On Saturday, July 9, the Albuquerque Journal published a front page, below the fold story entitled “City launching initiative to address broken criminal justice system”. The link to the full article is here:
According to the report, the city is convening a series of 5 meetings scheduled through to September with law enforcement and community partners to address what authorities are calling a “broken criminal justice” system. Participants and co-sponsors include Mayor Tim Keller, Governor Michelle Lujan Grisham, Attorney General Hector Balderas, Bernalillo County District Attorney Raúl Torrez, Chief Public Defender Bennett Baur, members of the New Mexico Senate and House of Representatives, Albuquerque City Council members, the Albuquerque Police Department, the New Mexico State Police, the Office of the Superintendent of Insurance, the New Mexico Crime Victims Reparations Commission, the Albuquerque Community Safety Department, representatives from the Metro and District Courts, representatives from Central New Mexico Community College and New Mexico Highlands University, the Serenity Mesa and Endorphin Power substance abuse centers.
According to the report, a hypothetical case study will be used during the meetings with law enforcement and community partners to address the “broken criminal justice system”. The sessions will address opportunities for early intervention, detention, diversion and hearings, resources for victim advocates and offender re-entry, and career pipelines. Each session will have panelists and experts, guided by a facilitator who will prompt the experts to provide commentary on the case study. After the panel discussion, a question-and-answer period will occur.
The ultimate goal of the program is to develop a list of things that need to be done, who will work on those recommendations and when the recommendations will be completed.
PARTICIPANT’S COMMENTS ON SESSIONS
Not at all surprising, Mayor Tim Keller did a photo op standing in front of group participants proclaiming:
“Our goal is not a lengthy report. … Our goal is not a study. Our goal is to say ‘OK, here’s a couple of things in each department that we’re going to do that is going to move the needle on fighting crime in our criminal justice system.”
Keller added that the plan is to take the list compiled by the initiative to lawmakers so they can all support each other in asking for additional funding.
Chief Administrative Officer Sarita Nair had this to say about the city initiative:
“I think all of us partners in the criminal justice system are tired and frustrated. … At the same time, we’ve all been tired and frustrated long enough that we’re ready to do things a little differently. The thing specifically that I think we’re ready to do differently is that them versus us piece of it. By that what I mean is when something goes wrong, all of us … are very likely to point to some other part of the criminal justice system.”
APD Chief Harold Medina acknowledged that the Albuquerque Police Department has a history of botched criminal investigations and said:
“I’m saying I want to know how we can be better. … I want people to point out and say ‘these are the processes you need to fix for us to have a successful criminal justice program.’ And I want to be able to come back and say ‘this is what we will be working on fixing’… that’s one of the key aspects – everybody being honest and listening to the feedback they get and making the changes they need to make.”
Bennet Baur with the Office of the Public Defender expressed the opinion that the program “will help address the deep-seated social issues that surface in the criminal justice system” and that he believes the Law Offices of the Public Defender “can bring a unique and important perspective to this conversation.”
Camille Baca, the Metropolitan Court spokeswoman, said the court welcomed the opportunity “to work alongside longstanding justice partners to evaluate and improve systems in place and actively engage with the community.”
Attorney General Hector Balderas said that several years ago, following the murder of Rio Rancho Police Department officer Gregg “Nigel” Benner, his office compiled a report that laid out a “holistic” approach to address how systemic gaps in intervention and prevention led Benner’s killer to be out of jail. Balderas had this to say:
“The recommendations went nowhere … But I think what I’m going to convey – and I appreciate the mayor’s leadership on this – is that in addition to that transformational conversation, there should be specific recommendations. Where we have failed in the past, is not independent recommendations, we do not have an interdependent strategy for accountability as it relates to prevention, and harm reduction.”
KELLER’S VIOLENT CRIME PREVENTION PROGRAMS
In 2019, Mayor Tim Keller reacting to the spiking violent crime rates, announced 4 programs in 9 months to deal with and bring down the city’s high violent crime rates . Those APD programs are: the Shield Unit, Declaring Violent Crime “public health” issue, the Metro 15 Operation, “Violence Intervention Plan” (VIP Program). Those initiatives involve early intervention and partnership with other agencies. The 4 initiative are:
1. The Shield Unit
In February 2018 the Albuquerque Police Department (APD) created the “Shield Unit”. The Shield Unit assists APD Police Officers to prepare cases for trial and prosecution by the Bernalillo County District Attorney’s office. The unit originally consisted of 3 para legals. It was announced that it is was expanded to 12 under the 2019-2020 city budget that took effect July 1, 2019.
2. Declaring Violent Crime “Public Health” issue
On April 8, 2019, Mayor Keller and APD announced efforts that will deal with “violent crime” in the context of it being a “public health issue” and dealing with crimes involving guns in an effort to bring down violent crime in Albuquerque. Mayor Keller and APD argue that gun violence is a “public health issue” because gun violence incidents have lasting adverse effects on children and others in the community that leads to further problems.
