Heath Haussamen)
An analysis of the claims Diane Denish makes against Susana Martinez in a new TV ad reveals a complicated situation that has sparked discussion about the accuracy of statistics kept by the state’s Administrative Office of the Courts.
The ad from the Democratic candidate for governor accuses Martinez, Denish’s GOP opponent, of breaking a promise to not plea bargain DWI cases and of having the worst homicide conviction rate in the state as Doña Ana County’s district attorney.
“Susana Martinez won the Republican nomination with sound bites and empty promises, but in reality, she’s been a failed district attorney who doesn’t deserve a promotion,” Denish spokesman Chris Cervini said in a news release.
The claims in the ad, which you can view here, are based on statistics compiled by the Administrative Office of the Courts (AOC) – statistics that, in the case of the homicide conviction rate, Martinez says are wrong.
And AOC Director Arthur Pepin, while being careful to stay away from the political fight between Martinez and Denish, said the statistics can be interpreted in different ways and weren’t intended to be used for political purposes. His office doesn’t use the data it collects to determine conviction rates.
“We’re certainly not going to get in the business of saying this is the lowest conviction rate, because there are different ways of looking at the statistics,” Pepin said.
While Martinez’s campaign is now complaining about the accuracy of the AOC statistics, she has cited the agency’s numbers in the past to defend herself against election-year attacks – most recently to rebut allegations made by the state Democratic Party about her plea bargaining DWI cases.
You can view the statistics compiled by the AOC from July 1998 to June 2009 for all district attorneys here. You can also view the fact sheet the Denish campaign released in support of its new ad here.
The DWI claim
Denish’s ad starts by bringing up allegations already made by the state Democratic Party that Martinez broke a promise to not plea bargain DWI cases. The ad says Martinez has plea bargained more than 800 as district attorney.
The Democratic Party, when it unveiled this allegation last month, trotted out three Democratic county sheriffs to say the stats prove that Martinez has been soft on DWI offenders. Denish’s ad doesn’t accuse Martinez of being soft on crime – only of breaking a promise to not plea bargain cases.
The claim is based on Martinez being quoted by the Las Cruces Sun-News in 2004 as saying her office “will not plea bargain a DWI case. We don’t pretend it is a first or second offense just to move the court docket along.”
The context of Martinez’s statement appears to be that her office won’t plea bargain a felony DWI – a fourth offense or higher – down to a misdemeanor DWI. When the Democrats launched their attack in May, Martinez admitted that she has entered into such plea bargains, but said she did only in “limited cases when a prior DWI cannot be proven, such as when another agency is unable to produce a record of a past conviction or when the evidence does not support the felony DWI.”
So Martinez was quoted as making an absolute statement in 2004 – that she would not plea bargain a felony DWI case down to a misdemeanor – even though in at least “limited” cases she did just that.
The Denish campaign pointed to one 2008 case in which defendant Jamie Cardenas was initially charged with a sixth DWI offense – a felony – but later entered into a deal in which he admitted to a misdemeanor third offense. That happened even though, in the plea and disposition agreement, Cardenas acknowledged that he had five prior DWI convictions.
Denish Campaign Manager Oren Shur said that’s “one example we quickly found.”
“If Susana Martinez was willing to break a campaign pledge on something as serious as being tough on felony DWI offenders, why would New Mexicans believe anything she has to say in this campaign?” he asked.
How many cases were pleaded down to misdemeanors?
The AOC statistics show that Martinez’s office has entered into hundreds of plea bargains in cases involving DWIs over the years. But it’s not clear from the AOC statistics how many of those 800-plus cases were plea bargained down from a felony to a misdemeanor. Though Martinez has said the number is “limited,” neither campaign has provided a figure.
Pepin said any case that includes a DWI charge is listed in the AOC statistics as a DWI case. Those listed as resulting in plea bargains could include two different types of cases:
• Cases in which DWIs are pleaded down from a felony to a misdemeanor offense.
• Cases in which a defendant agrees to plead guilty or no contest to a felony DWI charge in exchange for other charges – such as speeding or not wearing a seatbelt – being dropped.
Doing her own citing of the AOC statistics, Martinez claimed in May that her office has a 90 percent conviction rate on felony DWIs. She said her office has “the lowest plea bargain rate in the state for felony DWIs” among the “major judicial districts.”
