On May 4, 2019, 23-year-old University of New Mexico student Jackson Weller was shot and killed outside a crowded “Imbibe Night Club” in the heart of Nob Hill making him the 26th person killed by gun violence in Albuquerque this year. Thus far, 15 of the homicides remain unsolved. Law enforcement authorities reported that there have been 114 people shot in 112 days in Bernalillo County including the city of Albuquerque through April 23, which is a 36% increase over last year during the same time period.
On Saturday, May 11, 2019, the Albuquerque Police Department (APD) announced detectives had arrested Darian Bashir, 23, for the killing of Weller. News reports revealed that in November 2017, Darian Bashir was charged with aggravated battery after he allegedly walked up to another young man in Downtown Albuquerque and shot him at point-blank range in the chest. The case was dismissed by the Bernalillo County District Attorney’s office because the victim, who survived being shot, did not testify. The case was dismissed in January 2018 after the DA’s Office failed to comply with court mandated hearing deadlines, including not arranging witness interviews.
According to Court records, it was District Court Judge Richard Brown that released Bashir back in January pending trial because he had a “minimal criminal history” and “no felony convictions” and noted “He was charged with a violent felony in 2017, but the charges were dismissed.” Transcripts of the previous hearing revealed the judge “was troubled by some inferences,” including the idea that Defendant Bashir and the others he was with, had been shooting at police officers an allegation the APD police officers did not include in the criminal complaint they filed with the court. Ultimately, Judge Brown found that although Bashir posed a safety risk to the community, that risk could “be reasonably addressed with appropriate conditions of release” which ostensibly was not objected to by the DA’s office.
DEFENDANT DARIAN BASHIR TO BE HELD WITHOUT BOND PENDING TRIAL
On May 15, 2019, District Judge Brett Loveless in a pre-trial detention hearing ordered Darian Bashir the accused of killer of Jackson Weller to be held without bond pending trial. Defendant Darian Bashir faces an open count of murder.
During the detention hearing, the defense attorney pointed out that Darain Bashir, 23, has never been convicted of a crime, he has no history of failure to appear, and a public safety assessment that takes those and other factors into consideration recommended he be released from custody. Bashir’s attorney also argued that police arrested the wrong man because the arrest warrant had the wrong date listed on the police offense report.
In response, District Judge Brett Loveless pointed out that Bashir had been released in a pending February case and was under court supervision at the time of Jackson Weller’s death and said:
“The defendant was already on conditions of release, where he was being supervised by Pretrial Services at a Level 3, which is only one level lower than the greatest level, and in spite of that … he is alleged to have committed a murder. ”
Ultimately, Judge Lovelace agreed with the prosecution and ordered Bashir to be held pending trial.
You can review all the news coverage at the below links:
CONSTITUTIONAL BAIL BOND AMENDMENT EXPLAINED
Albuquerque’s crime wave and its violent and murder rate coupled with the killing of Jackson Weller and the release of accused defendant Darian Bashir has again reignited calls for repeal of New Mexico’s Denial of Bail Measure with accusations of “catch and release” of violent felons by Judges.
On November 8, 2016, the “New Mexico Denial of Bail Measure” was approved by New Mexico voters by a landslide vote.
The Constitutional Amendment amended the New Mexico Constitution to change the conditions under which a defendant can be denied bail and not released from custody pending trial. The Constitutional Amendment was designed to retain the right to pretrial release for “non-dangerous” defendants.
Before passage of the amendment, a defendant’ s bail and release from jail pending trial on charges could be denied:
1. Only for a defendant charged with a capital felony, or
2. A defendant has two or more felony convictions or
3. A defendant is accused of a felony involving the use of a deadly weapon if the defendant has a felony conviction in New Mexico.
The adopted amendment changed these requirements, allowing bail to be denied to a defendant who has been charged with a felony only if the prosecutor can prove to a judge that the defendant poses “a threat to the public.”
The adopted amendment also provides that a defendant who is not a danger to the community or a flight risk cannot be denied bail solely because of the defendant’s financial inability to post a money or property bond.
A “YES” vote supported allowing courts to deny bail to a defendant charged with a felony if a prosecutor shows evidence that the defendant poses a threat to the public, while also providing that a defendant cannot be denied bail because of a financial inability to post a bond.
A “NO” vote opposed the changes in bail thereby keeping the state’s specific requirements that bail could be denied to a defendant charged with a felony if the defendant also had prior felony convictions in the state.
The final vote was 87.23%, with 616,887 voting YES and 12.77%, with 90,293 voting NO.
