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.”

https://www.abqjournal.com/1323251/grand-jury-cuts-akin-to-pouring-gasoline-on-a-fire.html

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.”

https://www.abqjournal.com/1325703/judges-right-to-curb-grand-juries.html

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.

https://www.petedinelli.com/2019/05/28/district-court-exposes-da-torrez-65-dismissal-mistrial-and-acquittal-rates-mayor-keller-tries-to-bail-out-da-torrez-from-preliminary-hearings/

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.

https://www.petedinelli.com/2019/05/29/da-torrez-whaaaa-i-do-not-want-to-play-anymore-im-taking-my-ball-and-going-home-da-torrez-playing-with-fire-taking-on-the-courts/

CONCLUSION

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

Following is a guest editorial column published on June 10, 2019 by the Albuquerque Journal on page A-11 calling for the negotiation and dismissal of the Court Approve Settlement Agreement:

TITLE: APD Reforms on tract; Save Millions, Drop Case

BY PETE DINELLI / FORMER ALBUQUERQUE CITY COUNCILOR, PROSECUTOR, CHIEF PUBLIC SAFETY OFFICER
Monday, June 10th, 2019 at 12:02am

This November it will be a full five years since the city entered into the Court Approved Settlement Agreement (CASA) with the Department of Justice (DOJ). The CASA was negotiated to be fully implemented over a four-year period, which is achievable given the amount of progress APD has made implementing the reforms.
APD has completed the following mandated reforms under the CASA:

1. After a full year of negotiations, the new “use of force” and “use of deadly force” policies have been written and implemented. All APD sworn officers have received training on the policies.

2. All sworn officers have received at least 40 hours crisis management intervention training.

3. APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.

4. The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use-of-force incidents.

5. Sweeping changes – ranging from APD’s SWAT team protocols, to a ban on chokeholds, to an audit of every Taser used by officers, to a re-write and implementation of new use-of-force and deadly force policies – have been completed.

6. All other federal consent decrees in the country involve in one form or another the finding of “racial profiling” and the use of excessive force or deadly force against minorities. APD’s consent decree deals with APD’s interactions and responses to suspects that are mentally ill and having psychotic episodes. “Constitutional policing” practices and methods, and mandatory crisis intervention techniques and de-escalation tactics with the mentally ill have now been implemented, with all sworn officers having received the training.

7. APD has adopted a new system to hold officers and supervisors accountable for all use-of-force incidents, with personnel procedures implemented detailing how use-of-force cases are investigated.

8. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.

9. The Repeat Offenders Project, known as ROP, has been abolished.

10. The Police Oversight Board has been created, funded, fully staffed, and a director has been hired and his contract renewed.

11. The Community Policing Counsels have been created in area commands and meet monthly.

12. The Mental Health Advisory Committee has been implemented.

13. The CASA identified that APD was severely understaffed. APD is returning to community-based policing and has gone from 850 officers and to a projected 1,000-plus by July.

14. Under the CASA, once APD achieves a 95% compliance rate in all three compliance areas, the case can be dismissed. The May APD monitor’s report found APD achieved a 100% compliance with primary tasks, 79% secondary compliance and 61% operational compliance.

15. According to the Use of Force Report for 2017 and 2018, APD’s “use of force” and “deadly force” is down, which was the primary objective of the CASA reforms.

The biggest complaint of all the DOJ consent decrees in the country is implementation and enforcement “go on and on” for years, costing millions in taxpayer dollars. With expected, continued implementation of the DOJ reforms, the spirit and intent of the CASA has been realized. A 95% to 100% compliance with all the CASA primary, secondary and operational compliance goals should be achievable within 12 months, if not sooner. The role of the federal monitor should be reduced, as well as the continued costs of the monitoring team reduced.

The city should commence negotiations immediately with the DOJ for a stipulated “Order of Compliance and Dismissal” of the CASA, and all causes of action the DOJ has against the city and APD. Otherwise, the city and taxpayers will be sucked into “year after year” of expenses and costs associated with a consent decree whose primary objective has been achieved and whose federal monitor wants another $4 million to audit progress.

Below is the link to the Albuquerque Journal Guest Commentary:

https://www.abqjournal.com/1326216/apd-reforms-on-track-save-millions-drop-case-ex-consent-decrees-terms-are-being-met-now-its-time-to-get-the-doj-to-recognize-it.html

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.

https://www.abqjournal.com/1325226/court-grand-jury-cuts-are-local-issue.html

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:

https://www.abqjournal.com/1323251/grand-jury-cuts-akin-to-pouring-gasoline-on-a-fire.html

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.
_________________________

POSTSCRIPT

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.

