Adrian Avila is accused of allegedly killing 2 people in two separate Albuquerque shootings. Avila is accused in two shootings that occurred 6 months apart. The first is an August 2020 case where a teen was killed during a gun robbery. The second is a February 2021 case where a man was killed in front of his home by his brother’s kidnappers.
APD Detectives believe Avila is one of 4 people involved in the shooting of Donnie Brandon at Sandia Vista Park and was charged in early March in the case. Avila was also charged in December 2021 for the February 2021 murder of Elias Otero-Garcia. APD says Adrian Avila shot and killed EliasOtero-Garcia during a robbery. The Bernalillo County District Attorney office filed 2 motions to have Adrian Avila 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 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 Adrian Avila for the crimes, but prosecutors did not prove “no conditions of release could protect the community.”
Second Judicial District Judge Stan 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 Adrian Avila on house arrest with a GPS monitor pending trial drew immediate sharp criticism from APD Chief Harold Medina. APD then took to social media the vilify the court’s decision.
EDITOR’S NOTE: Judge Whitaker is the presiding Judge over the District Courts Criminal Division. District Judge Stan Whitaker is one of the most experienced trial judges on the bench today. He has a very distinguished career and is respected by the New Mexico bar. Judge Whitaker is a Sandia High graduate and earned his law degree from the University of New Mexico School of Law in 1989. He was a civil litigator with two different Albuquerque law firms before going to work in the Family Crimes Unit of the Bernalillo County District Attorney’s Office, where he prosecuted child abuse cases. Judge Whitaker first came to the Second Judicial District Court as a Domestic Violence Commissioner in the Family Court Division. He left the district court to work as an Assistant U.S. Attorney for the District of New Mexico as a trial attorney. He returned to District Court in 2006, accepting an appointment as a Family Court Judge and a year later, he moved to the Criminal Division and has served there now for 15 years.
CHIEF MEDINA AND APD ENGAGES IN SOCIAL MEDIA PROPAGANDA TO VILIFY A JUDGE
APD Chief Harold Medina for his part had this to say during a TV interview:
“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.”
The link to the news interview is here:
On Thursday, March 22, at 2:07 pm, APD posted on its official FACEBOOK page a photo of Defendant Adrian Avila with the following post:
“A judge released a murder suspect from jail today on an ankle monitor. Adrian Avila is charged for 2 separate murders. Think about that. Two murders. This suspect is at the root of the gun violence we’re seeing in Albuquerque and the record number of homicides.
Our officers and detectives are doing everything possible to investigate and arrest the people who are terrorizing our neighborhoods committing robberies and homicides with stolen guns.
At the same time, we are getting reports of violent suspects cutting off their ankle monitors and left to roam the streets until we re-arrest them. This is beyond upsetting. This jeopardizes the safety of our community, including our officers.”
On March 22, APD posted on its TWITTER account a photo of Defendant Adrian Avila with part of the same text:
“A judge released a murder suspect from jail today on an ankle monitor. Adrian Avila is charged for 2 separate murders. Think about that. Two murders. This suspect is at the root of the gun violence we’re seeing in Albuquerque and the record number of homicides.”
APD also posted a follow up TWEET:
“This is beyond upsetting. This jeopardizes the safety of our community, including our officers.”
FACEBOOK COMMENTS REVEAL VILIFICATION OF JUDGE
As of March 28, APD’s FACEBOOK post had over 2,200 overwhelmingly “angry emoji” reactions, over 1,900 shares and over 718 comments. The overwhelming majority of the comments were negative, derogatory and attacks on the judge in the case. Below are just a few of the posted public comments on the judge:
Judges who release dangerous criminals need to be held accountable if they commit any crimes!
Yep… that’s New Mexico for you. The criminals have more rights than law abiding citizens.
As a community we need to band together and victims of the crimes of these criminals need to start suing the judges and metro court for releasing them into our community this is ridiculous already
What a slap in the face for the family, friends & law enforcement that have all done their jobs. I’ve lost all faith in the judicial system.
Chief Harold Medina needs to be in the judge’s chambers in front of judge Stan Whitaker and DEMAND answers. How can we hold the criminals accountable when the judge’s themselves aren’t held accountable?
So agreed!!! Unbelievable to see these judges that are a contributing reason for the high crime rate. You officers risk your lives and these judges pour more gasoline on the fire, called crime. I thank you for all you do, and wish we could hold these judges accountable for what do or don’t do!!!
These judges be smoking crack! Jail for life is where people like this need to be. Streets are not safe anymore. AlbuCrazy!!!
That judge should be arrested next.
The fact that this was posted by the APD says alot… I’m sure they are tired of beating the same dam dead horse too. Risking their lives to bring these people in just to have them released.
Y’all need to be in that judge’s chambers asking why. No excuse for that and until we hold judges accountable when they think they are God we’ll see no improvement
So glad we live in a safe city with murders going free!
