District Judge Sarah Backus of Taos is taking a tremendous amount of heat and criticism for releasing five adults arrested at a remote northern New Mexico compound. The 5 have been accused child abuse, suspected of murdering a child in an exorcism and accused by prosecutors of training children to carry out terrorist armed attacks, heinous crimes by anyone’s definition if true.
Things got so bad that the Taos County Courthouse was closed after credible threats of physical violence were made against the Judge and others.
DISTRICT COURT RULING AND RATIONALE
The New Mexico Constitution provides that defendants can be held in jail without bond before trial “only if prosecutors show by clear and convincing evidence that they are so dangerous that no release conditions will reasonably protect public safety.”
According to news accounts, prosecutors argued during the lengthy 4 hour bond hearing:
1. That some of children at the compound were being trained to use guns in preparation for attacks on educational, law enforcement and other institutions with information coming from two teenagers, ages 13 and 15, who were interviewed by an FBI agent. The FBI agent testified that he was told that the children were undergoing firearms and tactical training to attack “corrupt” institutions that would be identified by the dead boy, who was to be resurrected as Jesus in the coming months.
2. Prosecutors offered as evidence a letter inviting another person to come to the compound and follow Allah until “he makes you die as a martyr”; the guns found at the compound and books about combat found there; weapons training and a trip to Saudi Arabia undertaken by Siraj Ibn Wahhaj; and the “magical thinking” shown by accounts from children who lived at the compound.
At the conclusion of the more than 4-hour hearing, District Judge Sarah Backus ruled that the District Attorney failed to meet the burden of proof as required by New Mexico law. District Court Judge Backus ruled that prosecutors had not shown by clear and convincing evidence what the Muslim group’s plan were so dangerous that no release conditions would reasonably protect public safety.
Judge Backus did express serious concerns about the “troubling facts” especially with the discovery of a child’s body at the compound. Notwithstanding the Judge said from the bench:
“The state alleges that there was a big plan afoot, but the state hasn’t shown, to my satisfaction, by clear and convincing evidence, what that plan was”. The court noted that people in the compound were living in an unconventional way, but that many in northern New Mexico live in unconventional ways.Further, the court noted that no one in the group has a criminal record except Siraj Ibn Wahhaj, who is accused of kidnapping his child from the boy’s mother in Georgia. Siraj Ibn Wahhaj is still being held in custody because of the kidnapping charge. At the conclusion of the bond hearing, the Judge set a $20,000, unsecured signature bond, with house arrest in new accommodations, ankle bracelets to monitor the defendants and other restrictions for each defendant.
The day after the hearing, District Judge Backus filed a written court order.
The written court order says the District Attorney “apparently is inviting the Court to consider media reports [which are hearsay that the Court cannot consider as evidence], conjecture and assumption to piece together evidence of sufficient dangerousness” to justify incarcerating the defendants without bail until trial. The District Court Judge noted in her written ruling that while a boy’s body was found at the compound, the District Attorney’s office:
“has not charged any of the defendants with any crime related to the death of the child. … The State has not charged the defendants with any crime related to possession of any firearms. … No charges are pending regarding any actual threats of terrorism. No actual threats of terrorism or any credible evidence of a substantive plan was produced regarding the same. … The State offered a hand-written ‘manifesto’ of sorts but completely failed to establish in any way its origin.”
Other excerpts from the Court’s written ruling explaining her decision are as follows:
“The charges in all these cases are for child abuse. … The State produced no evidence of any abuse. … The Court has no information and none was presented as to their current conditions.”
“The only evidence received by the Court regarding this child is that he was ill and disabled and that the defendants prayed over him and touched him on the forehead prior to his death … While the Court finds these allegations extremely disturbing, the allegations, without more, do not rise to the level of evidence that clearly convinces the Court that the defendants are a danger to any other person (all other children are in the custody of the State) or to the community at large.”
“No actual threats of terrorism or any credible evidence of a substantive plan was produced regarding the same. …”
“From this meager evidence the Court is requested by the State to surmise that these people are dangerous terrorists with a plot against the Country or institutions … The Court may not surmise, guess or assume.”
“The State did not produce any evidence of any history of violence that would cause the Court to conclude that they are a danger to the community or are unlikely to appear at hearings or to abide by their conditions of release,” the judge wrote.
The DA’s Office said in court that Siraj Ibn Wahhaj took a trip to Saudi Arabia and suggested that he became radicalized on his return. The District Attorneys office noted that devout Muslims are required to travel to Mecca, in Saudi Arabia, once in their lifetimes.
“The State apparently expected the Court to take the individuals’ faith into account in making such a determination … The Court has never been asked to take any other person’s faith into account in making a determination of dangerousness. The Court is not aware of any law that allows the Court to take a person’s faith into consideration in making a dangerousness determination.”
THREE LEVELS OF BURDEN OF PROOF
In order to understand the District Court’s ruling, an explanation of the escalating levels of burden of proof need to be elaborated upon.
