The “No Bond Rule” Requires Clear and Convincing Evidence (Updated)

Attorney General Hector Balderas is now getting into the fray and supporting Bernalillo County District Attorney Raul Torrez position that District Judges are demanding too much evidence before holding alleged dangerous defendants in jail without bond prior to trial. (See April 10, 2017 Albuquerque Journal page A-1, AG supports DA in no-bail jail dispute; Amendments roll out has sparked conflict between judges and prosecutors.”)

District Attorney Torrez is requesting the New Mexico Supreme Court for guidance to the implementation of the constitutional amendment allowing pre-trial detention without bond.

The Attorney General’s action is not at all surprising and a little bit self-serving both politically and work load wise.

Politically, it is easy to get attention and garner public favor criticizing judges for not doing their jobs and letting felons out on the street knowing full well judge’s are restricted by the Code of Judicial Conduct from making public comments on pending cases and must be fair and impartial in their rulings.

From a work load stand point, the Attorney General handles all appeals in criminal cases for District Attorney’s, so if there are more appeals on “no bond” cases, the Attorney General’s workload increases.

What Torrez and Balderas just may get from the New Mexico Supreme Court is an admonishment telling them both to do their jobs and meet their burden of proof under the law.

The “no bond” amendment approved by voters states “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.”

The “no bond” rule is very clear and unambiguous.

The “no bond rule” requires a court hearing and evidence to be presented.

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 “no bond” rule is not 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.

These two constitutional rights offer all of us protections against overzealous prosecutors and overzealous law enforcement officials.

Our New Mexico Judicial system is replete with many cases where people have been falsely charged, unable to make high bonds pending trial for extended periods of time, only to be found not guilty at a later date or released because of lack of evidence, with those same accused walking away with large settlements or judgments against the City or State.

Not too long ago in Albuquerque, two traveling salesmen were accused of raping and murdering a prominent elderly couple in their Northeast heights home, the Defendants were held in jail for over a year pending a trial and unable to make bond.

The two defendants were later released because the two murders were confessed to by another and the two wrongly accused sued and walked away with a large judgement against the City.

In another Albuquerque case, a Defendant was charged with raping and murdering an 11 year old, held in jail for over a year unable to make bond, and the defendant was later released because of DNA evidence.

Once again, the falsely accused defendant sued and walked away with a million dollar plus settlement.

Judges cannot make rulings based upon emotions, inflammatory accusations, public outcry’s and publicity generated by heinous crimes.

Under the “no bond” rule, judges need to have evidence to “hang their hats” on to have their rulings sustained and upheld on appeal.

District Attorney Raul Torrez claims that District Judges are asking for “mini-trials” and that Judges won’t accept written criminal complaints by law enforcement officers as sufficient evidence to hold someone without bond.

The hearings required under the “no bond rule” are not “mini-trials” to determine guilt or innocence but a presentation of evidence.

The Attorney General and the District Attorney’s office do not want to be required to offer any clear and convincing evidence that no release condition exist to protect the public as required by the “no-bond” rule.

Ostensibly, both the Attorney General and the District Attorney want to be allowed to offer only pleadings and accusations such as criminal complaints 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.

The new “no-bond” rule requires prosecutors to present supporting evidence that shows there are no reasonable release conditions that will protect the public.

Testimony from investigating officers as to the violent nature of the allege crimes committed and even testimony from the victims and injury inflicted could easily be offered to the court.

Probation officers for those charged and who are familiar with the charged defendants could also be called to testify as to the violent propensity of a defendant and past conduct.

I suspect that the New Mexico Supreme Court will rule that the Attorney General’s office and all 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 charged defendant is a danger to the public and to issue a “no bond” hold until trial.

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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.