The New Mexico Supreme Court has ruled that live witness testimony is not always needed for “no-bond holds”.

(See April 13, 2017 Albuquerque Journal, page A-1, “NM high court: Witnesses not always needed for no-bond hold; DA Torrez calls opinion good step; defense lawyers calls it frightening”.)

The “no bond” rule states “bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”

Bernalillo County District Attorney Raul Torrez argued that District Judges are demanding too much evidence before holding alleged dangerous and violent defendants in jail without bond prior to trial so Torrez filed a petition with the New Mexico Supreme Court for further clarification and guidance from the court.

The final New Mexico Supreme Court ruling is a common sense ruling and will go a long way to preserve the constitutional rights of “due process of law”.

The New Mexico Supreme Court did NOT find and did NOT rule that Judge Stan Whitaker abused his discretion as a judge which is what District Attorney Raul Torres was alleging when Judge Whitaker denied a “no bond hold” for the DA’s failure to present testimony and more evidence in a “no bond” hearing.

The Supreme Court did NOT order the cases be remanded back to Judge Whitaker as the DA requested.

What the Supreme held is that in certain cases judges may need and may ask for more testimony or evidence to hold a defendant without bond, which is exactly what Judge Whitaker was asking for from the Bernalillo County District Attorney in the first place.

What Justice Daniels did say is “These are decisions [to order no bond holds] made in individual cases involving individual human beings and varying circumstances. … To say that a judge must always have eyewitnesses is inconsistent with the very thought of case-by-case adjudication.”

What will happen now is that the Supreme Court will issue a written opinion and give guidelines that will likely list any number of evidentiary items that can be relied on by a District Court to issue a “no bond” hold.

Such evidentiary items could include live witness testimony or sworn written affidavits from investigating officers, victims, probation officers, witnesses to a crime, documentary evidence such as medical records showing injuries, office of medical investigator (OMI) reports, police reports, police videos, photographs, recorded statements, affidavits relating to the defendants, written statements, depositions, criminals complaints, criminal records, psychological profiles just to mention a few.

The importance of the ruling is that the District Judges are being given wide range of discretion to decide what is clear and convincing evidence that shows no release conditions exist that will reasonably protect the safety of any other person or the community.

In Justice Daniel’s words “You can’t reduce these things [“no bond” holds] to a computer program. … That’s why we have judges who make decisions.”

Former restaurant owners who are defendants in a class action lawsuit filed by former employees suing to enforce Albuquerque’s “minimum wage” ordinance are alleging the minimum wage law enacted in 2012 by voters “was presented to voters in an unlawful, misleading and deceptive manner and is therefore void and unenforceable as a matter of law”.

(See April 12, 2017 Albuquerque Journal, Business Section B, “ABQ minimum wage law faces new challenge; Former business owners in class-action suite ask judge to strike down law.)

The defendant business owners want a District Court Judge to strike down Albuquerque’s minimum wage ordinance.

The argument can be characterized as fear and loathing of voters and workers.

The City of Albuquerque and the City Attorney’s Office should intervene in the class action lawsuit to defend the ordinance and to enforce the ordinance.

In 2012, by a two-to-one ratio, voters in the City of Albuquerque decided to raise the City’s minimum wage from $7.50 per hour to $8.50 per hour.

The ordinance also requires a cost-of-living adjustment (COLA) to the minimum wage and Albuquerque’s current minimum wage is $8.75 per hour.

Employers who provide healthcare or childcare benefits equal to or in excess of an annualized cost of $2,500.00, the minimum hourly rate payable to those employees is $1.00 less than the then-current minimum wage.

In 2012, Republican Mayor Berry, the Republican Albuquerque City Councilors and the business community opposed and campaigned against the minimum wage voter initiative.

Opponents argued increasing the minimum wage would destroy small businesses, especially the restaurant and service industries in Albuquerque.

None of the “doom and gloom” predicted happened and for over five (5) years the minimum wage ordinance has been in effect.

After enactment of the City’s minimum wage ordinance, Mayor Berry did not object to his appointed City Attorney saying the City did not have the resources to enforce the law against all businesses who violated the minimum wage law.