3. The “Violence Intervention Plan” (VIP program)
On November 22, Mayor Tim Keller announced what he called a “new initiative” to target violent offenders called “Violence Intervention Plan” (VIP). The VIP initiative was in response to the city’s recent murders resulting in the city tying the all-time record of homicides at 72 in one year. Mayor Keller proclaimed the VIP is a “partnership system” that includes law enforcement, prosecutors and social service and community provides to reduce violent crime. According to Keller vulnerable communities and law enforcement will be working together and building trust has proven results for public safety. Mayor Keller stated:
“… This is about trying to get these people not to shoot each other. …This is about understanding who they are and why they are engaged in violent crime. … And so, this actually in some ways, in that respect, this is the opposite of data. This is action. This is actually doing something with people. …”
4. The Metro 15 Operation program.
On Tuesday, November 26, 2020 Mayor Tim Keller held a press conference to announce a 4th program within 9 months to deal with the city’s violent crime and murder rates. At the time of the press conference, the city’s homicide count was at 72, matching the city’s record in 2017.
Before 2017, the last time the City had the highest number of homicides in one year was in 1996 with 70 murders that year. Keller dubbed the new program “Metro 15 Operation” and is part of the Violence Intervention Program (VIP) program. According to Keller and then APD Chief Michael Geier the new program would target the top 15 most violent offenders in Albuquerque. It’s the city’s version of the FBI’s 10 most wanted list.
Links to news coverage are here:
According to Chief Administrative Officer Sarita Nair, the 4 city initiatives to bring down violent crime are working and she said:
“The city is taking those strategies to the larger system … to be productive. … Those were all sort of baby steps towards what we’re hoping is taking that inter-agency approach into the larger systemic problems.”
COMMENTARY AND ANALYSIS
All of the participants in the city initiative should already know what the hell is wrong with the state’s criminal justice system. Simply put, they just do not want to admit they are the problem and are failing. Too many of them find it all too easy to declare the system is “broken” when much of the problems they will be talking about would simply go away if they would just concentrate on doing their jobs in a competent and effective manner. This is especially true for prosecutors, defense attorneys, judges and elected officials alike who are reluctant to make the difficult decisions, enforce the law, increase penalties and have a fear being held accountable or exposed for incompetency always with their eyes on the next election.
When a person who becomes a victim of crime, especially children who are abused and even murdered, it is because of the failure of the support system, such as social workers and case workers with the Children Youth and Families Department, who are negligent or who simply did not do their jobs or simply do not care. The state has seen way too many cases of child abuse cases and murdered children who were in the system as victims of neglect and abuse and reluctant social workers and even law enforcement ignoring reports and who decline to gather evidence. It is hard to forget the case where an APD detective declined to tag into evidence a 10-year-old child’s bloody underwear after her teacher reported child abuse. Her father went on to be prosecuted. The city saw Mayor Tim Keller and his former Chief of Police Geier argue that the officer did nothing wrong and defended the officers actions only later to reverse themselves and order an internal affairs investigation after a public outcry. Keller’s use of the law enforcement jargon “bag and tag” made him look foolish.
Criminal prosecutions are only as good as the cases put together and evidence gathered by law enforcement. In a criminal trial setting, garbage in and the lack of evidence becomes garbage out with not guilty verdicts and dismissals. APD Chief Harold Medina acknowledged this when he said that the Albuquerque Police Department has a history of botched criminal investigations.
For the past three years, the city’s homicide clearance percentage rate has been in the 50%-60% range. In 2016 the APD homicide clearance rate was 80%. In 2017, it was 70%. In 2018, Keller’s first full year in office, the homicide clearance rate was 56%. In 2019, the second year of Keller’s term, the homicide clearance rate was 52.5%, the lowest clearance rate in the last decade. In 2020 the clearance rate has dropped to 50% and to approximately 30% thus far this year.
APD HOMICIDE UNIT HAS SHAMEFUL HISTORY OF BOTCHED INVESTIGATIONS
The APD Homicide Unit has a dubious history of botching any number of high-profile murder investigations. The APD Homicide Unit has compiled a history of not doing complete investigations, misleading the public, feeding confessions to people with low IQs, getting investigations completely wrong and even arresting innocent people.
A listing of APD’s homicide investigations reflecting negligence include:
2005 to 2008: Robert Gonzales: A a mentally retarded young man was arrested by APD and charged with the rape and murder of an 11-year-old neighbor. Weeks after the arrest DNA evidence confirmed Gonzales was not the offender. The Homicide and the Bernalillo County DA never turned this evidence over to the court and defense attorneys. Only after Gonzales spent 965 days in jail for a crime he didn’t commit and and only after he was released by the judge was the DNA evidence exposed.