District Attorneys throughout the state argue the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, have made it way too difficult for them to prove to a judge that a defendant poses a threat to the public justifying that a violent felon be denied bail and be held in custody pending trial.
The argument is now being made that judges are allowing “catch and release of violent felons”.
THE DEBATE RAGES ON BAIL BOND REFORM
On Tuesday May 14, 2019, “New Mexico Politics With Joe Monahan” published the article “Judge Seats Get Hotter As Crime Wave Stokes Anger. … ”
Political blogger Joe Monahan began his news story covering the debate by quoting an attorney who wanted to remain anonymous and who said:
“What is not being discussed is the real story behind the “reform” of the bail system by a couple of legislative leaders and a Supreme Court justice. Well intended perhaps, but in application has created the catch and release system that criminals exploit and brings crime to us and backlogs the courts and prosecutors. Someday, somebody has to discuss how voters were led to passing a constitutional amendment that voters and the press were told was a crackdown on crime. It was the opposite, but progressive proponents cloaked the agenda by creating a fictitious diversion and the appearance of being tougher on crime.”
On Wednesday May 15, 2019, Albuquerque criminal defense attorney Jody Neal-Post provided to Joe Monahan the following informative analysis on why the public may be confused as to whether the bail amendment is working for them or against them:
“I am the attorney, along with co-counsel, Jeff Rein (currently the Albuquerque District Defender), who litigated State v. Walter Brown, which led to the ‘”bail amendment.” I was also the House Judiciary Committee attorney who did the legal analysis on the amendment at the legislative session following the Supreme Court decision in Brown.”
“I can tell you what is going on. The judges are following the law to require clear and convincing evidence of dangerousness to detain. The prosecutors in Albuquerque are simply dug in, refusing to bring that evidence before the court in an ill-advised power struggle with our judges.”
“. . . Take the tragic case of the slain UNM baseball player. The alleged suspect in that case is reported to have been indicted for shooting someone in the stomach before this newest allegation. Then the alleged suspect was arraigned in a shooting where no one was injured. Now the allegations in the latest tragedy, a third set of allegations.”
“In the alleged stomach shooting, the case was dismissed without prejudice for the District Attorney’s failure to meet court deadlines. The District Attorney could have re-indicted the very next day. He did not. Prosecutorial discretion as to what charges to bring and when is absolute. No judge or defense counsel can affect that decision-making. So, the District Attorney made his lawful decision not to prioritize that first shooting case via prosecution.”
“Then the second set of allegations. The State tries to detain the defendant but because they failed to maintain the first prosecution, the defendant on the 2nd set of charges has no ongoing conditions of release he can be alleged to have violated because he is not on any conditions, thanks to the dismissed initial case. . . Then, in the detention hearing on the second case, the District Attorney continued his pattern since the bail amendment went into effect–that he almost categorically refuses to put on live witness testimony in a detention hearing.”
“What the District Attorney does put on is the criminal complaint or indictment on paper. Both of those documents establish probable cause for the state to proceed to prosecute. Probable cause is akin to a 35% certainty of criminal wrongdoing. Our bail amendment requires clear and convincing evidence of dangerousness to detain, akin to a 75% or so certainty. Thirty-five percent simply never equals 75 percent. Period. The District Attorney must put on more proof, and in our present example, a significant part of that proof would have come from either a conviction on the first case or violation of conditions of release on the first case, which the District Attorney did not have because he failed to meet his deadlines and successfully prosecute that first case or failed to immediately re-indict it.”
“The Second Judicial District Attorney litigated whether live witness testimony is required to succeed in a detention hearing. Our Supreme Court said “no,” in a trilogy of cases decided in January 2018. But the Court also said the clear and convincing evidentiary standard is high. The court let practitioners know that merely reiterating the indictment is 35% certainty and will rarely ever meet the clear and convincing standard of 75% certainty. The prosecutor proceeds at their own risk, hence the risk to the public every time prosecutors ignore the directives of the Supreme Court in detention hearings. . ..”
“Our judges are doing their jobs. Criminal defense attorneys have almost no role in detention hearings, other than to say the District Attorney has not put on clear and convincing evidence when that is the case. Complete control of what evidence is put on in detention hearings rests in the absolute discretion of the prosecutor and the prosecutors are refusing to put the required evidence in their possession before the courts to establish clear and convincing evidence of dangerousness.”
