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Judges Reject Bid To Dismiss Cases: Appointment Of U.S. Attorney OK'd
[March 01, 2008]

Judges Reject Bid To Dismiss Cases: Appointment Of U.S. Attorney OK'd

(Albuquerque Journal (NM) (KRT) Via Thomson Dialog NewsEdge) Mar. 1--It is both official and unanimous: Three federal judges have rebuffed a bid to dimiss criminal cases because the new U.S. attorney was appointed by judges instead of by the president.

U.S. District Judge James O. Browning joined Judges M. Christina Armijo and William "Chip" Johnson in finding that the court's appointment of Greg Fouratt as the chief federal prosecutor was not unconstitutional -- defense arguments notwithstanding.

Armijo and Browning did not participate last month with other federal district judges in the vote to appoint Fouratt. In a Jan. 25 administrative order, the other judges appointed Fouratt to a vacancy that occurred when U.S. Attorney Larry Gomez's temporary appointments expired and President Bush had no nomination of his own in the pipeline. If the court hadn't acted, it's unclear who would have headed the office.

Armijo abstained from the vote but expressed praise for Fouratt. Browning dissented.

Johnson voted with other judges to make the appointment.

In challenges launched in some two dozen criminal cases -- including the Metro Court scandal -- the criminal defense bar has argued that having judges appoint the chief federal prosecutor violated the separation of powers clause of the Constitution. They have argued that the chief prosecutor has essentially become beholden to the judges who gave him the job and that the appointment lacked accountability because they have lifetime appointments.

It's not as if federal judges in New Mexico acted alone.

Other district courts across the United States have taken the same action.

One critical difference is that other federal appellate courts have ruled on the issue, but the 10th Circuit of Appeals in Denver, which includes New Mexico in its six-state region, has not.

Johnson, at a hearing this week, read out a list of courts that said the congressional act permitting courts to make interim appointments is constitutional.

But he observed somewhat wearily that he expects the 10th Circuit may yet get to it.

Armijo dismissed the motion in a Feb. 15 opinion in the case of Alfred R. Tafoya.

"It is not this court's role to answer hypothetical questions about the statute's consitutionality or to consider every conceivable situation which might possibly arise in its application," Armijo wrote.

Browning late Tuesday filed a 68-page legal treatise on separation of powers in a motion seeking to dismiss the indictment against Roswell contractor Carl Dean Baldwin for immigration law violations.

Browning, a longtime Federalist Society member and mentor, said he shared concerns that "shifting the appointment power to the unelected court dilutes the accountability that United States attorneys have when the political branch chooses them." But he said that didn't make the appointment unconstitutional.

"The reality is that the public will probably blame the court for a while, but the longer Mr. Fouratt remains in office, he becomes the choice, by acquiescence, of the executive branch," Browning wrote.

Robert Gorence, Baldwin's lawyer, called the opinion "an exceptional treatise on law. The judge obviously shares our concerns about the appropriateness of the judges appointing the very prosecutor who brings the cases they will hear."

Fouratt said the decisions of the judges are consistent with every federal court of appeals to decide the question.

But he said the issue is certain to reach the 10th Circuit, because the odds are good that one of the defendants who's raised the issue will be convicted and use it on appeal.

"We think 10th Circuit will rule the same way, and if for some reason the Supreme Court is interested in it, they'll rule the same way," he said.

To see more of the Albuquerque Journal, or to subscribe to the newspaper, go to

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