2007 to 2011: Michael Lee and Travis Rowley, working as a group of salesmen, were arrested and charged with the murders and rape of an elderly Korean couple. Both Lee and Rowley had below normal IQs. Lee confessed to the murders, Rowley did not. Shortly after the arrests, DNA evidence excluded both men and confirmed that Albuquerque serial killer, Clifton Bloomfield was the offender. APD and the DA kept both men locked up for over a year before they were released.
2015 to 2016: Christopher Cruz and Donovan Maez are wrongly arrested for the murder of Jaydon Chavez Silver. They spent10 months in jail before the Bernalillo County DA reviewed the entire case sent to them by APD Homicide, finding that there was no evidence that Cruz and Maez were involved. APD Homicide is alleged to have fed witnesses information for them to repeat in interviews and threaten witnesses to provide false information.
10-YEAR-OLD VICTORIA MARTENS MURDER
The most egregious negligent murder investigation was the murder investigation of 10-year-old Victoria Martens. On August 24, 2016, she was murdered, dismembered and her body was burned in a bathtub. The initial APD Homicide investigation alleged that it was Jessica Kelley that stabbed 9-year-old Victoria Martens and that Fabian Gonzales strangled her while Michelle Martens, the child’s mother, watched the murder.
Gonzales was accused of drugging, raping and killing 10-year-old Victoria. After further investigation, Bernalillo County District Attorney Raul Torrez was forced to abandon the prosecution’s theory of the case and forced to drop the rape and murder charges against Gonzales. DA Torrez then accused Gonzalez of helping his cousin dismember the body of 10-year-old Victoria Martens after the child was reportedly killed by an unidentified man who was looking for Gonzales for revenge.
It was revealed that Jessica Kelley did not murder the child. Michelle Martens falsely admitted to committing the crimes. Forensic evidence revealed she and her boyfriend Fabian Gonzales were not even in the apartment at the time of the murder, they did not participate in the murder and that there was an unidentified 4th suspect in the case who committed the murder with supposedly DNA evidence found on the child’s dead body. The unidentified 4th suspect in the case is still at large.
A criminal prosecution cannot occur unless the prosecuting agency, usually the District Attorney, actually charges an offender and brings them to justice. When DA Torrez ran for Bernalillo County District Attorney the first time, he said our criminal justice system was broken, it was in dire need of change and he was the guy to fix it. He is now running for Attorney General.
Within six months after being elected the first time, Torrez had his office prepare a report on the statistics regarding the number of felony cases that were being dismissed by the District Court. Torrez accused the District Court for being responsible for the rise in Albuquerque crime rates and releasing violent offenders pending trial. District Attorney Raul Torrez also accused defense attorneys of “gaming the system” in order to get cases dismissed against their clients.
A subsequent report prepared by the District Court revealed that it was the District Attorney’s office that was in fact voluntarily dismissing far more felony cases for various reasons, including his office not being prepared for trial, the office’s failure to meet discovery deadlines, and prosecutor’s failure to turn evidence over to defense counsel as mandated by law and discovery court orders. The Bernalillo County District Attorney office currently has the highest voluntary dismissal rate in its history and indicts less than half what it would indict 10 years ago.
Deserving or not, the courts are viewed as part of a broken criminal justice system. That negative perception is aggravated when individual judges appear to be way too lenient in releasing people pending trial, suppress evidence, dismiss cases and impose light sentences for heinous crimes.
The competency of elected judges always comes into play when they are evaluated by the New Mexico Judicial Performance Evaluation Commission (JPEC) for voter retention. In 1997, the JPEC was established after the New Mexico Judiciary went from a system of strict partisan elections to a “hybrid” system of one partisan election followed by retention elections.
Once a judge is appointed or are elected first in a partisan race by 50% plus one of the vote, that judge faces a retention vote for subsequent terms and must garner 57% of the vote to be retained. Any Judge who does not secure a “YES” vote from 57% of those voting on their retention are removed from office and the Governor then appoints a judge to fill the vacancy. A do not retain recommendation by the JPEC usually results in a judge being removed by voters. The problem is that the JPEC has become somewhat of a farce and considered by many within the bar as a “political hit job committee” when they issue their recommendations relying on poll numbers of those who appear before the judges or for that matter those who work in the court system itself. A judge’s decision and rulings are never universally liked by parties to the lawsuit, let alone the general public, and judicial decorum is always the responsibility of the judge to maintain.
