The City of Albuquerque has settled and paid $3.7 million in a civil law suit to the family of a criminal suspect who was seriously injured on May 28, 2015 by the Albuquerque Police Department (APD) using “excessive use of force” and “deadly force.” The biggest difference between the recent settlement and those of the past is that the injured criminal suspect survived while others were killed by APD.

UNDERLYING FACTS SUPPORTING THE $3.7 MILLION SETTLEMENT

The recent story reporting the $3.7 million settlement and 3 other settlements leaves very little doubt why the City and APD had no choice but to enter into the October 31, 2014 federal Court Approved Settlement Agreement (CASA). The settlement agreement required re write and reforms of APD policies and training on “use of force” and “deadly use of force” in order to address the “culture of aggression” found by the Department of Justice. The most recent settlement for $3.7 million alleges civil rights violations and that 10 APD officers used excessive force shooting their weapons 82 times in one incident.

On June 13, 2019, the Albuquerque Journal reported the facts that supported the $3.7 million settlement:

“A little over four years ago, on the evening of May 28, 2015, 10 Albuquerque police officers opened fire on an unarmed suspect in a stolen SUV, shooting at least 82 times. Rodrigo Garcia, then 20 years old, was struck approximately seven times in his head and body. The officers did not provide medical care immediately. Instead, they continued to shout commands for him to give himself up for the next 90 minutes or so. Garcia lived, but was severely injured. He now has the functional capacity of a 5- or 6-year-old and cannot move around by himself. Those claims were included in a lawsuit filed in federal court last year by Garcia’s mother, Loretta Garcia, against the 10 officers who fired their weapons, the four who removed Garcia from the SUV, then-police chief Gorden Eden and the city of Albuquerque.” After the shooting 20-year-old Rodrigo Garcia was on life-support for close to a year and he underwent surgeries to remove bullet fragments and part of his brain.

According to one of the attorneys representing the Rodrigo Garcia family:

“One of the reasons there was a substantial settlement was because we had a panel of experts who explained the 90-minute delay in getting … [Rodrigo Garcia] medical care really had an adverse impact on the extent of his brain injury. … Had he gotten adequate emergency medical care perhaps he wouldn’t have had as much brain damage. But he bled out for 90 minutes, and that was not good. … [Rodrigo Garcia’s] life span is likely not going to be more than until he is 35 years old”. The panel of experts predicted that Garcia, now 24, probably won’t live much longer.

https://www.abqjournal.com/1328176/city-pays-out-3-75-million-in-2015-police-shooting.html

At the time of the shooting, an APD spokesman said when APD tried to arrest Garcia, he and a woman he was with got out of a vehicle they were in but when officers tried to arrest them, Garcia jumped back into and drove away, running into a chain link fence. An officer was either knocked down or fell down during the escape and that is when APD police officers began shooting at the moving vehicle. APD lapel camera video show multiple officers firing at the back of the SUV as it drives away, then again as it slowly rolls backward. It is likely that when the vehicle started to roll back, Garcia had already been shot in the head. Ten police officers fired shots at Garcia driving off and 4 police officers “forcibly removed Garcia from his vehicle and dragged him back to the APD command area where he was handcuffed.”

https://www.scribd.com/document/245127631/DOJ-APD-Settlement-Agreement

THREE APD DEADLY USE OF FOR CASES SETTLED FOR $18 MILLION

There have been 3 previous several million-dollar settlements where suspects have been killed by APD and the city has settled the cases with the families without going to trial. Three of the largest settlements involved the killing of James Ellis, III, a veteran suffering from post-traumatic stress disorder, mentally ill and homeless camper James Boyd, and 19-year-old Mary Hawkes.

KENNETH ELLIS, III

On January 28, 2014, the City announced it had settled with the Kenneth Ellis III family for almost $8 million. A judge had ruled the shooting unlawful and a jury returned a $10.3 million verdict. Jurors ruled that the APD Detective who shot Ellis acted “willfully, wantonly or recklessly.” Ken Ellis was a 25-year-old Iraq War veteran suffering from service connected post-traumatic stress disorder. Ellis was killed on January 13, 2010 in a standoff with APD outside a Northeast Heights convenience store. He was suffering from post-traumatic stress disorder and held a gun to his own head throughout the encounter, which ended when an APD Officer shot him once in the neck.

https://www.abqjournal.com/344029/city-would-pay-8m-to-settle-ellis-shooting-case.html

JAMES BOYD

On July 10, 2015, the city settled with the family of mentally ill and homeless camper James Boyd for $5 million. James Boyd in March, 2014 was shot and killed in the Sandia Foothills by APD after hours of confrontation. Boyd refused to surrender and was armed with two knifes. While Boyd began to surrender, police escalated the confrontation and Boyd was shot and killed by two APD SWAT officers shooting rifles from a distance. The two SWAT officers who killed Boyd were charged with murder, defending the killing as doing what they were trained to do to defend APD officers on the scene. The jurors were unable to reach a verdict, a mistrial was declared and the criminal charges were eventually dismissed against the two APD officers.

https://www.abqjournal.com/610827/albuquerque-reaches-settlement-in-lawsuit-over-james-boyds-death.html

MARY HAWKES

On January 17, 2018, the city of Albuquerque announced it has reached a $5 million settlement with the family of Mary Hawkes, a 19-year-old woman who was shot and killed by police during a foot chase in 2014. 19-year-old Mary Hawkes was allegedly armed with a handgun and fleeing from police and she was shot in the back. Hawkes was killed just days after the Department of Justice announced the city’s police department had a pattern of using excessive force and force. The Hawkes family alleged that the police department’s “structural and systemic deficiencies” led to her killing.

https://www.abqjournal.com/1120552/hawkes-family-settles-lawsuit-fatal-apd-shooting.html

SETTLEMENT MONEY COMES FROM THE TAXPAYER

The City of Albuquerque is a self insured entity and as such carries NO insurance for law enforcement liability Nor any other tort claims or causes of action. The city has a Risk Management Department and the City Council funds the reserves with the money coming out of the general fund, so its all taxpayer money paying the settlements. In order to keep its self insurance status, the city must keep in cash reserves a percentage of liability exposure. Virtually none of the agreed to settlements paid come from an insurance carrier. Under state law, when a cop or any city employee is sued, the city is required by law to defend them, pay for their attorney and further pay all attorneys fees, costs and judgments rendered against the cop or city employee. The $60 million plus paid by the city in police misconduct cases and deadly use of force came out of the general fund, which is all taxpayer money.

DEPARTMENT OF JUSTICE CONSENT DECREE

The City of Albuquerque has paid out upwards of $64 million in settlements over the last 10 years involving 42 police officer involved shootings. It was 2012 when the Department of Justice (DOJ) came to Albuquerque to investigate the Albuquerque Police Department (APD) for excessive use of force and deadly forced.

Albuquerque is one of 18 law enforcement agencies throughout the country operating under a consent decree brought on by a Department of Justice (DOJ) investigation that found systemic problems and a “culture of aggression”. What differentiates the DOJ’s investigation of APD from all the other federal investigations and consent decrees is the fact that the others involve in one form or another the finding of “racial profiling” and use of excessive force. The DOJ’s finding of a “culture of aggression” within APD dealt with APD’s interactions and responses to suspects that were mentally ill.

In APD’s case, the DOJ found a “culture of aggression” within APD after reviewing as many as 18 “deadly use of force cases” and other cases of “excessive use of force” mostly with the mentally ill and having nothing to do with racial profiling. The implementation of reforms under the federal Court Approved Settlement Agreement (CASA) began in 2014 after a Department of Justice (DOJ) investigation found a “pattern and practice of excessive force” and a “culture of aggression” within the Albuquerque Police Department (APD).

At the time of the July 10, 2015 settlement with the Boyd family, lawsuits stemming from police shootings had cost taxpayers more than $25 million in settlements, and APD had shot more than 40 people since 2010 with 29 of them fatal.