The people will eventually get tired and start taking them out them self
Expose these judges. Make the public aware of their decisions individually.
This creep committed multiple other crimes and hasn’t been charged! If he had been disciplined in 2018 when he carjacked our boys, maybe these other families would not have had to bury their children. The entire system is a mess!!!
The judges should be the ones to sit and listen to the families of lost family members to gun violence! How many bodies are needed for these “judges” to snap!!?
The judges only care about the criminals they don’t care about y’all or us
Get rid of the judges.
Our justice system is so irresponsible and culpable. These judges are putting us all in danger, including our law enforcement officers, and the police are frustrated because their hands are basically tied. God help us all!!!
What would one of these judges do if one of their family members were murdered? They’d make certain the criminal was not released into the public.
You guys should promote people carrying firearms since the left is already against you guys might as well get the more triggered.
Hopes someone will take care of him.
Someone needs to handle that judge. We’ r Nuevo Mexico.
People like him are the reason why abortion should stay legal, it’s a real shame he didn’t meet the business end of a coat hanger or at the very least have the courtesy to take themselves out lol
Obviously, this judge is a friend of his family. This kind of corruption needs to stop.
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 motions to detain pending trial 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:
“[My client 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 Avila’s surrender to APD. There was no disclosure if Medina ever asked Assad that his client 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.
APD Spokesman Gilbert Gallegos was asked why Medina believed Avila was the root of gun violence. In response, Gallegos said there is probable cause to believe Adrian Avila committed 2 homicides, and the community has a right to be concerned about the release of someone who faces such serious charges. Gallegos in a statement wrote:
“Mr. Assed is entitled to his opinion. He is a defense attorney and he is understandably concerned about the murder charges against his client. … Chief Medina is focused on the safety of the community and getting justice for the murder victims and their families.”
DEMAND FOR RETRACTION
On March 24, 2022, Ahmad Assed, the attorney for Attorney for Adrian Avila wrote a demand letter to Mayor Tim Keller demanding a retraction of the APD FACEBOOK posts and statements made by APD Chief Harold Medina on the subject of Mr. Avila’s pretrial release. The letter state’s Medina’s inflammatory statements were distributed widely through APD’s social media channels, including Facebook and Twitter, and that the statements constituted libel subjecting the City of Albuquerque, APD, and Chief Medina to suit under the New Mexico Tort Claims Act.
The Assad letter is remarkable in its content and states in part as follows:
“According to APD’s Facebook page, [the FACEBOOK post] was shared approximately 1,800 times. Some comments … advocated for “street justice” against Mr. Avila, which can only be interpreted as calls for violence against a young man, presumed to be innocent, who had proven to the court that there are a set of conditions that that can keep the community and other people safe while he is on release. This is consistent with the law that governs pretrial release. …
While public officials are generally not liable for torts committed in the scope of their duties … [my client] contends that that these reckless statements expose the City, APD, and Chief Medina to liability under an exception to the [Tort Claims Act] …
“The immunity granted … does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights, the independent tort of negligent spoliation of evidence or the independent tort of intentional spoliation of evidence, failure to comply with duties established pursuant to statute or law or any other deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.”
According to the City’s data, crimes against persons in Albuquerque have been steadily rising since 2018. … It is patently false to accuse Mr. Avila of being “the reason for” gun violence in Albuquerque. It is clearly libelous and falls squarely within those acts for which government officials are subject to the [Tort Claims ACT]
[Chief Medina’s] statements affect Mr. Avila’s reputation, and expose him to hatred, contempt, ridicule, and degradation or disgrace. … . [T]these libelous statements subject not only Mr. Avila, but his family, to grave danger during the pendency of this case.
Finally, and perhaps most troubling, Chief Medina’s statements demonstrate a total disregard for the presumption of innocence that Mr. Avila, and every accused, enjoy while pending trial.
If APD is so quick to callously ignore the most fundamental right of defendants , it is evidence that APD cannot be trusted to protect the many other fundamental rights afforded to suspects and defendants by the United States Constitution. This behavior is precisely of the sort that has subjected APD to intense scrutiny for more than a decade.
APD must retract this statement, not only because it subjects itself to legal consequences otherwise, but also in the interest of preserving public confidence in its ability to protect our community.”
You can review the entire unedited Assad letter at this link:
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.
APD AND DISTRICT ATTORNEY NOT GETTING THE JOB DONE
APD statistics for the budget years of 2019 and 2020 reflect the department is not doing its job of investigating and arresting people. APD felony arrests went down from 2019 to 2020 by 39.51% going down from 10,945 to 6,621. Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%.
In 2019 APD had 924 full time police. In 2020, APD had 1,004 sworn police or 80 more sworn police in 2020 than in 2019, yet arrests went down during the first year of the pandemic. APD’s homicide unit has an anemic clearance rate of 36%. The police union falsely proclaims officer’s hands are tied by the DOJ reforms and are afraid of doing their jobs for fear of being disciplined.
