Easy For District Attorney To Indict A Ham Sandwich For Murder

On July 10, 2018 Presiding District Court Judge Nan Nash sent a letter to Bernalillo County District Attorney Raul Torrez notifying Torrez that the 2nd Judicial District Court would be reducing dramatically the number of days the grand juries will meet each month.

https://www.abqjournal.com/1202062/court-plans-major-cuts-to-grand-jury-system.html

Judge Nash notified Torrez that beginning October 21, 2018, a grand jury panel will be available only 6 days a month down from 5 days a week every week or down from 20 or more times a month.

Instead of using the grand jury, the District Court is requesting the Bernalillo County District Attorney’s Office to initiate new cases using preliminary hearings instead of grand juries to determine probable cause and to charge defendants with felonies.

Judge Nash said that it is an effort to save money and move toward criminal justice best practices.

According to Judge Nash, the District Court spent about $75,000 for a period of six months between July 1 and December 31, 2017 to conduct grand juries.

The $75,000 is only what the court spent and does not include lost wages, lost productivity and time and inconvenience to those who are selected to serve as grand jurors for 3 or 6 months at a time.

According to Judge Nash, the use of preliminary hearings will mean a case is vetted at the front end, and a defendant will face only charges that a judge deems appropriate, which creates a more efficient system.

Five of New Mexico’s 13 judicial districts have already done away with grand juries altogether and rely on preliminary hearings.

Two states have done away with reliance on grand juries and have gone to a preliminary hearing system.

DISTRICT ATTORNEY TORREZ OBJECTS

District Attorney Raul Torrez is strongly opposed to reducing the grand jury time available saying it will make launching new criminal cases far more challenging and far more resource intensive.

According to Second Judicial District Court data, in 2017 there were 2,551 cases indicted by the DA’s office and there were 650 preliminary hearings held by the court’s criminal division.

From January 1, 2018 to June 30, 2018 there were 418 preliminary hearing with 1,688 cases indicted.

According to Torrez, preliminary hearings are more financially and administratively burdensome for the District Attorney’s office.

Torrez argues that coordinating the appearance of a defendant, victims and multiple witnesses to the crime as well as law enforcement is complicated, and if one person doesn’t show up, the entire preliminary hearing must be rescheduled.

Currently, the cases that are routed through preliminary hearings are those involving lower-level charges and lower-risk defendants in cases with few witnesses.

According to Torrez far more procedural hurdles are associated with preliminary hearings, and the system doesn’t have the resources or personnel to channel more cases through the process.

Torrez worries the shift toward more preliminary hearings will mean more police officers will be waiting in courtroom hallways to testify in hearings that could ultimately be rescheduled

Torrez erroneously argues the shift toward more preliminary hearings will have an impact on APD when he says:

“This is going to have a dramatic impact on (the Albuquerque Police Department) specifically and their ability to engage in community policing. … You have to take multiple officers off the street for hours at a time to attend a full evidentiary hearing, when they could be out in the community answering calls for service and responding to public safety needs.”

The truth is that it is field service officers in patrol cars who respond to calls for service and involved with community-based policing, not non-uniformed detectives who investigate serious felonies.

It is non-uniform detectives that investigate major violent felonies such as homicides and rapes and they do not respond to standard calls for service.

Torrez has gone as far as to threaten to take the District Court to the Supreme Court to required the District Court to schedule more grand jury time.

PUBLIC DEFENDER CONCURS

No at all surprising, the States Chief Public Defender Bennet Baur strongly supports the move towards more preliminary hearings and believes it will lead to earlier resolution of cases.

According to Baur, although it’s more work up front for the prosecution and defense, it will lead to earlier dismissals and guilty pleas when appropriate, sending fewer cases on a path to trial and a way to “clear the underbrush. … It allows us to, I think, spend more time looking at the serious cases later on.”

On July 19, 2018, the New Mexico Legislative Finance Committee (LFC), released a 117 page “Program Evaluation: Review of the Criminal Justice System in Bernalillo County.”

http://www.petedinelli.com/2018/07/24/bernalillo-county-criminal-justice-system-evaluation/

The LFC report was a detailed review of Bernalillo County’s criminal justice system and cites the National Center for State Courts’ recommendation that the District Attorney’s Office should consider prosecuting more felony cases using preliminary hearings as opposed to grand juries.

The LFC reported that 310 of the 504 felony preliminary hearings that took place in 2017 resulted in a plea during the hearing, meaning the case was concluded without a costly trial.

GRAND JURY AND PRELIINARY HEARINGS BOTH “PROBABLE CAUSE” HEARINGS

The bedrock of our criminal justice system as guaranteed by the United States Constitution is that all are presumed innocent until proven guilty and are entitled to due process of law, no matter how horrendous the crime.

There are major differences between a grand jury and preliminary hearing but both are “probable cause” hearings.

In layman’s terms, probable cause is where the evidence presented shows that is it more likely than not that a crime was committed by the defendant charged.

