DA wants outside prosecutor to take Foley case

It appears that the criminal case against House Minority Whip Dan Foley may go forward after all.

I reported at the end of August that the district attorney’s office in Roswell was reviewing the case and conducting further investigation to determine whether there was enough evidence to support criminal charges. That office has apparently decided there is evidence to charge the GOP representative, the Roswell Daily Record is reporting.

Ken Roberts, an investigator for the district attorney’s office, told the newspaper “There will be charges filed.” But Fifth Judicial District Attorney Floyd “Terry” Haake told the newspaper he wants the case moved out of Chaves County to ensure politics does not affect the legal process, and said he’s looking for another prosecutor to take the case. Haake admitted that he and Foley have “had contact,” so it’s best if he doesn’t prosecute.

Haake’s request that another office take the case has already been declined by the attorney general. Haake said his request has also been declined by other law enforcement agencies, but they were not named in the article.

“I’m looking for someone who does not have any kind of bias or influence,” Haake told the newspaper.

If he can’t find another office to take the case, Haake will likely be able to pay a special prosecutor to do it, so it appears that there’s a good chance the case against Foley will go forward. However, the process of finding someone to take the case and getting them up to speed could take some time. Foley may head into the next legislative session and an election year with this still hanging over his head.

Foley was charged in June with disorderly conduct, obstructing an officer and resisting arrest – all misdemeanors – stemming from a fight between two teens at a basketball tournament in Roswell. Foley ran onto the court after his son was knocked over by the opposing coach. Police say Foley pushed his way past one officer and spit tobacco on him before having to be forcibly taken to the ground by two other officers. Foley says he remained calm throughout the event and does not chew tobacco.

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 been in limbo while the district attorney’s office has reviewed it.

Update, 1:05 p.m.

Phil Sisneros, spokesman for the attorney general, said the AG’s office did not decline to prosecute the Foley case.

“We asked the DA to consider whether or not he had an actual conflict. After consideration, he told the AG personally that he had decided his office would proceed,” Sisneros said.

Sisneros also released this statement from Attorney General Gary King: “I have faith that his office will do a good job handling the case.”

Though it’s not entirely clear in the Roswell newspaper’s article, I’m assuming what’s happened here is that the district attorney plans to hire a special prosecutor who his office will pay to take the case, instead of asking another agency to take the case. That happens occasionally and, typically, special prosecutors get full discretion to make decisions on cases without consulting the district attorneys who hire them.

Still, the statements from Sisneros and Haake about whether the AG declined the case are conflicting. It will be interesting to see what happens next.