For related blog articles see:

DA Torrez Attacks Justice System He Took Oath Of Office to Uphold

DA Torrez: “WHAAAA, I Do Not Want To Play Anymore, I’m Taking My Ball And Going Home!”; DA Torrez Playing With Fire Taking On The Courts

District Court Exposes DA Torrez 65% Dismissal, Mistrial And Acquittal Rates; Mayor Keller Tries To “Bail Out” DA Torrez From Preliminary Hearings

They say to forget history is to repeat mistakes of the past. Today marks the 75th Anniversary of D-Day, the most important day in the lives of the “Greatest Generation”. During these very difficult times, we damn well better remember all those who served during World War II. We especially need to remember who are allies were and who they really are today, especially Great Britain and France. If not, history will repeat itself. If our elected officials forget who are allies really are, this country could be easily standing alone. This country could just as easily loose all that was preserved in time of war 75 years ago that already made this country great.

My father, 3 uncles, and my father in law all fought in World War II. My father Paul Dinelli and my Uncle Pete Dinelli, for whom I was named after, both served in the US Army during World War II when the United States was at war with Italy, Germany and Japan. My father and uncle were first generation born Americans and the sons of Italian immigrants who settled in Albuquerque in the year 1900 to live the American dream. My Uncle Pete Dinelli was killed in action when he stepped on a land mine. My father Paul Dinelli was a disabled American Veteran when he returned to Albuquerque after World War II.

My uncles Fred Fresques and Alex Fresques, my mother’s two brothers, also saw extensive combat in World War II. My Uncle Alex Freques served in England and was in the Air Force. My uncle Fred Freques saw extensive action in the US Army infantry to the point that he refused to talk about what he saw to to anyone. After the war, my Uncle Fred returned to Albuquerque and raised a family in Barelas. Over many years, my Uncle Fred was active in the Barelas Community Center and was a trainer for the “Golden Gloves” competition teaching young adults the sport of boxing.

My father in law, George W. Case, who passed away a few years ago at the age 93, served in the United States Navy during World War II and saw action while serving on a destroyer. My father in law George Case was so proud of his service that he wore a World War II Veterans cap every day the last few years of his life. After the war, my father in law George Case returned to Albuquerque was married to my mother in law Laurel Del Castillo for 50 years, raised a family of 4 girls. George eventually owed a liquor store for a few years and then went on to build, own and operate the Old Town Car wash and was in the car wash industry for a number of years.

We must never, ever forget.

There are a total of 16 candidates running for city council in the 4 city council seats that will be on the November 5, 2019 ballot. Only 31 days were given to candidates running to collect $5.00 qualifying donations to secure public financing. The time to collect donations expired on May 31, 2019.

The number of $5.00 donations needed in each city council district to qualify for public financing differs based on voter registration. The breakdown is: in District 2: 413 donations, in District 4: 393 donations, in District 6: 323 donations and in District 8: 425 donations.. On June 4, 2019 the City Clerk updated its web page listing those candidates who have submitted enough qualifying donation to secure public finance.

The final day to turn in qualifying nominating petition signatures from registered voters is June 28, 2019.

CANDIDATES FOR CITY COUNCIL

District 2 incumbent City Councilor Isaac Benton has 6 opponents seeking to replace him. The candidates are: Steve Baca (D), David B. Bearshire, Joseph Griego (D), Robert Raymond Blanquera Nelson (D), Zack Quintero, (D) and Connie Vigil, (I). 6 of 7 candidates in District 2 originally sought public financing and 4 have qualified: Benton, Griego, Nelson and Quintero.

District 4 has 5 candidates running to replace Brad Winter. Those candidates are: Brook L. Bassen, Athena Ann Christodoulou, Mary Sue Flynt, Ane C. Romero (D), Haley Josselyn Roy. Four candidates in District 4 sought public financing with one candidate notifying the City Clerk she abandoned her efforts to seek public finance.

District 6, incumbent City Councilor Pat Davis has one challenger and she is Gina Naomi Dennis (D) who is an attorney, neighborhood activists and who was a Bernie Sanders delegate in 2016 to the Democratic National Convention. Both Davis and Dennis qualified for public finance.

District 8 City Councilor Trudy Jones has one challenger and she is S. Maurreen Skowan who qualified for public financing. Trudy Jones has elected to finance her campaign with private financing and has never sought public financing of her campaigns.

QUALIFYING CONTRIBUTIONS

As of May 30, 2019, the Albuquerque City Clerk has verified qualifying donations as follows for each candidate:

DISTRICT 2- 433 Qualifying Donations Needed for Public Finance with 4 candidates qualifying.

A) QUALIFYING CANDIDATES FOR PUBLIC FINANCE:

Isaac Benton: 552 Verified, 0 Remaining To Collect, 100% Of Requirement met.
Joseph Griego: 461 Verified , 0 Remaining To Collect, 100% Of Requirement met.
Zachery A. Quintero: 532 verified, 0 remaining to collect, 100% of requirement met.
Robert Raymond Blanquera Nelson: 532 verified, 0 remaining to collect, 100% of requirement met.

