On May 10, 2019, Bernalillo County District Attorney Raul Torrez and Albuquerque Mayor Tim Keller 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 New Mexico Supreme Court has administrative and regulatory and rule making powers over virtually every court in the state.
The 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 he has opposed the shift to preliminary hearings.
DA Torres and Mayor Keller wrote to the Supreme Court in part:
“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].
“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. … “
Torrez and Keller wrote that when the District Court’s reduction in grand jury time is fully implemented, it would offer grand jury capacity for “fewer than 10% of all referred felony cases.” According to their letter, prior to 2015 the District Court Court offered grand jury capacity for around 6,000 indictments per year.
On May 22, 2019, the State District Court wrote a response letter to the New Mexico Supreme Court responding to the Torrez-Keller request for intervention. In their written response to the Torrez-Keller letter to the Supreme Court, the District Court 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.”
DA’s 65% COMBINED DISMISSAL, ACQUITTAL AND MISTRIAL RATE
The District Court provided an extensive amount of statistics that the Bernalillo County District Attorney’s Office under Raul Torrez has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries. The data presented showed in part how overcharging and a failure to screen cases by the District Attorney’s Office is contributing to the high mistrial and acquittal rates. 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.”
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.
THE SUPREME COURT DECLINES TO INTERVENE
On May 31, 2019, Chief Justice Judith Nakamura responded to the Torrez-Keller letter urging District Attorney Torrez to work with the Bernalillo County Criminal Justice Coordinating Council (BCCJCC) to resolve his concerns about ongoing cuts to the grand jury system.
Chief Justice Judith Nakamura said the Supreme Court refused to intervene by writing:
“We believe the issue raised in your letter is more appropriate for review, discussion and resolution by the [Bernalillo County Criminal Justice Coordinating Council (BCCJCC)] at this time … A successful resolution however, will depend upon the full and cooperative participation of key stakeholders, a thorough review of all the data, and a willingness to consider both evidence-based best practices and community needs.” Nakamura urged Torrez to “participate personally in this process or, at a minimum, designate a representative with policy and decision-making authority to attend on … [your] behalf.”
The BCCJCC consists of 11 council members, including the chief judges of the District and Metropolitan Court, the DA’s office, the district public defender, the sheriff, police chief and others. The BCCJCC has been in existence for upwards of 30 years and its goals have always been to identify issues in the legal system along with potential solutions and to maximize efficient use of resources.
Bernalillo County Commissioner Maggie Hart Stebbins serves as chairwoman of the BCCJCC, and said that the council is the appropriate place to discuss the preliminary hearing system by saying:
“[BCCJCC is] a mechanism that was established specifically to bring all entities to the table to resolve issues that arise in the criminal justice’s system.”
Chief Public Defender Ben Baur, who also sits on the BCCJCC, agreed with Commissioner Hart Stebbins that the purpose of the council is to address conflicts in the criminal justice system and find solutions. Bauer added: “In the same way that preliminary hearings are designed for everybody to understand a particular case early in the process and make decisions, the coordinating council is designed so that people’s ideas and proposals get vetted and discussed early in the process. ”
On June 6, 2019, DA Torrez wrote back to Chief Justice Nakamura asserting he has no confidence that the concerns of prosecutors and police will have an effect on the members of the BCCJCC proclaiming it has repeatedly opposed the request for more grand jury time. Torrez wrote:
“Despite these misgivings, I will personally ask the BCCJCC to vote on a resolution that we maintain sufficient grand jury capacity to handle no less than 1/3 of our current felony referrals and that no additional cuts be considered until the crime rate in this community matches the rest of the state … ”
Michael Patrick, the spokesman for the DA’s Office, stated the office receives around 10,000 felony referrals each year and that about 4,000 cases are filed in State District Court each year. According to Patrick “We are forced to leave roughly 60 percent of referred cases on the table because the current system can’t handle it.”
Refusing to take no for an answer, DA Torrez has asked Justice Nakamura to direct the court to halt the planned cuts to the grand jury system as he makes his presentation to the BCCJCC.
COMMENTARY AND ANALYSIS
The fact that District Attorney Raul Torrez is not taking “NO” for an answer and asking Justice Nakamura and the Supreme Court to direct the District Court to halt the planned cuts to the grand jury system until he makes a presentation to the BCCJCC should come as absolutely no surprise to anyone. Since day one of being sworn into office as District Attorney, Torrez has done nothing but complain about lack of resources, despite having 50 vacant position within his office including 17 vacant “at will” attorney positions, and attempting to blame the courts for all of his problems and complain about the shift to preliminary hearings and attacking the criminal justice system. For more detail, see the below postscript to this article.
It was no accident that Justice Nakamura urged Torrez to “participate personally in this process or, at a minimum, designate a representative with policy and decision-making authority to attend on … [your] behalf.” The problem has been that Torrez himself has repeatedly failed to attend BCCJCC meetings. Even the Albuquerque Journal, which consistently puts Torrez on its front pages in a positive light, noted in a recent editorial about the shift to preliminary hearings when it wrote “Unfortunately, Torrez hasn’t helped his cause by not personally and regularly attending meetings of the Criminal Justice Coordinating Council, where these issues are supposed to be hashed out.” You can read the full editorial at this link:
Torrez has made things worse when he notified the District Court that his office would no longer schedule preliminary hearings in State District Court after he and Keller wrote the New Mexico Supreme Court asking it to intervene. Since August of 2015, the 2nd Judicial District Court has worked with law enforcement and defense lawyers to gradually increase the use of preliminary hearings in lieu of grand jury proceedings. The BCCJCC has been arguing for some time over the best way to launch new cases in District Court, but Torrez has been nowhere to be found.
Torrez troubles are only beginning if he continues his assault on the courts and the criminal justice system, 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 and the courts for all his problems.
Since taking office on January 1, 2017, District Attorney Raul Torrez has attacked the New Mexico criminal justice system on three major fronts:
FIRST: Torrez accused the judges of being the source of our high violent crime rates saying the criminal justice system is a “revolving door”. 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, Torrez had the DA’s Office issue a report that outlined the problems he perceived since the issuance by the Supreme Court of the Case Management Order (CMO). The main points of the DA’s 2016 report were that defense attorneys were “gaming” the systems discovery deadlines, refusing to plead cases, demanding trials or dismissal of cases when not given evidence entitled to under the law. The District Court did their own case review of statistics and found that it was the DA’s Office that was dismissing the majority of violent felony cases, not the courts.
SECOND: Torrez objects to the District Courts shift from grand juries to preliminary hearings proclaiming in part his office does not have the resources. The truth is 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.
THIRD: The most nefarious conduct to attack the court’s and our criminal justice system is when Torrez promotes a Constitutional Amendment 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.
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