On May 10, 2019, Albuquerque Mayor Tim Keller and Bernalillo County District Attorney Raul Torrez wrote a joint letter to the New Mexico Supreme Court requesting it to intervene and stop the plans of 2nd Judicial District Court (SJDC) to shift away from the use of grand jury system to a preliminary hearing system. The letter was addressed to New Mexico Supreme Court Chief Justice Judith Nakamura. The New Mexico Supreme Court has administrative and regulatory and rule making powers over virtually every court in the state.
It was In September of last year the 2nd Judicial District Court notified District Attorney Raul Torrez that it would be drastically reducing the amount of time for grand jury and shifting to preliminary hearings. At the time, Torrez strenuously objected. On August 25, 2018, the District Court notified Torrez that it would “scale back” the planned reduction in grand jury and that the decline would be a phased in process. The District Court has continued with its plans for more preliminary hearings. District Attorney Raul has now convinced Mayor Tim Keller that he should also object to preliminary hearings.
In a nutshell, both the grand jury and preliminary hearing are probable cause hearings to charge someone with a crime The grand jury is confidential, behind closed doors, where evidence is presented to a jury of citizens who decide the charges in an indictment. A preliminary hearing is in open court where a Judge decides if there is probably cause to support criminal charges filed and if the case should go forward or be dismissed. The major differences between a “grand jury” and a “preliminary hearing” are provided in the postscript below to this blog article.
TORREZ AND KELLER LETTER TO NM CHIEF JUSTICE
The May 10, 2019 Torrez-Keller letter is a mere two and one-half page letter to New Mexico Supreme Court Chief Justice JUDITH NACAMURA. Below are the most critical excerpts of the Torrez/Keller letter:
“We write to you with an urgent request that the New Mexico Supreme Court take immediate action to prevent further elimination of existing grand jury panels in the Second Judicial [District Court].
“Together, we have worked to achieve the longest sustained drop in crime in this community in more than a decade, but we are very concerned that these hard fought gains will be reversed if the [District Court] continues to make unilateral decisions which further stress the resources constraints of our respective institutions and causes a potential threat to public safety that may result from the change to our criminal justice system.”
“In theory, shifting from the grand jury to preliminary hearings as an alternative form of felony case initiation should not undermine the principal goal of criminal deterrence. However, from a prosecution perspective, the practice over the past year has demonstrated otherwise. … .”
“Currently, the District Attorney’s Office has been able to utilize the grand jury to offset the systemic failures of the current preliminary hearing process and maximize the ability to charge felony cases while also preserving limited investigative and prosecutorial resources. From a policing perspective, by minimizing the number of law enforcement officers required to initiate a felony case and scheduling those officers for short, predictable intervals, the Albuquerque Police Department is able to maximize the City of Albuquerque’s commitment to community policing and targeted enforcement. … . ”
“Further reductions in the grand jury without sufficient modifications to the preliminary hearing process will be untenable. … Under the District Courts stated plan, the largest judicial district in the state – one that accounts for more than half of the reported crime in New Mexico – will be allotted grand jury capacity for fewer than 10% of all referred felony cases. … This simply is problematic and leaves insufficient time for complicated long-term investigations to be presented to a grand jury in addition to other currently being presented.”
“Additional cuts to the grand jury will only further destabilize an already overburdened system and will result in our respective institutions spending considerable more resources to resolve felony cases. … “
“Our community has already endured more than enough change to the criminal justice system in recent years, and now is not the time for this type of experimentation. On behalf of the citizens, we ask the New Mexico Supreme Court to intervene and we also ask that the judiciary take no further action that imposes significant burdens on the criminal justice stakeholders as we continue or work to reduce crime and rebuild public confidence. … .”
A NEW PLAYER WITH SAME OLD OBJECTIONS
The only thing new about the contact with the New Mexico Supreme Court is Mayor Tim Keller getting involved objecting to a “preliminary hearing” system. Both Torrez and Keller assert law enforcement resources will be wasted claiming there will be diverting police officers to court and reducing the Albuquerque Police Departments (APD) ability to take calls for service. Both Keller and Torrez are proclaiming preliminary hearings are too resource intensive and time consuming for both the Albuquerque Police APD and the Bernalillo County District Attorney’s Office.