“The bail amendment has never been tested to gauge its impact on public safety because of the power struggle the District Attorneys have taken against the judges in refusing to just put on the evidence and see what results. When the public demands the prosecutors participate as partners in the criminal justice system’s role in public safety, and the prosecutors give in and bring the courts the necessary evidence, then we will know if the bail amendment can meet the voters’ expectations in the detentions of the most dangerous defendants. Only then.””
BAIL BOND INDUSTRY ATTORNEY A. BLAIR DUNN’S TAKE
Attorney A. Blair Dunn is in the private practice of law and currently focuses on constitutional law, civil rights, government transparency and natural resource litigation. Mr. Dunn also represents the New Mexico Bail Bond Industry as plaintiffs in a case file against the New Mexico Supreme Court regarding the court rules promulgated to enforce the bail bond amendment.
Following is Mr. Dunn’s analysis:
“Judges are told by the [NM Supreme Court] rules that they ‘shall’ release a person accused of a crime on their own recognizance unless the very high standard of “no set of non-monetary conditions” will ensure that persons return to court. On one hand the public was told that the 2016 Constitutional Amendment would help the District Attorneys keep dangerous people locked up before trial … and then on the other the Supreme Court [ rules force lower courts] … to let men like Bashir walk free repeatedly with nothing more than a promise to behave while they wait for a trial that they will never attend.”
“[An] explanation of what happened, how and why would be helpful for understanding why this mess is such a mess. First, a basic premise that we can all agree on – our system of criminal justice was founded upon the idea that there was a delicate balance of maintaining a person’s presumption of innocence versus the government interest in making sure that person accused of a crime returned to stand trial following the time between arrest and trial. This was historically done by the offering of assurances or by a person acting as a surety that the person would return.”
Fast forwarding through history to our Constitution and 8th Amendment in the Bill of Rights we as country recognized this right to bail and limited that bail cannot be excessive because excessive bail that a person cannot afford to ensure their liberties and presumption of innocence remain intact pending trial is really denying them bail. Our own New Mexico Constitution states the following … :
“All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great and in situations in which bail is specifically prohibited by this section. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” (N.M. Const. art. II, § 13.)
“In 2014 the Walter Brown case happened. In effect, Mr. Brown was denied the right to bail because the judge set bail in an amount in excessive of what the indigent Mr. Brown could afford and he was trapped in jail. I think most lawyers recognize that the US and NM Constitutions already prohibit what happened to Mr. Brown from happening, but … [many blamed the bail bond industry and a move began] … to adopt a new set of laws. … In order to convince the public that this was a good idea, … language was included that was designed to provide an avenue to keep dangerous people in detention pending trial. Ultimately, legislation was not adopted [but] … a constitutional amendment was [written] by the Legislature to present to the voters as a compromise.”
“That compromise that was adopted by the voters in 2016 adds the following language to Section 13:
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. An appeal from an order denying bail shall be given preference over all other matters.”
“A person who is not detain able on grounds of dangerousness nor a flight risk in the absence of bond and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money or property bond. A defendant who is neither a danger nor a flight risk and who has a financial inability to post a money or property bond may file a motion with the court requesting relief from the requirement to post bond. The court shall rule on the motion in an expedited manner.”
“This compromise remains within the boundaries of the 8th Amendment to the US Constitution by providing that if the state decides a person is a danger to the community that they must convince a judge by clear and convincing evidence (remember our system of justice regards pretrial release and presumption of innocence as a fundamental liberty that should be taken away lightly) that the person is a danger to the community and that if the person lack financial ability that they can make a motion to the court to be excused from the requirements of posting sufficient sureties. And with that everything should have been okay! [After the constitutional amendment was enacted] … the New Mexico Supreme Court convened a committee to change the [lower court] rules [to implement the new law]. … [T]hose rules [went into effect] in 2017.”
“Now this is the crux of where things went awry. The changes to the rules require the judges to release virtually everybody on their own recognizance with conditions every time. This takes what is essentially already a tough burden on clear and convincing and put a thumb on the scale [of justice] towards releasing everyone without regard for whether they will show back up for trial or whether they are dangerous to the community such that they should be financially incentivized not to commit any more crimes while they are awaiting trial.”
“The rules also got rid of the decades if not century old system of jail house bonds which allowed people to avoid full incarceration before arraignment by posting a bond – for instance you get picked up for felony DWI Friday night, you post the jail house bond and you don’t have to sit in jail and wait for your arraignment on Wednesday when they finally get to you.”
