Adrian Avila is accused of killing two people in two separate Albuquerque shootings. The first happened in August 2020. Investigators believe Avila is one of four people involved in the shooting death of Donnie Brandon at Sandia Vista Park and was charged in early Mach in the case. Avila was charged in December 2021 for the February 2021 murder of Elias Otero-Garcia. APD says Avila shot and killed Otero-Garcia during another robbery. The Bernalillo County District Attorney office filed two motions to have Otero-Garcia held in jail pending trial while he awaits trial on charges of murder, kidnapping and armed robbery.
Under the law, the prosecution has the burden of proof in to make the case that a defendant charged with a violent crime is too dangerous to release from jail pending trial. After an evidentiary hearing, 2nd Judicial District Judge Stanley Whitaker ruled that prosecutors had credible evidence to charge Avila for the crimes, but they did not prove “no conditions of release could protect the community.” Judge Whitaker granted Avila’s release on strict conditions, including GPS monitoring and a curfew. In addition to wearing a GPS ankle monitor, Whitaker ordered that Avila remain under house arrest and be allowed to leave his mother’s home only to attend a charter high school and for educational purposes.
Judge Whitaker’s decision to release Otero-Garcia on house arrest with a GPS monitor pending trial drew immediate sharp criticism from both District Attorney Raul Torrez and APD Chief Harold Medina.
Bernalillo County District Attorney Raúl Torrez had this to say:
“I think it’s frankly astonishing that somebody can stand accused of not just one, but two separate murders, pretty violent acts they’re brought before the court and they’re put back out on the streets. … All I can say is if we’re not successful at detaining people that are accused of two separate homicides, who are we going to be able to detain under this framework. … We strongly disagree with the Court’s assessment that GPS monitoring is sufficient to protect the community from someone like Adrian Avila, who stands accused of not one, but two violent homicides. ”
Torrez said his office will appeal the Judge Whitaker’s decision, which will likely fail. In order for a reversal, Torrez will have to prove that Judge Whitaker abused his discretion in releasing Adrian Avila when in reality there was no abuse of discretion and Whitaker’s decision was within the confines of the law. It was the prosecution that failed in its burden of proof. The prosecution would be better served if they filed a motion to reconsider Otero-Garcia’s arrest and APD investigate more to established dangerousness.
APD Chief Harold Medina for his part had this to say:
“These people are accused of killing somebody and we’re counting on an ankle bracelet to protect the community. … [Adrain Avila is] at the root of gun violence. … [His release is] ridiculous.”
Medina said he understands monitoring those accused of property crimes, such as car theft, but said “there’s a line in the sand”that comes with violence. Medina acknowledged judges are following guidelines but argued that those guidelines, like the Arnold tool, which scores a defendant’s risk of flight or new crime, need to be changed.
THE DEFENSE RESPONDS
Criminal defense Attorney Ahmad Assed, who represents Adrian Avila, said it is not the law that has failed but law enforcement and the prosecutors who have failed to prove their case and that his client is presumed innocent until proven guilty. Assed argued in his response to the prosecution motion to detain his client pending trail that the prosecution’s evidence against Avila in the August 2020 homicide is circumstantial evidence and based largely on cellphone and Snapchat account records that don’t reliably establish his involvement. In other words, there is no direct evidence such as eyewitness testimony nor forensic evidence such as fingerprints and ballistic testing linking him to the crime.
Assed said this about his client:
“[Adrian Avila has] no criminal history, no history of failure to appears, he’s got a family that he’s associated with that are law-abiding citizens, hard-working folks, he reached out to law enforcement and sought out the turn-in on his own, and quite frankly conditions have never been in place where we can say he’s ever violated conditions of the court. … We don’t decide cases based on innuendo and DA’s closing arguments geared toward the eye of the media. That was the whole deal today, was just those notion of a closing argument or opening statement for the media’s purposes. It’s not for the court or the judge to discuss the details of the case. The judge must follow the law, and the law clearly requires the state to act. If the state does not act, and in this case, the state did not act, the court must follow the law.”
With respect to Chief Medina, attorney Assed said Medina’s comments were “irresponsible and reckless” statements having the potential to poison a jury pool and raise questions about APD’s ability to investigate crimes objectively and he said this:
“It’s outrageous for Albuquerque’s chief law enforcement officer, who wasn’t even at the hearing, to make a knee-jerk comment that is purely reactionary and pandering. ”
Attorney Assed added that Chef Medina and he personally negotiated Adrian Avila’s surrender to APD. There was no disclosure if Medina ever asked Assad that Adrian Avila be held in jail pending trial, yet Medina objects when a judge makes a finding that there was insufficient evidence to hold the accused in jail pending trial.
