Councilors Pat Davis and Isaac Benton: “It’s My Job To Make Sure I Win!”; Rank Voting And Public Finance Favors Incumbents

Since the enactment of the City Charter creating Albuquerque’s Mayor/City Council form of government, municipal elections have been held every two years in odd-number years in October on the first Tuesday, with run offs held six weeks later and the winner sworn in on December 1 after the runoff.

During the 2018 legislative session, the New Mexico legislature enacted the Local Election Act which went into effect July 1, 2018. The Local Election Act requires municipalities like Albuquerque to either move their municipal elections to a consolidated local election in November of odd-numbered years or hold non-consolidated elections in March of even-numbered years. On November 19, 2018, the Albuquerque City Council unanimously approved a measure moving Albuquerque’s municipal elections from October to November of an election year to comply with the Local Election Act. The November election date also moves municipal runoff elections to December and term starting dates to January.

The 2019 election is the first time the city is holding a combined election with other local government agencies under the Local Election Act. Albuquerque’s municipal city council and the city’s bond election will be held on November 5, 2019 along with the Albuquerque Public School Board Election and its bond and mill levy request. The office of mayor is not up for election this year.

There are 4 City Council positions that will be on the November 5, 2019 ballot. Districts on the November ballot are Districts 2, 4, 6, and 8. Democrats Benton and Davis and Republican Jones are running to get elected to another term while Republican Brad Winter has announced he will not seek another term.

RANK VOTING NOW BEING PROPOSED

The municipal election is scheduled on November 5, 2019. The process to collect qualifying $5 donations for “public financing” and required nominating signatures from register voters has already begun. Democrat Albuquerque City Councilors Isaac Benton, Pat Davis and Republican City Councilor Brad Winter are seeking to make major changes to the municipal election code by changing the current election rules from a “primary and run off system” to a single “ranked-choice voting” system. Such a voting process would eliminate a runoff election and the costs associated with a runoff. The change in the election code would apply to this year’s City Council race and all future city council races and the race for Mayor.

https://www.abqjournal.com/1317794/abq-councilors-push-for-ranked-choice-voting.html

CANDIDATES FOR CITY COUNCIL

District 2 City Councilor Isaac Benton, has 5 opponents seeking to replace him and they are Steve Baca (D), Joseph Griego (D), Robert Raymond Blanquera Nelson (D), Zack Quintero, (D) and Connie Vigil, (R). All candidates in District 2 are seeking public financing. Incumbent Isaac Benton has already secured the required number of qualifying $5 donations.

District 4 has 5 candidates running to replace Brad Winter. Those candidates are: Brook L. Bassen, Athena Ann Christodoulou, Mary Sue Flynt, Ane C. Romero, Haley Josselyn Roy. All 5 candidates in District 4 are seeking public financing.

District 6 City Councilor Pat Davis has only one challenger and she is Gina Naomi Dennis (D) who is an attorney, neighborhood activists and who was a Bernie Sanders delegate in 2016 to the Democratic National convention.

District 8 City Councilor Trudy Jones has only one challenger and she is S. Maurreen Skowan who is public financing. Jones has elected to finance her campaign with private financing.

CURRENT ELECTION PROCESS

Currently, under Albuquerque’s charter, a candidate for city councilor or mayor must receive at least 50% plus 1 of the vote to win an election without a run off outright. If no candidate receives 50% plus one of the vote, the top two finishers face off in a separate runoff election and whoever gets the 50% majority vote wins the election. Candidates for Mayor and City Council must also submit nominating petitions with signatures of registered city voters.

The 2019 municipal election process is already underway with the City of Albuquerque’s Municipal election to be held on Tuesday, November 5, 2019. Debates are being held by neighborhood associations. There are a total of 15 candidates running for city council in the 4 city council seats that will be on the November 5, 2019 ballot.

QUALIFYING CONTRIBUTIONS

Only one month is given to candidates running for city council to collect $5.00 qualifying donations to the city in order to secure public financing. The qualifying period is May 1, 2019, to May 31, 2019 to collect the $5.00 donations to secure public financing. $1 per registered voter in a City Council District is given to candidates who qualify for public finance. Once qualified, the candidate must agree to the amount as being the only money, or cap, they can spend on their campaign. The number of $5.00 donations needed in each city council district to qualify for public financing are as follows: In District 2, 413, in District 4, 393, in District 6, 323 and in District 8, 425. The $5.00 donations are made to the city and must come from registered voters in each district.

As of May 24, 2019, with only one week left to collect qualifying donations, only incumbent Albuquerque City Councilor Isaac Benton in all 4 City Council District has collected the required number of qualifying donations. Following is the breakdown of collected $5.00 donations as reflected in the City Clerks web page:

DISTRICT 2- 433 Qualifying Donations Needed For Public Finance

Steve Baca: 8 verified, 423 remaining to collect, 2% of requirement met
Isaac Benton: 473 verified, 0 remaining to collect, 100% of requirement met
Joseph Griego: 233 verified , 200 remaining to collect, 54% of requirement met
Robert Raymond Blanquera Nelson: 165 verified, 268 remaining to collect, 38% of requirement met
Zachery A. Quintero: 191 verified, 242 remaining to collect, 44% of requirement met
Connie Vigil: 18 verified, 415 remaining to collect, 4% of required met

DISTRICT 4 – 393 Qualifying Donations Needed For Public Finance. This is City Councillor Brad Winters District and he is not running for another term. All the candidates are seeking public finance:

Brook L. Bassan: 185 verified, 208 remaining to collect, 47% of requirement met
Athena Ann Christodoulou: 81 verified, 312 remaining to collect, 21% of requirement met
Mary Sue Flynt: 3 verified , 390 remaining to collect, 1% of requirement met
Anne C. Romero: 89 verified, 304 remaining to collect, 23% of requirement met
Haley Josselyn Roy: 57 verified, 336 remaining to collect, 15 % of requirement met

DISTRICT 6 – 323 Qualifying Donations Needed For Public Finance

Pat Davis: 203 verified, 120 remaining to collect, 63% of requirement met
Gina Naoi Dennis: 137 verified, 186 remaining to be collect, 42%% of requirement met

DISTRICT 8 – 424 Qualifying Donations Needed For Public Finance

S. Maureen Skowran – 153 verified, 272 remaining to collect, 36% of requirement met

NOTE: Incumbent City Councilor Trudy Jones is not seeking public financing and will be relying on private donations.

You can review the full breakdown of verified donations here:

http://www.cabq.gov/vote/2019-candidates

NOMINATING PETITION SIGNATURES

For all the City Council candidates, the qualifying period to secure qualifying nominating signatures from registered voters to be placed on the ballot is May 1, 2019 to June 28, 2019. All candidates running for city council must secure 500 nominating signatures from registered voters who live in the district.

DISTRICT 2 (Incumbent Isaac Benton)

Steve Baca: 61 verified, 439 more needed
Isaac Benton: 371 verified, 129 more needed
Joseph Griego: 323 verified, 177 more needed
Robert Raymond Blanquera Nelson: 224 verified, 276 more needed
Zachery A. Quintero: 104 verified, 396 more needed
Connie Vigil: 121 verified, 369 more needed

DISTRICT 4 – (This is Brad Winters district and he is not running for another term.)

Brook L. Bassan: 227 verified, 273 more needed
Athena Ann Christodoulou: 78 verified, 422 more needed
Mary Sue Flynt: 6 verified, 494 more needed
Anne C. Romero: 91 verified, 409 more needed
Haley Josselyn Roy: 20 verified, 480 more needed

DISTRICT 6 (Incumbent Pat Davis)

Pat Davis: 78 verified, 422 more needed
Gina Naoimi Dennis: 48 verified, 452 more needed

DISTRICT 8 (Incumbent Trudy Jones)
S. Maureen Skowran: 137 verified, 363 more needed
Trudy E. Jones: 0 verified, 500 more needed

You can review the full breakdown of verified donations and signatures here:

http://www.cabq.gov/vote/2019-candidates

HOW RANK VOTING OR INSTANT RUNOFF WORKS

Ranked-choice voting is also known as “instant runoff”. It eliminates the need for a runoff election and all the campaign time and costs associated with a runoff. The ultimate winner of the election is determined with a mathematical calculation of votes listed at once on a single ballot with an elimination process.

