The ongoing saga between District Attorney Raul Torrez, Mayor Tim Keller, the Second Judicial District Court and the New Mexico Supreme Court continues regarding the use of preliminary hearings versus grand jury proceedings. A new player in the ongoing saga has now been identified in the form of the Albuquerque Chamber of Commerce, and many in the legal community and the judiciary want to know why.
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 a “preliminary hearing” schedule. DA Raul Torrez was sworn in as District Attorney on January 1, 2017 and from day one he has opposed the shift to preliminary hearings.
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. Torrez and Keller copied their letter to Stan Whitaker, the Chief Judge of the Second Judicial District and Charles Brown, the Presiding Criminal Judge for the Second Judicial District. The New Mexico Supreme Court has administrative and regulatory and rule making powers over virtually every court in the state.
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. … “
On May 22, 2019, District Court Judges Stan Whitiker and Charlie Brown responded to the Torrez-Keller letter and provided an extensive amount of statistics to the NM Supreme Court. The District Court Judges notified 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 charged by grand juries. Judges Whitaker and Brown told the Supreme Court the shift from grand jury hearings was necessary because:
“… 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 … [R]recognizing [the court’s] responsibility to push the system toward best practices to increase the use of preliminary hearings have been in the works for years.”
On May 31, 2019, Chief Supreme Court Justice Judith Nakamura wrote a letter addressed to Mayor Tim Keller and DA Raul Torrez telling them that the Supreme Court would not intervene but urging District Attorney Torrez to “participate personally in the process” and work with the Bernalillo County Criminal Justice Coordinating Council (BCCJCC) to resolve his concerns about ongoing cuts to the grand jury system, essentially telling both the DA and Mayor it was a local matter.
In her letter Justice Nakamura explained to Torrez and Keller events that occurred in 2013 and in 2016, years before either took office as District Attorney and Mayor, by saying the New Mexico Supreme Court:
“entered an order requiring each of New Mexico’s thirteen judicial districts to convene a Criminal Justice Coordinating Council comprised of local stakeholders to address criminal justice issues in their communities. Each Council was charged with identifying and implementing “data driven” policies and evidence-based practices that result in improved public safety outcomes, cost effective responses to crime and fair and efficient adjudication processes. …The impetus for the Supreme Court’s order came in part from the success of the Bernalillo County Criminal Justice Coordinating Council … initially established by the New Mexico legislature in 2013 and subsequently continued by Supreme Court order…[and it] has proven instrumental in improving the criminal justice system in Bernalillo County.”
In her letter to Torrez and Keller, Justice Nakamura also acknowledge efforts and arrangements were being made to meet with Mayor Keller to continue conversations on the matter and “other matters of mutual concern”. Justice Nakamura sent a copy of her letter to Torrez – Keller to District Court Judges Stan Whitaker and Charlie Brown which was expected. What was not expected and that came as a surprise to many in the legal community was that Justice Nakamura also sent a copy of her May 31, 2019 letter to Teri Cole, the President of the Albuquerque Chamber of Commerce.
DA RAUL TORREZ RESPONDS TO SUPREME COURT
On June 6, 2019, District Attorney Raul Torrez sent a response to Justice Nakamura’s May 31, 2019 letter. However, Torrez did not send a copy of his letter to Mayor Tim Keller, District Court Judges Stan Whitiker and Charlie Brown nor Greater Albuquerque Chamber of Commerce Terry Cole. The critical portions of the Torrez letter to the Supreme Court are as follows:
“…while I respect your request to discuss this issue at the BCCJCC, I do not believe that forum is the appropriate place to resolve this particular issue. My authority to determine how felony cases are initiated in this jurisdiction is derived from the New Mexico Constitution and confirmed by Supreme Court precedent. [Citations to NM Constitution and case law omitted]. The District Court’s unilateral policy decision to reduce grand jury availability arises from its limited, ministerial role as an administrator of the grand jury. As such, this is a question that falls squarely within the superintending control of the New Mexico Supreme Court. While I am happy to receive feedback from other criminal justice stakeholders in this county, neither my constitutional authority as the people’s elected prosecutor, nor that of the District Court, shall be limited by the judgment of the BCCCJCC.
Moreover, having personally participated in BCCJCC meetings in the past, I have no confidence that the concerns of police and prosecutors will have any effect on the District Court or other members of the committee who have repeatedly and publicly opposed our request. Indeed, this issue has been the subject of intense public debate and evaluation for nearly a year and, rather than resolving the question, your request that we air our differences in that forum is unlikely to yield consensus on the issue.
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. We will present the data and rationale to support this fair and balanced proposal and further ask that the BCCJCC vote on the resolution in a timely manner.
Finally, I ask that the Supreme court exercise its authority over the District Court and direct it not to make any additional cuts to the grand jury while we honor your request and present our resolution to the BCCJCC. Indeed, without this assurance, there is a substantial likelihood that we will be further impacted by cuts to the grand jury while the Council is considering our resolution.”