This blog article is an in-depth discussion of bail bond reform and the critical role that judicial discretion plays in protecting the public. The article also discusses what is referred to as the “Arnold Rule” which is a matrix tool used by the courts identifying those factors that are considered in holding an accused pending trial. Several studies have shown the Arnold tool has an impressive success rate and the state’s pretrial detention system is, in general, effective in most cases. It’s the exception and not the rule that has proven problematic for the courts when it comes to public perception.
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 largely eliminates the former system of money bail bonds. The constitutional amendment allows the courts to deny pretrial release to defendants charged with a felony only if a prosecutor proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. The amendment also prohibits the courts from denying pretrial release for defendants who are not considered dangerous and do not pose a flight risk. The change was viewed as necessary to prevent low-level defendants from being kept in jail because they lacked money to post bail. As a result of bail bond reform, bookings at the Bernalillo County jail plummeted from 38,349 in 2010 to 17,734 in 2020.
“In June 2017, the New Mexico Supreme Court issued Rule 5-409 of the New Mexico Rules of Criminal Procedure for the District Courts that governs preventive detention in the District Courts. The court may order pretrial detention only if the defendant is charged with a felony and the prosecutor files a motion for pretrial detention that states the specific facts supporting the motion. The prosecutor may file a motion for pretrial detention at any time, but the hearing on the motion must be held within five days of filing or the arrest of the defendant based on the motion.”
“The court rule spells out the defendant’s rights, which include the right to appointed counsel. The prosecutor has the burden of proving “by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.” If the prosecutor fails to meet this burden, the court follows the provisions to issue an order setting the conditions of release. If the court finds that the burden has been met, the court must file written findings of the specific facts that explain the detention. The court also must expedite the trial date for any defendant detained pending trial.”
TORREZ BEGINS DRUM BEAT BLAMING THE COURTS
In May, 2019, 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 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. Bernalillo County District Attorney Raul Torrez for his part voiced the opinion that it is way too difficult for prosecutors to establish that an accused violent felon is a danger to the public and that there are no conditions of release that can reasonably protect the public. It was at this time that Torrez began beating his drum for “rebuttable presumption” to hold an accused charge with a violent crime until trial. Torrez was quoted as saying at the time:
“For a community that’s dealing with crimes of violence, if you have a loaded firearm readily accessible to you in connection with a felony crime, … [when charged with a violent crime you] should be subject to rebuttable presumption [that you are violent and a danger to the public]. How am I going to prove by clear and convincing evidence that Charles Manson couldn’t be put on some supervision? … Theoretically, if you put him on GPS and had a guy walk around with him all day long that was armed, maybe. … Most jurisdictions have three things: dangerousness, flight risk, or obstruction of the criminal justice process [such as intimidating a witness, threatening somebody] … Those last two are gone, they’re not in our constitutional amendment.”
FALSELY ACCUSING THE COURTS FOR INCREASING CRIME
In May, 2019, District Attorney Raul Torrez also accused the District Court and the Supreme Court’s case management order (CMO) for being the root cause for the dramatic increase in crime and the dismissal of cases. The Supreme Court issued the order mandating disclosure of evidence within specific time frames and to expedite trial. Torrez challenged the case management order before the New Mexico Supreme Court and also took action against an individual judge claiming the judge was requiring too much evidence to prove that a defendant was too violent to be released with bond.
On September 15, the Administrative Office of the Courts issued the results of a report to take sharp issue with recent proposals to change the bail bond system. The study was conducted by the University of New Mexico (UNM). The report supports the proposition that the existing system does not endanger the public. The UNM study reviewed 10,289 Bernalillo County felony cases from July 2017 to March 2020 in which defendants were released from jail while awaiting trial. The statistical findings were decisive and reported as follows:
Of the cases analyzed, only 13 were arrested for a first-degree felony while on pretrial release, or about 0.1% of the total. 19% of felony defendants released from jail pending trial, 1,951 of 10,289, were arrested for new criminal activity during the pretrial period. Most of those arrests were for fourth-degree felonies and misdemeanors, including property, drug and violent crimes. Fewer than 5% of defendants, or up to 480, released pretrial were arrested for new violent crimes. Of the cases analyzed, 95.3% were not arrested for violent crimes during the pretrial period.