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. Plea agreements with low penalties are the norm. Data given to the Supreme Court by the District court revealed overcharging and a failure to screen cases by the District Attorney’s Office contributes to a combined whopping 65% mistrial, acquittal and dismissal rate.
COMMENTARY AND ANALYSIS
There is no doubt that APD Chief Harold Medina and APD Public Information Officer Gilbert Gallegos knew exactly what they were doing with their social media propaganda release attacking the judge. They knew their social media campaign would generate extreme hostility and mistrust towards the judge by the public and those who support APD. Their intent was to disparage the judge and his credibility. Based on the spike in views, the hostile comments and shares, it worked.
The condescending drivel and very dismissive remarks by APD Spokesman Gilbert Gallego’s questioning the motives of the defense attorney and to prop up and defend Medina’s comments merit repeating:
“Mr. Assed is entitled to his opinion. He is a defense attorney and he is understandably concerned about the murder charges against his client. … Chief Medina is focused on the safety of the community and getting justice for the murder victims and their families.”
Before Chief Medina and his public relations flack Gilbert Gallego single out and question the job performance of any judge, or for that matter a defense attorney, and question what motivates them, they both need concentrate on making sure APD is doing its job done. By the statistics, that is not what is happening. APD is not making felony, misdemeanor and DWI arrests, nor solving homicides, yet they want to blame the courts for all the crime in Albuquerque and “one suspect … at the root of the gun violence.”
It’s drivel like this coming APD Spokesman Gilbert Gallegos that reflect what is so very, very wrong with APD on so many levels. “Getting justice for the murder victims and their families” does not mean APD has the right to vilify a judge. It does not mean APD has the right to engage in libel and slander nor violate people’s rights of due process of law by talking and acting like “judge, jury and executioner”.
From a public information standpoint, there is no problem with law enforcement giving interviews and posting on social media information regarding law enforcement initiatives, the status of an investigation and even arrests. However, when it comes to pending criminal prosecutions, APD has no business posting on social media anything that will jeopardize the successful prosecution of a case and anything that vilifies a judge who must decide that case.
Medina and APD posting on social media to express “opinions” regarding a judge’s decision to release a defendant pending trial, no doubt with the assistance of paid public relations flack Gilbert Gallegos, was irresponsible hyperbole to inflame the public against the court and in a real sense it placed the judge in harms way.
Medina’s remarks in general stepped over the line, but then again, Medina has never cared for constitutional rights of individuals. This is the very same police chief that has a nefarious past of killing a 14-year-old having a psychotic episode who was brandishing a BB gun in a church and who years later gave the order to use “deadly force” on a veteran suffering from post-traumatic stress disorder that a jury and judge awarded $10 million after finding that the deceased was only a threat and a danger to himself.
Chief Medina, APD and spokesman Gilbert Gallegos have a misunderstanding of their role when it comes to criminal prosecutions. The police role is to investigate, gather evidence, interview witnesses, conduct forensics if necessary and prepare a case for prosecutors, prepare final supplemental reports and forward the completed cases to the District Attorney Office who then reviews the reports and then decide on the charges.
Once a person is charged with any felony, especially a violent felony, the case is no longer in police hands nor in their control. Once a person is charged, it’s the prosecutors and the courts that take over and must do so without interference from police. The last thing any successful prosecutor wants are police commenting on the merits and status of a case in public social media outlets that may have an impact on the jury pool and jury selection.
Once a person is charged and arrested, constitutional rights of due process of law and the courts must be respected. Medina and APD with their social media propaganda vilifying a judge for releasing Adrian Avila pending trial reflect that they have the philosophy of being “judge, jury, and executioner”.
CONSTITUTIONAL RIGHTS MUST BE RESPECTED
The criminal justice system in this country and this state has never been perfect and never will be. The criminal justice system at all levels is only as good as those who are responsible to make it work and succeed.
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.
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 Police Officers the likes of Harold Medina with their constant vilification of the courts when they do not like a decision rendered that is dangerous. Medina knows the courts are limited to what they can say in public and that the courts cannot defend themselves. He knows it’s a lot easier to blame the courts for his department’s failure to make arrests, investigate a case and prove a case in a court of law.
Chief Medina, APD and APD Spokesman Gallegos taking to social media to inflame the general public and vilify a judge for releasing a defendant pending trial was irresponsible. It is a practice that they need to knock off immediately.
It’s a practice Mayor Tim Keller should not tolerate from his Chief let alone a public relations flack like Gilbert Gallegos as APD spokesperson. Mayor Tim Keller should order APD to take the FACEBOOK and TWITTER posts down immediately on Adrian Avila and mandate that APD confine its social media release activities to the department and not pending court cases.
At the epicenter of the controversy regarding the release of Adrian Avila pending trail is the “Public Assessment Tool”. Following is an explanation of the tool and how it is used by the courts.
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.”
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 PSA tool does not replace the judges nor impede a judge’s discretion or authority in any way. 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: