In characteristic style, Bernalillo County District Attorney Raul Torrez is once again picking a fight with the 2nd Judicial District Court by going to the New Mexico Supreme Court.
The 2nd Judicial District Court told Torrez that effective October 1, 2018, the 2nd Judicial District Court will be reducing the number of grand jury panel days from 20 days a month to six days a month.
Instead of using grand juries, the District Court is requesting the Bernalillo County District Attorney’s Office start using preliminary hearings before the District Judges instead of grand juries to determine probable cause and to charge defendants with felonies.
The District Court claims it will save between $75,000 to $150,000 a year in grand jury costs and the “preliminary hearings” are a best practices approach.
The grand jury system and preliminary hearings both have advantages and disadvantages.
A “grand jury” hearing is a probable cause hearing, done in secret, that decides to charge a defendant when 8 out of 12 jurors find probable cause to charge.
The grand jury is viewed by many as pawn of the District Attorney, it is conducted in secrecy and the prosecution can present evidence and hearsay without objection or knowledge of the defendant to be charged.
A “preliminary hearing” is a probable cause hearing, conducted in open court, and it is a District Court Judge, not a grand jury, that decides whether there is probable cause to support formal felony charges against a defendant.
On July 19, 2018, the New Mexico Legislative Finance Committee (LFC), released a report entitled “Program Evaluation: Review of the Criminal Justice System in Bernalillo County.”
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.
DEFENSE BAR POSITION
The New Mexico Criminal Defense Lawyers Association as well as the State Public Defender’s Office are voicing support for the change from a grand jury system to a preliminary hearing system.
Jonathan Ibarra of the New Mexico Criminal Defense Lawyers Association had this to say supporting the change:
“It’s easier in grand jury because they can rely on hearsay for things, so in a grand jury, they can have one officer speak for five minutes instead of actually calling witnesses in the case”.
According to Ibarra preliminary hearings are a better way to vet a case before formal charges are filed when he said:
“There’s still a much better idea of making sure we know exactly what evidence the state does or doesn’t have right away. … We want to know if alleged victims are going to be cooperative, if people are actually going to show up for court, instead of letting a case linger for months just to find out they can’t prove it after all.”
The States Chief Public Defender Bennet Baur also strongly supports the move towards more preliminary hearings and believes it will lead to earlier resolution of cases 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.”
NOT FIRST TIME FOR TORREZ
DA Torrez has ordered his office to prepare a challenge to the District Courts plans for the grand jury and appeal to the New Mexico Supreme Court.
The New Mexico Supreme Court has administrative authority over the District Court and can order a halt to the plan, but that is not likely going to happen.
DA Raul Torrez should not expect any sympathy from the New Mexico Supreme Court.
The Supreme Court tends to allow the District Courts to manage their own caseloads without micromanaging them to the point of allowing the District Court to adopt their own “local rules” applicable to their districts only and not all the others.
A little over a year ago, Torrez accused the District Court and the Supreme Court’s case management order (CMO) for being the root cause for the dramatic increase in crime and the dismissal of cases.
Torrez challenge the case management order before the New Mexico Supreme Court and also took action against an individual judge claiming the judge was requiring too much evidence to prove that a defendant was too violent to be released with bond.
Torrez had his office prepare a damaging report showing it was the District Court dismissing cases and contributing to high crime rates.
Torrez’s claim was later discredited by a District Court report reviewing all dismissals and it showed it was the DA’s office that was dismissing the majority of cases on its own.
Torrez also accused criminal defense attorneys of “gaming the system” to avoid trials and get cases dismissed.
By objecting to a preliminary hearing system, District Attorney Raul Torrez is leaving himself open to the charge that he is the one who is actually gaming the system with use of grand juries and resisting preliminary hearings.
When Torrez ran, he proclaimed the judicial system was broken in Bernalillo County and he was the guy who could fix it and he demanded more resources.
Torrez to his credit was able to secure another $4.5 million from the legislature to hire more prosecutors and he now has a $21.5 million dollar budget and more resources he could dedicate to preliminary hearings.
Now that the District Court wants to do more preliminary hearings, Torrez objects to it saying it will be too labor intensive for his office and crime rates will go up.
Going from grand jury time scheduled 20 or more times in a month to only 6 days a month in a two month period is probably way too drastic and it should be phased in over a years’ time.
The District Court is being somewhat penny wise and pound foolish by 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 crimes.
Complicating things is that APD has a shameful record with homicide investigations such as the murder of 9-year-old Victoria Martins who was raped, murdered, dismembered and burned.
Torrez was forced to dismiss a number of charges in the Martens case, with another unidentified defendant at large, and a lot of mistakes in the investigation could have been avoided had the scientific evidence been tested sooner, but there was a rush to indict.
Preliminary hearings should be the mandatory approach to charge all homicide cases by the District Attorney and APD.