B)CANDIDATES NOT QUALIFYING FOR PUBLIC FINANCE:

Steve Baca: 8 verified, 425 remaining to collect, 2% of requirement met.
Connie Vigil: 18 verified, 415 remaining to collect, 4% of required met.

DISTRICT 4 – 393 Qualifying Donations Needed For Public Finance. This is City Councillor Brad Winters District and he is not running for another term. All the candidates are seeking public finance:

A) DISTRICT 4 QUALIFYING CANDIDATES FOR PUBLIC FINANCE

Brook L. Bassan: 412 verified, 0% remaining to collect, 100% of requirement met.
Ane C. Romero: 446 verified, 0 remaining to collect, 100% of requirement met.
Haley Josselyn Roy: 428 verified, 0 remaining to collect, 100% of requirement met.

B) DISTRICT 4 CANDIDATES NOT QUALIFYING FOR PUBLIC FINANCE

Athena Ann Christodoulou: 203 verified, 190 remaining to collect, 52 % of requirement met.

NOTE: Mary Sue Flynt notified the City Clerk she abandoned her efforts to seek public finance and will privately finance. Before that she had submitted 3 verified $5.00 donations.

DISTRICT 6 – 323 Qualifying Donations Needed For Public Finance. Both candidates have qualified for public finance.

Pat Davis: 331 verified, 0 remaining to collect, 100% of requirement met.
Gina Naoi Dennis: 348 verified, 0 remaining to be collect, 100% of requirement met.

DISTRICT 8 – 424 Qualifying Donations Needed For Public Finance. Incumbent City Councilor Trudy Jones is not seeking public financing and will be relying on private donation. Her opponent S. Maureen Skowran sought public finance and has qualified:

S. Maureen Skowran – 454 verified, 0 remaining to collect, 100% of requirement met.

NOMINATING PETITION SIGNATURES

For all the City Council candidates, the qualifying period to secure qualifying nominating signatures from registered voters to be placed on the ballot is May 1, 2019 to June 28, 2019. All candidates running for city council must secure 500 nominating signatures from registered voters who live in the district. As of May 30, 2019, the Albuquerque City Clerk has verified qualifying nominating petition signatures as follows for each candidate:

DISTRICT 2 (Incumbent Isaac Benton)

Steve Baca: 61 verified, 439 more needed.
David B. Bearshire: 0 verified, 500 needed.
Isaac Benton: 371 verified, 129 more needed.
Joseph Griego: 574 verified, -0- more needed
Robert Raymond Blanquera Nelson: 224 verified, 276 more needed.
Zachery A. Quintero: 104 verified, 396 more needed.
Connie Vigil: 121 verified, 397 more needed.

DISTRICT 4 – (This is Brad Winters district and he is not running for another term.)

Brook L. Bassan: 439 verified, 61 more needed.
Athena Ann Christodoulou: 151 verified, 349 more needed.
Mary Sue Flynt: 6 verified, 494 more needed.
Anne C. Romero: 436 verified, 64 more needed.
Haley Josselyn Roy: 49 verified, 451 more needed.

DISTRICT 6 (Incumbent Pat Davis)

Pat Davis: 173 verified, 327 more needed.
Gina Naoimi Dennis: 48 verified, 452 more needed.

DISTRICT 8 (Incumbent Trudy Jones)

Trudy E. Jones: 0 verified, 500 more needed.
S. Maureen Skowran: 759 verified, 0 more needed.
You can review the full breakdown of verified donations and nominating signatures here:

http://www.cabq.gov/vote/2019-candidates

RANK VOTING SYSTEM TO BE VOTED ON BY CITY COUNCIL

Currently, under Albuquerque’s election code, a candidate for city councilor must receive at least 50% plus 1 of the vote to win an election without a run off outright. If no candidate receives 50% plus one of the vote, the top two finishers face off in a separate runoff election and whoever gets the 50% majority vote wins the election. Democrat City Councilors Isaac Benton and Pat Davis, both running for reelection, and Republican City Councilor Brad Winter, who is not running for reelection, introduced and ordinance adopting a rank choice voting system for the upcoming November 5, 2019 election. Ranked-choice voting is also known as “instant runoff”. Rank choice voting is an alternative to the city’s existing runoff election system and it is used in Santa Fe municipal elections.

With rank choice voting, voters rank all candidates in a race by preference. If, after the initial tally, no candidate has at least 50% of the first-place votes, the threshold required to win a City Council races, the candidate with the fewest first-preference votes is eliminated and the ballots are counted again. The process continues until a single candidate emerges with a majority of votes, thus eliminating the need for a separate runoff election. In other words, the ultimate winner of the election is determined with a mathematical calculation of votes listed at once on a single ballot. An elimination process is used and it eliminates the need for a runoff election and all campaigning time and costs associated with a runoff.