A “grand jury” hearing is a probable cause hearing that decides to charge a defendant when 8 out of 12 jurors find probable cause to charge.

A “preliminary hearing” is a probable cause hearing and it is a District Judge, not a grand jury, who decides whether there is probable cause to support formal charges against a defendant.

A grand jury is a secret proceeding, defendants are not allowed to see and hear the evidence presented and a grand jury proceeding is not open to the public.

Preliminary hearings are “abbreviated trials” or “mini trials” which are open to the public and held before a judge and not in secrecy as is a grand jury.

The biggest advantage that a grand jury proceeding offers is that it is a usually a very short proceeding that is totally controlled by the prosecutor as to what is presented.

The biggest disadvantage of a grand jury is to the defendant who can not object to evidence presented and must waive all right of self-incrimination if they choose to testify.

Usually, at a minimum, investigating officers and the crime victim testify at both preliminary hearing or grand jury proceedings.

Unlike in a grand jury, in a preliminary hearing, a defendant must be present and represented by an attorney who is allowed to question witnesses and present evidence.

DA TORREZ NOW HAS RESOURCES TO DO MORE PRELIMINARY HEARINGS

In January 2018, the Bernalillo County District Attorney’s Office was funded for and employed approximately 300 full time personnel which included 118 full time attorney positions.

During the 2018 legislative session, Torrez was able to secure a substantial increase in his budget to hire an additional attorneys and staff.

Torrez told the legislature a lack of resources was the reason his office could not even come close to prosecuting all the pending felony cases in his office.

According to Torrez, there were simply too many criminals and not enough staff.

DA Torrez during the 2018 legislative session had 45 vacant positions which included 18 vacant attorney positions that he was not able to fill during his first year in office.

During the 2018 legislative session, Torrez was able to secure a $4.2 million increase in the office budget.

Effective July 1, 2018, DA Torrez has a $21.5 million-dollar budget to run the Bernalillo County District Attorney Office, which should be more than enough to do more preliminary hearings.

Torrez indicated he wanted to hire upwards of 50 more prosecutors with the additional funding.

http://www.petedinelli.com/2018/02/11/senator-smith-tells-da-torrez-he-now-has-enough-rope-to-hang-himself/

APD’S MURDER CLEARANCE RATE

On April 18, 2018, APD released the city’s crime statistics for the first quarter of 2018 (January to March) comparing them to the first quarter of 2017, (January to March) and the statistics revealed that the property crime rates are down, but the homicide rate increased by an alarming 50%.

There were 6 more murders in the first quarter of 2018 compared with 2017, which is a 50% increase.

In March of this year, 5 homicides were reported in six days.

Albuquerque has had twenty (21) homicides reported in the first 4 months of this year.

There are 36 murder cases from last year that have yet to be cleared with upwards of 40 murders committed this year thus far.

APD’s “clearance rate” is currently in the mid 50%, if not lower.

According to the proposed 2018-2019 APD City Budget, in 2016 the APD homicide clearance rate was 80%, in 2017 the clearance rate was 70% and the projected clearance rate is 46% for mid-year.

Albuquerque is on track to exceeding the all-time number of 70 homicides in one year.

APD HOMICIDE UNIT’S LEAGACY OF SHAME

On July 2, 2018, ABQ Reports published a scathing article about the APD Homicide Unit.

Relevant portions of the article include:

“Over the past 13 years the [homicide] unit has amassed a legacy of shame that should shock, disgust and outrage everyone – liberals, conservatives, just everybody – who believes in one of the most basic tenets of human liberty: that innocent people should not be charged with crimes they didn’t commit and that they shouldn’t sit in jail for crimes they didn’t commit.

In those 13 years APD’s homicide unit has compiled a shameful legacy of not doing complete investigations, misleading the public, feeding confessions to people with low IQs, getting investigations dead wrong and letting innocent people rot in jail.

The latest bombshell … [reported was] Bernalillo County District Attorney Raul Torrez said he was dropping murder charges against Fabian Gonzales and Michelle Martens in the horrific 2016 killing and dismemberment of 10-year-old Victoria Martens.

… Torrez dropped an absolute nuke on the community and on APD: There is DNA from another person at the murder scene. DNA that does not match anyone in custody. …
Two years and just days before trial, before the DA thought to tell the citizens that APD Homicide had gone the wrong direction. Down a rabbit hole of their own making. Management of the APD Homicide Unit was completely absent.

APD has a history of ignoring basic human rights. Here are a few cases from not-so-distant past:

– 2005 to 2008 Robert Gonzales, a mentally retarded young man was arrested by APD and charged with the rape / murder of an 11 year old neighbor. Weeks after the arrest DNA evidence confirmed Gonzales was not the offender. Yet APD Homicide and the Bernalillo County DA never turned this evidence over to the court and defense attorneys. Only after Gonzales spent 965 days in jail for a crime he didn’t commit and only after he was released by the judge was the DNA evidence was exposed. Along with this came the announcement that Gonzales confession was simply him repeating facts that the APD homicide detectives had fed him during the interview. The NM State Supreme court fined the DA $45,000 and in a civil case Gonzales won over a million dollars from Albuquerque taxpayers.