Artie Pepin, director of the Administrative Office of the Courts, had this to say about the study:
“The evidence from research clearly shows that the great majority of people released pending trial are not committing new crimes. … Objective research validates the pretrial justice improvements under way in New Mexico. Blaming judges and courts for crimes highlighted in news accounts does nothing to make anyone safer.”
Jennifer Burrill, then the president-elect of the New Mexico Criminal Defense Lawyers Association had this to say about the “rebuttable presumption against release”:
“That basically means [the Governor, Keller and Torrez] are sacrificing … constitutional rights for their own political career. … We continue to ask the Legislature to make sure whatever decisions are made are based on evidence and not some kind of knee-jerk reaction, because that does not make the problem better. … That’s the same thing that we need to ask of our leaders on this situation.”
The link to quoted source material is here:
REBUTTABLE PRESUMPTION FAILS
Governor Michelle Lujan Grisham joined District Attorney Raul Torrez and Mayor Keller to support a “rebuttable presumption against release” in crimes including first degree and second-degree murder, voluntary manslaughter, and sexual exploitation of children. The Governor made “rebuttable presumption against release” a part of her anti-crime legislation that she placed on the 2022 legislative 30-day short session.
During the 2022 New Mexico 30-day session that ended on Thursday, February 17, all legislation failed to enact the rebuttable presumption of being violent to permit jailing until trial. However, as a substitute crime bill was enacted and signed into law by the Governor. The crime bill as enacted expands surveillance of criminal defendants as they await trial with 24-hour monitoring of ankle-bracelet tracking devices. It mandates the courts to provide greater supervision of defendants by requiring courts to share ankle monitoring data with law enforcement agencies upon request. It requires the courts to turn over GPS monitoring data to police and prosecutors during a criminal investigation to allow better tracking of pretrial defendants on electronic monitoring in an effort to prevent a charge defendant awaiting trial from committing another crime. The goal of the GPS monitoring is keep close tabs on a charged defendant to prevent them from committing another crime.
ROLE OF THE JUDICIARY
It is Judges who are required to make the critical decision after a person is charged with a crime about whether to release the person pending trial. That decision is made at the time of arraignment when an accused is bought before the court, the accused is informed of the charges and constitutional rights and enters a plea of not guilty or guilty. The arraignment usually includes arguments of conditions of release and bail.
Under the American system of justice, there’s a presumption that defendants are innocent until proven guilty. It is Article II, section 13 of the New Mexico Constitution that guarantees that those accused of a crime are entitled to be released from custody while awaiting trial, except in limited circumstances. There is a failure of the pretrial system if low-risk nonviolent defendants who are entitled to be released are nevertheless detained in jail simply because they cannot afford bail.
“Judges place a priority on two considerations when making pretrial release or detention decisions:
1. Whether the defendant will commit a crime, particularly a violent crime, if released, and whether the person will return to court.
2. If a defendant is to be released, judges decide whether to impose certain restrictions on the individuals, such as requiring an electronic monitor to track their location.
It runs counter to our constitution to require non-violent, low-risk offenders to spend long periods of time in jail pending trial. It is also potentially damaging to a defendant. Pretrial detention can cause defendants to lose their jobs or housing, preventing them from caring for their family or paying their bills.”
JAILING LOW RISK OFFENDERS COUNTER PRODUCTIVE
Researchers have found that the longer a low-risk defendant is jailed awaiting trial, the greater likelihood that person will reoffend.
“In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. … [Researchers have found] that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average.
Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the causal effect of detention.”
The link to download research study quoted is here:
PUBLIC SAFETY ASSESSMENT TOOL
When money bail is a condition of release, many low-risk defendants are kept in jail because they cannot afford the bail bond. At the same time, high-risk defendants, such as repeat violent offenders who pose an elevated public safety risk, are often released if they can afford bail.
Public safety is a serious concern for judges, who must balance fairness with protecting our communities when making pretrial detention or release decisions. To mitigate the risk to all New Mexico communities and defendants, members of the state’s criminal justice system and the courts implemented the Public Safety Assessment (PSA) tool.
Under the New Mexico Constitution, people charged with a crime have a right to bail, except in limited circumstances. The law provides for the pretrial release of a defendant under the least restrictive conditions necessary to protect community safety and assure the defendant will return to court.
The Public Safety Assessment tool (PSA) provides a reliable, evidence-based information system to assist judges as they consider whether a defendant should be released to protect the public while awaiting trial. The PSA tool, using information related to a defendant’s age, criminal history, and current charge evaluates the likelihood that a defendant will commit a new crime, commit a new violent crime, or fail to appear for their court hearing if released before trial. With information from the PSA, judges can make informed decisions that are evidenced based and not speculation nor conjecture.
The criminal justice system in order to be effective must focus on protecting the public while safeguarding citizens’ rights. Objective, research-based information about the public safety risks posed by a defendant can ensure fairness in pretrial release decisions while making our justice system more effective and efficient. Local governments can save taxpayer money if judges can better identify defendants who do not need to be jailed before trial because they pose a low threat to public safety.
Judges in the Second Judicial District Court, the Bernalillo County Metropolitan Court and in the district and magistrate courts in San Juan County in the Eleventh Judicial District can use the PSA’s objective data as part of the information they consider in pretrial release decisions made soon after a defendant is arrested and charged with a crime. Court staff prepares an assessment for each criminal defendant, which is provided to judges as well as the prosecutor and defense counsel before that defendant’s initial appearance in court known as “arraignment”.
PSA RECOMMENDATIONS DO NOT SUPERCEDE JUDICIAL DISCRETION
The PSA measures the likelihood that an individual will commit a new crime, particularly a violent crime, upon release, as well as the likelihood that he or she will appear at a future court hearing. The risk assessment considers nine factors related to a defendant’s age, criminal history and current charge that research has shown accurately predict risk. The tool then generates risk scores for each defendant. This information, along with other pertinent facts from a defendant’s case, is provided to judges to assist in their pretrial decision making. The PSA does not use information that is considered potentially discriminatory, such as a person’s ethnic background, income, level of education, employment status, neighborhood, or any demographic or personal information other than age.
While the PSA can be a helpful informational tool, it is important to note that judges always have the final say in every decision. The decision about whether to release or detain a defendant and under what conditions always rests with the judge. Judges have the final say on whether or not to release a charged defendant pending trial. It is not at all mandatory or required that a Judge follow the recommendation made in the PSA report and judges are 100% free to exercise their own discretion. The PSA does not replace a judge’s discretion and does not supersede other information, including any special circumstances pertinent to a case and charges against the defendant.
THE NINE FACTORS IN PUBLIC SAFETY ASSESSMENT OF AN ACCUSED
The PSA is designed to promote public safety and to ensure that the criminal justice system operates in a fair and efficient manner. It uses 9 factors that research has shown are the strongest predictors of whether a defendant will commit a new crime, commit a violent crime, or fail to return to court if released before trial. The factors are:
1. Whether the current offense is violent.
2. Whether the person had a pending charge at the time of the current offense.
3. Whether the person has a prior misdemeanor conviction.
4. Whether the person has a prior felony conviction.
5. Whether the person has prior convictions for violent crimes.
6. The person’s age at the time of arrest.
7. How many times the person failed to appear at a pretrial hearing in the last two years.
8. Whether the person failed to appear at a pretrial hearing more than two years ago.
9. Whether the person has previously been sentenced to incarceration.
RISK SCORES PRODUCED
Using the information gleaned for the 9 factors and applying them to a charged defendant, the PSA produces two risk scores:
First, it predicts the likelihood that an individual will commit a new crime if released pending trial.
Second, it predicts the likelihood that a charged defendant will fail to return for a future court hearing.
The PSA tool also “red flags” defendants that it calculates present an elevated risk of committing a violent crime.
The PSA risk scores fall on a scale of one to six, with higher scores indicating a greater level of risk. This neutral, reliable data can help judges gauge the risk that a defendant poses.
Links to quoted and relied upon source material are here:
The final tally of murders Albuquerque for 2021 is 117. It shattered the previous 2019 record by 36 murders. 97 of the homicides involved guns. The dramatic increase in homicides and robberies is drug related and involves guns.
The link to quoted source material is here:
ALBUQUERQUE CRIME RATES IN A NUTSHELL
According to the 2020 FBI Unified Crime Reports:
Albuquerque has a crime rate of 194% higher than the national average.
Albuquerque’s Violent Crime Index for 2020 is 346% of the national average.
Albuquerque Property Crime Index for 2020 is 256% of the national average.
Albuquerque has made the top 100 list of most dangerous cities 5 years in a row. Neighborhood Scout’s provides comprehensive database of real estate data and compiles a listing of what it considers are the 100 most dangerous cities in the United States based on violent crime rates and population. Over the last 5 years, the city has gone from the low rank of #74 to a rank of #21. Following is Albuquerque’s rankings out of 100:
2021: #21 Ranking
2020: #23 Ranking
2019: #25 Ranking
2018: #50 Ranking
2017: #74 Ranking
NEW MEXICO CRIME RATES
In 2021 and into 2022, New Mexico continues to have a higher-than-average crime rates across the board. New Mexico has the second-highest violent crime rate in the US, behind Alaska with 8.4 incidents per 1,000. In a recent poll of New Mexico residents, 56% of respondents named gun violence as a top safety concern and above the US average of 53%.
The link to news source material is here:
COMMENTARY AND ANALYSIS
Given the sobering statistics of murders and violent crime, it is not at all surprising that the general public is looking to their elected officials, prosecutors and judges to come up with solutions. The criminal defense bar cannot simply stand on the sidelines but need to also assist and help the criminal justice system full fill its obligation to provide due process of law, protection of constitutional rights as well as to protect the public.
Under the United States and the New Mexico Constitutions, all accused of a crime are guaranteed the right of due process of law no matter how heinous or violent the crime. In criminal trials, with no exceptions, any defendant is presumed innocent until proven guilty beyond a reasonable doubt by the prosecution. A person is also entitled to post bond and it is the prosecution, the state, that has the burden of proof to establish why a person should be held in custody until trial.
Imbedded in our constitution also is how justice is served, to ensure and to protect all of our constitutional rights of presumption of innocence, due process of law and requiring convictions based on evidence. The corner stone of our criminal justice system is requiring prosecutors to prove that a person is guilty beyond a reasonable doubt before a jury and in a court of law.
A negative perception of the courts is created when judges release violent felons and not holding them for trial without bond. It’s common knowledge that Judges are concerned about their disqualification rates, appeals and reversals and how they are perceived by the Judicial Performance Evaluation Commission. Judges are reluctant to make decisions and hold off on making the hard decisions to avoid controversy.
Whether true or false, the courts are viewed as part of a much bigger problem of causing spiking violent crime rates. That negative perception is aggravated when individual judges are perceived by the public to be way too lenient in releasing violent felons and not holding them for trial without bond. Prosecutors and law enforcement officials across the state repeatedly slam judges and the court system for letting out those accused of violent felonies, particularly when they re-offend.
The courts are also strictly prohibited by the Code of Judicial conduct from ever commenting on pending cases, especially criminal cases and in the press. Anything a judge says about a pending case must be strictly confined to the courtroom and then a judge must also perform their job in a fair and impartial manner. Rulings, including the denial of bail and holding an accused must be based on evidence and not speculation and emotional appeals. A judge making comments to the press will likely result in the Supreme Court suspending a judge and perhaps remove them from office.
It is prosecutors like Raul Torrez and Police Officers like Harold Medina with their constant complaining and whining about the criminal justice system being broken that undermines the credibility of the courts. They both know the courts are limited to what they can say in public and that the courts cannot defend themselves. They both know it’s a lot easier to pander to the public and blame the courts for their own failures to prove a case “beyond a reasonable doubt”.
The criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken. The criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance or political opportunism at its worst. The criminal justice system at all levels is only as good as those who are responsible to make it work and succeed. It is way too easy to declare the system “broken” when problems identified within the criminal justice system would go away if the stakeholders would just do their own jobs and concentrate on doing their jobs in a competent manner.
The Public Safety Assessment tool and the Arnold Metric the courts use to apply it should never be a replacement for sound judicial discretion. The PSA reports should not be a “crutch” used by Judges who simply want to use it to avoid making controversial decisions. The PSA reports cannot provide a 100% accurate report as to whether a defendant poses a safety or flight risk, that is why it is not mandatory and allows for judicial discretion. Judges need to rely upon their common sense, their own perception of a defendant and use their judicial discretion to keep the public safe and ensure due process of law and justice is also served. It is always a fine balancing act.
THINKING OUT OF THE BOX
Prosecutors, Judges and defense attorney for that matter, have the right and should think out of the box. They cannot ignore the demands of a community to be kept safe, especially in light of the city’s high violent crime rates. Conditions of release are always subject to review by the court and can be changed or modified at anytime.
Perhaps when it comes to those charge with a violent felony, the prosecution, the defense and the courts could rely on the Arnold matrix tool to release a charged defendant during the day on a GPS monitor but also mandate that they turn themselves in at night for 8 hours of confinement with sleeping accommodations to be released the next day again on a GPS monitor.
As time progresses, and trials are being delayed to unreasonable length of time by the prosecution, conditions of release could be modified to full house arrest. The New Mexico legislature could also help by funding the Department of Correction to build or even lease centrally located holding facilities with minimum security operated by the New Mexico corrections department and the probation and parole department.
It’s called thinking out of the box and not relying upon a matrix as a crutch to avoid making a hard decision to confine or not to confine pending trial.