The CASA was entered into on October 31, 2014. There is no doubt the CASA has addressed the “culture of aggression” found by the DOJ. This November it will be a full five years since the city entered into the Court Approved Settlement Agreement (CASA) with the Department of Justice (DOJ). The CASA was negotiated to be fully implemented over a four-year period.

APD has completed the following mandated reforms under the CASA:

1. After a full year of negotiations, the new “use of force” and “use of deadly force” policies have been written and implemented. All APD sworn officers have received training on the policies.

2. All sworn officers have received at least 40 hours crisis management intervention training.

3. APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.

4. The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use-of-force incidents.

5. Sweeping changes – ranging from APD’s SWAT team protocols, to a ban on chokeholds, to an audit of every Taser used by officers, to a re-write and implementation of new use-of-force and deadly force policies – have been completed.

6. The CASA identified that APD was severely understaffed. APD has added 116 police officers, is returning to community-based policing and has gone from 821 officers in 2016 to 957 police officers on June 18, 2019 and APD expects to be at 987 police officers by the end of July. https://www.abqjournal.com/1329712/apd-added-116-officers-over-past-year.html

7. All other federal consent decrees in the country involve in one form or another the finding of “racial profiling” and the use of excessive force or deadly force against minorities. APD’s consent decree deals with APD’s interactions and responses to suspects that are mentally ill and having psychotic episodes. “Constitutional policing” practices and methods, and mandatory crisis intervention techniques and de-escalation tactics with the mentally ill have now been implemented, with all sworn officers having received the training.

8. APD has adopted a new system to hold officers and supervisors accountable for all use-of-force incidents, with personnel procedures implemented detailing how use-of-force cases are investigated.

9. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.

10. The Repeat Offenders Project, known as ROP, has been abolished.

11. The Police Oversight Board has been created, funded, fully staffed, and a director has been hired and his contract renewed.

12. The Community Policing Counsels have been created in area commands and meet monthly.

13. The Mental Health Advisory Committee has been implemented.

14. Under the CASA, once APD achieves a 95% compliance rate in all three compliance areas, the case can be dismissed. The May APD monitor’s report found APD achieved a 100% compliance with primary tasks, 79% secondary compliance and 61% operational compliance.

15. According to the Use of Force Report for 2017 and 2018, APD’s “use of force” and “deadly force” is down, which was the primary objective of the CASA reforms.

VIOLENT CRIME STATS

On March 30, 2019, the Albuquerque Police Department released the City’s crime statistics for the first quarter of 2019 which runs from January to March of 2019.

https://www.kob.com/albuquerque-news/apd-most-crime-is-down-but-non-fatal-shootings-are-up/5299172/?cat=500

The good news is that APD reported that crime is continuing to drop from 10 years of historic highs in all major categories. The bad news in the statistics released is that the city saw an increase in nonfatal shootings.

According to the statistics, non-fatal shootings went up 12% and there have been 131 nonfatal shootings the first quarter of the year compared to last year’s number of 114. The statistics reflect that in the first three months of nonfatal shootings around the city occurred roughly three times every two days. Nonfatal shootings have increased from 2017 to 2018 rising by 14%.

COMMENTARY AND ANALYSIS

All too often, people who consider themselves “law and order” types and supporters of law enforcement say criminal suspects who are shot or even killed by police get what they deserve. The opinion expressed usually includes that the families of suspects killed should not be compensated for damages or violations of constitutional rights by law enforcement and wrongful death claims. Such attitudes are misguided and reflect a degree of ignorance and purpose and function of law enforcement in general.

All 4 of the described cases that the city settled for a combined total of $21.7 million dollars leaves very little doubt why the City and APD had no choice but to enter into the federal Court Approved Settlement Agreement (CASA). The CASA mandated the rewrite and reform of APD policies, procedures and training on “use of force” and “deadly use of force.”

APD is slowly but assuredly growing and changing. APD has added 116 police officers, is returning to community-based policing and has gone from 821 officers in 2016 to 957 police officers on June 18, 2019. APD’s use of force and deadly use of force is also down dramatically. The goal is to spend $88 million over a four-year period and bring the level of police officers to a full force of 1,200. Notwithstanding the growth of APD, the city is still suffering from record high violent crime and APD has its work cut out for it.

The most common motto of law enforcement agencies throughout the country is to “protect and serve”. In general, the words define the mission of law enforcement which is to “protect” citizens from danger and “serve” the public. “Protect and Serve” does not mean “shoot and kill first and ask questions later.”

The mission of law enforcement is not “Judge, Jury and Executioner”. Taxpayers wind up paying for “use of excessive force” or “deadly force” by law enforcement when constitutional policing practices are not followed. There is no doubt that law enforcement have the right to defend themselves, but they must do so within the confines permitted by the United States Constitution. That is why APD police officers go through months of training and education at the police academy before they become police officers and then another period of on the job training.

It appears that APD has learned its lessons from past mistakes, is improving and that the CASA reforms are serving their function. However, Albuquerque is way too violent and APD has a steep mountain to climb to get the city’s violent crime down and making sure all police officers get home safe at the same time.

There is no doubt the film industry is emerging to be the biggest hope for Albuquerque and New Mexico to diversify both economies. The unmistakable evidence are the immense investment in the city and state by NBC Universal and the Netflix purchase of Albuquerque studios as the site of their new production hub. NBC Universal is the second major studio in less than a year to announce they are opening film production facilities in Albuquerque. However, one potential problem that New Mexico needs to address is the impact restrictive abortion laws could have on New Mexico’s expanding film industry. The New Mexico legislature needs to take aggressive legislative action to protect abortion rights and a woman’s right to choose.

THE NBC UNIVERSAL DEAL

On June 14, NBC Universal announce it will open a studio in Albuquerque as part of a 10-year venture with Garcia Realty and Development. The media giant will be taking over, renovating and creating sound stages at a now vacant industrial building south of I-40 on Commercial Street, north of downtown in the vicinity of historic Martineztown.

The NBC Universal plans are to redevelop the warehouse into a state-of-the-art television and film studio with two sound stages, offices and a film production mill. The turnaround time for the renovations is very short and it’s expected to be complete in the fall of 2019.

The media giant is expected to provide more than 330 full-time jobs year-round at the film studio. NBC Universal employees will earn about $58,000 a year which is a far cry from the minimum wage jobs the city is use to announcing with the arrival of new businesses. The studio operation is projected to generate an economic impact of $1.1 billion over a 10-year period.

Once complete, the studio will be used by NBC Universal to produce scripted productions for many platforms, including broadcast and cable channels.

The state’s Economic Development Department is providing $7.7 million through the Local Economic Development Act (LEDA) to the redevelopment and production commitment. The City of Albuquerque will provide another $3 million from its LEDA fund which was approved by the Albuquerque City Council on June 17, 2019 by a unanimous vote.

https://www.kob.com/albuquerque-news/nbcuniversal-to-open-studio-in-albuquerque/5389689/?cat=500

NBC UNIVERSAL DEAL IN A NUTSHELL

The Albuquerque Journal provided a bullet point nutshell of the NBC Universal deal as follows:

•The Warehouse [that is to be renovated] was constructed in 1976 for Richard’s Distributing, a beer distributing company. The building was sold to Southern Glazer’s Wine and Spirits and has been largely vacant since 2017.

• There will be two sound stages, offices and a fill production mill space.

• City of Albuquerque has completed street improvements, curbs and sidewalks with LED solar street lights to be installed.

• The 300-plus workers employed by NBC Universal will earn an average wage of $58,000 and support another 497 indirect workers with an average wage of $41,000.

• NBC Universal will develop a marketing strategy with the state and city to promote Albuquerque and New Mexico with the value to be in excess of $500,000 per year.

• NBC Universal will provide at least $55,000 per year to fund existing workforce development initiatives in the state.