It’s common knowledge amongst trial attorneys that Judges always have their eyes on how they are being perceived by the attorneys who appear before them, the public and the JPEC. Judges are always concerned about their disqualification rates on cases as well as decisions they make that are appealed. One result is that Judges are reluctant to make decisions or hold off on making decisions as long as possible to avoid controversy and to protect their jobs. One of the best examples of this is when virtually all the Second Judicial District Court Judge have recused themselves from hearing Manny Gonzales’ appeal of the City Clerk’s denial of the $661,000 in public finance. These judges are judges assigned to civil dockets, they are not required to list their reasons for disqualifying themselves and therefore no one knows the reason why other than the case is politically charged.
The New Mexico Supreme Court will now appoint a “pro temp” judge to hear the case, likely a retired judge who will not have to worry about public perception or stand for retention.
BAIL BOND REFORM
On November 8, 2016, the “New Mexico Denial of Bail Measure” was approved by New Mexico voters by a landslide vote.
The Constitutional Amendment amended the New Mexico Constitution to change the conditions under which a defendant can be denied bail and not released from custody pending trial. The Constitutional Amendment was designed to retain the right to pretrial release for “non-dangerous” defendants.
Before passage of the amendment, a defendant’s bail and release from jail pending trial on charges could be denied:
1. Only for a defendant charged with a capital felony, or
2. A defendant has two or more felony convictions or
3. A defendant is accused of a felony involving the use of a deadly weapon if the defendant has a felony conviction in New Mexico.
The adopted amendment changed these requirements, allowing bail to be denied to a defendant who has been charged with a felony only if the prosecutor can prove to a judge that the defendant poses “a threat to the public.”
The adopted amendment also provides that a defendant who is not a danger to the community or a flight risk cannot be denied bail solely because of the defendant’s financial inability to post a money or property bond.
A “YES” vote supported allowing courts to deny bail to a defendant charged with a felony if a prosecutor shows evidence that the defendant poses a threat to the public, while also providing that a defendant cannot be denied bail because of a financial inability to post a bond.
A “NO” vote opposed the changes in bail thereby keeping the state’s specific requirements that bail could be denied to a defendant charged with a felony if the defendant also had prior felony convictions in the state.
The final vote was 87.23%, with 616,887 voting YES and 12.77%, with 90,293 voting NO.
District Attorneys throughout the state argued the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, made it way too difficult for them to do their jobs and prove to a judge that a defendant poses a threat to the public justifying that a violent felon be denied bail and be held in custody pending trial.As crime rates increased judges were accused of allowing “catch and release of violent felons”.
Things got so bad that some District Attorneys backed a proposed 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.
The proposed constitutional amendment never gained traction likely because it is well settled constitutional law the prosecution has the burden of proof in our criminal justice system. Our criminal justice system is not based on a “presumption of guilt” but the “presumption of innocence until proven guilty beyond a reasonable doubt.”
COURT’S RELUCTANCE TO ACT
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. District Attorney Raul Torres and Mayor Tim Keller wrote the New Mexico Supreme Court demanding that they intervene and order the District Court to schedule grand jury time.
The District Court responded that preliminary hearings were necessary and would require better screening of cases by the District Attorney. The District Court presented data to the Supreme Court that showed how overcharging and a failure to screen cases by the District Attorney’s Office was contributing to a combined 65% mistrial, acquittal and dismissal rate at trial. The Supreme Court declined to intervene.
RISING CRIME REVEALS CITY’S 4 INITIATIVES HAVE FAILED REDUCING CRIME
Chief Administrative Officer Sarita Nair, as is Mayor Keller, is delusional when she says the 4 previous city initiatives to bring down violent crime are working and says:
“The city is taking those strategies to the larger system … to be productive. … Those were all sort of baby steps towards what we’re hoping is taking that inter-agency approach into the larger systemic problems.”
It is a false narrative that the 4 initiatives to bring down violent crime have worked. To be blunt, Nair has absolutely no experience in law enforcement in any capacity, yet she has been very much involved with creating and implementing the 4 initiatives. Prior to being appointed CAO, Nair was the State Auditor Tim Keller’s General Counsel. Prior to that, Ms. Nair was a shareholder at the law firm of Sutin, Thayer & Browne, representing private companies and public entities in business and governance matters since 2004. As a business lawyer, she worked for a wide range of small and family businesses across New Mexico, to represent both companies and governments in industrial revenue bond and Local Economic Development Act transactions.
Based on the city’s high violent crime and murder rates, it appears the Keller Administration’s programs consisting of the Shield Unit, Declaring Violent Crime “public health” issue, the Metro 15 Operation, “Violence Intervention Plan” (VIP Program) cannot even be described as baby steps. Simply put, all 4 programs can be described as failures as not having any real statistical impact on reducing crime.
As impressive as the list of participants is in Mayor Keller’s initiative to address what is being referred to as “a broken criminal justice system” no one, especially the participants, should expect much seeing as they start with the false premise that the criminal justice system is broken. They are the problem and they should do their jobs.