The current attitude of City Hall is that workers need to go to court on their own at their own expense to enforce the ordinance and that is why the class action lawsuit was filed by waitresses and waiters.

The existing minimum wage ordinance is a city ordinance that needs to be enforced by the city and the city attorney’s office and not leave workers hanging out to dry and to fend for themselves and their own expense.

I doubt that there a very many people who survive on the minimum wage can afford to hire attorneys to help them with their claims.

Every single business in Albuquerque is required to register and have a license to do business and must agree to adhere to all enacted city ordinances and laws.

Businesses cannot pick and choose what laws and city ordinances they want to follow.

The City Attorney’s office and Planning Department have the authority to enforce existing ordinances.

All businesses licensed to do business can be ordered by the city to follow the minimum wage law.

The City can take court action to have business licenses revoked and secure court orders to shut down the businesses for violating the law.

The City Attorney’s Office needs to do the right thing and enforce the existing minimum wage ordinance enacted by voters.

Voters need to ask all candidates for Mayor what their position is on the city’s minimum wage ordinance and if they intend to instruct the City Attorney’s Office to enforce the ordinance.

I wish our congressional delegation would be far more upfront with the fact that it is not likely we are going to see any money from the Federal Transportation Administration (FTA) for the ART Bus project.

Trump’s proposed 2018 federal budget, which was released March 16, 2017, does not contain the $69 million Federal Transit Administration grant the mayor and his staff have said repeatedly is coming.

Over 20% of the ART bus project is complete and construction should be finished sometime October.

The Albuquerque City Council refused to put the project on the ballot and voted to fund the construction without having the money from the Federal government.

U. S. House and Senate conference committees have recommended a $20 million cut in Albuquerque’s Grant under the 2017 Obama budget and funding has not been approved.

Officials at the FTA said that if ART does not appear on the current list of “fully funded” projects, it’s won’t get any more federal money, and Albuquerque’s ART Project does not appear on the list of “fully funded” projects.

Yet Mayor Berry still thinks all the federal money will be forthcoming.

Berry claims the plans are to complete the ART Bus project by the end of the year and then to get reimbursed with the approval of the $69 million dollar FTA grant by Congress.

Mayor Berry says he has great confidence in our congressional delegation to get the federal funding for the project.

Rep. Michelle Lujan Grisham comments to Channel 4 were not very reassuring about the ART Bus project funding when she said “We do not want the city to be in a situation that passes along its projects holes right or budget deficit to consumers … We’re going to have to figure it out, but until I get that budget in front of me with the details, I can’t really tell you exactly what’s going to hold and what isn’t … I don’t see any indication we’re trying to remove that infrastructure projects from their current commitments. … [The passage of the omnibus funding bill will] affirm all of those expenditures in this current fiscal year [and] in that context, I’m not as worried that the president’s budget for FY18 doesn’t specifically have that funding.”

(See “Congressional delegation address questions about ART” http://www.kob.com/albuquerque-news/congressional-delegation-address-questions-albuquerque-rapid-transit-project-art-michelle-lujan-grisham-ben-ray-lujan-steve-pearce/4450833/?cat=500)

Representative Steve Pierce likewise was not so reassuring about the ART Bus project funding when he said to Channel 4 “The president’s budget is just the beginning point … So we’ll actually go to work in the house and we’ll create the real budget, so you can just take that as an advisory position from the President.”

Rep. Ben Ray Lujan said “There’s no certainty with what this administration will do or how the Republican congress will respond.”

Now that Congresswoman Michelle Lujan Grisham is running for Governor, why should she even lift a finger or bother to help bail out Republican Mayor Berry on the ART bus project other than to make sure City voters do not have to pay for Berry’s mistake.

Berry just may be Michelle Lujan Grisham’s Republican opponent for Governor and she will need to remind voters how Mayor Berry crammed the ART bus project down our throats without a public vote to benefit all his construction buddies who no doubt will be contributing to Berry’s Governor’s race.

Why should Republican Congressman Steve Pearce lift a finger to help Republican Mayor Berry when they too may be facing off for the Republican nomination for Governor.