• NBC Universal’s director mentorship program will provide a stipend to an aspiring director from the local community who will shadow a director for a period of one to three episodes, including pre- and post-production.

You can read the lengthy Journal story at the below link:

https://www.abqjournal.com/1328383/nbcuniversal-to-bring-production-venture-to-abq.html

THE NETFLIX PURCHASE OF ALB STUDIOS

On October 8, 2018, it was announced that Netflix was buying Albuquerque Studios.

https://www.abqjournal.com/1230755/netflix-to-buy-abq-studios.html

https://www.krqe.com/news/new-mexico/netflix-buys-albuquerque-studios/1507392854

The State contributed $10 million of Local Economic Development Act funds. The City of Albuquerque contributed another $4.5 million of Local Economic Development Funds. Albuquerque beat out other places such as Denver, Salt Lake City, Austin, New York, Georgia and Los Angeles. The Albuquerque site will be Netflix’s first hub purchased in the United States.

It is estimated that at least 1,000 well-paying jobs per year will be created. The jobs will run the gamut of film and TV production work, most of which is project-based contract labor. Many of the jobs are expected to pay $70,000 a year. The purchase deal also calls for $1 billion worth of production spent over 10 years which will have a dramatic effect on the City and State economies.

Albuquerque Studios is an enormous complex that includes 9 sound stages, a backlot and management offices. New Mexico’s other 4 production studios are I-25 Studios, Garson Studios, Santa Fe Studios and Las Cruces Studios as other productions seek studio space for their projects.

In 2006, Albuquerque studios was a $74 million, 50-acre project featuring eight sound stages, production officers and support space. On July 24, 2006, the groundbreaking of Albuquerque Studios occurred and once completed, it was and still is a state-of-the-art movie-making facility. Notwithstanding the sophistication of the facility, Albuquerque Studios for 17 years has been a rental house to production companies and was for sale for a number of years.

The Netflix purchase will no doubt benefit the other major studios in the State that will likely be asked to provide additional overflow work. The jobs that will be created in Albuquerque run the gamut of film and TV production work, most of which is project-based contract labor. With the Nextflex purchase, you will have a production and distribution company that can create that will take it over and start producing far more projects.

NEW MEXICO’S EXPANDED TAX CREDITS FOR FILM AND TELEVISION PRODUCTION

On March 29, 2019, Governor Michelle Lujan Grisham signed into a law legislation expanding tax credits for film and television productions in a bid to bring more business to New Mexico’s studios as well as its cinematic mesas and small towns. Governor Michelle Lujan had called upon the legislature to abolish the annual $50 million cap on film rebate spending cap, but the legislature instead more than doubled it. The enacted legislation also pays off up to $225 million in tax credits already owed to the film and television industry. The film and television industry has hit the $50 million annual cap on tax credits in recent years, leaving the state with a backlog of $382 million through fiscal year 2023.

The enacted law more than doubles the original cap of $50 million to up to $110 million in in tax credits for film and television productions each year. That cap does not apply to production companies that have purchased or signed a 10-year lease for facilities, like Netflix, which is setting up shop in Albuquerque. The new law also provides an additional 5 percent credit for productions more than 60 miles outside of Bernalillo and Santa Fe counties, a measure that proponents argued would promote the industry in cities like Las Cruces as well as in rural areas of the state. The law also requires the state to collect additional data on how the credits are used.

FILM TAX CREDITS CRITICIZED AS GOING TOO FAR

Critics of the film rebates contend that the legislature has gone way too far with the rebates because companies like Netflex and NBC Universal that make a ten year commitment to film here because there is no cap. Under the rebate legislation, companies like Netflez and NBC Universal will be allowed to keep collecting upwards of 30% of what it costs to produce films and TV shows no matter how much is being billed by the industry. The argument critics make is that companies like Netflex and Universal could very easily take the incentive over the $110 million a year impacting the state’s budget in a very negative way.

For more on the criticism of the film rebated see June 17, 2019 post entitled “Hefty NM Film Incentives Draw Renewed Questioning In Wake of NBCU Deal: Too Generous? Blowing A Hole In State Budget? Other States Back Off” at New Mexico Politics With Joe Monahan at the below link:

http://joemonahansnewmexico.blogspot.com/

On June 16, 2017, State Senate Finance Commitee Chairman John Author Smith told an interim legislative commitee that if the price of oil does not change drastically, the State could once again recieve between $1.1 billion to $1.3 billion in additional tax dollars next year. If that happens, it will be the second year in a row that the state will get a $1 billion plus windfall. The oil boom in Southern New Mexico is going strong and royalties paid to the state continue to increase. The additional revenues could be relied upon to continue with the film tax credits to some extent.

https://www.apnews.com/d06489c30b714ff3a7f758226f8205d2

RESTRICTIVE ABORTIONS LAWS IMPACT FILM INDUSTRY GROWTH

Nine states have now enacted laws restricting abortions an attempt to prompt the United States Supreme Court to overturn Roe v. Wade which makes abortions legal throughout the country, protecting a woman’s right to choose and declaring unconstitutional state criminal law-making abortions illegal. Most of the new restrictions are in the South and Midwest. The State of Georgia has enacted one of the most restrictive abortion laws in the county.

https://www.washingtonpost.com/nation/2019/05/09/which-states-are-blocking-abortion-and-which-are-enacting-protections/?noredirect=on&utm_term=.1ce3897fcb8e

More feature films are made in Georgia than in any other U.S. state. Its film commission even likes to call Georgia “Y’allywood.” But a restrictive abortion law passed earlier this year is threatening the film industry in Georgia. Ten major film and TV studios have announced they might halt production altogether in Georgia. Some of the most popular shows filmed in Georgia include the science fiction hit “Stranger Things”. “Black Panther” and “Avengers: Endgame” are two Disney blockbusters that were shot partly in Georgia.

Ted Sarandos, who runs Netflix studios, said the Georgia law would restrict the rights of his female employees and his company would reconsider shooting there. Disney CEO Bob Iger made a similar comment in an interview with Reuters:

“Well, I think if it becomes law [which it now has], it will be very difficult to produce there. I rather doubt we will. I think many people who work for us will not want to work there. And we’ll have to heed their wishes in that regard.”

https://www.npr.org/2019/05/31/728542385/movie-productions-in-georgia-may-stop-over-states-abortion-law

Netflix, Disney, Warner Media, AMC Networks, NBC Universal and CBS Corp. and its Showtime subsidiary have all threatened to pull their business from Georgia and fear is rippling through the state’s film production industry, now bigger than California’s, according to Film LA.

Last year, a record 455 film and television productions generated an estimated economic impact of $9.5 billion, according to the Georgia state department of economic development. The film and TV industry is responsible for more than 92,100 jobs and nearly $4.6 billion in total wages in Georgia, including indirect jobs and wages, according to the Motion Picture Association of America, a trade union group.

https://www.bloomberg.com/news/articles/2019-06-08/trouble-in-y-allywood-no-1-film-state-rattled-by-abortion-law

NEW MEXICO’S 1969 ABORTION LAW

An NBC/Wall Street Journal Poll on abortion was taken on June 8, 2019 and compared to an identical poll taken on September 19, 2008. The result was telecast on the June 16, 2019 Meet the Press show. The poll was one question “Should abortions be legal all the time/most of the time”. Comparing the two polls reveal an increase in support of abortion along both gender and party lines. Following are the results comparing “NOW” to the year 2008:

Men: NOW: 52% favor, before in 2008: 50% favor
Women: NOW: 60% favor, before in 2008: 49% favor
Democrats: NOW: 81% favor, before in 2008: 68% favor
Republicans: NOW: 29% favor, before in 2008: 25% favor

During the 2019 New Mexico legislature, one of the biggest failures was the failure to repeal the 1969 law that criminalizes abortion, except in cases in rape. The New Mexico statute now on the books criminalizing abortion is not enforceable as a result of the United State Supreme Court ruling in Rowe vs Wade that legalizes abortions. “Right to choose” advocates are concerned that the United States Supreme Court will reverse the Roe vs. Wade decision now that conservatives are in control of the United States Supreme Court. If that happens, New Mexico’s 1969 law would be enforceable.

