New Mexico Supreme Court Opinion Provides Guidance About Pretrial Detention; Holistic, Commonsense Approach Called For By Supreme Court

Criminal Defendant Joe Anderson, 41, was sentenced and served  seven years in prison for  the 2010 fatal shooting of Vincente Sanchez. On December 4, 2022, Anderson was charged with the first-degree murder of Raymond Aviles, who was fatally shot in August, 2022 while he was riding a motorcycle near Eastern and Amherst SE.

According to a criminal complaint filed against Anderson, a confidential source said the motive of the killing was Anderson loaned Aviles a motorcycle and Aviles did not return it as promised to Anderson.  APD obtained nearby surveillance footage showing Aviles pulling into an apartment complex on a motorcycle before attempting to flee from a white SUV. The video then shows the SUV’s driver and a passenger get out and chase Aviles, who drives out of the camera’s view. Aviles died in the middle of Eastern Avenue.  Anderson was identified as one who had chased Aviles.

In January after his arrest an evidentiary hearing on conditions of release, Second Judicial District Court Judge Emeterio Rudolfo denied a prosecutor’s motion to keep Anderson behind bars while awaiting trial.  In his January 13 order, Judge Emeterio Rudolfo ruled that although Anderson presented a danger to the community, the danger could be mitigated with conditions of release, which included fitting Anderson with a GPS ankle monitor.

District Judge Rudolpho ruled that Defendant Anderson’s compliance with conditions of release in other pending cases undermined the District Attorney’s argument that no conditions of release could protect the public.  District Court officials were alerted on February 7 that Anderson’s ankle monitor was cut off and the ankle bracelet was found a day later  on the side of a highway.  APD Police arrested Anderson on February 26.

On February 6, the New Mexico Supreme Court overturned District Court Judge Emeterio Rudolfo decision to release Anderson pending trial and held that the district court abused its discretion in denying the prosecution’s detention request. A warrant was issued for Anderson’s arrest the following day. Anderson is in jail awaiting trial. The New Mexico Supreme Court found that the finding that a defendant is dangerous must be a factor in deciding whether conditions of release can be fashioned that will protect the public.

The link to the quoted news source is here:


On May 22, and in part because of the Anderson reversal, the New Mexico Supreme Court issued a unanimous opinion providing guidance to district courts in deciding pretrial detention requests from prosecutors. The justices clarified the analysis that courts should follow in determining whether legal requirements have been met for a person charged with a felony to be held in jail while awaiting trial.

Under state law, a felony defendant may be detained if prosecutors file a written motion and prove to a district court that the charged person is dangerous and that “no release conditions will reasonably protect the safety of any other person or the community.”  The New Mexico  Supreme Court’s opinion provides the legal reasoning for the  order issued by the justices in February that reversed District Court Judge Emeterio Rudolfo decision denying  of a Motion for Pretrial Detention of Defendant Joe Anderson. The justices held that the district court abused its discretion in denying the prosecution’s detention request and that the District Court followed the wrong analytical framework in making its determination.

Justice Briana H. Zamora wrote on behalf of the Supreme Court as follows:

“In this case, ample evidence showed that the Defendant [Anderson] was unlikely to comply with release conditions and that the public would be put at significant risk should he fail to comply with release conditions.  …

District courts must undertake a two-prong analysis in pretrial detention decision-making: The first is determining whether the defendant is dangerous, and the second prong is whether the state has proven there are no conditions or restrictions that can be imposed on a defendant – if released – to reasonably protect the public.

In analyzing both prongs, district courts must consider a range of factors outlined in a rule of criminal procedure governing pretrial detention (Rule 5-409). Those factors include the “nature and circumstances” of the charged crime, the defendant’s history, and the “nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release. … All factors are relevant to both prongs because a defendant’s dangerousness is not an entirely separate consideration from whether release conditions can reasonably protect the safety of the public; rather, the nature of the defendant’s dangerousness informs whether the public can be kept reasonably safe from that danger by the imposition of release conditions.

Thus, if a district court applies the Rule 5-409 factors and determines that a defendant is dangerous, it should not cordon off those facts that it considered in the dangerousness analysis and limit itself solely to the evidence that it did not yet consider in order to rule on release conditions.  District courts should take a “holistic, commonsense approach” in the analysis about possible release conditions.”

This second prong of the pretrial detention analysis, like the first prong of dangerousness, must be proven by clear and convincing evidence. However, the State must only prove that no release conditions can reasonably protect the public, not that no release conditions can possibly protect the public. … As part of its analysis, the district court must consider not only whether a defendant is likely to comply with release conditions but also the likely consequences to any person or the community should a defendant fail to comply”

That additional inquiry is related to, and must be viewed in light of, the magnitude of a defendant’s dangerousness. … For example, a defendant with a history of violent crimes who stands accused of a new violent crime may pose a significant and unjustifiable risk to the safety of any person or the community if the defendant fails to comply with release conditions.”

The Supreme Court made clear and emphasized that District Courts cannot “rely solely on the charged offense to order a defendant’s detention.” A district court “must always conduct a totality of the circumstances analysis in reaching a decision” on a motion for the pretrial detention of a felony defendant.