All candidates’ names running for a specific office are placed on the ballot in an order determined by a drawing. When a person votes, they rank each candidate by preference. If no one candidate receives at least 50% of first-place votes, the candidate with the fewest first-place votes is eliminated from the ranking. The ballots are then retallied by counting the first and the second preference votes from each ballot for all the candidates not eliminated by the first vote. If none of the remaining candidates reach the 50% mark, the process continues until one candidate meets the 50% threshold.

Because only one challenger has emerged to run against Pat Davis and Trudy Jones, ranked-choice voting will not affect their races. However, rank voting if passed will be involved with the other 2 City Council races if more than 2 candidates qualify for the ballot.

Rank voting or the “instant runoff” system is used by the City of Santa Fe. Supporters of the instant runoff system argue that it eliminates costly runoff elections and reduces the election season. The average cost of a runoff election is between $500,000 to $1 million. For example, the 2017 mayoral election runoff between Tim Keller and Dan Lewis cost the city taxpayers $840,890. Runoffs in 2013 and 2017 cost the city a combined $1.5 million.

The Albuquerque City Council has exclusive authority to amend the election code and change the election process from the traditional primary and run off system to an instant run off system. The ranked-choice legislation was introduced in April by its sponsors City Councilors Davis, Benton and Winter.

In order to have it in place this year, the city council must to approve it by June 30 which is the deadline for the city to submit election details to the New Mexico Secretary of State and time is running out. The ranked-choice legislation election change is currently stuck in the city council’s Finance & Government Operations committee and has yet to advance the to the full City Council. Notwithstanding, there is still enough time for the city council to enact the legislation.

https://www.abqjournal.com/1319369/window-closing-to-approve-election-overhaul.html

COMMENTARY AND ANALYSIS

Ranked choice voting is a dramatic overhaul of the city election process. If enacted, it will be the first time the city is holding a combined election with other local government agencies. It is likely there will be significant confusion by voters dealing with a ballot mandating a listing of their preferred candidates to decide an election with no run off.

Now that the 2019 municipal election has begun and is in full swing and heating up, both Davis and Benton, who will be on the ballot, want to change the rules of the game knowing full well it will give them an advantage over their opponents who are far less known. Benton and Davis could not care less about the perception and conflict of interest they have running for reelection and having the power to change the rules of the election in the middle of it.

When a task force to overhaul Albuquerque’s public fiancé laws was created, City Councilors Pat Davis and Isaac Benton declined to advocate meaningful changes to our public finance laws making it easier for candidates to qualify for public finance. The only change both Davis and Benton agreed to was increasing the amount of money candidates get and not the process of collecting the donations to qualify and not expanding the time to collect qualifying donations. The lack of changes to the public finance laws favors incumbents like Davis and Benton.

Collecting the $5.00 qualifying donations for public finance is a lot easier than it looks and is in fact extremely difficult, unless you are an incumbent. People do not like to donate to politicians. On the other hand, collecting the required number of nominating signatures is not that difficult. With only one week left to secure the $5.00 qualifying contributions, of the 15 candidates for city council it is more likely than not that only 4 will actually qualify for public finance. On the other hand with over a full month left to gather nominating petition signatures from register voters it is more likely than not that at least 7 of the 15 candidates will qualify for the ballot by collecting the 500 qualifying signatures

Rank voting or instant runoff gives incumbents and unfair advantage because of their name identification. Davis and Benton should recuse themselves from voting on the changes to the election process because they will be on the November 5, 2019 ballot. As an alternative, and because of the dramatic change being advocated, the city council should place rank voting on the November 5, 2019 ballot for voters to decide and if it passes, it would be put in place for future elections.

POSTSCRIPT

Following are recommendations for changes to the City’s public finance laws outlined in a January 2, 2018 blog article on the city’s public finance ordinance:

1. Allow four (4) months and two (2) weeks, from January 1 to May 15, to collected both the qualifying donations and petition signatures, and private campaign donation collection.
2. Allow the collection of the qualifying donations from anyone who wants, and not just residents or registered voters of Albuquerque. Privately finance candidates now can collect donations from anyone they want and anywhere in the State and Country.
3. Once the allowed number of qualifying donations is collected, the public financing would be made immediately available, but not allowed to be spent until starting May 15.
4. Permit campaign spending for both publicly financed and privately financed candidates only from May 15 to the October election day.
5. Return to candidates for their use in their campaign any qualifying donations the candidate has collected when the candidate fails to secure the required number of qualifying donations to get the public financing.
6. Mandate the City Clerk to issue debit card or credit card collection devices to collect the qualifying donations and to issue receipts and eliminate the mandatory use of “paper receipts”.
7. Increase from $1.00 to $2.50 per registered voter the amount of public financing, which will be approximately $900,000, and allow for incremental increases of 10% every election cycle keeping up with inflation.
8. Allow for additional matching public financing available for run offs at the rate of $1.25 per registered voter, or $450,000.
9. Albuquerque should make every effort to make municipal elections partisan elections to be held along with State and Federal elections by seeking a constitutional amendment from the legislature to be voted upon by the public.
10. Any money raised and spent by measured finance committees on behalf a candidate should be required to first be applied to reimburse the City for any taxpayer money advanced to a public finance candidate or deducted from a publicly financed candidates account and returned to the city.
11. City of Albuquerque campaign reporting and finance ordinances and regulations need to define with absolute clarity that strictly prohibit the coordination of expenditures and campaign activities with measured finance committees and individual candidate’s campaigns in municipal elections.
12. A mandatory schedule of fines and penalties for violations of the code of ethics and campaign practices act should be enacted by the City Council.

Changing Election Date With No Public Finance Reform

District Court Finds Bern Co DA Office Failed To Comply With Court Orders; Accused Violent Offender Released

On May 17, 2019, the online news organization ABQ Reports published an investigative report written by its editor Dennis Domrzalski and retired, former Albuquerque Police Sargent Dan Klein. Channel 4 Investigative Reports also did an investigative report on the same day that was an abbreviated version of the ABQ Report article.

Following are both articles with links to the reports and Commentary and Analysis:

May 17, 2019, ABQ REPORTS ARTICLE

ABQ Report HEADLINES: DA Raul Torrez’s office blew previous case against man now accused of killing UNM ball player

– TORREZ’S OFFICE FAILED TO COMPLY WITH COURT DEADLINES IN THE CASE, FAILED TO ARRANGE FOR WITNESS INTERVIEWS AND FAILED TO RESPOND TO DEFENSE MOTIONS IN THE 2017 CRIMINAL CASE AGAINST DARIAN BASHIR.

– JUDGE SAID DA’S OFFICE WAS “CULPABLE” IN FAILING TO COMPLY WITH COURT ORDERS.

– TORREZ SAID CASE WAS DISMISSED BECAUSE WITNESS REFUSED TO TESTIFY. BUT THE JUDGE SAID SHE WASN’T INFORMED OF WITNESS PROBLEMS UNTIL THE LAST MINUTE.

– IDIOT AND HYSTERICAL MEMBERS OF THE NEWS MEDIA BUY INTO TORREZ’S MISREPRESENTATIONS.

Listen to the hysterical talk radio hosts and TV reporters and you get the idea that a man accused of murdering a UNM baseball player was on the streets for a 2017 arrest because a criminal-loving judge freed him just because the judge has no regard for the community’s safety.