COMMENTARY AND ANALYSIS

Governor Michelle Lujan Grisham who attended the press conference announcement for the NBC Universal had this to say:

“I’m incredibly excited to announce today NBC Universal has chosen to plant their flag here in New Mexico, establishing a world-class production facility in Albuquerque. … New Mexico is the place to be for the future of the film and TV industry. … We are growing New Mexico’s film industry, diversifying our economy and creating exciting jobs – this is a home run deal”.

Governor Michelle Lujan Grisham was not exaggerating nor embellishing in the least with her remarks. It is not far fetched to envision New Mexico replacing the State of Georgia as the number one state for feature films than in any other U.S. state. The New Mexico film industry has been growing steadily for more than 17 years. Albuquerque has regularly been ranked in the top 10 of the trade magazine Moviemaker’s best places to be a filmmaker.

With NBC Universal coming to Albuquerque and the purchase of Albuquerque Studios by Netflix, the film industry is clearly in the future of Albuquerque and the best hope at this point in diversifying our economy. Last year alone, the film and TV production industry brought in over $180 million of direct spending to the city and state. Far more important, jobs that will be provided by both NBC Universal and NETFLEX are a far cry from the hourly wage jobs provided by the “call centers” that the city has become accustomed to being announced.

The City and the State need to continue with efforts that will insure that our education institutions such as the New Mexico Community College continue to offer a trained work force. Both the City and the State need to create more incentives to build and guarantee that the industry continues to prosper in New Mexico.

Albuquerque and New Mexico need to pursue with a vengeance the real growth industry like heath care, transportation and manufacturing, and the film industry to diversify our economy. Public-private partnerships in the growth industries where ever possible should be encouraged and developed. Special emphasis and support should be given to Albuquerque’s and New Mexico’s film industry which is developing, expanding and proving to be very successful in providing well-paying jobs.

Now that the United States Supreme court has a conservative majority, the chances are increasing that the United States Supreme Court will reverse Roe vs. Wade which could very well mean New Mexico’s 1969 law is again enforceable. A reversal of Roe vs. Wade will become even more likely if President Trump is given another opportunity to appoint a third conservative judge to the Supreme Court.

The New Mexico legislature’s failure to repeal the 1969 law that criminalizes abortion may be a dark cloud forming around New Mexico film industry that could jeopardize the successes made in attracting the industry to the state. Governor Michelle Lujan Grisham and the New Mexico Legislature would be wise to again make an effort to repeal the 1969 criminal abortion law and pass legislation that affirms in a woman’s right to choose and access to abortion and prenatal healthcare. The New Mexico legislature should take steps to amend the New Mexico constitution to protect abortion rights and a woman’s right to choose.

The fact that Universal NBC and Netflex are coming to Albuquerque and New Mexico, coupled with more than doubling the film tax credit to $110 million, ensures the state and city will indeed be a real contender in the film industry nationally and globally. The Governor and the legislature will no doubt have to monitor the film industry tax credit to insure that the credits are not dominated by the mega production companies and perhaps alter, reduce or abolish the tax credits in one form or another. The fact that the State could once again receive between $1.1 billion to $1.3 billion in additional tax dollars next year from oil and gas revenues should be sufficient cause to continue with the film tax rebates.

For now, its “lights, camera, action and jobs!” for New Mexico.

APD Shield Unit Needs To Work On Homicide, Vehicular Homicides, Gangs and Vice Felony Cases For Preliminary Hearings

In February 2018 the Albuquerque Police Department (APD) created the “Sheild Unit” and it is now expanding the program. The Shield Unit assists APD Police Officers to prepare cases for trial and prosecution by the District Attorney’s office. The unit originally consisted of 3 para legals and is now being expanded to 12 under the 2019-2020 city budget that takes effect July 1, 2019.

According to a June 6, 2019 press release issued by the city, the duties and responsibilities of the Shield Unit are:

“In addition to providing police reports [to the DA’s office], the unit orders and provides the audio from 911 calls and dispatch logs, all reports and dispatch records mentioned in any report, all documents referenced, copies of any photos/CDs/DVDs/USBs which are tagged into evidence, and copies of any items tagged into evidence which can be copied, … They often contact businesses for any surveillance video of events, and receipts for damage which occurred. All of this together provides the DA with a solid case to prosecute.”

The city press release proclaims that throughout 2018, the Shield Unit provided discovery documents for 2,871 felony cases. So far this year it has provided discovery for 2,787 felony cases. The Shield Unit works on felony cases for officers across the department, except in cases involving homicide, vehicular homicide, gangs and vice. The unit is expected to work on discovery for about 6,000 cases by the end of the year.

SUCCESS OF SHIELD UNIT

An analysis of the Bernalillo County Criminal Justice System prepared for the New Mexico legislature found that felony indictments increased after the Shield Unit was created. According to the July Criminal justice study, out of 1,100 felony cases charged in Bernalillo County in March and April of 2018, approximately 600 completed felony cases were turned in by APD’s Shield Unit team. 80% of those cases were successfully indicted which was up from 50% before the Shield Unit was formed.

According to the Bernalillo County Criminal Justice study:

“Since the [Shield Unit] … began work, the … new felonies successfully indicted by the … [2nd Judicial District Attorney Office] increased from 50% to 80%, a statistically significant increase … It is highly likely that some of this success is attributable to the work of the APD [Shield Unit], although improvement or changes in other processes could also have contributed. “

According to Deputy Chief Harold Medina:

“APD is turning over quality cases to the District Attorney’s Office, which helps lead to indictments and successful prosecutions. Just as important, it frees up our officers to spend more time on patrol and doing community policing, rather than doing administrative work that can take hours for every case.”

According to 2nd Judicial District Attorney’s Office spokesperson Michael Patrick prosecutors have seen the time it takes for discovery to be submitted reduced from weeks to days, a change the DA’s office attributes in part to the paralegals processing and organizing case files.

https://www.abqjournal.com/1325167/apd-expands-unit-that-preps-cases-for-prosecution.html

THE ON-GOING SAGA BETWEEN DA RAUL TORREZ AND THE COURTS

Since mid-2015 the Bernalillo County 2nd District Court has been shifting from grand jury use to implementing “preliminary hearing” schedule. From day one of being sworn in as DA, Torrez has opposed the shift to preliminary hearings. In May, 2019 District Attorney Raul Torrez and Albuquerque Mayor Tim Keller wrote a joint letter to the New Mexico Supreme Court requesting it to intervene and stop the plans of 2nd Judicial District Court (SJDC) to shift away from the use of grand jury system to a preliminary hearing system.

The District Court provided an extensive amount of statistics to the Supreme Court that the Bernalillo County District Attorney’s Office under Raul Torrez has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries and the shift from grand jury hearings was necessary. The Supreme Court responded to the Torrez-Keller letter refusing to intervene but urging District Attorney Torrez to work with the Bernalillo County Criminal Justice Coordinating Council (BCCJCC) to resolve his concerns about ongoing cuts to the grand jury system.

COMMENTARY AND ANALYSIS

Deputy Chief Harold Medina’s comment that the Shield Unit “frees up our officers to spend more time on patrol and doing community policing, rather than doing administrative work that can take hours for every case” is just plain wrong and he should know better. It is fully uniformed police officers with their police vehicles who are assigned to field services after making bids for assignment and who do community policing and take calls for service, not APD Detectives. .

Violent crimes that are the most violent and serious cases, such as murder, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm are investigated by APD Detectives assigned to specialized units. The detectives do not take run of the mill calls for service such as making DWI arrests, issuing traffic citations nor doing community policing. APD Detectives assigned to the specialized units are the ones that need the help from the Shield Unit to prepare for preliminary hearings.