The link to the quoted Administrative Office of the Courts press release is here:

Click to access New%20Mexico%20Supreme%20Court%20opinion%20provides%20guidance%20about%20pretrial%20detention.pdf


The Anderson ruling is the second time within a year that the New Mexico Supreme Court felt it necessary to reverse a District Court’s ruling to release a defendant charged with a violent felony on GPS monitoring pending trial. On May 5, 2022, the New Mexico Supreme Court overturned the pretrial release of an Albuquerque teen murder suspect. Adrian Avila was  accused of the February 2021 murder of Elias Otero. He was one and of four people allegedly involved in the August 2020 shooting death of Donnie Brandon. Avila was granted pretrial release on GPS monitoring and a strict curfew by Judge Stanley Whitaker.

Judge Stan Whitaker ruled that, while prosecutors had credible evidence to charge Avila for two murders, they did not prove how keeping Avila in jail would protect the community.

After the ruling, then Bernalillo County District Attorney Raúl Torrez’s office filed for an appeal. The appeal led to the state Supreme Court’s decision. The Supreme Court’s appeal states in part:

“Conditions of release cannot reasonably protect the safety of the community. It was an abuse of discretion for the district court to find otherwise. … The district court’s decision to release defendant placed the public at unnecessary risk.”

Following the Supreme Court’s decision, Avila was return to jail to await trial.

The link to quoted news source is here:


The New Mexico Supreme Court ruling in the Joe Anderson case is the most recent ruling made amidst intense debate over pretrial detention and what is known as the Public Safety Assessment Tool.  When a criminal defendant is arrested and in jail, a prosecutor must file a Motion to Detain the defendant in custody until trial with no bail. After a prosecutor files a Motion to Detain, the Public Safety Assessment Tool assigns a recommended level of monitoring for the court to consider under pretrial services should the court decide to release a defendant pending trial, including house arrest and ankle bracelet monitoring.  An evidentiary hearing is held where the prosecutor has the burden of proof to show that the defendant poses an immediate threat and risk to the public and that there are no reasonable conditions of release to protect the public.

Last year the District Court’s reliance the Public Safety Assessment Tool came under severe scrutiny and criticism by prosecutors, law enforcement and elected officials, including Governor Mitchell Lujan Grisham and New Mexico legislators, saying violent criminals were being release pending trial and committing crimes when they should have been in jail. The Public Safety Assessment Tool was attacked by critics when it recommended releasing a defendant charged with a violent crime with critics arguing that its recommendation of release was mandatory and not discretionary by the courts.

Pretrial detention legislation was introduced in the 2023 legislative session that would have mandated that a defendant simply charged with a violent crime be presumed violent and jailed until trial. The legislation failed and did not make it out of a single legislature committee. Critics argued successfully that the presumption of being violent mandating detention until trial is contrary to the constitutional right of due process of law and the presumption of being innocent until proven guilty.

On April 20, the Second Judicial District Court removed from the Public Safety Assessment Tool the categories of “Detention” and “Released on Own Recognizance” (ROR) which are on the opposite end of the Public Assessment Tool.  Second Judicial Chief Judge Marie Ward said inclusion of the two categories at the far ends of the Public Safety Assessment tool is not viewed as “best practices” but were added as a compromise at the request of one of the stakeholders on the  Bernalillo County Criminal Justice Coordinating Council.

District Judge Ward said, just like before the changes were made, a judge must consider evidence presented by the prosecutors and the defense attorneys to determine whether someone poses and immediate danger to the public and whether there are any conditions of release that could ensure the safety of the community. If a judge determines the person can be released, then the Public Safety Assessment gives them guidance on what level of supervision the defendant should be on.

Judge Ward described the changes as follows:

“What the [Public Assessment Tool] really tells us is, not this defendant, but a defendant in similarly situated circumstances … how likely were they to re-offend. … More evidence and argument can come in regarding this individual and other risk factors. … These modifications are only intended to clarify the misconceptions that have been out there that the assessment somehow dictates whether someone is released or not. … That’s not the case. It’s always the judge making a decision, and its always been that way.”


A negative perception of the courts is created when judges release violent felons and not holding them for trial without bond and simply not using their common sense.  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.

Repeatedly, and especially during election years, it is very common for elected officials and candidates for office to proclaim that our criminal justice is broken and that the courts have become a revolving door for violent criminals. It’s a ploy that undercuts the very integrity of the courts, with nefarious politicians knowing full well individual judges are strictly prohibited from discussing in public pending cases under penalty of being removed from office.  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.

There is little doubt that the New Mexico Supreme Court with its ruling in the Anderson case and subsequent guidance to the District Courts has become increasingly sensitive to the perceptions and demands of the general public that violent criminals, especially those charge with murder, need to be held in custody pending trial. What is also clear is that the Supreme Court wants the lower courts use their common sense and use a holistic and analytical approach to make their decisions to protect the general public from the most violent offenders. Now the public must wait and see how much common sense the courts in fact have.


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Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.