Investigation: Gov’s top prosecutor tipped off Martinez campaign manager to criminal investigation into Republican voter registration

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Update (Sept. 29, 2014: We filed our complaint with the Attorney General’s Office last month, before the public reports of deleted emails came to light.

Today, AG King announced an afternoon press conference to update the investigation:

Preliminary information received by the New Mexico Attorney General’s Office in reference to apparent destruction of state records in the 3rd Judicial District Attorney’s Office appears not to be the result of an inadvertent clerical error or policy but rather the planned intentional destruction of vital government records.
Attorney General Gary King will make a statement at 4 PM today.

On October 28, 2010 Republican Dona Ana County District Attorney Susana Martinez was on the edge of victory in her campaign for governor in an election that many in the Republican Party was sure signaled a new day of prominence in a state long led by Democrats.

Unless something serious derailed her narrative and Republican momentum with voters, victory was almost certain.  We’ve learned that something serious almost did and prosecutors and Republican operatives worked hand-in-hand to manage the crisis.

The curent administration of the Dona Ana County District Attorney recently responded to a request for public information by stating that records which may have shown that attorneys and staff in the DA’s office misused public resources to support Susana Martinez’s first gubernatorial campaign were “intentionally erased.”

But ProgressNowNM has located some of those deleted records on other servers and they identity potential misconduct the Attorney General tells us is worthy of investigation.

First, the background.

“Police investigate alleged voter registration fraud”

Running on a promise to eliminate corruption by implementing her law and order style to state government, casting the Republican Party as a welcoming alternative to the Democratic majority was critical for victory for her and fellow Republicans like Dianna Duran seeking the Secretary of State’s office and dozens of Republican legislators and local officials down the ballot.

But just before 8:30pm on Oct. 28, 2010, just days before the 2010 election, Heath Haussamen of the NM Politics blog ran the headline “Police investigate alleged voter registration fraud.”  A central tenant of Republican scare tactics in 2010, finding an actual case of fraud involving any voter would be significant to their campaign.  But imagine their surprise when Martinez’s campaign staff and local Republicans opened that post to find that the target was none other than one of their own campaign workers.

NM Politics broke the story that Dona Ana County law enforcement agencies were investigating “allegations that someone involved in the Doña Ana County Republican Party illegally altered seven voter registration forms to change new voters’ party affiliation from “declined to state” to Republican.”

Little did the public know, that story set off a flurry of activity among Republican operatives seeking to learn more.

The emails

Earlier this year, an article in Mother Jones magazine quoted sources alleging that staff of then-District Attorney Susana Martinez had misused law enforcement databases to conduct background checks on political opponents. The Dona Ana County District Attorney’s office tells us that their own search for records, in response to a records request from the Democratic Party, found that relevant records had been “intentionally erased.”

Intentionally erased


Read the full IPRA response to the Democratic Party hereLetter to Mr. Bregman (Dona Ana DA, Sept. 2014)

But ProgressNowNM obtained, via the Inspection of Public Records Act, email archives for some of those same officials from the Administrative Office of the District Attorneys (AODA provides administrative support, including IT, for the state’s prosecutors. They maintain email archive servers in Albuquerque, outside of the Dona Ana DA’s Office).   Among the many emails between Susana Martinez and staff, and between DA staff and the now-governor’s campaign staff, were several emails between then-Chief Deputy District Attorney Amy Orlando and Martinez’s campaign manager and longtime GOP operative, Jay McCleskey.

Orlando had been serving as the acting DA, at least in practice if not officially, since the governor took up her campaign full-time.  Orlando regularly emailed with campaign staff to coordinate campaign activities for Martinez through official emails.

Just hours after the story of voter registration fraud at the Republican Party broke, Orlando was emailing with her investigators and McCleskey.

Emails obtained by ProgressNowNM show that just two hours after the NM Politics story broke, the DA’s Office investigator who had received the complaint and evidence from the county clerk’s office earlier in the month emailed chief prosecutor Amy Orlando the entire email string and copies of all of the altered cards, unredacted emails, statements, investigative notes and unredacted cards in question.

The investigator’s excited email simply read, “See attachment!!!” without any other context.  Clearly some non-email communication had preceded his email to Amy Orlando.

(note: ProgressNowNM chose to redact SSN, DOB and other personal information from the voter cards and voter registration cards in question.  The original documents, as evidence in a criminal case, was not redacted when shared)

The pdf attachment included the names of every suspect and witness, as well as the investigative notes and statements sent from the county clerk’s initial investigation.

32 minutes later, Orlando forwarded the entire packet consisting of evidence, notes and unredacted pages identifying all involved, to Republican operative and campaign manager Jay McCleskey.  Her note to him: simply “here.”  Clearly there were off-line communications between Orlando & McCleskey here, too.

The Investigation

Amy Orlando

Amy Orlando

Later reports that night and into the next day painted a clearer picture of the allegations.

