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 District Court from shifting away from the use of grand jury system to a preliminary hearing system. In their letter to the Supreme Court, Keller and Torrez proclaimed:
“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.”
Because of the change, the District Attorneys Office will have to schedule and prepare for preliminary hearings to charge defendants. Preliminary hearings can take place in either State District Court or Metropolitan Court. Torrez argues that preliminary hearings use stricter evidence rules require multiple witnesses, while grand juries decide whether to indict based, in general, on the testimony of a case agent.
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. 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.”
I AM TAKING MY BALL AND GOING HOME!
The New Mexico Criminal Defense Lawyers Association (NMCDLA) has come out in favor of the District Court’s efforts to reduce grand jury time and go to a system of preliminary hearings. NMCDLA proclaims that preliminary hearings protect an individual’s constitutional rights to a lawyer, due process of law, right to confront witnesses, presumption of innocence and a speedy trial.
On May 29, 2019, it was reported that District Attorney Raúl Torrez notified District Court that his office would no longer schedule preliminary hearings in State District Court. In a statement to the media, Michael Patrick, spokesman for the DA’s Office, called the District Court preliminary hearing process an “inefficient use of time and resources. It is not surprising defense attorneys are defending district court preliminary hearings because it benefits their clients at the expense of public safety”. Patrick went on to add that a third of all preliminary hearings were reset in the month of April “meaning the defendant was still in the community without felony charges initiated against them.”
NMCDLA suggest in a news release that DA Torrez made the decision not to schedule preliminary hearing in District Court:
“in retaliation for the Second Judicial District Court reducing the number of available grand jury hours. … Such politics have no place in the courtroom. This will create an unnecessary backlog and greatly restrict the ability of the accused to exercise their constitutional right to have the (charges) against them reviewed for probable cause. After being given $6 million last year by the legislature, District Attorney Torrez has abandoned his promise to make his office more efficient, instead deciding to embark on a war against judges.”
The NMCDLA past-president Matthew Coyte added in a news release:
“District Attorney Torrez wants to remove judicial involvement in the determination of who is dangerous and who gets to be locked up until his office can find the time and resources to prosecute the case. … His latest request seeks to remove judges and defense attorneys from the probable cause determination entirely.”
THE DEFENSE BAR RESPONSE
The criminal defense bar argues that preliminary hearings are a fair and transparent way of charging and disposing of cases. Defense attorneys argue that preliminary hearing require the parties to evaluate the strength of a case quickly and efficiently that often leads to earlier resolutions of the cases by plea agreements and/or dismissal charges or cases.
Public Defender Jon See explained that when his clients are shown the evidence and testimony at a preliminary hearing, the accused defendant are able to consider an early resolution of the case and it explained it this way:
“They were running a video, you looked drunk in it, or you had this drug on you, or you admitted that you did it . … Do you want to spend the next six months waiting for a trial and you’re going to probably get a worse plea offer? Or do you want to take this pretty good deal right now?”
SHIFTING BURDEN OF PROOF
Bernalillo County District Attorney Raúl Torrez is also proposing a new constitutional amendment that would require defendants accused of certain crimes to show and convince a judge that they should be released pending their trial on the charges. According to Torrez, cases where a defendant would be required to show they do not pose a threat to public and should be released pending their trial would include “the most violent and serious cases” such as murder, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm and defendants who are on supervision or parole for another felony.
DA Torrez wants to shift the burden of proof to the accused with a “presumption” that a person who is merely charged with a violent crime is therefore violent and the accused must prove they are not an immediate danger to the public or be held in jail until trial. Such a shift of burden of proof could conceivably require a defendant to take the stand during a detention hearing before their trial and a waiver of their 5th Amendment Constitutional Right against self-incrimination.
COMMENTARY AND ANALYSIS
Do you remember playing baseball growing up and one kid gets mad and strikes out, starts crying and says “WHAAAA, I do not want to play anymore, I’m taking my ball and going home!” That is exactly what District Attorney Raul Torrez thinks he is doing with preliminary hearings when in fact he is playing with fire and is about to get seriously burned.
In his statement to the media Michael Patrick, spokesman for the DA’s Office, called the District Court preliminary hearing process an “inefficient use of time and resources. It is not surprising defense attorneys are defending district court preliminary hearings because it benefits their clients at the expense of public safety”. Patrick added that a third of all preliminary hearings were reset in the month of April “meaning the defendant was still in the community without felony charges initiated against them.”
DA Raul Torrez and office spokesman and Michael Patrick have not responded to the statistics disclosed in the May 22, 2019 letter from State District Court Judges Stan Whitaker and Charles Brown to the New Mexico Supreme Court. The statistics revealed an alarmingly high 65% 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.
The statistics show 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.
Raul Torrez was elected Bernalillo District Attorney in November, 2016. The District Court has been implementing the “preliminary hearing” since mid 2015. 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 brought up or debated by Torrez nor did he object during his campaign.
After being elected DA, Torrez 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.
In their May 22, 2019 letter to the Supreme Court, District Court Judges Whitaker and Brown hit head on the accusation made by Torrrez of a “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.”
The conversion process from grand jury to preliminary hearings has been going on since 2015 and Torrez has resisted it from day one of his election. The Bernalillo County District Attorney Office is one of the largest law firms 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 major 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.
The New Mexico Supreme Court has yet to respond to the May 10, 2019 and May 22,2019 respective letters from Mayor Tim Keller, District Attorney Raul Torrez and State District Court Judges Stan Whitaker and Charles Brown. For that reason alone, Torrez is playing with fire when he orders the cancellation and the scheduling of preliminary hearings.
Raul Torrez and his entire office could very easily be brought before the New Mexico Supreme Court on a “Writ of Superintendent Control” and the Supreme Court could order his office to use preliminary hearings or face contempt of court charges and be referred to the New Mexico Disciplinary Board. Torrez thinks he has problems now, but his troubles are only beginning, including an uphill battle for re election if he does not get his act together, buckle down and do his job instead of looking for television cameras and reporters to blame judges for all his problems.
You can read a related blog article at the below link: