On Sunday June 3, 2019 and Saturday, June 8, 2019 two very distinctive and very divergent opinions were published in the Albuquerque Journal, one by the Journal Editors and the other by the New Mexico Criminal defense bar regarding the ongoing saga between District Attorney Raul Torrez, the 2nd Judicial District Court and the New Mexico Supreme Court.
BACKGROUND ON THE ON-GOING SAGA BETWEEN DA TORREZ AND THE COURTS
Since mid-2015 the Bernalillo County 2nd District Court has been shifting from grand jury use to implementing “preliminary hearing” schedule. Raul Torrez was sworn in as District Attorney on January 1, 2017 and from day one he has opposed the shift to preliminary hearings. 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 District Court provided an extensive amount of statistics to the Supreme Court 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 and the shift from grand jury hearings was necessary. The Supreme Court responded to the Torrez-Keller letter refusing to intervene but 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.
Following are both the editorial opinions given followed by Commentary and Analysis:
ALBUQUERQUE JOURNAL EDITORS WEIGH IN
Editorial Title: Grand Jury cuts akin to pouring gasoline on a fire
BY ALBUQUERQUE JOURNAL EDITORIAL BOARD
Monday, June 3rd, 2019
“It all sounds fine in the pages of a criminal procedure textbook, where preliminary hearings lead to a more effective and efficient system of justice. Cases initiated when police arrest someone are carefully screened by prosecutors. Witnesses are secured, and – faced with more solid evidence sooner – defense attorneys may be more inclined to recommend a plea early in the process. Court dockets are scaled back, and judges can focus on the most important cases.
So in theory, the 2nd Judicial District Court’s push away from grand jury indictments in favor of criminal informations followed by preliminary hearings is textbook perfect. Except it ignores the reality of life in crime-ridden Bernalillo County, where violent crime and property theft are rampant.
Judges have told District Attorney Raúl Torrez they plan to further reduce grand jury time to six days a month – a quarter of the time available at one point. Torrez and Mayor Tim Keller have asked the state Supreme Court to intervene. They say we are finally making a dent in crime and less grand jury time means fewer felony charges will be brought. They also say preliminary hearings are harder on victims because they can require multiple appearances and will move cops from the street to court. Bottom line: Grand juries do not require the preparation or level of evidence preliminary hearings do to move a case forward
Minitrials put demands on police, victims
The District Court, in turn, asks justices to reject that request. The court says prosecutors can achieve better results through preliminary hearings with better-prepared cases and fewer acquittals, voluntary dismissals and mistrials. They dispute claims that APD’s already shorthanded staffing will be further depleted. And if we had federal rules, including allowing reliable hearsay, that might well be true.
But the rules of evidence apply in preliminary hearings – meaning multiple witnesses are often required – and all are subject to cross-examination. So the preliminary hearings can become minitrials. Prosecutors point out that in stolen car cases, for example, both the officer who made the arrest and the victim who didn’t give the thief permission to take the vehicle have been required to appear. In drug cases, more than one responding officer has been required.
And prosecutors stress the impact on victims. When a hearing is rescheduled – which the DA says often happens because a defendant doesn’t show up – the victim has to reschedule their life to be back in court. And after someone is arrested, there could be as little as six days for a hearing to be held – with victim and witnesses – to meet court deadlines.
Preliminary hearings not ready for prime time
Both sides present statistics in their letters to the high court that are questioned/challenged by the other. Sadly, the dispute has a “food fight” feel at times. Yet there is no argument that the DA’s Office gets about 10,000 felony referrals a year from local law enforcement. About 4,000 move forward, with the others not meeting the standard for successful prosecution or defendants are moved into diversion programs. (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 .)
There are ways to improve the criminal justice system and reduce the reliance on grand jury indictments. But other changes need to be made for the preliminary hearing track to actually work in real life as advertised. To move on one front but not the other is reckless and dangerous.”
NEW MEXICO CRIMINAL DEFENSE BAR WEIGHS IN
On Saturday, June 8, 2019 a Guest Editorial written by Richard Pugh, the president-elect of the New Mexico Criminal Defense Lawyers Association (NMCDLA) and Nick Hart a member of NMCDLA that was published in the Albuquerque Journal. The Guest Editorial is followed by a link to the full article and by additional information and Commentary and Analysis.