But it was Bernalillo County District Attorney Raul Torrez’s office that screwed up the 2017 case against Darian Bashir so badly that a judge had to dismiss the criminal charges against Bashir, who is now accused of fatally shooting the UNM player, 23-year-old Jackson Weller.

Had Torrez’s office successfully prosecuted Bashir for the 2017 shooting, then he probably would not have been on the streets of Albuquerque in 2019, to be accused of shooting at others (February) and murder (May). Simply stated, those two violent crimes did not need to happen had Torrez’s not screwed up the 2017 case so badly that the charge was dismissed.

And just so reporters at KOAT, KRQE, KOB and talk show screamers understand, when charges are dismissed you aren’t guilty. Judges can’t (and shouldn’t) use dismissed charges to hold people in jail. Will we hear Bob Clark scream, or Nancy Laflin investigate this? That doesn’t make for ratings, they are looking for “outrage” so they can get more viewers / listeners to pump up their stations advertising dollars. Truth and knowledge be damned. It’s all about the money.

Torrez’s office failed to comply with court deadlines in the case, failed to arrange for witness interviews and failed to respond to defense motions, according to a Jan. 22, 2019, decision in the case by state District Court Judge Cindy Leos.

Here’s Judge Leos’s five-page order. It’s only five pages, read instead of listening to the lies and half-truths on talk radio and TV:

https://drive.google.com/file/d/1aB7emjMC0zdPhYKO3cz7DCiY2AGML2qm/view

And it’s lies, and maybe even one-sixteenth truths, that the media and Torrez’s office are peddling in the case. Torrez is doing the peddling, apparently to cover up his office’s incompetence and its failure to properly serve the public, and the news media, especially the hysterical Bob Clark on KKOB Radio, is buying the half-truths and is deceiving the public,

Here’s a line from a recent Albuquerque Journal story about the 2017 case involving Bashir that is misleading at best and an outright lie at worse:

“In November 2017, Darian Bashir allegedly walked up to a young man in Downtown Albuquerque and shot him at point-blank range. The case was dismissed because the victim – who survived – didn’t testify.”

Well, that summary and take on things, probably supplied by Torrez’s office, isn’t what the judge said. Here’s the final [2] paragraph[s] from Judge Leos’s order:

“10. In determining the appropriate sanction under these circumstances, the court is to analyze the State’s culpability, whether the State’s conduct give rise to prejudice and whether exclusion was the least severe sanction appropriate under the facts and circumstances of the case … [the court finds]:

[1] The state was culpable in failing to comply with the deadlines imposed by this Court in the May 15, 2018 Scheduling Order.
[2] They did not arrange witness interviews by the deadline,
[3] They did not seek an extension of the deadlines,
[4] They did not properly request a material witness warrant,
[5] They did not file a response to any of the motions and
[6] The state had no explanation for the failing to comply with this Court’s order.
[7] The State’s conduct did give rise to prejudice.

This matter is set for trial on March 4, 2019, after and extension the Court granted when the State failed to appear at the Pretrial Conference on December 28, 2018. The December 28, 2018 PTC [Pre-Trial Conference] was scheduled during the Scheduling Conference on May 15, 2018. Defendant has been under strict Pretrial Services supervision during the pendency of this case and the State initially sought pretrial detention of Defendant. The Court considered the lesser sanctions, however given the upcoming trial setting and the issues discussed herein, the Court determined the appropriate was dismissal without prejudice.”

11. As a result of the foregoing, this matter is dismissed without prejudice.”

SO ORDERED.”

The judge said the DA’s office was “culpable” in failing to meet court-ordered deadlines. That means the DA actions (or inactions) caused this case to be released in January of 2019. Four months later the same defendant stands accused of murder. Have any of these reporters thought of asking Raul Torrez if he believes his office bears some responsibility for Bashir being on the streets instead of in prison? Hey Bob Clark, lets hear you scream about this on Monday.

Here are some other failures the judge noted about how Torrez’s office handled the case against Bashir:

– In November 2018, Bashir’s attorney filed a motion to suppress information in the case. How did Torrez’s office respond to the motion?

It didn’t respond. In fact, it failed to respond. It failed to do its job.

“The state did not file a response to any of these motions,” Judge Leos’s order said.

– During the case, Judge Leos “orally denied defendant’s motions to dismiss the aggravated battery charge and the firearm enhancement,” her order said. But listen to Clark and others and you get the idea that Judge Leos dismissed the case against Bashir because she loves criminals and cares nothing about the community’s safety.

And also understand this point which so many of you fools out fail to understand and accept unless you’re charged with a crime. Bashir was presumed innocent until he is proven guilty, because that’s how our system works. No one is guilty just because the cops and government say so. You are not guilty just because a PIO for APD or the DA gives a local journalist special “access”. An arrest is only a charge by law enforcement. In Albuquerque we have witnessed, over and over, people arrested, and publicly shamed by law enforcement and the media, only to have charges dropped or be acquitted in court.

But the crazed Bob Clarks of the world forget about the presumption of innocence when they determine that someone is guilty of a crime.

– “Neither defense nor the state were able to inform the Court whether or not the incident was indeed captured on video,” the judge’s order said. “Neither party knew if the police camera nearby was even capable of recording. Neither party knew if the camera did indeed record, what happened to any video of the incident, and no witnesses were provided to answer any of these questions.”

– The DA’s office never provided to the defense—as required—an audio of a photo array in which a witness identified Bashir as the offender.

– “At no time was a motion filed by the state asking the Court to issue a material witness warrant,” the judge’s order said. “No affidavit was presented to the Court indicating that the state was unable to secure the witness presence by subpoena as is required [by Court rules]. The state did not alert the Court in any manner that they were having difficulties with witnesses prior to the hearing date on Jan. 17, 2019, despite the fact that defense requested the suppression of these witnesses through his motion filed on November 9, 2018.”

Has the media in Albuquerque become so lazy that they are unwilling or unable to do any investigative research? Stories are fed to willing reporters and news directors, who drink it down like grape kool-aid at a Jim Jones picnic, by those in power (Torrez, Keller, Geier etc). These reporters are doing a disservice to the public and to their profession. They are “owned” by those in authority and that is not what the 1st Amendment was about.

Our local media, has in many respects, become a joke. But now that joke has turned serious as they seem to be leading uneducated citizens with misplaced anger toward judges and presumably innocent people. The local media is causing a hysteria of misinformation that unless corrected, may turn violent.

In regards to Bashir the media should be asking Raul Torrez, “Had your office not failed in prosecuting Bashir, would he have even been on the streets to commit murder in 2019?”

We are all waiting for this question to be asked and for Torrez to answer. If he holds true to his past, he will find someone else to blame. It seems to be how his office handles things. God how I miss Bob Schwartz!

The 2017 shooting case against Bashir was dismissed on Jan. 22 of this year. And it wasn’t because a judge hates the community. It was because DA Raul Torrez’s office failed to do its job.

In February of this year Bashir was arrested on another shooting charge. The judge let him free because he had no convictions and no pending criminal cases. Remember, because Torrez’s office screwed up the 2017 case it was dismissed.

The hysterical and Constitution-hating Bob Clark and others went out of their minds when they learned that Bashir had been arrested on a shooting charge in 2017 and earlier this year. Clark, Torrez and others immediately blamed soft-on-crime judges for letting Bashir onto our streets. But, Clark and his maniacal, screaming crowd always conveniently forget that an arrest is not proof of a crime, that Americans are constitutionally entitled to bail and that in America, people are presumed innocent until proven guilty beyond a reasonable doubt.

And you can bet that Clark and others in the media won’t bother to read Judge Leos’s order in the 2017 case. They won’t because they can’t get their heads out of Torrez’s ass.”