“Instead now what happens, continuing with the felony DWI example, you get arrested you sit in jail for several days and then you are arraigned, the judge won’t let you post a bond and be treated like you are innocent until you are proven guilty, rather you are forced to wear an ankle bracelet 24 hours a day, you can’t go visit your grandmother in Santa Fe, you have to surrender your weapons (leaving you without the protections of the 2nd Amendment in Albuquerque), you must submit to drug and alcohol testing and mental health screening with counseling and you must constantly check in with a probation officer.”
“Essentially what the rules do is require that everybody is treated like they are poor and everybody has to suffer much greater intrusions into their life because everybody is now presumed guilty until they prove their innocence. … [T]he rules took what was a constitutionally sound system and turned it on its head, essentially forcing the judges to treat the dangerous criminals like the innocent persons charged with a crime and treated the presumed innocent persons like they were guilty until their trial.”
“What the Supreme Court did … was unconstitutional in two major ways. First, the Supreme Court is not supposed to legislate. The legislature makes policy into law and the courts are only supposed to interpret the laws. Instead the Supreme Court violated the Separation of Powers in our NM Constitution and exceeded the authority to make rules that had been delegated to them by the New Mexico Legislature in statute. Second, their actions infringed upon the rights of all of us as Americans that are protected by the 4th 8th and 14th Amendments.”
“So while right now many people are mad at Judge Brown and blame the judges for this catch and release system or want to blame the district attorneys for not keeping people in jail before trial … the real damage that destroyed the system was the rules that were [promulgated by the New Mexico Supreme Court to implement the new constitutional amendment].”
“Either the Supreme Court needs to fix their rules or the Legislature [needs to] change the laws to take this away from the Court. The Legislature has had an opportunity 2 years in a row to ask the Court to fix their rules and the Legislature wouldn’t even pass the memorial asking nicely for the Supreme Court to do that.
COMMENTARY AND ANALYSIS
Under the United States and the New Mexico Constitutions, all are guaranteed the right of due process of law no matter how heinous or violent the crime. In criminal trials, with no exceptions, any defendant is presumed innocent until proven guilty beyond a reasonable doubt by the prosecution. A person is also entitled to post bond.
What is always ignored or forgotten whenever bond reform is discussed are some of the main reasons for the changes in the law: jail overcrowding and people held for crimes they did not commit or held on low level criminal charges, such as drugs, felony thefts and credit card fraud charges, for months and at times years only to be released. Those that could afford or had the resources to pay a bond, cash or surety, were released while those who were indigent sat in jail days, weeks or even months awaiting a trial, no matter the charges.
Prior to the bond reform, the Bernalillo County Detention Center was chronically overcrowded. Years ago, the downtown jail could house up to 800 and it often would house up to 1,200 forcing the doubling up on individual cell space. The overcrowding resulted in a Federal Lawsuit that was finally settled after almost 30 years of litigation. The West side facility after it was built can house up to 2,000, and sure enough overcrowding occurred again within a matter of months.
New Mexico’s criminal justice system is re-pleat with many cases where criminal defendants are arrested for violent crimes, including murder and rape, sit in jail pending trial for months on end, only to be released when it is found out a murder was committed by another, admitted to by another or DNA testing and forensics identified another who committed the rape.
The new court rules on bond hearings and the degree of proof needed to detain an accused are a “work in progress” as was pointed out by State Representative Gail Chasey, D-Albuquerque, an attorney and chairwoman of the House Judiciary Committee when she said:
“I think we need to give the court some time to figure this out.”
Going after and complaining about judges for their release rulings is a red flag of ignorance of our criminal justice system. 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 from defending their decisions and sentencing in a public forum outside of their courtroom so criticizing judges is like “shooting fish” in a barrel.
The New Mexico Supreme Court needs to revisit the bond rules, change them and find a permanent solution that will give the lower court’s far more latitude and discretionary authority when it comes to the bond hearings and holding violent criminals in jail until trial. Common sense guidelines, not hard set mathematical formulas allowing no discretion, need to be given the Judges to allow them to make decisions that they believe are in the best interest to protect the public as well as the defendant’s rights to due process of law. Otherwise, the New Mexico legislature may act on its own and seek repeal of the constitutional amendment.
Notwithstanding, in the case of Defendant Darian Bashir, the 2016 Constitutional Amendment approved by voters worked, as did the rules promulgated by the New Mexico Supreme Court.
Bashir will sit in jail until his trial, be given due process of law and if convicted sentenced once found guilty by a jury. Whatever sentence Bashir receives will be reduced by the amount of time served in jail pending trial.