The Shield Unit does not works on felony cases involving homicide, vehicular homicide, gangs and vice. That should change immediately and the Shield Units one and only priority should be preparing cases for preliminary hearings for APD and the DA’s Office and not grand jury.

The conversion process from grand jury to preliminary hearings by the 2nd Judicial District Court has been going on since 2015 yet District Attorney Raul Torrez has resisted it. Based upon the last correspondence from the New Mexico Supreme Court to District Attorney Raul Torrez his office appears to have no other choice but to start and cooperate and schedule preliminary hearings.

Preliminary hearings should be the mandatory approach to charge all violent crime cases, including homicides, rapes, armed robberies and domestic violence cases by the District Attorney. With the help of the APD Shield Unit, DA Raul Torres should be able to get his office’s 65% combined dismissal, acquittal and mistrial rate down to more respectable levels. What would also help would be for Torrez to fill the 50 vacancies he has in his office which includes 17 at will attorney positions.

On May 25, 2019, the Santa Fe New Mexican published a MY VIEW guest editorial entitled “Let judges do their jobs” written by Jonathan L. Ibarra. Jonathan L. Ibarra is a former prosecutor and former District Court judge in Albuquerque. Mr. Ibarra now works for the Law Offices of the Public Defender and is a member of the board of directors of the New Mexico Criminal Defense Lawyers Association. He has served on five different New Mexico Supreme Court committees, including the Pretrial Release Committee.

Following is Judge Ibarra’s editorial comment followed by the link to the Santa Fe New Mexican:

“Some district attorneys are blaming judges for releasing defendants and want to change court rules to detain suspects based solely on the seriousness of the charge. Is this the right idea?

As a former prosecutor, I know very well the vast power of the state. And the state is now empowered to keep people in jail for over a week just because they decide to. As a former judge, I also know how seriously judges take their duty to do the right thing and to protect the rights of everyone in front of them, including those charged with serious crimes. Don’t let overzealous prosecutors blame judges for protecting everyone — for protecting you. Let judges do their jobs.”

https://www.santafenewmexican.com/opinion/my_view/let-judges-do-their-jobs/article_e2a30677-b3f7-510d-ae87-b74e1acb279a.html?fbclid=IwAR0jG6FjLtXtwx0WiSCWGfIHKmxjF5UA-44S58yDFTQnbBD_6ewi1mFtPlU

DA RAUL TORREZ ATTACKS ON THE CRIMINAL JUSTICE SYSTEM AND JUDICIARY

Bernalillo County District Attorney Raul Torrez is attacking the New Mexico criminal justice system and judges on three fronts:

FIRST: Torrez Blames The Courts For “Revolving Door” High Violent Crime Rates

Soon after being elected DA, Torrez began to blame the courts for the rise in violent crime rates and many, including many in the news media, bought into his bogus argument that the “revolving door” is the courts fault. Less than six months after being sworn in as Bernalillo County District Attorney, Torrez had the DA’s Office issue a report that outlined the problems he perceived since the issuance by the Supreme Court of the Case Management Order (CMO). The main points of the DA’s 2016 report were that defense attorneys were “gaming” the systems discovery deadlines, refusing to plead cases, demanding trials or dismissal of cases when not given evidence entitled to under the law. The District Court did their own case review of statistics and found that it was the DA’s Office that was dismissing the majority of violent felony cases, not the courts.

SECOND: Torrez Objection To Preliminary Hearings

The 2nd Judicial District Court has been shifting from grand jury use to implementing “preliminary hearing” schedule since mid-2015. Raul Torrez was sworn in as District Attorney on January 1, 2017 and from day one Torrez has resisted the change over from grand jury to a preliminary hearing process to charge people with serious felonies. DA Raúl Torrez notified District Court that his office would no longer schedule preliminary hearings in State District Court after writing the New Mexico Supreme Court asking it to intervene and require the District Court to schedule more grand jury time. The District Court responded and told the Supreme Court that preliminary hearings were necessary, would require better screening of cases by the District Attorney and provided statistics that the DA’s Office has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries.

THIRD: Shifting The Burden Of Proof

The most nefarious conduct is when Torrez as an elected prosecutor tries to shift the burden of proof by the prosecution of dangerousness of a defendant to a presumption of dangerousness based on an “alleged” yet to be proven crime. What Torrez wants is a system of “presumption of dangerousness” where a defendant is charged with a violent felony and the person charged be held in custody pending trial. With the presumption of dangerousness the legal burden of proof will be on the defense, which must collect and present compelling evidence to the court in order for a defendant to be released pending a trial, if a trial ever in fact occurs and the charges not dismissed.

COMMENTARY AND ANALYSIS

Former District Judge Jonathan L. Ibarra wrote a well written guest editorial to the Santa Fe New Mexican to allow Judges to do their jobs. Judge Ibarra is commended for his diplomacy and being a gentleman, but all too often being a gentleman does not have any effect on the stubborn or those who do not want to listen and you must be blunt.

When Judge Ibarra writes “Some district attorneys are blaming judges for releasing defendants and want to change court rules to detain suspects based solely on the seriousness of the charge” and “Don’t let overzealous prosecutors blame judges for protecting everyone — for protecting you. Let judges do their jobs” the person who you can assume he is referring to without mentioning his name is Bernalillo County District Attorney Raul Torrez.

It is way too easy to ignore the United States Constitution when you are pandering and running for office and essentially say “catch them and lock them up and throw away the key” or “to hell with constitution, that person is guilty and should be in jail until trial”. Vilifying the judiciary is a pathetic, ignorant tactic of politicians who seek to divide in order to get elected and to ingratiate themselves with voters and to garner publicity. To deny one-person due process of law, no matter how much we think they are guilty, is to deny us all of the constitutional rights we cherish in this country.

Sooner rather than latter, Raul Torrez should get the message that if he continues his assault on the courts he will face an uphill battle for reelection if he does not get his act together, buckle down and do his job instead of looking for television cameras and reporters to blame judges for all his problems.

Its not diplomatic, but District Attorney Raul Torrez needs to “knock it off” with his bogus and petty blame game against judges, do his job and let the judge’s do their jobs and start cooperating with the courts an instruct his office to schedule preliminary hearings

The following and edited Guest Editorial written by Benjamin Ahern Wild that was published on Sunday, June 2, 2019 in the Albuquerque Journal. Mr. Wild is a candidate in the UNM Master Of Science In Public Administration. The Guest Editorial is followed by a link to the full article with additional Commentary and Analysis.

(EDITORS NOTE: There are two deletions made to Mr. Wild’s editorial letter 1. the total number of candidates running are 16 and not 14, and 2. the number of candidates who qualified for public finance are 10 and not one.)

TITLE: Albuquerque Needs Public Financing Fix
BY: BENJAMIN AHERN WILD / CANDIDATE, UNM MASTER’S OF SCIENCE IN PUBLIC ADMINISTRATION PROGRAM
Sunday, June 2nd, 2019

“In the last few days leading up (to) the deadline for (Albuquerque) City Council candidates to qualify for public financing, there is a familiar scramble for $5 contributions as seen during previous municipal election cycles. However, this year, things were supposed to be different.

The evidence from this current election cycle indicates a need for more change, and these issues highlight a persisting need for the continued improvement of our public financing system.”

https://www.abqjournal.com/1322993/albuquerque-needs-public-financing-fix-ex-despite-recent-new-rule-candidates-using-public-funds-are-still-at-a-disadvantage.html?fb_action_ids=2102045646596442&fb_action_types=og.comments&fbclid=IwAR0-JsTjzuLoK9vGPXctLRcdip9SLSK2BDV9_mHJtVtJjroO3GnIqwy5vrQ

MAYOR TIM KELLER’S $1.3 MILLION RACE FOR MAYOR

During the 2017 Municipal election for Mayor, then New Mexico State Auditor Tim Keller was the only candidate out of 8 candidate who collected the 3,500 required $5.00 donations to qualify for public finance. During his successful run for Mayor, Tim Keller repeatedly said he was “walking the talk” on curbing big money in the municipal election by going the public finance route. The problem with Tim Keller saying he was “walking the talk” is that he was also the only candidate that had 3 measured finance committees who raised and spent thousands of dollars on his behalf to get him elected Mayor.