Under the United States Constitution, an accused is presumed innocent until proven guilty “beyond a reasonable doubt” and are entitled to due process of law, no matter how heinous the crime. Further, an accused is entitled to be given an opportunity to post a bond and to be released from jail until trial.
The bond posted is determined by the court, usually at an arraignment on charges, and the amount of bond set is intended to insure the defendant’s appearance.
In our criminal justice system, there are 3 very distinct escalating levels of evidence that must be proven by the prosecution:
1. “Evidence of Probable Cause”,
2. “Clear and Convincing Evidence” and
3. “Evidence Beyond a Reasonable Doubt.”
What is always confusing is bond hearings such as that involving the 5 Taos defendants are often confused with preliminary hearings or trials on the merits. The burden of proof for all three hearings is significantly different but always the responsibility of the prosecutors to meet.
“Evidence of probable cause” is a lower level of proof used for preliminary hearings or grand jury proceeding to charge someone with a felony. Evidence of probable cause is evidence presented showing it is more likely than not that a crime has been committed by the accused. Evidence of probable cause is evidence that leads you to believe that the accused committed the crime and it only provides enough grounds to charge but not to convict.
Clear and convincing evidence is the “medium level” of burden of proof standard which is a more rigorous standard to meet than “Evidence of Probable Cause”.
In bond hearings such the one involving the 5 Taos defendants, accused defendants can be held in custody without bond only if prosecutors show by “clear and convincing evidence” that they are so dangerous that no release conditions will reasonably protect public safety.
Black’s Law dictionary defines “clear and convincing evidence” as evidence that “is positive, precise and explicit, as opposed to ambiguous, equivocal, or contradictory proof, and which tends directly to establish the point to which it is adduced, instead of leaving it a matter of conjecture or presumption.”
Evidence of probable cause and clear and convincing evidence are less rigorous standard to meet than proving guilt by evidence beyond a reasonable doubt.
In criminal trials, any defendant is presumed innocent until proven guilty beyond a reasonable doubt by the prosecution. Beyond a reasonable doubt is the highest standard of evidence that exists in our criminal justice system.
The phrase “beyond a reasonable doubt” means that the established facts or evidence presented in a case lead the jury or the court to only one logical conclusion: that the defendant is guilty of the charges.
COMMENTARY AND ANALYSIS
To quote Judge Backus “The canons of judicial ethics require that judges not concern themselves with public opinion and base their decisions in the law and the evidence presented in Court.” Given the evidence presented by the District Attorney against the 5 Taos defendants, it was not surprising that the court ruled the way she did in that that there was no “clear and convincing evidence” as required by the law.
The Taos District Attorney is appealing the District Court Judge’s ruling, in all probability to the Court of Appeals, in releasing the defendants which is the appropriate approach.
Another approach is to ask the District Court to reconsider her decision and review conditions of release and allow more evidence to be presented by the prosecution showing immediate danger to the public and flight risk.
A third option is for the District Attorney to seek a “Writ of Superintending Control” before the New Mexico Supreme Court to review the District Court’s Ruling.
It is highly likely that the Court of Appeals will not reverse the decision and find that there was no abuse of discretion by the judge.
Notwithstanding, the public perception is terrible and the District Attorney does not have many options other than appeal or seek more evidence to be presented to review conditions of release of the defendants. What is extremely troubling are the efforts by the Republican Party and state GOP Chairman Ryan Cangiolosi to make the ruling of District Judge Sarah Backus political by saying:
“Judge Backus has put New Mexicans at risk by releasing suspected terrorists back into the community.”
Cangiolosi makes the accusation even though no actual threats of terrorism or any credible evidence of a substantive plan was produced by the District Attorney and presented during the bond hearing. There is no doubt Cangiolosi would have kept his big mouth shut if the Judge was a Republican.
What is really disgusting is that our fool for a Governor just had to get into the act of publicizing the ruling when she said:
“I strongly disagree with this decision. … Unfortunately, it highlights for the entire nation how extreme the New Mexico Supreme Court has been in dictating pretrial release for all kinds of dangerous criminals.”
What makes Governor Susanna Martinez remarks so egregious is that she is a former 16 year elected Las Cruces District Attorney and a license New Mexico Attorney and she should know better.
With her remarks, Governor Martinez shows how ignorant of the law she really is or that she is just a pandering fool, but probably both.
Vilifying Judges is a popular tactic perfected by President Trump and the Republicans such as Dan Lewis when running for Mayor and Wayne Johnson running for Mayor and State Auditor to gin up their conservative base. What is not appropriate and downright dangerous conduct is for anyone to threaten any judge with physical harm over a ruling they make.
Martinez as a New Mexico attorney is an officer of the court, and her total failure to condemn people threatening the courts is a low as you can get even for the likes of this Republican Governor who cannot leave office soon enough.