Title: JUDGES RIGHT TO CURB GRAND JURYS
BY RICHARD PUGH / PRESIDENT-ELECT, NEW MEXICO CRIMINAL DEFENSE LAWYERS ASSOCIATION, AND NICK HART / MEMBER, NMCDLA
Saturday, June 8th, 2019 at 12:02am
“Recently, there have been unfair and biased attacks on the judges of the 2nd Judicial District Court for disfavoring grand juries in favor of preliminary hearings. Relying on scattershot statistics, these critics contend it is impossible to charge and keep track of accused felons without the flawed grand jury system. These critics advance an argument in favor of secret unfettered prosecutorial power and seek to eliminate judicial oversight. That is just incorrect.
If an individual is accused of a felony in New Mexico, then the Constitution mandates a finding of probable cause by a grand jury or a preliminary examination conducted by a judge. The reason for this is sound: No one should be wrongfully accused or incarcerated if there is insufficient evidence against them. Today, the grand jury system is a rubber-stamp on prosecutorial decisions.
Our grand juries are comprised of 12 people, eight of whom need to agree a person should be indicted. The grand jurors hear evidence only from the prosecutor. A judge is not present during the grand jury hearing. The prosecutor chooses which evidence gets submitted and may refuse to present evidence demonstrating the accused’s side of the story.
Witnesses with direct information are seldom called to testify at the grand jury. Instead, one police officer gives 15 minutes, or less, of secondhand information for the jurors’ consideration. Attorneys for the accused are prohibited from attending the hearing or asking questions of the prosecution’s witness(es). Most concerning is that the hearing is conducted in secret, without the watchful eye of a judge, defense attorneys, the accused or the public.
Given this system, it is no surprise a judge once famously stated, “A grand jury would indict a ham sandwich, if that’s what you wanted.” And it’s no surprise other judges have criticized the grand jury for being “the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything.”
In contrast, preliminary hearings are conducted in open court and presided over by a judge who decides whether the prosecution has produced enough evidence that an accused should be charged with a crime. The accused is represented by an attorney, who is present, can introduce evidence and may cross-examine the prosecution’s witnesses. The pillars of the preliminary hearing system result in an impartial, evenhanded review of the government’s claims, and ultimately, a more just and efficient outcome.
Such changes are not unique to Bernalillo County, or even New Mexico, where most of our counties forgo the grand jury process. The United States is one of only two countries that still empanel grand juries. Most states have eliminated the grand jury as the sole method to indict a felony, while legislators in Missouri have introduced legislation to eliminate the grand jury altogether and California has limited the types of crimes that can be indicted by a grand jury.
Left out of this recent criticism, however, is that the grand jury is still an option. While there are fewer grand jury days, prosecutors can still charge someone through a grand jury, a preliminary examination in Metropolitan Court, or a preliminary examination in District Court. It is the prosecutor’s choice whether to use the secretive grand jury system or the transparent preliminary hearing system designed for fundamental fairness to all.
Fewer grand juries and more preliminary hearings is good for the courts, good for the public, and the right choice. No person should be forced to defend themselves of unwarranted charges, and the consequences of those accusations, based on a rubber stamp from a broken system. Bernalillo County’s District Court judges should be praised rather than chastised for making these measured and necessary improvements to our criminal justice system.”
COMMENTARY AND ANALYSIS
The Albuquerque Journal consistently puts District Attorney Raul Torrez on its front pages and in its editorials in a positive light. Torrez is also known for his availability to all three local TV stations to comment on pending cases and giving news conferences. That is why it was surprising that in its June 3, 2019 editorial in support of Torrez advocating for more grand jury time, the Albuquerque Journal noted “Unfortunately, Torrez hasn’t helped his cause by not personally and regularly attending meetings of the Criminal Justice Coordinating Council, where these issues [of scheduling preliminary hearings] are supposed to be hashed out.”
It is laughable when Torrez and the Journal refer to “preliminary hearings” as mini trials when they are “probable cause” hearings that only require the most minimum amount of evidence presented for a judge to decide if charges should be filed. What is hysterical is when the Journal says “preliminary hearings not ready for prime time” when the Distinct Court has been working on the transition since mid 2015 with law enforcement stake holders. It has been District Attorney Raul Torrez who has refused to even attend meetings except to show up once with TV news cameras and a Journal photographer. What is not a laughing matter and unfortunate is the Albuquerque Journal refers to the dispute between the courts and Torrez as having a “food fight feel at times” when the delicate balance between public safety and people’s constitutional rights of due process and a presumption of innocence are at stake.