According to Torrez in a separate news report, preliminary hearings are administratively burdensome and a drain on resources his office does not have to channel more cases through the process. Torrez worries about scheduling conflicts and having witnesses or others not show up for preliminary hearings by saying:
“The effects of a 70 percent reduction [in grand juries] … would have been catastrophic. … My concern is that we are going to have the same reduction, we’re just going to implement it through slow cuts over time. This is not the time to mess with a good thing … While that allows everyone to adjust, you’re still not tackling the fundamental resource question.”
Torrez argues that preliminary hearings are too difficult to prepare for with respect to witness preparation and evidence preparations. Further, preliminary hearings are routinely cancelled and reset when a witness, officer or defendant fails to show up in court. According to Torrez, with the grand jury it is easier to notify an officer of the precise time for court the officer is needed by saying:
“When we subpoena a police officer [for a preliminary hearing], we say, ‘Come at 1:00; bring a book.’ I have no idea if the defendant is going to show up. I have no idea if the witness is going to show up … and in contrast, with a grand jury I say, ‘Officer, come in at 3:15; you can do a presentation to the grand jury. I’ll have you back in the car answering calls for service at 3:30.’ ”
Currently, grand jury panels meet for eight hours a day on Monday, Wednesday and Thursday. In their joint letter to the Supreme Court, Mayor Keller and District Attorney Torres said if the court’s reduction plan is fully implemented, a grand jury will be available only six days a month that would result in prosecutors to start fewer than 10% of the county’s felony cases through indictment.
According to the Torrez – Keller letter to the Supreme Court, they estimate the system would then need to complete 23 preliminary hearings a day and argued:
“Perhaps even more troubling, and again, from a policing perspective, assuming an average of two officers required for each hearing, the Albuquerque Police Department will have more than forty-five officers every single day sit in court for potentially hours on end, waiting to testify rather than answering calls for service.”
Mayor Tim Keller and District Attorney Raul Torrez say there are two possible solutions to what is happening: 1) The Supreme Court should intervene to stop the grand jury cuts or 2) Consider changing the rules for preliminary hearings.
DA Torrez proclaims:
“If there’s no accommodation either with the rules for preliminary hearings or access to the grand jury, you’re going to have another substantial backlog. … Charged cases will drop, and the number of uncharged cases will go up. And they will sit in a stack.”
THE DISTRICT COURT RESPONDS TO KELLER AND TORREZ
On May 22, 2019, State District Court Judges Stan Whitaker and Charles Brown wrote to the New Mexico Supreme Court a letter in response to the May 10, 2019 joint Keller and Torrez letter. It was a 16-page, single spaced letter with statistics reflected in bar graphs and pie charts. District Judge Stan Whitaker is the Chief Presiding Judge of the Criminal Division and is a former Assistant United States Attorney. Judge Charlie Brown is the Criminal Division Presiding Judge and is also a former prosecutor and one of the most experienced trial attorneys on the bench. Combined the two District Court Judges have at least 45 years, if not more, of trial experience. Raul Torrez has been District Attorney for 2 years and 6 months and Tim Keller has been Mayor for 18 months, he is not an attorney and has no law enforcement background.
In their written response to Mayor Keller’s and District Attorney Torrez letter to the Supreme Court, the Judges were very blunt writing:
“… the move to preliminary hearings is particularly important given the historic failure of the District Attorney’s Office … to frontload cases … by interviewing witnesses and reviewing evidence early in the process which results in a waste of resources for all criminal justice stakeholders” … [T]he change is needed because preliminary hearings are efficient and effective. … The DA’s Office tends to focus on getting cases into the system rather than the disposition of cases” and noted “recognizing [the court’s] responsibility to push the system toward best practices [efforts] to increase the use of preliminary hearings have been in the works for years.”
Judges Brown and Whitaker dismissed the concerns of both Keller and Torrez that preliminary hearings are resource intensive and wrote:
“[P]reliminary hearings only require sufficient evidence to establish probable cause and many cases would not require an officer to appear at all …
“Further, the District Attorney’s Office has asserted that law enforcement time will be wasted with preliminary examinations because they will have to sit for “potentially hours on end”. The reality is that the DA’s office failure to front load cases and late nolle’s [no prosecution notices] wastes significant amounts of time for everyone, including law enforcement who has to appear for pretrial interviews and evidence hearings. While preliminary examinations often do not require an officer to testify because the officer is unnecessary to prove probable cause, officers are always required to appear for pretrial interviews and they are often required for evidence hearings. And while the average time to conduct a full preliminary examination in Metropolitan Court is 39 minutes, pretrial interviews and court proceedings take hours. Moreover, based on the data , only around 4% of cases will result in a full preliminary hearing; in most cases the officer will appear and be released because the case will resolve.”