– 2007 to 2011, Michael Lee and Travis Rowley, young men in Albuquerque working as a group of salesmen, were arrested and charged with the murders and rape of an elderly Korean couple. Both Lee and Rowley had below normal IQs. Lee confessed to the murders, Rowley did not. Shortly after the arrests, DNA evidence excluded both men and confirmed that Albuquerque serial killer, Clifton Bloomfield was the offender. Bloomfield subsequently confessed. Yet APD and the DA kept both men locked up for over a year, convinced that they had something to do with the murders even though DNA excluded them and even though the confession was once again found that Lee was just repeating what APD Homicide detectives were telling him. Yes, the city paid out $950,000 to settle with Lee.

– 2015 o 2016, Christopher Cruz and Donovan Maes are wrongly arrested for the murder of Jaydon Chavez Silver. They spent10 months in jail before the Bernalillo County DA reviewed the entire case sent to them by APD Homicide, finding that there was not evidence that Cruz and Maez were involved. APD Homicide is alleged to have fed witnesses information for them to repeat in interviews, threaten witnesses to provide false information.

– 2016 to 2018 Victoria Martens, APD Chief Gorden Eden, his PIO Celina Espinoza and APD Officer Fred Duran, knowingly lied to the public regarding a CYFD call five months before Victoria was murdered. The lies go so far as to put words in Victoria’s dead mouth, words she never spoke, simply to protect people at APD.

– 2017 to 2018. This on the heels of APD, at first defending, destruction of DNA-soaked underwear of a 7-year-old girl who was being used as a prostitute by her parents! Wouldn’t we have liked to have that DNA to compare to this unknown DNA from Victoria! But APD tossed it out and a ridiculous bullshit reason. Now Geier and Keller have said they were misled, but were they? We know the outcome of CYFD investigation into this event, but so far APD has only reluctantly started an investigation.

When DA Raul Torrez announced to Albuquerque citizens that “much of what has been reported about the brutal rape and murder of 10 year old Victoria Martens is simply not true!” he handed the defense attorney for Jessica Kelly their game plan.

… [T]he Martens case … slapped the citizens in the face with something those in local law enforcement have known for over ten years: The APD Homicide unit is ill-trained, too young, and poorly led.”

You can read the full ABQ Reports article here:

https://www.abqreport.com/single-post/2018/07/02/Injustice-For-All-APD-Homicide-Units-Legacy-of-Shame

COMMENTARY

There’s a saying in legal community about how easy it is for any prosecutor to secure indictments from a grand jury:

“You can get a grand jury to indict a ham sandwich.”

It was back in January, 1985, in an interview with the New York Daily News’, that Chief Judge Sol Wachtler coined the phrase that it is easy to indict a ham sandwich.

A the time, Chief Judge Sol Wachtler was proposing that the New York scrap the grand jury system of bringing criminal indictments.

Judge Wachtler, believed that district attorneys had so much influence on grand juries that “by and large” they could get them to “indict a ham sandwich.”

The New York Time reported that Wachtler believed grand juries “operate more often as the prosecutor’s pawn than the citizen’s shield.”

Based on review of the APD’s homicide record of botched cases, it becomes clear the District Attorney’s office has also engaged in a pattern of a “rush to indict” cases where investigations were inadequate and not complete with the District Attorneys office forced to do follow up work to complete the investigations.

The grand jury being a pawn of the District Attorney appears to be the case in Bernalillo County when it comes to murder cases and violent crimes.

A little over a year ago, District Attorney Raul Torrez accused the District Court for being the root cause for the dramatic increase in crime.

Torrez also accused criminal defense attorney’s of “gaming the system” to avoid trials and get cases dismissed.

Make no mistake, both the grand jury system and preliminary hearings do have their advantages and disadvantages.

Now that the District Court has stepped upped to the plate wanting to do more preliminary hearings, Torrez objects.

I suspect going from grand jury time scheduled 20 or more times in a month to only 6 days a month is probably way too drastic and should be phased in over a years’ time.

The District Court is being somewhat penny wise and pound foolish trying to save $75,000 to $150,00 a year in grand jury costs to gut a system that is proven to be effective to dispose of lower priority property crimes, drug cases and white collar crimes.

Notwithstanding, given APD’s shameful record with homicide investigations, preliminary hearings should be the mandatory approach to all homicide cases by the District Attorney and APD.

APD is more of the problem than the solution to getting convictions in homicide cases.

Preliminary hearings in all violent crime cases will require and insure that APD will complete investigations, gather evidence, do reports, do witness interviews and complete scientific evidence testing in order for the District Attorney to secure convictions.

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About

Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.