“Burden Of Proof” Confusion Reigns In Taos 5 Child Abuse Case

You have to be a lawyer to figure out what the hell is exactly going on in the case of the Taos 5 defendants who all have been charged with child abuse of 11 children. Taos District Judge Sarah Backus releasing five defendants on bond provided they could find local accommodations to live drew sharp criticism and credible threats of violence to the point the Taos County Courthouse was closed over the threats.

All 5 adults were arrested after an August 3 raid at a remote, squatter ramshackle compound. Each defendant was charged with 11 counts of felony child abuse. Eleven children ages 1 to 15 where found at the compound who appeared to be malnourished. The buried remains of a child, who has now been identified as the son of one of the defendants, were also found on the compound but an autopsy to determine cause of death has yet to be released.

None of the 5 defendants have been charged with the murder of the deceased child found. The District Attorney is waiting on determination of cause of the death before filing any charges in the death. The defendant’s charged all remain in jail unable to find local accommodations to live at with the compound demolished by authorities presumably with approval of the property owner.

Criminal defense attorneys for 3 of the defendants have filed motions to dismiss the child abuse charges against them arguing that a deadline was missed. The fact that the defendants were charged by criminal complaint or arrest warrant and taken into custody mandates that they be charged within 10 days by grand jury indictment or that a preliminary hearing be held to determine probable cause.

The defense attorneys main argument is that the District Attorney missed the 10-day deadline to hold preliminary hearings for the defendants still in jail to determine if there is sufficient “probable cause” to charge them with child abuse to proceed to trial.

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Two of the defendants have yet to file any motion to dismiss and face different circumstances. One is a native of Haiti, told authorities she has been living in the Unites States illegally for 20 years and she was turned over to immigration and customs authorities. One defendant was being held under warrant out of Georgia for the alleged kidnapping of his 3-year-old son and who has been identified as the child found buried at the compound, but the warrants have now been dismissed.


The Taos District Attorney argued during the bond hearing that the defendants are dangerous, in part based on statements from compound children who said they were being trained for armed attacks on corrupt educational and government institutions. Judge Backus at the bond hearing found no such evidence and set bond and conditions of release including they had to find living accommodations and wear ankle bracelets to monitor their location 24 hours a day.

An appeal of Judge Backus’ decision to allow the defendants out of jail is expected and the motions to dismiss are pending. In another development, a magistrate judge rescinded $5,000 cash-only bond for one of the defendants that had been imposed for criminal trespassing citations. The trespassing citations where seriously defective because they did not have a sworn affidavit alleging probable cause. The trespassing citations issued by the Taos Sherriff were “traffic tickets” with the words “Non-Traffic” written on top by hand.


An explanation of the bond hearing and the escalating levels of burden of proof need to be elaborated upon to get through the confusion with what is happening with the Taos 5 defendants.

Under the United States Constitution, an accused is presumed innocent until proven guilty “beyond a reasonable doubt” in a criminal jury trial and are entitled to due process of law, no matter how heinous the crime. Further, any accused is entitled to be given an opportunity to post a bond and to be released from jail pending trial.The New Mexico Constitution provides that defendants can be held in jail without bond before their criminal trial “only if prosecutors show by clear and convincing evidence that they are so dangerous that no release conditions will reasonably protect public safety.”

The amount of bond is determined by a judge and the amount set is intended to insure the defendant’s appearance at hearings and trial. All too often, bond hearings, grand jury proceedings, preliminary hearings and criminal trials get confused by the general public on evidence required.

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.”

The burden of proof in 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 required in 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 and the evidence provides enough grounds to charge but not to convict the accused. “Clear and convincing evidence” is the “medium level” of burden of proof standard and is more rigorous than “evidence of probable cause”.

In bond hearings such as the one involving the 5 Taos defendants, accused defendants can be held in jail 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.

“Clear and convincing evidence” is 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 a defendant is presumed innocent until proven guilty “beyond a reasonable doubt.” “Beyond a reasonable doubt” is the highest standard of evidence in the criminal justice system. The test is one of reasonable doubt meaning the facts or evidence presented lead the jury to a unanimous vote and only one logical conclusion: that the defendant is guilty of the charges.


During the bond hearing, the District Attorney offered no evidence of child abuse nor the physical condition of other children found. The District Attorney alleged that one of the adults was training children at the compound to attack “corrupt institutions,” which could include schools, law enforcement agencies and banks. As inflammatory and alarming the claim of terrorism was, no evidence of the allegations was offered.

Judge Backus stated: “… 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. … judicial ethics require that judges not concern themselves with public opinion and base their decisions in the law and the evidence presented in Court.”

One very troubling argument made by the District Attorney was that all the defendants charged are required to travel to Mecca, in Saudi Arabia, once in their lifetimes. In response to reference to the defendant’s faith, the court stated:

“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 deciding 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.”


All too often, sensational, violent crimes, especially those involving child abuse and the murder or death of a child, create public reactions of hate, vitriol and at times threats of violence and violence against those charged. Further, accusations of terrorism, mass shootings and religious terrorism have many people in this country on edge.

New Mexico has had more than its share of violence against children. Since 2001, in New Mexico, no less than 22 children, ranging from ages of 5 weeks old to 3, 4, 5 months old to 3, 4, 5, and 11 years old, have been killed because of child physical and sexual abuse. (Re: August 31, 2016 Albuquerque Journal Editorial Guest column by Allen Sanchez.) The trial of the defendants for the murder of 9 year old Victoria Martens who was strangled, stabbed, dismembered and her body burned in a bathtub is still pending after more than two years, with some of the charges dismissed by the District Attorney.

Cool heads must prevail and ensure swift justice is bought upon those who abuse or kill innocent children and for that matter involved with mass shootings. Our criminal justice system presumes innocence until proven guilty and demands due process of law, even for the most heinous of crimes, and not an “eye for an eye” approach to criminal justice.

Attacking our Judicial system and judge’s rulings is a familiar tactic of President Donald Trump and to “gin up” his conservative base. It is way too easy to ignore our U. S. Constitution when you are pandering and running for office and essentially say “catch them and lock them up and throw away the key”.

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.

Vilifying the judiciary is a pathetic, ignorant tactic of politicians who seek to divide in order to get elected. Threatening a judge with violence over a ruling is an afront to our constitutional rights of due process of law and the presumption of innocence. Threats against any judge should never be tolerated and condemned by all if we want to live in a free country. 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.

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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.