3/25/10

    An excessive-force lawsuit against a witness who testified in Pojoaque Pueblo Lt. Gov. Linda Diaz’s hit-and-run trial should not be grounds to throw out her conviction, according to prosecutors.

    A federal jury found Diaz, 52, guilty Feb. 19 of leaving the scene of an accident in which she struck and killed a pedestrian. Diaz’s lawyer, Sam Winder, filed a motion a week later asking federal District Court Judge LeRoy Hansen for a new trial because prosecutors failed to disclose a $3 million judgment against “one of the government’s key witnesses” for allegedly shooting a man in the back.

    The “key witness,” accident reconstructionist and former Santa Fe County Sheriff’s Department lieutenant Dennis O’Brien, had described in court how Diaz fatally struck Philip Espinoza, 31, of Chimayó, with her car as he walked on the shoulder of Highway 84/285 early the morning of April 4.

    Winder explained that at 10 p.m. the night before Diaz was convicted, he heard a federal jury had awarded damages in 2007 to the family of a sword-wielding man whom O’Brien shot while working for the Sheriff’s Department. Because Winder had no “direct knowledge” of the judgment, he held off until after the trial to object to O’Brien’s testimony.

    Before filing his motion, Winder disseminated his argument to the media. 

    In a response filed March 11, Assistant United States Attorney Jack Burkhead questioned Winder’s timing, arguing he sat on the information about O’Brien’s lawsuit as a “new-trial insurance policy.”

    “It is at the very least curious for the defendant to suggest, as she apparently does, that the ‘suppression’ of evidence is so outrageous as to require a Sunday-afternoon email to the media that raises the specter of ‘prosecutorial misconduct,’ followed by a Monday-afternoon on-camera interview, yet not quite terrible enough to bring it to the Court’s attention prior to closing arguments when the Court could have actually done something about it,” Burkhead wrote.

    The judgment against O’Brien would not have cast doubt on his credibility, even if Winder had brought it up in court, Burkhead argued.

    O’Brien’s lawsuit was a “run-of-the mill allegation of excessive force” that did not suggest dishonesty on O’Brien’s part, Burkhead wrote. And O’Brien never had an opportunity to defend himself against the allegation because the plaintiff’s lawyer never informed O’Brien he was being sued, according to Burkhead.

    “Any police officer similarly situated would be eager, if not outright enthusiastic, to have his day in federal court to fend off a lawsuit brought by a sword-wielding madman who was experiencing cough-syrup-induced psychosis,” Burkhead wrote. “Mr. O’Brien counts himself among them.”

    Sheriff’s Department officials referred calls to the County Attorney office, which did not return calls seeking clarification on the O’Brien case.

    Burkhead ridiculed Winder’s argument that O’Brien’s denial that he was served with the lawsuit further undermined his credibility in court.

    “This allegation on the part of the defendant is many things, but relevant is not one of them,” Burkhead wrote. “The defendant cites no authority supporting her novel position that a statement, which she says is a lie but which was in any even made after (Diaz) was convicted, can be back-dated and used to cross-examine Mr. O’Brien. The logic of that claim is, to be charitable, confounding.”

    Burkhead also argued that even if O’Brien’s lawsuit did damage his credibility, it would not have affected the outcome of Diaz’s case. Diaz acknowledged in court the same facts that O’Brien testified about — that she struck and killed Espinoza, Burkhead wrote. The question at issue in the trial was whether Diaz knew she hit a person but failed to report it, Burkhead wrote.

    Hansen has not ruled on Winder and Burkhead’s motions or scheduled a hearing to discuss them, according to an online federal court records database.    

    Diaz faces up to three years in jail for her conviction. Her sentencing is scheduled for June 29, according to the database.

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