‘Soft on crime she is not’
C.J. McElhinney, a Las Cruces defense attorney who has gone up against Martinez’s office in DWI cases, said the Democratic Party’s assertion that Martinez is soft on crime is false. He pointed to the fact that the AOC statistics include cases in which other charges were dropped in exchange for a conviction on a DWI charge.
“I have defended dozens of DUI cases here in Doña Ana County and can tell you that the plea offers extended by Susana’s office are usually horrible for the defense. I don’t think I have ever seen a felony DWI dropped to a misdemeanor here in Doña Ana County,” McElhinney, who describes himself as “no supporter of Susana,” recently wrote in a discussion on Facebook.
“If you want to attack Susana, I’d suggest that you not insinuate she’s soft on crime, because her prosecutorial policies are somewhere between Soviet Russia and the Spanish Inquisition,” he said. “Soft on crime she is not.”
The homicide conviction claim
Denish’s ad also claims that Martinez’s homicide conviction rate is “the worst in New Mexico,” again citing the AOC statistics from July 1998 to June 2009.
For example, the AOC statistics from 2008 show that Martinez’s office won one conviction and entered into two plea bargains in homicide cases. In another case the defendant was acquitted, and one case was dismissed by Martinez’s office.
The Denish campaign interpreted that as Martinez winning convictions in three of five cases, or 60 percent of the time. Using that interpretation, Denish’s campaign said Martinez won convictions in 33 of 55 cases from July 1998 to June 2009 – a rate of 60 percent.
Martinez says the AOC statistics are simply wrong, and to make matters worse they are being misinterpreted by Denish’s campaign. At least one of the cases the AOC lists as “Dismissed by prosecutor” – and that Denish counted against Martinez’s conviction rate – involved a defendant who died before trial.
That case shouldn’t have been counted against Martinez’s conviction rate, her campaign said.
Martinez’s campaign provided a list of what she said were all murder cases in Doña Ana County from 2000-2010 (click here to view it). Of those 79 cases, 40 are still pending. Thirty-five of the other 39 – or 89.7 percent – resulted in convictions, the Martinez campaign said. The other four included two acquittals, one case that was dropped by the DA and one conviction that was reversed on appeal.
“Less than 24 hours into the general election, Lt. Gov. Diane Denish has already launched her first negative and patently false attack against my record,” Martinez said in a news release. “I am not surprised Bill Richardson’s ‘good, loyal soldier’ is not anxious to discuss how she has been at the center of an administration that has produced a massive budget deficit, grown government and perpetuated a culture of corruption.”
‘Different ways to play with the statistics’
The statistics Denish’s campaign is using come from the “Felony Homicide” category AOC uses, which don’t include vehicular homicide. Pepin said he believes the category includes all other types of homicide.
Pepin cautioned that the data “can be moved in different ways,” saying there are “different ways to play with the statistics.” He said his office doesn’t compile statistics for political reasons and is always cautious about responding when they are used for political purposes.
“We’re not running for office,” Pepin said. “We don’t publish the data so that we can make some kind of a political point.”
Pepin initially said he was confident in the accuracy of the AOC statistics, even while he added that they could be interpreted in different ways. After becoming aware of Martinez’s claim that the statistics aren’t accurate, Pepin said there could be mistakes.
“She’s got the files, so she should know what she’s talking about,” he said.
‘The only non-partisan data available’
Responding to Martinez’s claim that the AOC statistics aren’t accurate, Shur, Denish’s campaign manager, was quick to point out that Martinez has cited AOC statistics in the past to defend her record. In addition to referring to them last month in response to the DWI plea bargain situation, Martinez cited the AOC statistics in 2004 to claim that she had a 96 percent conviction rate.
She also defended the statistics when her opponent in that year’s district attorney race claimed her conviction rate wasn’t that high. According to the Las Cruces Sun-News, Martinez said at the time that the Legislature used the AOC statistics in deciding to fund another judgeship in Las Cruces.
“Based on the only non-partisan data available to the public, Susana Martinez has the worst murder conviction rate in the state. That’s without question,” Shur said. “It’s not surprising that she’d want to create a new set of data behind closed doors, but given her pattern of stretching the truth, it’s really hard to trust anything she says about her record.”