According to the City Clerk’s 2017 campaign finance reports, Tim Keller was given a total of $506,254 in public finance combined for the first election and the runoff and he collected $37,870 in “in kind” donations.

Notwithstanding being a public finance candidate, Keller had three (3) measured finance committees that either raised money directly to spend on his behalf or that indirectly spent money and supported his candidacy financially.

ABQ Forward Together was the measured finance committee that was formed specifically to raise money to promote Tim Keller for Mayor and it was managed by one of Tim Keller’s former campaign managers Neri Olguin for one of his previous State Senate runs. Sources have confirm that Neri Olguin is now the campaign manager for City Councilors Isaac Benton and Pat Davis who are running for reelection. Olguin was responsible for making sure Benton and Davis gathered enough $5.00 donations to secure public finance and have charged each upwards of $15,000.

ABQ Forward Together raised $663,000, with major contributions from organized labor including city unions such as AFSME to support Keller.

The measured finance committee ABQFIREPAC, organized by the City’s local Fire Union raised $67,000 with that money spent to help not only Keller but also Democrat City Council candidates, including Diane Gibson. ABQFIREPAC spent at least $25,000 for a TV commercial benefiting Keller, yards signs and a freeway billboard.

The measured finance committee ABQ Working Families also supported Tim Keller and raised $122,000.

Broken down, at least $1,169,254 minimum was been spent on Tim Keller’s campaign for Mayor ($506,254 public finance money + $663,000 ABQ Forward = $1,169,254 total).

Broken down further, $1,358,254 was actually spent on Tim Keller’s campaign for Mayor ($506,254 public finance money + $663,000 ABQ Forward + $67,000 ABQFIREPAC + $122,000 ABQ Working Families = $1,358,254.)

The final tab for the 2017 Mayor’s race reflects Republican Dan Lewis raised and spent $847,000 in private donations to Democrat Tim Keller’s minimum of $1,169,254 spent or up to $1,358,254 spent.

COMMENTARY AND ANALYSIS

The guest commentary was accurate when it said: “To truly make elections more inclusive and reduce monetary influence in politics, then we must limit the fundraising capacity of privately financed campaigns. Currently there are no limits for privately financed candidates and how much they can fundraiser or spend. … Another issue with the public versus private financing systems is the lack of regulation on Measure Finance Committees. … Measure Finance Committees act similarly to PACs and Super PACs by fundraising and spending on behalf of issues/candidates which they support. Once limits exist for privately financed candidates, then there is a need to evaluate the regulation of MFCs.”

Over two years ago, Democratic Albuquerque City Councilors Pat Davis and Diane Gibson served on a task force to overhaul Albuquerque’s public finance laws. Both Pat Davis and Diane Gibson refused to advocate meaningful changes to our public finance laws making it easier for candidates to qualify for public finance. Gibson actually said “it’s supposed to be hard to qualify and it keeps out people who are not serious candidates”, as if Gibson should ever be the one to decide who are serious candidates given the fact she has been a disaster as a City Councilor.

City hall insiders do not take Gibson seriously and cringe when she speaks during council meetings. At one time Gibson told her constituents that she was tired of “carrying the Mayor’s water on ART” when she voted repeatedly to fund the ART Bus project.

(For more on Gibson see: https://www.petedinelli.com/2017/05/26/city-councilor-diane-gibson-needs-to-be-voted-out-of-office/)

The only changes both Pat Davis and Diane Gibson agreed to on the task force was increasing the amount of money candidates get. Both did not want the process of collecting donations made easier by expanding the time to collect qualifying donations. The lack of changes to the public finance laws favors incumbents like Pat Davis, Isaac Benton and Diane Gibson, they know it and have acted accordingly with their votes on the City Council when it comes to public finance.

Major changes are needed in city’s public finance ordinance to level the playing field for candidates for municipal office. Following are further recommendations for changes to the City’s public finance laws outlined in a January 2, 2018 blog article on the city’s public finance ordinance:

1. Allow four (4) months and two (2) weeks, from January 1 to May 15, to collected both the qualifying donations and petition signatures, and private campaign donation collection.

2. Allow the collection of the qualifying donations from anyone who wants, and not just residents or registered voters of Albuquerque. Privately finance candidates now can collect donations from anyone they want and anywhere in the State and Country.

3. Once the allowed number of qualifying donations is collected, the public financing would be made immediately available, but not allowed to be spent until starting May 15.

4. Permit campaign spending for both publicly financed and privately financed candidates only from May 15 to the November election day.

5. Return to candidates for their use in their campaign any qualifying donations the candidate has collected when the candidate fails to secure the required number of qualifying donations to get the public financing.

6. Mandate the City Clerk to issue debit card or credit card collection devices to collect the qualifying donations and to issue receipts and eliminate the mandatory use of “paper receipts”.

7. Increase from $1.00 to $2.50 per registered voter the amount of public financing, which will be approximately $900,000, and allow for incremental increases of 10% every election cycle keeping up with inflation.

8. Allow for additional matching public financing available for run offs at the rate of $1.25 per registered voter, or $450,000.

9. Albuquerque should make every effort to make municipal elections partisan elections to be held along with State and Federal elections by seeking a constitutional amendment from the legislature to be voted upon by the public.

10. Any money raised and spent by measured finance committees on behalf a candidate should be required to first be applied to reimburse the City for any taxpayer money advanced to a public finance candidate or deducted from a publicly financed candidates account and returned to the city.

11. City of Albuquerque campaign reporting and finance ordinances and regulations need to define with absolute clarity that strictly prohibit the coordination of expenditures and campaign activities with measured finance committees and individual candidate’s campaigns in municipal elections.

12. A mandatory schedule of fines and penalties for violations of the code of ethics and campaign practices act should be enacted by the City Council.

CONCLUSION

Every effort should be made to make Albuquerque’s public financing laws for municipal elections to legally provide for a “dollar for dollar” match to privately raised funds by candidates and measured finance committees on their behalf, thereby providing a real level playing field.

The influence of big money in elections allowed by the US Supreme Court decision in Citizens United is destroying our democracy. Many highly qualified candidates for office all too often do not bother to run because of the inability or difficulty raising the necessary money to run.

Political campaign fundraising and big money influence are warping our election process. Money spent becomes equated with the final vote. Money drives the message, affects voter turnout and ultimately the outcome of an election.

Albuquerque municipal elections need campaign finance reform and enforcement, something the City Council has been reluctant to do for 4 years. Perhaps after the November 5, 2019 City Council election we will have 4 new City Councilors willing to tackle the issue head on and do what is in the best interest of voters and not themselves.

For related blog articles see:

10 City Council Candidates Qualify For Public Finance; District 2 Candidates Need To Confront Benton On “Rank Choice Voting”

2018 YEAR TO REFORM CITY PUBLIC CAMPAIGN FINANCE LAWS

Changing Election Date With No Public Finance Reform

Tim Keller’s $1.3 Million Campaign For Mayor

On Sunday June 3, 2019 and Saturday, June 8, 2019 two very distinctive and very divergent opinions were published in the Albuquerque Journal, one by the Journal Editors and the other by the New Mexico Criminal defense bar regarding the ongoing saga between District Attorney Raul Torrez, the 2nd Judicial District Court and the New Mexico Supreme Court.