NM Politics posted a copy of the email the Dona Ana County Clerk had sent to the District Attorney’s Office investigator first alerting them to their concerns on October 5, 2010.  But, unlike the email Orlando sent to McCleskey, this email was redacted to protect the identities of witnesses and suspects and did not include any of the evidence.

By 11:30 on the 28th, 45 minutes after Orlando provided the evidence and notes to McCleskey, she confirmed to NM Politics that her office was aware of the open investigation and retained jurisdiction to prosecute any wrongdoing:

Deputy District Attorney Amy Orlando said her office “properly directed the county clerk’s office to send all information and materials about this case to law enforcement to be fully investigated.” She said the office has “absolutely” not declined the case – it has not yet been presented to the DA’s office by law enforcement for review.

The next day, October 29th, other news outlets worked to catch up.  By the time the Albuquerque Journal reached County GOP Chair Mark VanDyke, he was notably concerned:

“It’s a terribly serious thing, because the entire process, from registration to casting a vote, has to be legal, fair and honest,” [County GOP Chair] Van Dyke said. “And it appears that somebody chose a different route, and I’m deeply sorry to say it appears to be somebody in our organization.” – ABQ Journal, 10/29/10

Law enforcement also seemed to scramble to catch up after news of the allegations became public.  A police report(see below) obtained by ProgressNowNM shows that the sheriff’s office, which had been asked to investigate by the DA’s Office, asked the Las Cruces Police Department to investigate to avoid any conflict since the current sheriff was also running for re-election.

The LCPD detective received the case on October 29th, the day after the story broke.  By the time the detective reached the Dona Ana County Republican Party and the home of the voter registrar central to the investigation, Republican operatives had been in possession of the evidence, investigative notes and witness names for at least 12 hours.

The detective did, however, uncover a possible motive: the state GOP paid each county party $7.00 for each new Republican it registered (but nothing for Democrats or voters who declined to state a preference).   For cash-strapped county parties, this dollars-for-voters program could become a big funding stream if aggressively pursued.

For a political party actively running against “pay to register” programs by left-leaning groups (how many times does the GOP yell ACORN when mentioning voter registration?), engaging in the same programs is hypocritical, to say the least.

And although the detective was able to pin down a motive and primary suspect, he was not able to get anyone to openly confess so he wrote up his investigation and submitted it to supervisors, and ultimately to the District Attorney’s Office for review.


Our follow up investigation failed to find any evidence that the District Attorney’s Office pursued charges against the suspect or others and Ms. Orlando was named the new District Attorney by now-Governor Susana Martinez after her election just a week after this scandal was exposed.


Prosecutorial Misconduct and Improper Interference?

So why would the chief prosecutor for an agency responsible for investigating and prosecuting crimes share confidential law enforcement information, including evidence and notes, with a political operative who worked with the suspects?  That’s a question every prosecutor and attorney we’ve asked wants answered.

Some have suggested that Ms. Orlando’s actions, at the very least, constitute prosecutorial and professional misconduct and, at worst, jeopardized a felony criminal investigation under her purview.

Equally disturbing are questions involving McCleskey and the relationship between the party, Republican campaigns and official actions in the office run by then-DA Susana Martinez and her chief deputy Amy Orlando.

Other members of Martinez’s team have publicly stated that the campaign routinely communicated with DA’s office staff to conduct background checks on political opponents.

We previously broke the story of a State Police officer who says he was ordered by Orlando to record a confidential conversation about active voter misconduct investigations.

The October 2010 email thread between Orlando and McCleskey indicate that there was some other off-line conversation between the two, as well as between Orlando and her investigator, in the minutes between when the story broke and when Orlando forwarded the documents and the “here” message to McCleskey.  Other emails show that Martinez was staying abreast of cases and investigations in the office throughout her campaign.

Together, these emails show that McCleskey, a political operative with no official role in the District Attorney’s Office or any other law enforcement agency, felt comfortable asking for and receiving confidential law enforcement information from the office.   The IPRA records we obtained from the DA’s Office are not all inclusive, so we are unable to conclude if there were other instances of McCleskey obtained information on other cases through official or personal emails.

In addition to asking why Ms. Orlando felt obligated or comfortable sharing documents and evidence with McCleskey, we should also ask why Mr. McCleskey wanted the full case information and documents after getting a public preview from the breaking news blog.

Going Forward

Last month, we filed a complaint with the Attorney General’s Office (the only agency explicitly authorized to investigate District Attorney’s Offices).   Having now learned that the AG’s office has received our complaint and is reviewing the emails and reports, we can report that an investigation is underway.

Some have suggested that the state bar’s professional standards board should take a look at Orlando’s actions.  After losing her election for DA, she worked briefly for CYFD and now serves as general counsel for the state’s Department of Public Safety, advising officers on proper investigation and prosecution procedures.


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