In mid May of this year, Bernalillo County District Attorney Raúl Torrez proposed a new constitutional amendment that would require defendants accused of certain crimes to show and convince a judge that they should be released pending their trial on the charges. There are 29 states that have rebuttable presumptions of detention for defendants charged with specific violent crimes.
According to Torrez, cases where a defendant would be required to show they do not pose a threat to be released pending 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. The Constitutional amendment would allow detainment of a person for dangerousness, flight risk or obstruction of the criminal justice process.
A presumption of dangerousness would be applied to specific charges, including violent felonies, firearm possession, intimidation of witnesses and felonies committed while on probation or parole. With the presumption of dangerousness, the legal burden of proof will be on the defense to prove the person is not dangerous and would be required to collect and present compelling evidence to a judge that the accused should be released pending a trial, if a trial ever in fact occurs and the charges are not dismissed.
Under such presumption, a person who is merely charged with a violent crime is presumed violent and an immediate danger to the public and must be held in jail until trial. 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.
Torrez argues the changes will simplify and strengthen the detention process, restore it to its original public safety purpose and rebuild confidence in the criminal justice system.
UNM STUDY OF “PRESUMPTION OF NO BAIL” CONSTITUTIONAL AMENDMENT
The University of New Mexico Institute for Social Research studied and reviewed the proposal by DA Torrez to change by constitutional amendment the way pretrial detention is handled in New Mexico. The study was done at the request of former New Mexico Supreme Court Justice Charles Daniels who pushed for the current pretrial detention system which voters approved overwhelmingly in 2016. The final report was prepared by Paul Guerin the director of UNM’s Center for Applied Research and Analysis. The study called into serious question the effectiveness and outcomes to change the way pretrial detention is handled in New Mexico thereby discrediting the arguments made by District Attorney Raul Torrez.
The UNM study found no evidence that Torrez’s proposal would improve public safety. Based on a review of cases in which a defendant was released despite the DA’s requesting detention, Guerin found that preventive detention motions filed by the District Attorney’s office did not have “substantively” improved public safety as opposed to those cases in which no detention motions were filed.
Guerin’s study report recommends that the rebuttable presumption proposal be scaled way back by saying:
“If rebuttable presumption use is limited to cases in which defendants are charged with offenses punishable by life imprisonment, and other pretrial detention decisions are left to judges’ discretion and informed by risk assessment tools like the PSA, they can ensure reputation protection [for the criminal justice system] and align with national standards without undermining public safety. ”
Guerin cites research showing that a defendant’s current charge alone does not predict involvement in future dangerous crimes. He reported that some of the offenses or statutes the DA lists in his pretrial detention proposal “are arguably questionable indicators of dangerousness.” It was noted that many of the factors are already taken into consideration by the Arnold Venture’s Public Safety Assessment, a tool judges use when deciding to detain someone.
The UNM study looked at more than 7,000 cases filed from July 2017 to August 2018 as part of the review. There were 1,500 cases that had preventive detention motions filed by the District Attorney’s Office. Of those preventive detention motions, 46% were granted and 54% were denied.
The review found no substantial differences in failure to appear and in new criminal activity rates between defendants for whom the DA did not request detention and those who were released despite the DA’s requesting detention. In all, the study found that 17% of those denied cases picked up a new charge. Only 2.9% more of those defendants in denied motions failed to appear in court, and only 2% more picked up new charges.
The UNM Institute for Social Research Study reported that the rebuttable presumptions of detention being proposed could actually jeopardize public safety in two ways:
First, limited detention resources are used on those who could be released or supervised while more dangerous defendants are released.
Second, the report found that studies show unnecessary detention can lead to higher recidivism rates if defendants lose their jobs or their homes, or suffer other disruptions because of their detentions.
DEFENSE BAR REACTION TO REPORT
Richard Pugh, the president of the New Mexico Criminal Defense Lawyers Association, quickly jumped on the findings and said:
“This study shows there is no place in the criminal justice system for broad generalizations and a one-size-fits-all approach. … The study further shows that the district attorney’s proposal to expand pretrial detention is not grounded in statistical support.”
Assistant Public Defender Jonathan Ibarra made a somewhat harsh comments about the District Attorney office when commenting on the Guerin report by saying:
“I know the judges take very seriously the detention hearings – different judges have different ideas – but they all take that responsibility very seriously … I think the issue is that the district attorney over files and underperforms.”
A DEFIANT DISTRICT ATTORNEY
DA’s Office spokesman Michael Patrick disputed the UNM study and defended Torrez’s proposed constitutional amendment by saying:
“[The community is upset with the] catch-and-release system that routinely puts armed and dangerous criminals back on our streets. … Rather than trying to prop up an obviously broken system, leaders in Santa Fe should listen to the community and follow the lead of other progressive jurisdictions – like California – that have enacted responsible bail reform measures that also include presumptions for armed and violent offenders. … There are numerous examples of dangerous criminals we have tried to detain, only to see them be released to commit a new violent crime. Enough is enough.”
DO NOT BELIEVE WHAT HE SAYS HE WILL DO UNTIL HE DOES IT
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. 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. 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.
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 increasing 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 … ”
Confidential sources have confirmed that DA Torrez attended the last meeting of the BCCJCC. Despite his assurances to the Supreme Court, Torrez failed to present a resolution to the BCCJCC to increase grand jury time. To the surprise of many on the BCCJCC, Torrez did not even raise the issue of scheduling and increasing grand jury time despite the fact that news media were attending to report on the meeting.
THIRD TIME DA TORREZ DISCREDITED
The UNM Institute for Social Research study is the third time in the last 2 years that the ideas and positions of District Attorney Raul Torrez have been discredited with review and analysis. The other 2 are as follows:
FIRST: 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 that discredited Torrez. The District Court found that it was the DA’s Office that was dismissing the majority of violent felony cases, not the courts.
SECOND: 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 to charge people with serious felonies. DA Raúl Torrez notified District Court that his office would no longer schedule preliminary hearings in State District Court after writing the New Mexico Supreme Court asking it to intervene and require the District Court to schedule increases in grand jury time. The District Court responded and told the Supreme Court that preliminary hearings were necessary, would require better screening of cases by the District Attorney. The District Court provided statistics that the DA’s Office has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries. It is the DAs office that was “gaming” the system by overcharging cases it was unable to get convictions on resulting in the office voluntarily dismissing cases, acquittals or mistrials.
COMMENTARY AND ANLYSIS
When DA’s Office spokesman Michael Patrick disputed the UNM study and said “enough is enough” he should have been talking to his boss Raul Torrez. Three times Raul Torrez has been discredited. DA’s Spokesman Michael Patrick needs to deliver that message to Torres and tell him to cease his assault on the courts and the criminal justice system.
Torrez needs to recognize 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” or “to hell with constitution, that person is guilty and should be in jail until trial”. 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.
Sooner rather than latter, Raul Torrez should get the message that if he continues his assault on the courts, he will face an uphill battle for reelection if he does not get his act together and stop the under performance of his office. District Attorney Raul Torrez needs to buckle down and just do his job instead of looking for television cameras and reporters to blame judges and the courts for all his problems.
DA RAul Torrez needs to mend fences with the Courts if he truly wants to 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 image of DA Raul Torrez and ruining his chances for another term.