Pearce openly supported President Donald Trump, while Mayor Berry did not even bother to attend the Trump rallies in Albuquerque.

The City Council voted to spend the federal funding for the project before it has been received and the Berry City budget submitted for the 2017-2018 fiscal year starting July 1 has no money set aside in reserves in the event the federal funding is not approved by Congress.

I really do hope Berry runs for Governor so he can be held accountable for the ART Bus project and the destruction of the Albuquerque Police Department (APD).

Attorney General Hector Balderas is now getting into the fray and supporting Bernalillo County District Attorney Raul Torrez position that District Judges are demanding too much evidence before holding alleged dangerous defendants in jail without bond prior to trial. (See April 10, 2017 Albuquerque Journal page A-1, AG supports DA in no-bail jail dispute; Amendments roll out has sparked conflict between judges and prosecutors.”)

District Attorney Torrez is requesting the New Mexico Supreme Court for guidance to the implementation of the constitutional amendment allowing pre-trial detention without bond.

The Attorney General’s action is not at all surprising and a little bit self-serving both politically and work load wise.

Politically, it is easy to get attention and garner public favor criticizing judges for not doing their jobs and letting felons out on the street knowing full well judge’s are restricted by the Code of Judicial Conduct from making public comments on pending cases and must be fair and impartial in their rulings.

From a work load stand point, the Attorney General handles all appeals in criminal cases for District Attorney’s, so if there are more appeals on “no bond” cases, the Attorney General’s workload increases.

What Torrez and Balderas just may get from the New Mexico Supreme Court is an admonishment telling them both to do their jobs and meet their burden of proof under the law.

The “no bond” amendment approved by voters states “bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”

The “no bond” rule is very clear and unambiguous.

The “no bond rule” requires a court hearing and evidence to be presented.

The right to a reasonable bond pending a trial to guarantee appearance at trial and prevent a person from fleeing is also a critical right.

No judge can set bail amounts that are so unreasonably high to prevent a defendant from posting bail solely because of their financial inability to post the bond.

The “no bond” rule is not meant to be a circumvention of our constitutional rights.

“Presumption of innocence” and “due process of law” are two of our most critical rights guaranteed under our constitution.

These two constitutional rights offer all of us protections against overzealous prosecutors and overzealous law enforcement officials.

Our New Mexico Judicial system is replete with many cases where people have been falsely charged, unable to make high bonds pending trial for extended periods of time, only to be found not guilty at a later date or released because of lack of evidence, with those same accused walking away with large settlements or judgments against the City or State.

Not too long ago in Albuquerque, two traveling salesmen were accused of raping and murdering a prominent elderly couple in their Northeast heights home, the Defendants were held in jail for over a year pending a trial and unable to make bond.

The two defendants were later released because the two murders were confessed to by another and the two wrongly accused sued and walked away with a large judgement against the City.

In another Albuquerque case, a Defendant was charged with raping and murdering an 11 year old, held in jail for over a year unable to make bond, and the defendant was later released because of DNA evidence.

Once again, the falsely accused defendant sued and walked away with a million dollar plus settlement.

Judges cannot make rulings based upon emotions, inflammatory accusations, public outcry’s and publicity generated by heinous crimes.

Under the “no bond” rule, judges need to have evidence to “hang their hats” on to have their rulings sustained and upheld on appeal.

District Attorney Raul Torrez claims that District Judges are asking for “mini-trials” and that Judges won’t accept written criminal complaints by law enforcement officers as sufficient evidence to hold someone without bond.

The hearings required under the “no bond rule” are not “mini-trials” to determine guilt or innocence but a presentation of evidence.

The Attorney General and the District Attorney’s office do not want to be required to offer any clear and convincing evidence that no release condition exist to protect the public as required by the “no-bond” rule.

Ostensibly, both the Attorney General and the District Attorney want to be allowed to offer only pleadings and accusations such as criminal complaints filed with the court.

A criminal complaint is not a conviction, is not clear and convincing evidence, but merely an accusation of probable cause that must be proven in court to get a conviction.