COMMENTARY AND ANALYSIS
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 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.”
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. The last time Torrez showed up to a BCCJCC meeting and had anything of substance to say was 7 months after he was elected DA. Torrez showed up to the meeting with TV News cameras and a Journal photographer in tow to make the false charge that the Judges were responsible for the all the dismissals when it was the DA’s office dismissing the overwhelming majority of cases.
It is absolutely no surprise to the legal community, and most assuredly the courts, that Torrez is not taking “NO” for an answer. In his June 6, 2019 letter he still is asking 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. DA Torrez cites the New Mexico Constitution and a Supreme Court decision on his authority to charge. Torres proclaims in his letter that the BCCJCC cannot tell him what to do. What he ignores is the fact that the New Mexico legislature and the New Mexico Supreme Court delegated authority and instructed the BCCJCC to do what it is doing. Torrez just does not like it and does not want to cooperate.
The Torrez letter is very condescending and dismissive of the courts when he writes:
“The District Court’s unilateral policy decision to reduce grand jury availability arises from its limited, ministerial role as an administrator of the grand jury. As such, this is a question that falls squarely within the superintending control of the New Mexico Supreme Court.”
If Torrez truly feels that way, he should have filed a formal Complaint seeking a “Writ of Superintendent Control” with the Supreme Court against the Second Judicial District Court to halt grand jury reductions. Torrez does know how to apply for such a writ seeing as he did so against none other than District Court Judge Stan Whitaker on one of Whitiker’s release rulings that Torrez did not like. Torrez filed the writ against Judge Whitacker in order to challenge the Supreme Court’s Case Management Order (CMO) that was created to ensure speedy trials and address the overcrowding problem at Metropolitan Detention Center. The detention center’s inmate population has steadily decreased the last three years. The case management order only applies to Bernalillo County orders on release hearings. No doubt Torrez realizes the filing of such a formal complaint would require him to practice law for a change, prove his case in a courtroom, present evidence, when writing a letter with the Mayor of Albuquerque, lobbying the Greater Albuquerque Chamber of Commerce and talking to the press is so much easier and better public relations for his image.
Chief Justice Judith Nakamura is considered by the New Mexico Bar legal community and New Mexico voters as one of the most experienced and capable Justices today on the New Mexico Supreme Court. There is little doubt she knows how to manage an entire court system and case load. For years, Justice Nakamura established a solid and respected reputation as the Presiding Judge of the Bernalillo County Metropolitan Court, the busiest court in the state, with crushing caseloads for all the judges. Justice Nakamura during her tenure with the Metro Court was able to implement many programs that streamlined the process of handling misdemeanor cases. One such Metro program was the Metro Court Traffic Arraignment Program that handles thousands of traffic cases a year with the help of the City Attorney’s Office. When she ran for Supreme Court, Nakamura made history and was elected state wide with a comfortable margin as the first Republican actually elected, not appointed, in decades to the New Mexico Supreme Court.
Confidential sources have said that Torrez sent a letter to the Greater Albuquerque Chamber of Commerce soliciting the chamber’s support with the New Mexico Supreme Court. It is more likely than not that Teri Cole has been in contact with the New Mexico Supreme Court in one form or another in support of DA Raul Torrez to promote his agenda of more grand jury time. For that reason alone, it is easy to understand why Justice Nakamura, out of a sense of courtesy, felt it necessary to send a copy of her May 31, 2019 letter addressed to DA Torrez and Mayor Keller to Teri Cole.
The Greater Albuquerque Chamber of Commerce promotes no one else’s agenda unless it feels it is in their best interests of their membership and not the general public’s. The Albuquerque Chamber of Commerce, and in particular its President Teri Cole, has a well know reputation for promoting the Albuquerque Republican business establishment agenda, lobbying the New Mexico legislature to change laws they do not like and essentially sticking their noses in political issues that they have no business being involved with in order to promote a right wing Republican agenda. The Chamber of Commerce has no business engaging in any type of lobbying tactics with the New Mexico Supreme Court. How the courts manage their caseloads and whether or not grand jury or preliminary hearing should be utilized for charging people with felonies is none of the Chambers business. Torrez was clearly out of line if in fact he asked the Chamber to lobby the Supreme Court on his behalf and it smacks of political undue influence.
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. Since taking office, Torrez has attempted to blame the courts for all of his problems and has complained about the shift to preliminary hearings and attacking the criminal justice system. Torrez made things even 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.
DA Raul Torrez needs to cease his assault on the courts and the criminal justice system, buckle down and do his job instead of looking for television cameras and reporters to blame judges and the courts for all his problems. DA Torrez needs to mend fences with the Courts by ordering his prosecutors to commence preparing cases for preliminary hearings. Otherwise there is no end in sight to the political saga that is damaging the images of both DA Raul Torrez and the Criminal Justice System.