“Two of the major reasons for [the DA filing no prosecution notices] are a lack of cooperation by the witnesses and the inability to locate witnesses. By requiring the District Attorney’s Office to present witnesses early in the process (rather than untested hearsay evidence presented at a grand jury), it forces the District Attorney to contact witnesses, review the file, check the witness contact information. … this screening is important to the DA’s office ability to later proceed with the case. Since opposing counsel is also present, it allows the parties to discuss a plea. …”
Brown and Whitaker further stated the court has offered to design a schedule that would conserve as much officer time as possible.
DA’S HIGH DISMISSAL, MISTRIAL AND ACQUITTAL RATES EXPOSED
District Court Judges Stan Whitaker and Charles Brown in their response letter included an extensive amount of statistics, pie and bar graphs comparing the success and failure of preliminary hearing and trials based on grand jury indictment. The statistics revealed an alarmingly high mistrial rate, acquittal rate, dismissal rate in cases where the District Attorney tried cases charged by grand jury versus those cases charged by preliminary hearings.
Judges Whitaker and Brown opined that front-loading the system and better screening of cases by the District Attorney:
“will help with the high mistrial in the Second [Judicial District]. There is at least some research that suggests that case screening and the quality of evidence impacts hung juries. According to studies, the average mistrial rate [across the country] is between 14.8% to less than 3%. The federal average was 2.5%. Looking at a sample from July, 2018 through April 2019, the [2nd Judicial District Court’s] mistrial rate [for cases presented by the DA’s office] is much higher.” The judges reported that in the 10-month period from July 2018 to April 2019, there were 99 trials and 22 of those trials (or 22.22%) resulted in a mistrial.
One pie chart presented data that showed how overcharging and a failure to screen cases by the District Attorneys Office is contributing to the high mistrial and acquittal rates. Out of 378 charged cases in the 10-month period of July, 2018 to April, 2019, there were 128 convictions from guilty verdicts and guilty plea agreements, 174 acquittals from not guilty verdicts, DA dismissals, directed verdicts and other types of dismissals and 72 mistrials. Translated to percentage numbers, of the 378 cases charged, 34.92% were convictions, 46.03% were acquittals and 19.05% were mistrials. In other words, 65% of the 378 charged cases resulted in either a mistrial or acquittal when presented to a jury.
According to the District Court, “between January 1, 2016, and May 16, 2019, there were 11,301 criminal cases opened in District Court (via either grand jury indictment or information) that also closed in the same time period . Of those cases, 26% (2,905 cases) were essentially dismissed via “nolle” [no prosecution notices] by the District Attorney’s Office. The average time to “nolle” [no prosecution notices by the District Attorney] was 177 days or almost 6 months.”
According to District Judges Whitaker and Brown:
“One of the most common questions that the … judges get asked by juries is “why are we here?” Jurors tend to complain that the prosecution lacked evidence and the presentation by the prosecution was confusing or muddled. Preliminary hearings can help both to winnow down charges and see what evidence remains to be collected, allowing the DA’s Office to focus on those charges it can prove and ensuring earlier that they have the necessary evidence and cooperating witnesses. The District Attorney’s Office tends to focus on getting cases into the system rather than the disposition of cases.”
SUCCESS OF PRELIMINARY HEARINGS
The District Court has been implementing the “preliminary hearing” since mid 2015 with Raul Torrez elected District Attorney in November, 2016.
District Judges Whitaker and Brown reported that the preliminary hearing process has been very successful in the early resolution of cases. The judges reported that 51% of the cases filed by criminal information or criminal complaint resulted in a guilty plea early in the process.
Second Judicial District Court data reflects that in 2017 there were 2,551 cases indicted by the DA’s office and there were 650 preliminary hearings held by the court’s criminal division. From January 1, 2018 to June 30, 2018 there were 418 preliminary hearing with 1,688 cases indicted. In 2017, 61% of felony preliminary hearings in the 2nd Judicial District Court led to a plea agreement at the hearing.
