The Constitution of the State of New Mexico, Article XX Section 1 provides that all elected official must take an Oath of Office and it reads “Every person elected or appointed to any office shall, before entering upon his duties take and subscribe to an oath or affirmation that he will support the constitution of the United States and the constitution and laws of this state, and that he will faithfully and impartially discharge the duties of his office to the best of his ability.”
Under our United States and New Mexico Constitutions, the bedrock foundation to our criminal justice system is that a person who is accused of any crime is presumed innocent until proven guilty “beyond a reasonable doubt”. Further the burden of proof of guilt “beyond a reasonable doubt” is the governments burden, an accused person is entitled to due process of law, is entitled to confront those who testify against them, are entitled to be represented by an attorney and if they cannot afford an attorney one can be appointed by the courts, and entitled to a jury trial. An accuse also has the guaranteed 5th amendment right against self-incrimination an cannot be forced to testify when they are on trial for the crime.
On January 1, 2017, District Attorney Raul Torrez took his oath of office to “support the constitution of the United States and the constitution and laws of New Mexico, and that he will faithfully and impartially discharge the duties of his office to the best of his ability.” Notwithstanding the oath of office he took, Torrez is attacking the New Mexico criminal justice on three major fronts:
First, Torrez accuses the judges of being the source of our high violent crime rates saying the criminal justice system is broken and is a “revolving door”;
Second, Torrez objects to the District Courts shift from grand juries to preliminary hearings to charge people with serious felonies;
Third, Torrez wants a new constitutional amendment shifting the burden of “dangerousness” of a defendant from the prosecution and have a “presumption” that a person accused of serious violent felonies are a threat to the public and should be held in custody and not be released pending trial.
TORREZ BLAMES JUDGES FOR HIGH CRIME RATES
Soon 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 (CMO) by the Supreme Court in February, 2015. The main points of the DA’s 2016 report were 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. Torrez was upset because defense attorneys were doing their job and asking for trials instead of convincing their clients to enter 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 a May 22, 2019 letter to the New Mexico Supreme Court, the District Court presented data that showed how overcharging and a failure to screen cases by the District Attorney’s Office is contributing to a combined 65% mistrial, acquittal and dismissal rate. 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.
In the May 22, 2019 letter to the Supreme Court, District Court Judges Whitaker and Brown hit head on the accusation made by Torrez 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.”
TORREZ OBJECTS TO PRELIMINARY HEARINGS
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. The 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.”
The 2nd Judicial District Court has been shifting from grand jury use to implementing “preliminary hearing” schedule since mid-2015. Raul Torrez was sworn in as District Attorney on January 1, 2017 and from day one Torrez has resisted the change over from grand jury to a preliminary hearing process. In September, 2018 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.
On May 10, 2019 DA Torrez and Mayor Tim Keller 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.”
In a May 22, 2019 letter to the Supreme Court Judges Whitaker and Brown opined that preliminary hearings were necessary and will require better screening of cases by the District Attorney and said that preliminary hearings:
“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.”
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.”
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. … ” and 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.”
TORREZ PROPOSES CONSTITUTIONAL AMENDMENT
Bernalillo County District Attorney Raúl Torrez is proposing a new constitutional amendment that would create a “presumption” that a defendant is a threat to the public when charged with a violent crime and that they should be jailed until pending trial without bond or conditions of release. The presumption would shift the burden of proving dangerousness from the prosecution and require defendants accused of certain crimes to show and convince a judge that they should be released on bond or conditions of release pending their trial on the charges.
According to Torrez, the 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. 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
All elected District Attorneys and elected Judges take the very same an oath of office to preserve, defend and protect our United States and New Mexico constitutions. The difference between elected District Attorneys and Judges is that an elected District Attorney is afforded far more first amendment rights to free speech and the press on an almost daily basis, especially in Bernalillo County, the most populous county in the state.
Elected Judges on the other hand 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. Criticizing judges for their release rulings is a red flag of ignorance of our criminal justice system. 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.
District Attorney Raul Torrez attacking our Judicial system and judge’s rulings is a familiar tactic of way too many politicians running or already elected to office or who have higher ambitions. It is particularly disturbing when DA Torrez attacks judge’s ruling on bond and release rulings and blames judges for rising crime rates.
The most nefarious conduct is when Torrez as an elected prosecutor tries to shift the burden of proof by the prosecution of dangerousness of a defendant to a presumption of dangerousness based on an “alleged” yet to be proven crime. What Torrez wants is a system of “presumption of dangerousness” where a defendant is charged with a violent felony and the person charge be held in custody pending trial. With the presumption of dangerousness the legal burden of proof will be on the defense, which must collect and present compelling evidence to the court in order to for a defendant to be released pending a trial, if a trial ever in fact occurs and not dismissed. That is not how our criminal justice system works, Torrez does not like it, he so he wants to change it in order to make his job a lot easier.
It is way too easy to ignore the United States Constitution when you are pandering and running for office and essentially say “catch them and lock them up and throw away the key”. Vilifying the judiciary is a pathetic, ignorant tactic of politicians who seek to divide in order to get elected and to ingratiate themselves with voters and to garner publicity. 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.
District Attorney Raul Torrez should read the paragraph in the May 22, 2019 letter written by District Court Judges Stan Whitaker and Charles Brown to the New Mexico Supreme Court that explains the goals of the criminal justice system:
“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.”
Torrez thinks he has problems now, but his troubles are only beginning if he continues his assault on the courts, including an uphill battle for reelection 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.
District Attorney Raul Torrez may want to spend a little time reading the United States and New Mexico Constitutions and after words take his oath of office once again.