On Monday, 5, 2019, on a 5-4 vote, Councilor Isaac Benton successfully moved to have the Rank Voting Ordinance on the Council’s June 17 agenda which is the final opportunity to make the changes effective for the November 5 municipal election. The city must submit the necessary notice to the Secretary of State for ballots.

https://www.abqjournal.com/1323841/city-council-delays-decision-on-new-voting-process-ex-councilors-for-and-against-rcv-will-discuss-options-at-june-17-meeting.html

COMMENTARY AND ANALYSIS

CANDIDATES SHOULD SHOW UP ON RANK CHOICE VOTING

Ranked choice voting is a dramatic overhaul of the city election process. If enacted, it will be the first time the city is holding a combined election with other local government agencies. It is likely there will be significant confusion by voters dealing with a ballot mandating a listing of their preferred candidates to decide an election with no run off.

Now that the 2019 municipal election has begun and is in full swing and heating up, both City Councilors Pat Davis and Isaac Benton, who will be on the ballot, want to change the rules of the game in the middle of an election knowing full well it will give them an advantage over their opponents who are far less known. Benton and Davis could not care less about the perception and conflict of interest they have running for reelection and having the power to change the rules of the election in the middle of it.

Rank choice voting or instant runoff gives incumbents and unfair advantage because of their name identification. Davis and Benton should recuse themselves from voting on the changes to the election process because they will be on the November 5, 2019 ballot. Because of the dramatic change being advocated in the election process with rank choice voting, the city council should place it on the November 5, 2019 ballot for voters to decide and if it passes, it would be put in place for future elections.

“Rank Choice” voting sponsor District 2 incumbent City Councilor Isaac Benton has 6 opponents seeking to replace him. The candidates are: Steve Baca (D), David B. Bearshire, Joseph Griego (D), Robert Raymond Blanquera Nelson (D), Zack Quintero, (D) and Connie Vigil, (I). All 6 of the candidates running against Isaac Benton need to attend the June 17, 2019 meeting and voice their opinion on Rank Choice voting in that it will have the most impact on their race. The meeting begins at 5:00 in the Vince Griego City Council Chambers at city hall. Any member of the general public can sign up to speak before the meeting with the City Clerk, people are placed on a list, and the public is given 2 minutes each to speak. Each of the candidates should consider the June 17 meeting as their first opportunity to participate in their first city council meeting as Benton’s replacement.

PUBLIC FINANCE AND NOMINATING PETITION

Collecting the $5.00 qualifying donations for public finance is a lot easier than it looks and is in fact extremely difficult, unless you are an incumbent. People simply do not like to donate to politicians. 10 out of a total 16 candidates for City Council have qualified for public finance. To each of the 10, congratulations and thank you for your participation.

Technically, only two candidates have qualified to be on the ballot. in District 2 Joseph R. Griego running against incumbent Isaac Benton and in District 8, S. Muareen Skowran running against incumbent Trudy E. Jones are the only 2 out of 16 candidates who have secured both public financing and the required nomination petition signatures to be place on the November 5, 2019 ballot. Collecting the required number of nominating signatures is not that difficult. With 23 days left to gather nominating petition signatures from register voters it is more likely than not that a solid majority, maybe even all, of the 15 candidates will qualify for the ballot by collecting the 500 qualifying signatures.

Once all the candidates secure their positions on the ballot, the races no doubt will heat up and voters can expect knocks on the door from candidates seeking their support. All too often, it is only during election time that voters see and hear personally from their City Councilors. Usually the only time voters see their City Councilors is in news reports or at press conferences to take credit for something they had little to do with.

Voters need to take advantage of the opportunity to ask the candidates where they stand on the issues that are critical to their districts. Hopefully voters will ask Isaac Benton, Pat Davis and Trudy Jones why they were such strong supporters of the disastrous ART Bus project and why they allowed the destruction of one of the finest police departments in the country by failing to exercise their oversight authority and calling into question the previous administration’s management of APD. When its all said and done, voters must understand who they are voting for and if a candidate does indeed represent their best interests and not the candidates own personal agenda.

Councilors Pat Davis and Isaac Benton: “It’s My Job To Make Sure I Win!”; Rank Voting And Public Finance Favors Incumbents

ALB City Councilors Isaac Benton and Pat Davis Both Need To Voted Out Of Office And Thanked For Their Service

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.

https://www.abqjournal.com/1318399/da-to-unveil-new-pretrial-detention-proposal-ex-some-defendants-would-have-to-prove-they-should-be-released-pending-trial.html

https://www.petedinelli.com/2019/05/22/backass-backwards-your-presumed-violent-until-you-prove-otherwise/

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.