The media have bought into the DA’s bogus argument that the courts are responsible for high violent crime rates and the “revolving door” without acknowledging that Torrez and his office are part of the problem.
What is irresponsible is the local media fail to report that the District Attorney’s Office under the leadership of Raul Torrez has:
1) A 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries;
2) The move to preliminary hearings is critical given the historic failure of the District Attorney’s Office to properly screen and indict cases;
3) District Attorney Torrez complains about a lack of resources yet has failed to fill 50 vacant positions within his office, including 17 attorney positions
It is truly amazing that the New Mexico Trial Lawyers Association write a very well written guest editorial to the Albuquerque Journal on the need for preliminary hearings without evening mentioning the person they really have a major beef with: Bernalillo County District Attorney Raul Torrez. Both Richard Pugh and Richard Hart with the New Mexico Criminal Defense BAR are commended for their diplomacy and being gentleman. However, what needs to be exposed is what is going on with the Bernalillo County District Attorney’s Office under the leadership of District Attorney Raul Torrez. Their failure to mention his name says that Raul Torrez has become “Lord Voldemort” , also known as “He Who Shall Not Be Named”, by the New Mexico Criminal Defense bar.
DA’s FAILURES REASON FOR CHANGE TO PRELIMINARY HEARINGS
On May 22, 2019, the State District Court wrote a response letter to the New Mexico Supreme Court responding to a request by Raul Torrez and Mayor Tim Keller for intervention to stop the Second Judicial District Court from reducing the use of the grand jury. In their written response to the Torrez-Keller letter to the Supreme Court, the District Court Judges did not mince any words when they wrote:
“… 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, bar graphs and pie charts to the New Mexico Supreme Court 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.
Since August of 2015, the 2nd Judicial District Court has worked with law enforcement defense lawyers and the Bernalillo County Criminal Justice Coordinating Council (BCCJCC) 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 has made things worse when he notified the District Court in May, 2019 that his office would no longer schedule preliminary hearings in State District Court.
DA’S FAILURE TO STAFF
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 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. By many accounts, the District Attorney’s Office has become a revolving door with resignations and terminations.
It is becoming more and more concerning that not even the District Court nor the New Mexico Supreme are going to be able to dispel the love spell Lord Voldemort Torrez has placed on the local media for him.
When Raul Torrez ran for District Attorney in 2016, he proclaimed the judicial system was broken in Bernalillo County and he was the guy who could fix it and he demanded more resources. By objecting to a preliminary hearing system, District Attorney Raul Torrez is leaving himself open to the charge that he is the one who is actually gaming the system with use of grand juries and resisting preliminary hearings. The statics showing a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries is alarming and many within the legal community believe it is the historical high for the office.
In 2018, Torrez secured another $4.5 million from the New Mexico legislature to hire more prosecutors. Torrez has a $21.5 million-dollar budget and more resources he could dedicate to preliminary hearings. Now that the District Court wants to do more preliminary hearings, Torrez objects to it saying it will be too labor intensive for his office and crime rates will go up. Confidential sources within the District Attorney office claim that moral is at an all-time low, Torrez and his deputies micro manage the office refusing to let attorneys make prosecutorial decisions and Torrez is unable to recruit anyone to work for him.
Preliminary hearings should be the mandatory approach to charge all violent crime cases, including homicides, rapes, armed robberies and domestic violence cases by the District Attorney. Torrez thinks he has problems now, but his troubles are only beginning, including an uphill battle for reelection if he does not get his act together, buckle down and do his job, fill all the vacant positions he has instead of looking for television cameras and reporters to blame judges for all his problems.
Following are two related blog articles:
NM Supreme Court To DA Torrez and Mayor Keller: “Your Objections Are Overruled, Torrez Get To Work Cooperating”
District Court Exposes DA Torrez 65% Dismissal, Mistrial And Acquittal Rates; Mayor Keller Tries To “Bail Out” DA Torrez From Preliminary Hearings