Below is the link to the ABQ Report story:

https://www.abqreport.com/single-post/2019/05/17/DA-Raul-Torrezs-office-blew-previous-case-against-man-now-accused-of-killing-UNM-ball-player

KOB CHANNEL 4 REPORT

Within hours after the ABQ Report article, KOB Channel 4 Investigative Reporter Chris Ramirez essentially did an identical story to the ABQ Report.

The major difference in the stories is that KOB 4 secured an “on camera” interview with District Attorney Raul Torrez.

The Channel 4 story reported that arlier this year on February 12, Bashir picked up a felony charge for shooting out of a motor vehicle and that In September 2018, Bashir was also charged with shooting a man in the stomach.

The KOB Investigation reported that District Judge Cindy Leos dismissed the September case and in her order of dismissal she found:

The DA’s office missed deadlines
The DA’s office did not arrange witness interviews
The DA’s office did not properly request warrants
At least once, the assistant district attorney assigned to the case failed to show up to court

The president-elect of the New Mexico Defense Attorney’s Association Richard Pugh was interviewed and said if prosecutors had done a better job, Bashir’s February arrest could have been considered a violation of his supervision. This would have made possible Bashir would have been in jail the night he allegedly killed Jackson Weller.

When interviewed on camera by Channel 4 Reporter Chris Ramirez, District Attorney Raul Torrez didn’t make excuses for the failures of his office, but he disagreed that the failures caused the dismissal of the case.

What District Attorney Raul Torrez did say was that the the case simply wasn’t ready for trial and said:

“At the end of the day, we expect more from attorneys and we want them to be able to meet the demands of the case volume … But without cooperative witnesses, we’re not able to move forward.”

Following is the link to the Channel 4 report:

https://www.kob.com/albuquerque-news/4-investigates-darian-bashir-the-man-accused-of-murdering-unm-baseball-player/5358150/?cat=500

COMMENTARY AND ANALYSIS

District Attorney Raul Torrez says “At the end of the day, we expect more from attorneys …”. Torrez does not realize that at the end of the day voters expect a degree of competence in the prosecution of cases and management of the Bernalillo County District Attorney’s Office, and we are not getting it. By any measure, both the ABQ Report and the Channel 4 Investigative report are about as damning of District Attorney Raul Torrez and the Bernalillo County District Attorney’s Office as you can get. The Channel 4 report was nothing more than a deflection of bad management practices and a refusal to accept any responsibility by District Attorney Raul Torrez.

The findings of the District Court contained in the Court Order dismissing violent felony charges against Darian Bashir reflect a serious degree of incompetence and a level of malpractice by the Bernalillo County District Attorney’s Office. It is malpractice for attorneys not to attend hearings, not to follow court orders, not to respond to motions, miss deadlines and fail to turn over evidence as ordered. In the private practice of law, such conduct would result in termination of an associate and perhaps even disciplinary action filed with the New Mexico Bar. Bernalillo County District Attorney Raul Torrez should be thankful the Court did not dismiss the case with prejudice or impose any sanctions against his office in the Darian Bashir case.

Torrez is now attempting to deflect his offices mishandling of the Darian Bashir case by calling for another constitutional amendment on bond reform. The constitutional amendment would require defendants accused of certain crimes to show and convince a judge that they should be released pending their trial on the charges. According to Torrez, cases where a defendant would be required to show they do not pose a threat to public and should be released pending their trial would include “the most violent and serious cases” such as murder, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm and defendants who are on supervision or parole for another felony.

Under the proposed amendment, Torrez wants to incarcerate people without allowing the posting of bond or allowing a release with conditions pending a trial. Under the proposed amendment, DA Torrez wants to shift the burden of proof to the accused with a presumption that a person who is merely charged with a violent crime is therefore violent and the accused must prove they are not an immediate danger to the public or be held in jail until trial. In other words, Torrez wants an accused to take the witness stand, waive their constitutional rights against self-incrimination, testify and give reasons why they are not violent and should be released from custody pending trial. Such waiver will no doubt waive any and all claims of constitutional rights against self-incrimination.

Torrez needs to retain the services of the UNM School of Law and secure a few lectures on Constitutional Law 101 to be taught to the office.

For other related blog articles see the following links:

Accused Murderer Darian Bashir To Be Held Without Bond Pending Trial; Deep Dive Analysis On Bail Bond Reform Labeled “Catch And Release”

Backass Backwards: “Your Presumed Violent Until You Prove Otherwise!”

Backass Backwards: “Your Presumed Violent Until You Prove Otherwise!”

Bernalillo County District Attorney Raúl Torrez is proposing a new constitutional amendment that would require defendants accused of certain crimes to show and convince a judge that they should be released pending their trial on the charges. According to Torrez, cases where a defendant would be required to show they do not pose a threat to public and should be released pending their trial would include “the most violent and serious cases” such as murder, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm and defendants who are on supervision or parole for another felony.

https://www.abqjournal.com/1318399/da-to-unveil-new-pretrial-detention-proposal-ex-some-defendants-would-have-to-prove-they-should-be-released-pending-trial.html

Under a 2016 voter approved constitutional amendment, a court can only detain a defendant pending trial if prosecutors can show by “clear and convincing evidence” that no conditions of release will reasonably protect the safety of the community and there is no immediate threat of harm. The voter approved constitutional amendment was necessitated in part by the fact that so many defendants were awaiting arraignments or trials, being denied bail and being held in jail, for months, and at times years, to the point that jails were becoming severely overcrowded. A 30 year federal lawsuit for jail overcrowding was recently settled by Bernalillo County.

KILLING WAS CATALYST FOR PROPOSED CHANGE TO LAW

Torrez’s push for another constitutional amendment comes after his office mishandled another case involving the defendant accused of the May 4, 2019, killing of 23-year-old University of New Mexico student Jackson Weller who was shot and killed outside a crowded Imbibe Night Club in the heart of Nob Hill. The killing was the 26th person killed by gun violence in Albuquerque this year.

Darian Bashir, the man charged in the Weller killing, was out on conditions of release in another shooting where the case was dismissed and had to be refiled a second time. In November 2017, Darian Bashir was charged with aggravated battery after he allegedly walked up to another young man in Downtown Albuquerque and shot him at point-blank range in the chest. According to DA Torrez, the November 2017 case was dismissed by the Bernalillo County District Attorney’s office because the victim, who survived being shot, did not testify.

In January 2018, the first case was dismissed “without prejudice” against Bashir by the District Court after the DA’s Office failed to comply with court mandated hearing deadlines, including not arranging witness interviews. The District Court made findings that the Bernalillo County District Attorney’s Office was culpable and ultimately responsible for the dismissal of the charges and made the following findings:

“10. In determining the appropriate sanction under these circumstances, the court is to analyze the State’s culpability, whether the State’s conduct give rise to prejudice and whether exclusion was the least severe sanction appropriate under the facts and circumstances of the case … [the court finds]:

[1] The state was culpable in failing to comply with the deadlines imposed by this Court in the May 15, 2018 Scheduling Order.
[2] They did not arrange witness interviews by the deadline,
[3] They did not seek an extension of the deadlines,
[4] They did not properly request a material witness warrant,
[5] They did not file a response to any of the motions and
[6] The state had no explanation for the failing to comply with this Court’s order.
[7] The State’s conduct did give rise to prejudice.

This matter is set for trial on March 4, 2019, after and extension the Court granted when the State failed to appear at the Pretrial Conference on December 28, 2018. The December 28, 2018 PTC [Pre-Trial Conference] was scheduled during the Scheduling Conference on May 15, 2018. Defendant has been under strict Pretrial Services supervision during the pendanancy of this case and the State initially sought pretrial detention of Defendant. The Court considered the lesser sanctions, however given the upcoming trial setting and the issues discussed herein, the Court determined the appropriate was dismissal without prejudice.”

11. As a result of the foregoing, this matter is dismissed without prejudice.”

You can read the entire 5-page court order dismissing the case at the following link:

https://drive.google.com/file/d/1aB7emjMC0zdPhYKO3cz7DCiY2AGML2qm/view

After the January 22, 2019 motion hearing District Court Judge Cindy Leos under the Rules of Criminal Procedure had any number of options available as sanctions against the DA’s office when she made her 7 findings of improper and culpable conduct by the District Attorney’s Office. Those sanctions included:

1) Suppress and exclude all the evidence requested to be suppressed from the trial in the 5 motions that the District Attorney Office did not respond to in writing as ordered to and required by the Rules of Criminal Procedure.
2) Declare the District Attorney Office in direct contempt of court for falling to follow an order and impose a fine or impose jail time.
3) Refer the matter to the New Mexico Bar Disciplinary Board for bar license suspension.
4) A “Dismissal With Prejudice”. This would have prevented the prosecution from every bringing the charges again against defendant Brashir.
5) “Dismissal Without Prejudice meaning the court dismisses charge but allows prosecutors to refile charges or indict at a later date.
6) Order the removal of the office from the prosecution of the case and order the appointment of a special prosecutor.

After charges in the first case were dismissed without prejudice, the charges were again filed by the District Attorney Office. Court records show prosecutors again asked for Darian Bashir to be held until trial in the case, but another District Court Judge denied the request, noting that Bashir had a “minimal criminal history” and “no felony convictions.”

TORREZ RATIONALE FOR ANOTHER AMENDMENT

On November 8, 2016, the “New Mexico Denial of Bail Measure” was approved by New Mexico voters by a landslide vote. 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 based solely on the defendant’s inability to post a money or property bond.

“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.”

(Reference: https://www.ncsc.org/~/media/Microsites/Files/PJCC/PJB%209%20-%20Preventive%20Detention%20Brief%20FINAL.ashx )

District Attorneys throughout the state argue the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, have 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. DA Raul Torrez for his part has voiced the opinion that 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. Torrez is quoted as saying to the Albuquerque Journal:

“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.”

https://www.abqjournal.com/1318399/da-to-unveil-new-pretrial-detention-proposal-ex-some-defendants-would-have-to-prove-they-should-be-released-pending-trial.html

According to Torrez, his office is also running into numerous issues relating to the formatting of the motions it files for preventative detention hearings. The complaints include that the prosecutors are “copying and pasting parts of the criminal complaint into the motion” rather than making substantive arguments of the facts or of the law. According to Torrez: “This is what’s crazy. … Why are we not talking about the gun and the crime; why are we dismissing cases over the font size?”

Torres noted to the Albuquerque Journal that he is a former federal prosecutor and said he was surprised when he took office as 2nd Judicial District Attorney to learn that the process for keeping defendants behind bars until trial was going to be so complicated in state court and stated:

“I’m a guy who comes in from the feds. … [Where] … the motions to detain are one paragraph and you literally write his name in and we don’t even file those any more because the magistrate was saying, ‘Why are you wasting the paper?’ ” Frankly it is doubtful any Federal Magistrate would make such a claim and Torrez did not give a name for verification.

https://www.abqjournal.com/1318399/da-to-unveil-new-pretrial-detention-proposal-ex-some-defendants-would-have-to-prove-they-should-be-released-pending-trial.html

THE BERANLILLO COUNTY DISTRICT ATTORNEYS OFFICE UNDER RAUL TORREZ

The Bernalillo County District Attorney’s Office is the largest law firm in New Mexico that employs attorneys, paralegals, investigators, victim advocates and legal support staff. The Bernalillo County District Attorney’s Office employs 330 full time personnel which includes at any given time approximately 128 full time prosecutors assigned to prosecute felonies. Attorneys are also assigned to the Bernalillo County Metropolitan Court that handles misdemeanor domestic violence cases and aggravated DWI cases.

https://www.berncoda.com/

Last year during the 2018 New Mexico Legislative session, DA Raul Torrez asked the New Mexico State Legislature for a 30% increase in the budget of $18.2 million, or a $5.4 million increase. Torrez told legislators he wanted the increase in his budget in order to hire an additional 34 attorneys. Torrez said that the lack of resources was the main reason his office could not come close to prosecuting all the pending cases in his office and could not handle the bond and detention hearings mandated by the constitutional amendment.

During the 2018 legislative session, Torrez said there were “simply too many criminals and not enough staff … If we don’t get sufficient resources in this legislative session, I would think several thousand felony cases simply will become too old, too stale for us to act on. It’s not justice”.

Last year DA Torrez had 45 vacant positions which included 18 vacant attorney positions that he was not able to fill during his first year in office. Notwithstanding the vacancies, the 2018 Legislative session approved a budget for the Bernalillo County District Attorney’s Office and it went from $18.2 million to $21.5 million-dollars.

When it comes to vacant positions, things have gotten worse for the Bernalillo County District Attorney’s Office during the last year. The New Mexico Government Sunshine Portal has been updated to include 2019 data effective May 3, 2019. The sunshine portal reflects that District Attorney Raul Torrez now has 50 vacant positions. During the 2019 legislative session, the Legislature once again increased the budget for the office. According to the State Sunshine Portal the Bernalillo County District Attorney’s office is fully funded for 331 full time positions with a personnel budget of $15,027,216 with a total budget of approximately $24 million. As of May 3, 2019, of the 331 fully funded positions, only 281 are filled and active with 50 vacant positions listed. The 50 vacant positions include 17 vacant “at will” attorney, assistant trial attorney, senior trial attorney and trial attorney positions and 10 vacant Secretarial and Legal Secretary positions.

https://ssp2.sunshineportalnm.com/#employees

NOT FIRST TIME TORREZ CASE MANAGEMENT CALLED INTO QUESTIONED

The Darian Bashir case is not the first time the management of the Bernalillo County District Attorney’s case load by District Attorney Raul Torrez has come into serious question. According to a February 14, 2019 Channel 13 news story, an anonymous tipster within the District Attorney’s office sent News 13 pictures of stacks of domestic violence cases piled up on a table in the Bernalillo County District Attorney’s Office. The photos were of 3 stacks of roughly 500 domestic violence case reports. Each one of the domestic violence reports were linked to a domestic violence victim left waiting from 2 to 5 months without hearing anything after calling police reporting misdemeanor domestic violence crimes including assault, theft and restraining order violations.

Below is the link to the story:

https://www.krqe.com/news/investigations/domestic-violence-victims-left-in-limbo-for-months-after-reporting-crimes/1776417417?fbclid=IwAR2h1vFytK-efAL-ldfY8TpC1iz-eVKDnDal0qB-Lv5jSM2pOrsUFjAltFY

Torrez went on camera with Channel 13, but only after a week had passed giving him time to clear out the backlog. District Attorney Raul Torrez explained the stacks of reports were made up of “criminal summons” cases where police did not arrest anyone for various reasons such as suspects had already left the scene of the crime. Torrez acknowledged that victim advocates before would call people who reported domestic violence cases within 2 weeks compared with an average of 2 months to 5 months because there use to be more investigators and victim advocates working the cases for his office.

According to Torrez, taking quick action on court cases is one of the best ways to deter someone from committing more crimes in the future. Torrez said focusing resources to move fast on the few repeat offenders responsible for the majority of crime is working to drop the overall number of criminal cases in Bernalillo County. DA Raul Torrez went on to tell News 13 that he has requested another budget increase this year from the 2019 Legislature and placed a budget increase request for more investigators and victim advocates. Torrez failed to disclose that he had 44 fully funded vacancies within his office that he has failed to fill over the past year despite his repeated complaints of lack of staff. The 44 vacant positions included at the time 11 vacant “at will” attorney positions, 15 classified legal secretary positions and 2 victim/witness positions (victim advocates).

