District Attorney Raul Torrez is requesting the New Mexico Supreme court to clarify the recently enacted “no bond” rule enacted by voters. (See March 30, 2017 Albuquerque Journal, page A-1 “DA asks high court to clarify no-bond rules; Efforts to hold dangerous defendants often blocked”.)
District Attorney Raul Torrez is also asking the New Mexico Supreme Court to direct 2nd Judicial District Stan Whitaker, a former Assistant US Attorney and prosecutor, to reconsider his recent order that denied his office’s attempt to keep two suspects in jail without bond until trial, one suspect charged with armed robbery and another charge with shooting his ex-girlfriend.
Torrez claims he is frustrated that district judges are blocking his efforts to keep dangerous criminals in jail until their trials.
What Torrez is saying in other words is that he is frustrated that judges are enforcing our constitutional rights of “presumption of innocence” and “due process of law”.
Attacking our Judicial system and judge’s rulings is a familiar tactic of President Donald Trump and others who want to ignore our laws.
All judge’s take an oath of office to preserve, defend and protect our constitution.
Judges are strictly prohibited by the Supreme Court Rules and the Code of Judicial Conduct from commenting on pending cases and voicing opinions that call into question their fairness and impartiality, especially in criminal cases.
Judges are prohibited by the Code of Judicial conduct from defending their decisions and sentencing in a public forum outside of their courtroom so criticizing judges is like “shooting fish” in a barrel.
What happened at the bond hearing is clearly the District Attorney’s problem.
The District Attorney’s office could have, and should have, offered more evidence to support the “no bond hold” relating to the two defendants identified in the news article.
The “no bond” amendment approved by voters is very clear when it says “bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”
This could have been easily done by the District Attorney’s office seeing as one defendant was charged with armed robbery and robbing up to 50 businesses and the other was charged with shooting his ex-girlfriend.
Judges cannot make rulings based upon emotions and public outcry’s.
Judges need to have evidence to “hang their hats” on to have their rulings sustained and upheld on appeal.
At the bond hearing, the District Attorney’s office did not offer any clear and convincing evidence that no release conditions existed to protect the public and only offered the criminal complaint filed with the court.
A criminal complaint is not a conviction, is not clear and convincing evidence, but merely an accusation of probable cause that must be proven in court to get a conviction.
Testimony from the investigating officer as to the violent nature of the allege crimes committed and perhaps testimony from the victims and injury inflicted could have been easily offered to the court.
Probation officers for those charged and who are familiar with the charged defendants could have also been called to testify.
The new “no bond rule” designed to make it easier for prosecutors to keep dangerous criminal defendants in jail until their trial was never meant to be a circumvention of our constitutional rights.
“Presumption of innocence” and “due process of law” are two of our most critical rights guaranteed under our constitution and offer protections against overzealous prosecutors and overzealous law enforcement officials.
The right to a reasonable bond pending a trial to guarantee appearance at trial and prevent a person from fleeing is also a critical right.
No judge can set bail amounts that are so unreasonably high to prevent a defendant from posting bail solely because of their financial inability to post the bond.
The new “no-bond” rules requires prosecutors to present supporting evidence that shows there are no reasonable release conditions that will protect the public.
It is not surprising, and indeed appropriate, for Torrez to petition the New Mexico Supreme Court for guidelines on how to interpret the “no bond” hold rule.
However, I predict that the New Mexico Supreme Court will find that Judge Whitaker did not abuse his discretion and will affirm his ruling denying that the suspects be kept in custody with no bond.
I suspect that the New Mexico Supreme Court will rule that the “no bond” rule is very clear and unambiguous and that District Attorney Torrez and his office and all other District Attorneys in the state need to step up their game, do their jobs, and present clear and convincing evidence to the courts to allow the courts to find a charge defendant is a danger to the public and to issue a “no bond” hold until trial.