According to the District Court, from January 1, 2019 to May 15, 2019, more than half of the cases routed for a District Court preliminary hearing resulted in a plea agreement. In their letter to the Supreme Court, the District Court Judges also argue that preliminary hearings mandate a much earlier evaluation of a case by the prosecution that results in prosecutors dismissing fewer cases later in the process. According to the District Court, cases opened and closed from January 2016 to May 2019, 26% were eventually dismissed by the prosecution, on average six months into the case.
JUSTIFICATION FOR THE CHANGE: THE REVOLVING DOOR
Judges Whitaker and Brown hit head on the “revolving door problem” and its causes by saying:
“Given the specific problems in this jurisdiction which continue to exist – the delay with discovery [disclosure by the DA’s office], dismissals of cases by the District Attorney immediately prior to trial, the lack of collection of evidence, the unwillingness of witnesses to testify only discovered late in the process, the public’s apparent lack of confidence in the system, and the difficulties the District Attorney has had in obtaining convictions, leading to what has been referred to as the “revolving door problem” – the move to preliminary examinations is especially useful as experts agree the move to preliminary examinations [hearings] helps address most of these issues.”
In 2009 and 2015, the National Center for State Courts in studies of the 2nd Judicial District Court in Bernalillo County recommended the shift away from a grand jury and indictment-heavy system. The 2nd District Court is the only judicial district in New Mexico that relies extensively on grand juries as opposed to preliminary hearings to charge defendants with felony crimes. The National Center for State Courts recommended that Bernalillo County use more preliminary hearings and fewer grand juries citing preliminary hearings as a best practices model.
National Center for State Courts found that most District Attorney offices in New Mexico file a majority of their felony cases by criminal information, or complaint, rather than grand jury indictment. Five of the state’s judicial districts do not use grand juries at all. According to the 2015 National Center for State Courts report:
“Nationwide, where indictment by grand jury is permitted in state courts [approximately half the states] , it is generally reserved for the most egregious and serious cases. … Presenting all felonies to a grand jury in an urban justice system is quite unusual.”
WORKING WITH STAKE HOLDERS WITH A NO SHOW MAYOR TIM KELLER
The District Court has been implementing the “preliminary hearing” system since mid 2015 with Raul Torrez elected District Attorney in November, 2016 and Tim Keller elected Mayor in November, 2017. During the implementation period the District Court met with all the major stakeholders in law enforcement, but District Attorney Raul Torrez declined to actively participate. The District Court also offered to met with Mayor Tim Keller. When the Court never heard from Mayor Tim Keller, a meeting was arranged with law enforcement to work out a schedule to conserve officer time. According to the District Court letter “In July of 2018, after seeing no efforts by the DA’s Office to adapt to the move towards preliminary hearing, [the District Court] decided to implement the final push towards preliminary hearings and notified the DA’s Office that it would be reducing the grand jury …” During the course of the discussions regarding the reduction of grand jury time the Court worked to refine its preliminary hearing process.
THE DISTRICT ATTORNEY’S OFFICE UNDER RAUL TORREZ
The Bernalillo County District Attorney’s Office is the largest law firm in New Mexico that employs attorneys, paralegals, investigators, victim advocates and legal support staff. The Bernalillo County District Attorney’s Office employs 330 full time personnel which includes at any given time approximately 128 full time prosecutors assigned to prosecute felonies. Attorneys are also assigned to the Bernalillo County Metropolitan Court that handles misdemeanor domestic violence cases and aggravated DWI cases. In 2017 there were 2,551 cases indicted by the DA’s office and there were 650 preliminary hearings which by appearance were handled without difficulty despite the fact Torrez had at the time 45 vacancies out of 304 full time staff and he complained about lack of resources.
During the 2018 New Mexico Legislative session, DA Raul Torrez asked the New Mexico State Legislature for a 30% increase in the budget of $18.2 million, or a $5.4 million increase. Torrez told legislators he wanted the increase in his budget in order to hire an additional 34 attorneys. Torrez said that the lack of resources was the main reason his office could not come close to prosecuting all the pending cases in his office and could not handle the bond and detention hearings.
During the 2018 legislative session, Torrez was quoted as saying there were “simply too many criminals and not enough staff … If we don’t get sufficient resources in this legislative session, I would think several thousand felony cases simply will become too old, too stale for us to act on. It’s not justice”.