COMMENTARY AND ANALYSIS

This is really back ass backwards and embarrassing when it comes to our constitutional rights of presumption of innocence until proven guilty by the prosecution. DA Torrez wants to shift the burden of proof to the accused with a presumption that a person who is merely charged with a violent crime is therefore violent and the accused must prove they are not an immediate danger to the public or be held in jail until trial. The questions that need to be answered is where did Mr. Torrez get his get his law degree and did he fail constitutional law in law school.

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 the prosecution has the burden of proof to establish why a person should be held in custody until a trial.

Bernalillo County District Attorney Raúl Torrez’ proposal requiring defendants accused of violent crimes to show and convince a judge that they should be released pending their trial reflects he has a very weak understanding or an ignorance of constitutional law. It also reflects that he is not capable of doing his job as District Attorney. DA Torrez’ proposal is to essentially shift the burden of proof in criminal cases from the prosecution to the defense and to have the courts presume that a person is violent and a danger to the public based on charges filed yet to be proved in a court of law.

What is stunning is Raul Torrez admitted to the Albuquerque Journal that he was “surprised” when he took office as 2nd Judicial District Attorney to learn that the process for keeping defendants behind bars until trial was going to be so complicated in state court. This is an admission coming from the very candidate in 2016 who proclaimed he was both a state and federal experienced prosecutor, who proclaimed the criminal justice system was broken and he was the guy who could fix it. After Torrez was elected, he demanded and was given more funding, more resources and more personnel for his office.

The District Attorneys’ Office is notorious for filing very serious felony charges only to dismiss them months later when they realize they don’t have a case or there is insufficient proof to convict. Under the proposed changes, Torrez wants to incarcerate people without allowing the posting of bond or allowing a release with conditions pending a trial. Torrez now wants to shift the burden of proof in criminal cases from his job as a prosecutor, create a rebuttable presumption, and make an accused defendant prove they are not violent allowing them to be released pending trial. In other words, Torrez wants an accused to take the witness stand, waive their constitutional rights against self incrimination, testify and give reasons why they are not violent and should be released from custody pending trial. Such waiver will no doubt waive any and all claims of constitutional rights against self incrimination.

Bernalillo County District Attorney Raul Torrez has an extensive history of blaming Judges for the rise in violent crime rates and many have bought into that bogus argument. Less than six months after being sworn in as Bernalillo County District Attorney, Raul Torres blamed the New Mexico Supreme Court’s Case Management Order (CMO) for Albuquerque’s increasing violent crime rates. Torrez had his District Attorney Office issue a report that outlined the so-called problems he perceived since the issuance of the Case Management Order by the Supreme Court in February, 2015.The main points of the DA’s 2016 report was that defense attorneys were “gaming” the court mandated discovery deadlines under the CMO to get cases dismissed by demanding evidence they are entitled to under the law and the Rules of Criminal Procedure and asking for trials instead of entering into plea agreements. In response to the Torrez report, the District Court did their own case review of statistics and found that it was the Bernalillo County District Attorney’s Office that was dismissing the majority of cases, not the courts.

The findings of the District Court contained in the Court Order dismissing violent felony charges against Darian Bashir reflect a serious degree of incompetence and a level of malpractice by the Bernalillo County District Attorney’s Office. It is malpractice for attorneys not to attend hearings, follow court orders, not to respond to motions, miss deadlines and fail to turn over evidence as ordered. In the private practice of law, such conduct would result in termination of an associate and perhaps even disciplinary action. Bernalillo County District Attorney Raul Torrez should be thankful the Court did not dismiss the case with prejudice or impose any sanctions against his office in the Darian Bashir case.

Torrez is now attempting to deflect his offices mishandling of the Darian Bashir case by calling for another constitutional amendment. A constitutional amendment does require action by the New Mexico legislature to pass it and place it on the ballot for voter approval. Before the legislature does that, perhaps they will demand District Attorney Raul Torrez do a better job of managing his office with the resources he has been given by them.

The New Mexico Supreme Court needs to revisit Rule 5-409 of the New Mexico Rules of Criminal Procedure for the District Courts that governs preventive detention hearings in the District Courts, modify it and change it and find a permanent solution that will give the lower court’s far more latitude and discretionary authority when it comes to the bond hearings and holding violent criminals in jail until trial. Common sense guidelines, not hard set mathematical formulas allowing no discretion, need to be given the Judges to allow them to make decisions that they believe are in the best interest to protect the public as well as the defendant’s rights to due process of law

For more on the detention of Darian Brashir pending trial see:

Accused Murderer Darian Bashir To Be Held Without Bond Pending Trial; Deep Dive Analysis On Bail Bond Reform Labeled “Catch And Release”

To Put Out A Fire, You Use The Water You Can Get; New Mexico State Police Role In “Metro Surge Operation” Questioned

The New Mexico American Civil Liberties (ACLU) is questioning the wisdom of “Metro Surge Operation” involving the 50 New Mexico State Police sent to Albuquerque to help the Albuquerque Police Department (APD) to deal with the City’s violent crime rates. The ACLU essentially argues that the New Mexico State Police sent here to help APD in the metro surge need to follow the identical requirements, training and procedures as the Albuquerque Police Department (APD) is required to follow under the federal Court Approved Settlement Agreement (CASA). The ACLU ignores the big picture as to why the surge is needed and ignores that the New Mexico State Police are not under a consent decree. There has been no finding of a “culture of aggression” within the New Mexico State Police as APD. There has been no finding that the New Mexico State Police have engaged in unconstitutional policing practices.

THE METRO SURGE OPERATION

On Friday, May 10, 2019, in reaction to the murder of a 21-year-old college student, Mayor Tim Keller, APD Chief Michael Geier, UNM President Garnett Stokes, 2nd Judicial District Attorney Raúl Torrez held a joint press conference to announce initiatives aimed at making the Nob Hill Business District safer and reducing violent crime up and down the Central corridor. The initiatives announced at the May 10 press conference included assigning an additional 50 New Mexico State Police officers from across the state to work out of Albuquerque. Seven NM Sate police officers already work here which brought the number up to 57 State Police.

According to APD Chief Michael Geier, a couple of days of planning led up to the Metro Surge Operation involving the 50 State Police to patrol mainly along Central. State Police officers have statewide jurisdiction in virtually every city and small community in New Mexico. According to Geier the initial plan is to keep the 50 officers in Albuquerque for about 45 days through the Fourth of July. Chief Geier noted:

“State Police is in our city all the time. … Most of their emphasis is in traffic enforcement, but they also are with the auto theft unit. … This is just a continuation of the assistance they give us at times. This one just happens to be a little greater magnitude.”

Six days after the governor sent 50 additional New Mexico State Police officers to Albuquerque, two of those state police officers fired their weapons in separate incidents in Albuquerque. The shootings were unrelated. Both shootings started with attempted traffic stops in different areas of Albuquerque, one in the southwest part of the city and the other in the northeast.

https://www.abqjournal.com/1316731/state-police-involved-in-shooting-in-sw-abq.html

REASON FOR THE “Metro Surge Operation”

Since May 4, 2019, there have been 26 homicides in Albuquerque. Thus far, 15 of the homicides remain unsolved. Law enforcement authorities report that there have been 114 people shot in 112 days in Bernalillo County including the city of Albuquerque through April 23, which is a 36% increase over last year during the same time period.

The Bernalillo County District Attorney’s Office has implemented a data collection program called “Ceasefire”. Ceasefire is supposedly a data-driven approach to combat gun violence. According to the DA’s office a breakdown of data from January 1, 2019, to April 23, 2019 is as follows:

There were 101 shootings in which individuals were injured or killed, several of which had multiple victims
114 people were shot, 17 of whom were killed.
95 incidents happened in the city.
6 incidents happened outside the city but within the county.
2 people were shot by law enforcement.
10 cases were self-inflicted shootings.
The shortest time between shootings was 16 minutes.
The longest time was a five-and-a-half-day stretch in early January.
The average number of shootings was just over one shooting per day.
Suspects have been identified in 42 cases, although it’s unclear how many have resulted in an arrest.
There were 27 more shootings so far in 2019 compared to the same time period in 2018 when there were 74 shootings.
As a result of the increase in violent crime in Albuquerque, city and APD officials and businesses reach out and met with Governor Michell Luna Grisham for help.