The new “no-bond” rule requires prosecutors to present supporting evidence that shows there are no reasonable release conditions that will protect the public.

Testimony from investigating officers as to the violent nature of the allege crimes committed and even testimony from the victims and injury inflicted could easily be offered to the court.

Probation officers for those charged and who are familiar with the charged defendants could also be called to testify as to the violent propensity of a defendant and past conduct.

I suspect that the New Mexico Supreme Court will rule that the Attorney General’s office and all District Attorneys in the state need to step up their game, do their jobs, and present clear and convincing evidence to the courts to allow the courts to find a charged defendant is a danger to the public and to issue a “no bond” hold until trial.

UNM Athletic Director Paul Krebs has a striking facial resemblance to the German Tiger Tank Driver in the classic movie “Kelly’s Hero’s” starring Clint Eastwood, Donald Sutherland and Telly Savalas.

In the movie, three ranking army soldiers, along with their men, went rogue and robbed a bank behind German enemy lines where the Germans had stored tons of gold.

A classic scene is when the three soldiers approached the German Tiger Tank protecting the bank and convinced the tank commander to turn his tank’s cannon turret on the city bank and blast a hole in the vault and help them steal the gold inside in exchange for a share of the gold.

The Tiger Tank Commander knew that the war was lost, so he blasted the vault and walked away with his share of the gold.

UNM Athletic Director Paul Krebs probably knows many of UNM’s athletics programs are lost and are coming to an end.

Krebs now blasts a hole in a contract he was responsible for negotiating and takes money from the university bank vault to buy out yet another contract for $1 million.

It has been confirmed that the University of New Mexico will pay fired basketball coach Craig Neil $1 million to buy out the remaining 3 years of Niel’s contract.

The buyout will be paid in 24 monthly installments. (See April 6, 2017 Albuquerque Journal article “UNM has game plan for Neal buyout; Athletic department plans job cuts, potential naming rights deal to help balance budget”)

Krebs is paid $319,262 as UNM Athletic’s Vice President and has been on the job for 11 years.

During his tenure, Krebs has fired and bought out the contracts of football coaches Rocky Long, Mike Locksley and basketball coach Richie McKay, and the programs are still loosing money.

Krebs also could not convince basketball coach Steve Alford to stay and Alford went on to coach UCLA.

Virtually all the UNM athletics programs are operating in the “red”.

The UNM athletic department finished 2016 with a $1.5 million loss and it was the seventh (7th) deficit in the past nine (9) years.

When the UNM Athletic department runs a deficit, the university must cover it and is supposed to be paid back by the athletic department.

Last year’s Athletic Department’s $1.5 million dollar deficit was covered by the University and it remains to be repaid.

It is projected that the Athletic Department will have $444, 607 deficit while UNM is struggling with reduced revenues, reduced funding and budget cuts.

No doubt Paul Krebs will expect to be paid in full his $319,000 + salary despite UNM’s financial problems.

When will our UNM Board of Regents wise up and find someone who can attract, find and keep good coaches?

Just as important, when will the UNM Board of Regents hold Paul Krebs responsible and find someone else who can turn all our athletics programs around?

Sooner or later, if not already, the UNM bank vault will be empty of its gold, but Paul Krebs no doubt will walk away with his share.

US Attorney Jeff Sessions has announced plans in a memo made public that the Department of Justice will be reviewing all existing consent decrees involving police reforms, which includes Albuquerque and APD’s consent decree. (See April 5, 2007 Albuquerque Journal, page A-1, “AG planning review of police reform projects.”)

According to Attorney General Sessions, the Department of Justice will be reviewing collaborative investigations and prosecutions, law enforcement task forces and “other Justice Department” activities, which are issues addressed in some form or another in the APD’s consent decree.

According to the Session’s memo, the goal of the Justice Department is to make sure the agreements align with the Trump Administrations goals and principals which include improving officer safety and morale, ensuring public safety is an honorable career, fighting crime, and promoting civil rights.

I suspect Mayor Berry, Chief Gordon Eden and the APD command staff are privately jumping for joy over Session’s announcement and they see it as an opportunity to get out from under the consent decree and the agreed to mandated reforms.

Mayor Berry in characteristic style puts a positive and false spin on the news that the Department of Justice will be reviewing Albuquerque’s consent decree saying Albuquerque is committed to the reforms and “I think we have something to show for it but nobody on my administration is saying Mission Accomplished” which reminds me of President George W. Bush.

Of course Berry would say that because APD and the command staff do not want to accomplish the “mission” of police reform.

While the Department of Justice reviews APD consent decree, you wonder if they will also review the 2013 DOJ investigation and finding of a “culture of aggression” found within APD, the 41 police officer involved shootings and excessive use of force cases over the last seven years and the $61 million dollars paid out by the city for excessive use of force and deadly force cases and for civil rights violations by APD.

What the Berry Administration has to show is two years of delay tactics.

The Federal Monitor was extremely critical of the Berry Administration and the APD command staff in his last three reports to the federal court reporting delay tactics and lack of progress in implementing the DOJ consent decree mandated reforms.

The truth has always been that Chief Gordon Eden and his command staff are not committed to implementing the DOJ reforms as evidenced by their actions and performance under the consent decree.

Just five months ago on November 12, 2016, the Albuquerque Journal published an article reporting that city Community Policing Councils were frustrated with Chief Gordon Eden not attending their meetings, the Police Oversight Board complaining that Chief Eden ignored its findings and discipline recommendations, and the city attorney, instead of Chief Eden, was often the person who publicly explained the reform efforts.

(See November 12, 2106 Albuquerque Journal article “Police reform groups say APD Chief not involved” at https://www.abqjournal.com/887736/groups-where-is-eden.html).
APD Forward, an APD oversight group, also said Eden had not been present for many settlement-agreement meetings.

The Berry Administration, Chief Eden and his command staff lack of commitment to the DOJ mandated reforms is documented in the second, third and the fourth progress reports submitted by Federal Monitor James Ginger to the Federal Court.

In his second report to the federal court, Federal Monitor James Ginger accused the City Attorney of what he called, “delay, do little and deflect” tactics saying his relationship with her was “a little rougher than most” compared with top attorneys in other cities and where he has overseen police reform.

The July 1, 2016 federal monitor’s third report states “Across the board … the components in APD’s system for overseeing and holding officers accountable for the use of force, for the most part, has failed … the serious deficiencies revealed point to a deeply-rooted systemic problem. … The deficiencies, in part, indicate a culture [of] low accountability is at work within APD, particularly in chain-of-command reviews. …”

The November 1, 2016 fourth federal monitor’s report states that when “excessive use of force” incidents are investigated by the APD Critical Incident Team, it“ [deploys] carefully worded excuses, apparently designed not to find fault with officer actions” and “[uses] language and terminology apparently designed to absolve officers and supervisors of their responsibility to follow certain CASA (Court Approved Settlement Agreement) related provisions.

As of last July 31, 2016, APD was in compliance with only 25% of the settlement agreement’s 278 requirements which does not show much of a commitment to the reforms by APD.

With Attorney General Jeff Sessions demanding the resignation of US Attorney Damon Martinez, Albuquerque lost a federal prosecutor who was committed to implementation of the APD consent decree and all the reforms.

The District of New Mexico will soon have a new United States Attorney to carry out the Trump Administration agenda and only time will tell if that person will be committed to carrying out the consent decree or seek its modification.

Notwithstanding all the changes at the Department of Justice, the fact that APD is under a court approved settlement agreement means that any changes or modifications to the agreement or a dismissal will have to be approved by the federal judge no doubt with input from the federal monitor.

Come December 1, 2017, the City of Albuquerque will have a new Mayor and likely a new Chief of Police.

Voters need to demand candidates for Mayor say what their position is on the DOJ consent decree, if they support the reform effort and to what extent they support the reform effort.

Voters also need to demand from candidates for Mayor if they are committed to hiring a Police Chief and a command staff who will cooperate with the Federal Monitor to ensure genuine implementation of the consent decree and all the mandated reforms.