Last year DA Torrez had 45 vacant positions which included 18 vacant attorney positions that he was not able to fill during his first year in office. Notwithstanding the vacancies, the 2018 Legislative session approved a budget for the Bernalillo County District Attorney’s Office and it went from $18.2 million to $21.5 million-dollars.
During the 2019 legislative session, the Legislature once again increased the budget for the office. However, things have gotten worse when it comes to DA Torrez filling vacant positions within his office. The New Mexico Government Sunshine Portal has been updated to include 2019 data effective May 3, 2019. The sunshine portal reflects that District Attorney Raul Torrez now has 50 vacant positions. According to the State Sunshine Portal the Bernalillo County District Attorney’s office is fully funded for 331 full time positions with a personnel budget of $15,027,216 with a total budget of approximately $24 million. As of May 3, 2019, of the 331 fully funded positions, only 281 are filled and active with 50 vacant positions listed. The 50 vacant positions include 17 vacant “at will” attorney, assistant trial attorney, senior trial attorney and trial attorney positions and 10 vacant Secretarial and Legal Secretary positions.
APD UNDER MAYOR TIM KELLER
On April 1, 2018, Mayor Tim Keller submitted his very first proposed budget to the Albuquerque City Council which was approved. The City Council Approved Mayor Tim Keller’s spending of $88 million dollars, over a four-year period, with 32 million dollars of recurring expenditures to hire 350 officers and expand APD from 878 sworn police officers to 1,200 officers. Keller further implemented a hiring and recruitment program to offer incentives, pay raises and bonuses to join or return to APD in order to return to community-based policing. By July, 2019, APD should have up to 950 sworn police which is still 250 below the desired number of police officers.
On May 20, 2019 the Albuquerque City Council approved the Keller Administration operating budget of $1.1 billion, the first time in city history the budget exceeds $1 Billion. The 2019-2020 budget represents an overall 11% increase in spending over the current year. 47% of the General Fund expenditures fund the Police and Fire departments should not come as any surprise seeing as Albuquerque Police Department (APD) intends to spend $88 million dollars, over the next four-year period, with 32 million dollars of recurring expenditures, to hire 322 sworn officers and expand APD from 878 sworn police officers to 1,200 officers. The 2019-2020 budget fully funds 1,050 sworn police. APD is projecting that it will have 980 officers by this summer by growing the ranks with both new cadets and lateral hires from other departments, including APD retirees.
COMMENTARY AND ANALYSIS
Both Keller and Torrez argue to the New Mexico Supreme Court that “preliminary hearing” will result in Albuquerque Police Department (APD) resources will be wasted by diverting police officers to court and reducing their ability to patrol the streets and take calls for service. This argument is as bogus as it gets and reflects at worst, they are misleading the New Mexico Supreme court or at best they both have a degree ignorance of law enforcement investigations of violent crimes. Keller can be excused for his ignorance of the criminal justice system because he has no law degree, no law enforcement background, but Torrez cannot and Torrez knows better.
It is fully uniformed police officers with their police vehicles who are assigned to field services after making bids for assignment and who take calls for service and involved with the prosecution of misdemeanor cases in Metro Court. Violent crimes that are the most violent and serious cases, such as murder, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm. Violent crimes are investigated by APD Detectives assigned to specialized units and the detectives do not take run of the mill calls for service such as making DWI arrests or issuing traffic citations. APD Detectives assigned to the specialized units should have little or no problem preparing for preliminary hearings.
MAYOR TIM KELLER
In 2017, then State Auditor Tim Keller campaigned for Mayor proclaiming he had the right plan for reducing crime, police reform and community-based policing. Throughout his campaign for Mayor, Tim Keller was very careful to avoid blaming the Judges for the increases in crime. Keller avoided saying the courts were releasing too many violent criminals. Two of Keller’s Republican opponents Dan Lewis and Wayne Johnson blamed the courts for the city’s high crime rates to gin up support.
On Friday, May 10, 2019, in reaction to the murder of 21-year-old Jackson Weller, Mayor Tim Keller, APD Chief Michael Geier and District Attorney Raúl Torrez held a joint press conference to announce initiatives aimed at reducing violent crime up and down the Central corridor. During the press conference and for the first time since becoming Mayor, Tim Keller adopted the practice of his predecessor Mayor Richard Berry and his opponents and began to blame the courts for a violent crime. Keller told the media during the news conference that:
“This suspect was recently released from jail on his own recognizance for a felony firearms case in February, in which he was openly firing out of a vehicle … Unfortunately, this individual was back on the street.”