TWO INCIDENTS EXAMINED

Both of the May 16 State Police officer-involved shootings occurred in the evening and an hour apart. No officers were injured in either shooting, but one officer hurt his shoulder when his vehicle collided with a civilian vehicle during a “hot pursuit”. State Police Officials said one suspect was shot in the shoulder and said they were still searching for others who escaped after the second shooting.

It was a New Mexico State Police officer from Gallup who was part of the Metro Surge Operation who pursued a suspect in a stolen vehicle and who ran a traffic stop. The State Police officer chased the vehicle into a cul-de-sac and shot at it after the driver did a U-Turn and drove toward him. The State Police Officer shot the suspect in the shoulder.

Both the pursuit and the shooting were in violation of the Albuquerque Police Department (APD) new standard operating procedure policies written for its use and part the Federal Court Approved Settlement Agreement (CASA). The CASA was agreed to in 2014 after a federal investigation found a “culture of aggression” within APD and a pattern of unconstitutional use of force. APD’s policy on use of force under the consent decree is very specific and prohibits shooting at a moving vehicle unless the occupant is using lethal force other than the vehicle itself or there is no other reasonable alternative.

The second incident also involved a pursuit, and a pursuit intervention technique maneuver, by a State Police officer before he fired at the vehicle. The driver, later identified as 40-year-old Daniel Franco, escaped capture when the State Police Officer crashed his vehicle into a bystander’s vehicle. An arrest warrant has been issued for Franco.

ACLU CHALLENGES STATE POLICE ROLE

The two shootings within one hour of each other, six days into the “Metro Surge Operation” and by the same law enforcement agency are now being questioned by APD Police reform advocates, police critics and the American Civil Liberties Union of New Mexico. Concerns are being raised about how the New Mexico State Police officers will be handling calls for service in Albuquerque during the surge operation while at the same time APD Officers are operating under separate mandated reforms of a federal court approved settlement agreement (CASA) .

Peter Simonsen, the executive director of the American Civil Liberties Union of New Mexico (ACLU) is arguing that the Metro Surge Operation is proving problematic when it comes to the federal court approved settlement (CASA) agreement with APD. According to Simonson:

“I think we feel like the State Police need to be held to the exact same standard that APD officers are held to and that the governor and the city should be giving the people of Albuquerque some assurances that will be the case.” Simonson proclaims he does not want the city to return to the days when police shootings were happening “practically every month”.

https://www.abqjournal.com/1317254/state-police-role-in-city-challenged.html

THE CASA REFORMS

In November, 2019, it will be a full 5 years has expired since the city entered into the Court Approved Settlement Agreement (CASA) with the Department of Justice (DOJ). New “use of force” and “use of deadly force” policies were written and implemented with all APD sworn receiving training on the policies. All APD sworn have received at least 40 hours crisis management intervention training. APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.

Sweeping changes ranging from APD’s SWAT team protocols, to banning chokeholds, to auditing the use of every Taser carried by officers and have been completed. “Constitutional policing” practices and methods as well as mandatory crisis intervention techniques and de-escalation tactics with the mentally ill have now been implemented at the APD Police Academy with all sworn also having received the training. APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents. Personnel procedures have been implemented detailing how use of force cases are investigated. APD has also revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.

According to ACLU Executive Director Simonson:

“APD officers have found that [the CASA reforms] to be quite challenging, and using force appropriately obviously has been a focus over the past four years. To expect State Police officers to respond appropriately under those conditions – when they haven’t been given the kinds of training and aren’t held to all the policies APD is now held to – only sets them up to fail and only creates an explosive situation where we well could see many more police shootings in the future.”

New Mexico State Police Spokeswoman Jessie Damazyn in response to the ACLU had this to say:

“Other agencies policing within the city, including Bernalillo County Sheriff’s Office and New Mexico State Police, are subject to their own policies and procedures. … While the NMSP already has jurisdiction in the city, the additional officers are helping boost the number of uniformed law enforcement personnel on our streets while we continue to recruit and hire more officers. We hold our personnel to high standards and are working closely with NMSP to make sure they are working in ways that contribute to our ultimate goal: reducing violent crime in our community.”

https://www.abqjournal.com/1317254/state-police-role-in-city-challenged.html

NOT ALL LAW ENFORCEMENT AGENCIES AND POLICIES ARE THE SAME

There are numerous law enforcement agencies that work within Bernalillo County and the City of Albuquerque. Those law enforcement agencies include the New Mexico State Police, the Bernalillo County Sheriff’s Department, the Albuquerque Police Department, the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the United States Customs and even a few Indian Tribal law enforcement agencies.

All the law enforcement agencies have their own minimum qualifications to be hired, policies, procedures and have different standards. Virtually every single federal, state, county law enforcement agency that work within the city and county boundaries have jurisdiction and authority. City, County and State Law enforcement agencies have overlapping authority and co-equal authority to arrest and enforce state and local laws.

COMMENTARY AND ANALYSIS

The ACLU proclaims it does not want the city to return to the days when police shootings were happening “practically every month”. Citizens of Albuquerque want to get away with the shooting of people every day by violent felons. The City of Albuquerque is facing a serious violent crime problem with an overwhelmed and understaffed police department. One thing that is all too often voiced about the CASA reforms is that they have gone too far and APD sworn police are hamstrung by the reforms to the point they are reluctant to be proactive as other law enforcement agencies can be in the city. Notwithstanding, the Federal Monitor has reported that APD has in fact made significant progress during the past 18 months in the implementation of the reforms. The ACLU argument that APD officers have found that the CASA reforms to be quite challenging seems to be inflated or now unfounded given the Ninth Federal Monitors Report filed on May, 8 2019. You can read the report in the below blog article link.

It is understandable that the ACLU as well as APD police oversight advocates would raise concerns about the State Police officer involved shootings given the history of APD, the Department of Justice investigation of APD and the finding of a “culture of aggression” within APD resulting in federal Court Approved Settlement Agreement. However, the CASA and the reforms are APD and the City’s problem, not the problem of other law enforcement agencies. There is no legitimate reason for any law enforcement agency to agree to the CASA requirements imposed on APD because of APD’s history of a “culture of aggression.” It is likely those agencies would not even bother to help APD under such demands.

APD is the only law enforcement agency in the State of New Mexico that is operating under a federal court approved settlement agreement. It is not reasonable to infer that that all other law enforcement agencies helping APD or working in Albuquerque are not properly trained in following sound constitutional policing practices. It is ludicrous and not at all realistic to demand that any and all law enforcement agencies that assist or participate in law enforcement initiatives to help APD, such as the metro surge operation, to follow the requirement and training mandated by the Court Approved Settlement Agreement. In other words, you need to use what ever water you can get to put out a fire.

The City of Albuquerque is facing a serious violent crime problem with an overwhelmed and understaffed Albuquerque Police Department to the point the New Mexico State Police was called in to help. The Police Union has expressed embarrassment that another agency has been called in to help APD. On May 21. 2010 it was reported that in just a dozen days, 257 people were arrested by the 57 New Mexico State Police assigned to help APD. You can review the report at this link:
https://www.kob.com/albuquerque-news/nmsp-has-made-more-than-250-arrests-through-new-crime-initiative/5363669/?cat=500

The arrests made by the New Mexico State Police included several dozen felony arrests and 13 DWI’s. New Mexico State Police recovered 24 stolen vehicles and seized meth, heroin and firearms. One thing all too often voiced about the Federal Consent Decree (CASA) reforms is that they have gone too far and APD sworn police are hamstrung by the reforms. Many have argued that APD is so hamstrung to the point they are reluctant to be proactive as other law enforcement agencies like the Sate Police. The results of the Metro Surge Operation with the State Police makes the arguments believable.