BACKGROUND ON THE ON-GOING SAGA BETWEEN DA TORREZ AND THE COURTS

Since mid-2015 the Bernalillo County 2nd District Court has been shifting from grand jury use to implementing “preliminary hearing” schedule. Raul Torrez was sworn in as District Attorney on January 1, 2017 and from day one he has opposed the shift to preliminary hearings. District Attorney Raul Torrez and Albuquerque Mayor Tim Keller wrote a joint letter to the New Mexico Supreme Court requesting it to intervene and stop the plans of 2nd Judicial District Court (SJDC) to shift away from the use of grand jury system to a preliminary hearing system. The District Court provided an extensive amount of statistics to the Supreme Court that the Bernalillo County District Attorney’s Office under Raul Torrez has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries and the shift from grand jury hearings was necessary. The Supreme Court responded to the Torrez-Keller letter refusing to intervene but urging District Attorney Torrez to work with the Bernalillo County Criminal Justice Coordinating Council (BCCJCC) to resolve his concerns about ongoing cuts to the grand jury system.

Following are both the editorial opinions given followed by Commentary and Analysis:

ALBUQUERQUE JOURNAL EDITORS WEIGH IN

Editorial Title: Grand Jury cuts akin to pouring gasoline on a fire
BY ALBUQUERQUE JOURNAL EDITORIAL BOARD
Monday, June 3rd, 2019

“It all sounds fine in the pages of a criminal procedure textbook, where preliminary hearings lead to a more effective and efficient system of justice. Cases initiated when police arrest someone are carefully screened by prosecutors. Witnesses are secured, and – faced with more solid evidence sooner – defense attorneys may be more inclined to recommend a plea early in the process. Court dockets are scaled back, and judges can focus on the most important cases.

So in theory, the 2nd Judicial District Court’s push away from grand jury indictments in favor of criminal informations followed by preliminary hearings is textbook perfect. Except it ignores the reality of life in crime-ridden Bernalillo County, where violent crime and property theft are rampant.

Judges have told District Attorney Raúl Torrez they plan to further reduce grand jury time to six days a month – a quarter of the time available at one point. Torrez and Mayor Tim Keller have asked the state Supreme Court to intervene. They say we are finally making a dent in crime and less grand jury time means fewer felony charges will be brought. They also say preliminary hearings are harder on victims because they can require multiple appearances and will move cops from the street to court. Bottom line: Grand juries do not require the preparation or level of evidence preliminary hearings do to move a case forward

Minitrials put demands on police, victims

The District Court, in turn, asks justices to reject that request. The court says prosecutors can achieve better results through preliminary hearings with better-prepared cases and fewer acquittals, voluntary dismissals and mistrials. They dispute claims that APD’s already shorthanded staffing will be further depleted. And if we had federal rules, including allowing reliable hearsay, that might well be true.

But the rules of evidence apply in preliminary hearings – meaning multiple witnesses are often required – and all are subject to cross-examination. So the preliminary hearings can become minitrials. Prosecutors point out that in stolen car cases, for example, both the officer who made the arrest and the victim who didn’t give the thief permission to take the vehicle have been required to appear. In drug cases, more than one responding officer has been required.

And prosecutors stress the impact on victims. When a hearing is rescheduled – which the DA says often happens because a defendant doesn’t show up – the victim has to reschedule their life to be back in court. And after someone is arrested, there could be as little as six days for a hearing to be held – with victim and witnesses – to meet court deadlines.

Preliminary hearings not ready for prime time

Both sides present statistics in their letters to the high court that are questioned/challenged by the other. Sadly, the dispute has a “food fight” feel at times. Yet there is no argument that the DA’s Office gets about 10,000 felony referrals a year from local law enforcement. About 4,000 move forward, with the others not meeting the standard for successful prosecution or defendants are moved into diversion programs. (Unfortunately, Torrez hasn’t helped his cause by not personally and regularly attending meetings of the Criminal Justice Coordinating Council, where these issues are supposed to be hashed out .)

There are ways to improve the criminal justice system and reduce the reliance on grand jury indictments. But other changes need to be made for the preliminary hearing track to actually work in real life as advertised. To move on one front but not the other is reckless and dangerous.”

https://www.abqjournal.com/1323251/grand-jury-cuts-akin-to-pouring-gasoline-on-a-fire.html

NEW MEXICO CRIMINAL DEFENSE BAR WEIGHS IN

On Saturday, June 8, 2019 a Guest Editorial written by Richard Pugh, the president-elect of the New Mexico Criminal Defense Lawyers Association (NMCDLA) and Nick Hart a member of NMCDLA that was published in the Albuquerque Journal. The Guest Editorial is followed by a link to the full article and by additional information and Commentary and Analysis.

Title: JUDGES RIGHT TO CURB GRAND JURYS

BY RICHARD PUGH / PRESIDENT-ELECT, NEW MEXICO CRIMINAL DEFENSE LAWYERS ASSOCIATION, AND NICK HART / MEMBER, NMCDLA
Saturday, June 8th, 2019 at 12:02am

“Recently, there have been unfair and biased attacks on the judges of the 2nd Judicial District Court for disfavoring grand juries in favor of preliminary hearings. Relying on scattershot statistics, these critics contend it is impossible to charge and keep track of accused felons without the flawed grand jury system. These critics advance an argument in favor of secret unfettered prosecutorial power and seek to eliminate judicial oversight. That is just incorrect.

If an individual is accused of a felony in New Mexico, then the Constitution mandates a finding of probable cause by a grand jury or a preliminary examination conducted by a judge. The reason for this is sound: No one should be wrongfully accused or incarcerated if there is insufficient evidence against them. Today, the grand jury system is a rubber-stamp on prosecutorial decisions.

Our grand juries are comprised of 12 people, eight of whom need to agree a person should be indicted. The grand jurors hear evidence only from the prosecutor. A judge is not present during the grand jury hearing. The prosecutor chooses which evidence gets submitted and may refuse to present evidence demonstrating the accused’s side of the story.

Witnesses with direct information are seldom called to testify at the grand jury. Instead, one police officer gives 15 minutes, or less, of secondhand information for the jurors’ consideration. Attorneys for the accused are prohibited from attending the hearing or asking questions of the prosecution’s witness(es). Most concerning is that the hearing is conducted in secret, without the watchful eye of a judge, defense attorneys, the accused or the public.

Given this system, it is no surprise a judge once famously stated, “A grand jury would indict a ham sandwich, if that’s what you wanted.” And it’s no surprise other judges have criticized the grand jury for being “the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything.”

In contrast, preliminary hearings are conducted in open court and presided over by a judge who decides whether the prosecution has produced enough evidence that an accused should be charged with a crime. The accused is represented by an attorney, who is present, can introduce evidence and may cross-examine the prosecution’s witnesses. The pillars of the preliminary hearing system result in an impartial, evenhanded review of the government’s claims, and ultimately, a more just and efficient outcome.

Such changes are not unique to Bernalillo County, or even New Mexico, where most of our counties forgo the grand jury process. The United States is one of only two countries that still empanel grand juries. Most states have eliminated the grand jury as the sole method to indict a felony, while legislators in Missouri have introduced legislation to eliminate the grand jury altogether and California has limited the types of crimes that can be indicted by a grand jury.

Left out of this recent criticism, however, is that the grand jury is still an option. While there are fewer grand jury days, prosecutors can still charge someone through a grand jury, a preliminary examination in Metropolitan Court, or a preliminary examination in District Court. It is the prosecutor’s choice whether to use the secretive grand jury system or the transparent preliminary hearing system designed for fundamental fairness to all.

Fewer grand juries and more preliminary hearings is good for the courts, good for the public, and the right choice. No person should be forced to defend themselves of unwarranted charges, and the consequences of those accusations, based on a rubber stamp from a broken system. Bernalillo County’s District Court judges should be praised rather than chastised for making these measured and necessary improvements to our criminal justice system.”

https://www.abqjournal.com/1325703/judges-right-to-curb-grand-juries.html

COMMENTARY AND ANALYSIS

The Albuquerque Journal consistently puts District Attorney Raul Torrez on its front pages and in its editorials in a positive light. Torrez is also known for his availability to all three local TV stations to comment on pending cases and giving news conferences. That is why it was surprising that in its June 3, 2019 editorial in support of Torrez advocating for more grand jury time, the Albuquerque Journal noted “Unfortunately, Torrez hasn’t helped his cause by not personally and regularly attending meetings of the Criminal Justice Coordinating Council, where these issues [of scheduling preliminary hearings] are supposed to be hashed out.”