Keller was essentially saying the Defendant was guilty of drive by shooting that he had never been charged with and that Jackson Weller would not be dead if the defendant had not have been free pending trial in the first place by the Courts. Keller made no mention that it was the DA’s Office that was responsible for the defendant being on the street. What has been revealed is that there was a level of malpractice by the district attorney’s office in handling of a case against the accused defendant when a Deputy District Attorney did not attend court hearings, did not follow court orders, did not respond to defense motions, missed deadlines and failed to turn over evidence as ordered by the court.
Mayor Keller needs to realize his office is not part of the Judicial branch of government and he has zero authority over it. For Keller to get involved and to confront the courts with DA Torrez in writing on how the court manages its caseloads and what types of hearings they should have is frankly none of his business. This is not his fight as Mayor and Keller should know better.
Keller’s role as Mayor is to appoint a City Attorney and APD high command to represent the city, and not get involved with the courts and their management of its case load. With Keller’s massive dedication of funding in his approved budgets, APD has sufficient resources and personnel in place in specialized units to investigate murder, first-degree sexual assault, human trafficking, first-degree robbery and crimes involving a firearm and to participate in preliminary hearings.
It is very disappointing that the Mayor Tim Keller did not even bother to meet with the District Courts with respect to preliminary hearings and grand jury, but yet Keller had absolutely no problem sending a letter to the New Mexico Supreme Court to call into question the District Courts management of its docket. How Keller publicly deals with the courts and his joint letter with Torrez crossed over a very fine line of propriety that could impact the city in civil cases where the city is a defendant. Keller could conceivably start objecting to and start telling the District Courts how to handle civil cases where the city is named a defendant. Mayor Keller needs to distance himself from DA Raul Torrez and let Torrez pick and start his own battles with the District Courts.
DISTRICT ATTORNEY RAUL TORREZ
Raul Torrez was elected Bernalillo District Attorney in November, 2016. The District Court has been implementing the “preliminary hearing” since mid 2015 during the final year in office of former Bernalillo County District Attorney Kari Brandenburg. During his campaign for District Attorney Torrez proclaimed our criminal justice system was broken, but the issue of the use of preliminary hearings was never debated by Torrez nor did he object during his campaign.
After being elected DA, Torrez very soon began to blame the courts for the rise in violent crime rates and many, including many in the news media, bought into his bogus argument that the “revolving door” is the courts fault. Less than six months after being sworn in as Bernalillo County District Attorney, Raul Torres blamed the New Mexico Supreme Court’s Case Management Order (CMO) for Albuquerque’s increasing violent crime rates. Torrez had the District Attorney Office issue a report that outlined the so-called problems he perceived since the issuance of the Case Management Order by the Supreme Court in February, 2015.
The main points of the DA’s 2016 report was that defense attorneys were “gaming” the court mandated discovery deadlines under the CMO to get cases dismissed by demanding evidence they are entitled to under the law and the Rules of Criminal Procedure and asking for trials instead of entering into plea agreements. In response to the Torrez report, the District Court did their own case review of statistics and found that it was the Bernalillo County District Attorney’s Office that was dismissing the majority of cases, not the courts.
Torrez’s comments that “you’re still not tackling the fundamental resource question” and “this is not the time to mess with a good thing” are so laughable as to be embarrassing. The conversion process from grand jury to preliminary hearings has been going on since 2015 and he has resisted it from day one of his election. The Bernalillo County District Attorney Office is the largest law firm in the State of New Mexico having 330 fully funded and full-time employees including attorneys, paralegals, administrative assistants, victim advocates, investigators, IT managers and personnel and finance divisions.
Torrez has been a failure in tackling the resource problem himself after he secured significant funding increases from the New Mexico legislature. Torrez has failed to fill 50 vacant positions within his office. As of May 3, 2019, of the 331 fully funded positions, only 281 are filled and active with 50 vacant positions listed. The 50 vacant positions include 17 vacant “at will” attorney, assistant trial attorney, senior trial attorney and trial attorney positions and 10 vacant Secretarial and Legal Secretary positions.
Both Raul Torrez and Tim Keller campaigned to get elected DA and Mayor on platforms that they could and would bring down our skyrocketing crime rates. No at all surprising, Mayor Tim Keller and Bernalillo County District Attorney Raul Torrez in their letter to the Supreme Court tried to take credit for crime rates being on the decline by saying “Together, we have worked to achieve the longest sustained drop in crime in this community in more than a decade” without mentioning any law enforcement agency. When a high profile killing occurs, such as the murder of the 21 year old UNM student, you can always count on Keller and Torrez to call a press conference, express their sincere condolences, announce a new crime fighting initiative or change in policy to deal with violent crime and blame the courts for the “catch and release” of violent defendants.
The 3 major law enforcement agencies that work within Bernalillo County and the City of Albuquerque and that turn cases over to the District Attorney’s office for prosecution are APD, the Bernalillo County Sheriff’s Office and the New Mexico State Police. Mayor Tim Keller presumably on behalf of APD joined DA Torrez to object to preliminary hearings, yet absolutely no objection has been heard from the Bernalillo County Sheriff’s Office nor the State Police nor any other elected official for that manner.
Both APD and the District Attorney’s office have enough resources and personnel to deal with preliminary hearings. Keller and Torrez need to do their own jobs separately. Mayor Keller and District Attorney Raul Torrez must step up to the plate and do a much better job in managing the resources they have rather than going after and complaining about judges for their release rulings, bond hearings and how the courts manage its caseloads.
The New Mexico Supreme Court must 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.
One paragraph contained in the May 22, 2019 letter written by District Court Judges Stan Whitaker and Charles Brown to the New Mexico Supreme Court sums things up:
“The goal of the criminal justice system is not simply to charge a defendant and then try to get as much pretrial time as possible before [voluntarily dismissing the case or] “nolleing” the case; rather the criminal justice system is intended to dispose of cases, protecting the rights of the innocent, while ensuring that the guilty are convicted and sentenced accordingly. Simply charging someone does not protect the community. If that individual is dangerous and guilty of the charged crime, it is the ability to get a conviction that protects the community in the long term.”
GRAND JURY AND PRELIMINARY HEARINGS BOTH “PROBABLE CAUSE” HEARINGS
Given the major differences between a grand jury and a preliminary hearing, a brief explanation of both is in order. In New Mexico, prosecutors have the option to use a grand jury if made available by the courts or preliminary hearing to charge someone with a crime. Prosecutors can filed criminal complaints whereupon preliminary hearings are then scheduled by the Court.
Both the grand jury and preliminary hearing are “probable cause” hearings. In layman’s terms, probable cause is where the evidence presented shows that is it more likely than not that a crime was committed by the defendant charged. Usually, at a minimum, investigating officers and the crime victim testify at both preliminary hearing or grand jury proceedings. Notwithstanding, both types of hearings have major differences. The biggest difference between a grand jury and a preliminary hearing is that a grand jury proceeding is secret, behind closed doors, before a group of citizens whereas a preliminary hearing is in public, in a courtroom before a judge.
A “grand jury” hearing is a probable cause hearing that decides to charge a defendant when evidence is presented to the grand jury and 8 out of 12 jurors find probable cause to charge. A grand jury is a secret proceeding, defendants are not allowed to see and hear the evidence presented and a grand jury proceeding is not open to the public. A defendant is not present during a grand jury proceeding but is allowed to testifying if they want. The biggest advantage that a grand jury proceeding offers is that it is a usually a very short proceeding that is totally controlled by the prosecutor as to what is presented. The less strict rules of evidence apply. The biggest disadvantage of a grand jury is to the defendant who cannot object to evidence presented and must waive all right of self-incrimination if they choose to testify.
A “preliminary hearing” is a probable cause hearing and it is a judge, not a grand jury, who decides whether there is probable cause to support formal charges against a defendant. Many consider preliminary hearings as “abbreviated trials” or “mini trials” which they do not have to be because it is a probable cause hearing and not a trial that requires proof beyond a reasonable doubt. Preliminary hearings like trials are open to the public and held before a judge and not in secrecy as is a grand jury. During preliminary hearings, witnesses, such as the investigating officer or victim are usually called to testify. Unlike in a grand jury, in a preliminary hearing, a defendant must be present and represented by an attorney who is allowed to question witnesses and present evidence.