It is laughable when Torrez and the Journal refer to “preliminary hearings” as mini trials when they are “probable cause” hearings that only require the most minimum amount of evidence presented for a judge to decide if charges should be filed. What is hysterical is when the Journal says “preliminary hearings not ready for prime time” when the Distinct Court has been working on the transition since mid 2015 with law enforcement stake holders. It has been District Attorney Raul Torrez who has refused to even attend meetings except to show up once with TV news cameras and a Journal photographer. What is not a laughing matter and unfortunate is the Albuquerque Journal refers to the dispute between the courts and Torrez as having a “food fight feel at times” when the delicate balance between public safety and people’s constitutional rights of due process and a presumption of innocence are at stake.

The media have bought into the DA’s bogus argument that the courts are responsible for high violent crime rates and the “revolving door” without acknowledging that Torrez and his office are part of the problem.

What is irresponsible is the local media fail to report that the District Attorney’s Office under the leadership of Raul Torrez has:

1) A 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries;

2) The move to preliminary hearings is critical given the historic failure of the District Attorney’s Office to properly screen and indict cases;

3) District Attorney Torrez complains about a lack of resources yet has failed to fill 50 vacant positions within his office, including 17 attorney positions

It is truly amazing that the New Mexico Trial Lawyers Association write a very well written guest editorial to the Albuquerque Journal on the need for preliminary hearings without evening mentioning the person they really have a major beef with: Bernalillo County District Attorney Raul Torrez. Both Richard Pugh and Richard Hart with the New Mexico Criminal Defense BAR are commended for their diplomacy and being gentleman. However, what needs to be exposed is what is going on with the Bernalillo County District Attorney’s Office under the leadership of District Attorney Raul Torrez. Their failure to mention his name says that Raul Torrez has become “Lord Voldemort” , also known as “He Who Shall Not Be Named”, by the New Mexico Criminal Defense bar.

DA’s FAILURES REASON FOR CHANGE TO PRELIMINARY HEARINGS

On May 22, 2019, the State District Court wrote a response letter to the New Mexico Supreme Court responding to a request by Raul Torrez and Mayor Tim Keller for intervention to stop the Second Judicial District Court from reducing the use of the grand jury. In their written response to the Torrez-Keller letter to the Supreme Court, the District Court Judges did not mince any words when they wrote:

“… the move to preliminary hearings is particularly important given the historic failure of the District Attorney’s Office … to frontload cases … by interviewing witnesses and reviewing evidence early in the process which results in a waste of resources for all criminal justice stakeholders” … [T]he change is needed because preliminary hearings are efficient and effective. … The DA’s Office tends to focus on getting cases into the system rather than the disposition of cases” and noted “recognizing [the court’s] responsibility to push the system toward best practices [efforts] to increase the use of preliminary hearings have been in the works for years.”

DA’s 65% COMBINED DISMISSAL, ACQUITTAL AND MISTRIAL RATE

The District Court provided an extensive amount of statistics, bar graphs and pie charts to the New Mexico Supreme Court that the Bernalillo County District Attorney’s Office under Raul Torrez has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries. The data presented showed in part how overcharging and a failure to screen cases by the District Attorney’s Office is contributing to the high mistrial and acquittal rates.

According to the District Court, “between January 1, 2016, and May 16, 2019, there were 11,301 criminal cases opened in District Court (via either grand jury indictment or information) that also closed in the same time period . Of those cases, 26% (2,905 cases) were essentially dismissed via “nolle” [no prosecution notices] by the District Attorney’s Office. The average time to “nolle” [no prosecution notices by the District Attorney] was 177 days or almost 6 months.”

Out of 378 charged cases in the 10-month period of July, 2018 to April, 2019, there were 128 convictions from guilty verdicts and guilty plea agreements, 174 acquittals from not guilty verdicts, DA dismissals, directed verdicts and other types of dismissals and 72 mistrials. Translated to percentage numbers, of the 378 cases charged, 34.92% were convictions, 46.03% were acquittals and 19.05% were mistrials. In other words, 65% of the 378 charged cases resulted in either a mistrial or acquittal when presented to a jury.

Since August of 2015, the 2nd Judicial District Court has worked with law enforcement defense lawyers and the Bernalillo County Criminal Justice Coordinating Council (BCCJCC) to gradually increase the use of preliminary hearings in lieu of grand jury proceedings. The BCCJCC has been arguing for some time over the best way to launch new cases in District Court, but Torrez has been nowhere to be found.

Torrez has made things worse when he notified the District Court in May, 2019 that his office would no longer schedule preliminary hearings in State District Court.

https://www.petedinelli.com/2019/05/28/district-court-exposes-da-torrez-65-dismissal-mistrial-and-acquittal-rates-mayor-keller-tries-to-bail-out-da-torrez-from-preliminary-hearings/

DA’S FAILURE TO STAFF

The conversion process from grand jury to preliminary hearings has been going on since 2015 and Torrez has resisted it from day one of his election. The Bernalillo County District Attorney Office is one of the largest law firms in the State of New Mexico having 330 fully funded and full-time employees including attorneys, paralegals, administrative assistants, victim advocates, investigators, IT managers and personnel and finance divisions.

Torrez objects to the District Courts shift from grand juries to preliminary hearings proclaiming in part his office does not have the resources. The truth is Torrez has been a major failure in tackling the resource problem himself after he secured significant funding increases from the New Mexico legislature. Torrez has failed to fill 50 vacant positions within his office. As of May 3, 2019, of the 331 fully funded positions, only 281 are filled and active with 50 vacant positions listed. The 50 vacant positions include 17 vacant “at will” attorney, assistant trial attorney, senior trial attorney and trial attorney positions and 10 vacant Secretarial and Legal Secretary positions. By many accounts, the District Attorney’s Office has become a revolving door with resignations and terminations.

https://www.petedinelli.com/2019/05/29/da-torrez-whaaaa-i-do-not-want-to-play-anymore-im-taking-my-ball-and-going-home-da-torrez-playing-with-fire-taking-on-the-courts/

CONCLUSION

It is becoming more and more concerning that not even the District Court nor the New Mexico Supreme are going to be able to dispel the love spell Lord Voldemort Torrez has placed on the local media for him.

When Raul Torrez ran for District Attorney in 2016, he proclaimed the judicial system was broken in Bernalillo County and he was the guy who could fix it and he demanded more resources. 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. The statics showing a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries is alarming and many within the legal community believe it is the historical high for the office.

In 2018, Torrez secured another $4.5 million from the New Mexico legislature to hire more prosecutors. Torrez 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. Confidential sources within the District Attorney office claim that moral is at an all-time low, Torrez and his deputies micro manage the office refusing to let attorneys make prosecutorial decisions and Torrez is unable to recruit anyone to work for him.

Preliminary hearings should be the mandatory approach to charge all violent crime cases, including homicides, rapes, armed robberies and domestic violence cases by the District Attorney. Torrez thinks he has problems now, but his troubles are only beginning, including an uphill battle for reelection if he does not get his act together, buckle down and do his job, fill all the vacant positions he has instead of looking for television cameras and reporters to blame judges for all his problems.

Following are two related blog articles:

NM Supreme Court To DA Torrez and Mayor Keller: “Your Objections Are Overruled, Torrez Get To Work Cooperating”

District Court Exposes DA Torrez 65% Dismissal, Mistrial And Acquittal Rates; Mayor Keller Tries To “Bail Out” DA Torrez From Preliminary Hearings