Coordinated and targeted law enforcement initiatives such as the “Metro Surge Operation” are a very common practice for any number of law enforcement agencies, including APD. Such initiatives are very common against repeat violent offenders and the illicit drug trade. The “Metro Surge Operation” is the very type of law enforcement practices needed in Albuquerque in an attempt to bring down our out of control violent crime rates. With a little luck, the New Mexico State Police Officers will not be needed come July 5, 2019 when the surge is supposed to end.

Ninth APD Federal Monitor’s Report Filed; Negotiate Dismissal of CASA

The Charge To Extract You From Your Car Crash Will Be $1,305; Hopefully, It’s A Flat Fee That Won’t Be Charged Per Body Part Extracted

“Our resources are incredibly drained, and we’re trying to recover from a decade-long shortage of investments in first responders. … Anything we can do for public safety, we need to do right now without question” so said Mayor Tim Keller in an interview with the Albuquerque Journal regarding his plans to have the Albuquerque Fire and Rescue Department (AFRD) to start billing taxpayers when it is dispatched to the scene of a car crash or vehicle fires to raise $1 million to fund 12 firefighter positions.

https://www.abqjournal.com/1317594/mayor-proposes-fees-for-accidents-using-excessive-fire-rescue-services.html

ALBUQUERQUE FIRE AND RESCUE DEPARTMENT(AFRD) BUDGET

On April 1, 2019, the Keller Administration submitted its 2019-2020 fiscal year operating city budget to the Albuquerque City Council for review and budget hearings. The Keller Administration wanting to charge for AFRD responses for car crashes and fires is contained in the 2019-2020 proposed budget. You can review the entire proposed budget for AFRD here at page 110 of the budget:

http://documents.cabq.gov/budget/fy-20-proposed-budget.pdf

The operating budget submitted by the Keller Administration is for $1.1 billion for the fiscal year that begins July 1, 2019. Last year, the operating budget was $997 million. The Albuquerque City Council raised the gross receipts tax last year by three-eighths of 1% before the budget was even submitted. Mayor Tim Keller signed off on the tax increase breaking his campaign promise to get elected Mayor not to raise taxes without a public vote. Last year’s tax increase was implemented in order to deal with a projected deficit of $40 million, a deficit that never materialized.

Last year’s gross receipts tax increase generates $58 million per year and more than half of the tax increase revenue is going into public safety initiatives. The 2019-2020 budget represents an overall 11% increase in spending over the current year. The proposed 2019-2020 budget is the first time in city history that the city operating budget will exceed the $1 Billion figure. A whopping 47% of the General Fund budget expenditures is dedicated to fund the Police and Fire departments. The Albuquerque Police Departments (APD) proposed budget is for $209,852,000. The AFRD proposed budget is for $97,894,000. AFRD received a budget increase to cover 19 new positions, including seven in the field.

Under the proposed budget, the AFRD will go from 731 full time positions to 766 positions. (Page 110 of Proposed 2019-2020 Budget) In the proposed budget, it states that a new “emergency incident cost” recovery fee for AFRD will be billed to a taxpayer’s auto insurance company when it is dispatched to a call for service to the scene of a car crash or vehicle fire. If approved by the City Council, this will be the first time AFRD will be billing for services to the scene of a car crash or vehicle fire. The billing is projected to yield $1 million to fund 12 new firefighting positions out of a department total budget of close to $98 million dollars.

The AFRD has outlined the new “cost recovery” system for AFRD’s responses to automobile fires and to car crashes that require hazardous material cleanup or extractions. The proposed fees as set out in the city’s fire code ordinance will be $400 for “hazard mitigation and cleanup” and another $1,305 for use of “heavy rescue tools and other equipment” to remove someone from a crash vehicle. Under the proposal, the department could also bill $400 per hour for any additional time on the scene under the plan.

COMMENTARY AND ANALYSIS

Police and Fire protection are basic essential services that virtually every citizen in the city pays for with their taxes. The providing of an essential service, when it comes to police and fire protection, should be free of charge and such services should not be for profit, period. Both the police department and the fire department are not “enterprise funds” such as the aviation department that runs the airport, that operates very much like a private business when it charges “user fees” to airlines to operate and maintain the airport facilities but without a profit and with the goal of breaking even. Taxpayers have the right to demand that they not be forced to pay for basic essential services twice. The Albuquerque Fire and Rescue Department (AFRD) billing a taxpayer’s auto insurance company when it is dispatched to the scene of a car crash or vehicle fires to raise $1 million to fund 12 firefighter positions borders on the grotesque on so many levels.

Car insurance coverage contracts, other than the premiums and coverage amounts, are basically not negotiable and if the city bills an insurance company it will probably claim it’s not covered and just forward it on to the insured or the party who was at fault. A very large percentage of people do not carry car insurance, and those who do, the insurance carrier will likely deduct the city charge for AFRD accident scene clean up from any insurance claim paid.

Another foreseeable problem is when the accident is the result of the city’s negligence in highway maintenance or caused by a city vehicle, say a cop running a light and t-boning someone, which has happened more than once over the past few years. If multiple cars are involved, and liability not determined, it will be difficult for the city to send the bill to the party who is truly liable. The city maintains a contract with numerous private wrecking companies that are on a rotating schedule, when the city could easily purchase “tow-trucks” and do the job to clean up crash scenes. And if there is a car crash fatality, and no insurance, the City will probably want to charge the decedent’s family for the call for service which can easily be in the thousands of dollars given the proposed fee schedule.

The proposed fee to extract someone from a car crash will be $1,305 and hopefully, it’s a flat fee that won’t be charged per body part extracted by AFRD. Next thing you know, the Keller Administration will want the police department to charge for their calls for service because APD is consistently going over its overtime budget by the millions of dollars. It is not at all difficult to imagine the AFRD or APD generating a bill for a call for service at a scene of a fatality, give it to a decedent’s relatives and telling them “Sorry for your loss. Please give this bill to your insurance carrier, and if there is no insurance, please call to make payment arraignments”.

It is pathetice how Mayor Tim Keller cannot find $1 million in a $1.1 Billion-dollar budget after last year’s tax increase to deliver a basic essential service for the fire department to be dispatched to a car crash or vehicle fire to assist. Mayor Tim Keller wanting Albuquerque Fire and Rescue Department (AFRD) to bill a taxpayer when it is dispatched to the scene of a car crash or vehicle fires to raise $1 million to fund 12 firefighter positions borders on the grotesque. It is also ill advised when he says “Anything we can do for public safety, we need to do right now without question.” The providing of an essential service, when it comes to police and fire protection, should be free of charge, period. Such services should not be for profit. Next thing you know, the Keller Administration will want APD to charge for their calls for service because it is consistently going over its overtime budget by the millions of dollars. It is not at all difficult to imagine the AFRD or APD generating a bill for a call for service at a scene of a fatality, give it to a decedent’s relatives and telling them “Sorry for your loss. Please give this bill to your insurance carrier, and if you do not have insurance, call the city and payment arraignments.”

Over the next few weeks, the Albuquerque City Council “Committee of the Whole”, consisting of all 9 city councilors, will hold budget hearings on each department budget and alter or amend the budget as they see fit, vote to approve and the budget will take effect July 1, 2019. The City Council needs to put the brakes on this grotesque idea to have AFRD to charge for car crash or vehicle fire calls for service and find the $1 million in the $1.1 Billion budget, especially after Mayor Tim Keller agreed with them to raise taxes last year without a public vote. The City Council needs to tell Mayor Keller, that despite his own opinion, everything does not need to be done for public safety without question.

“So Very Sorry For Your loss. Please Give This Bill To Your Relative’s Insurance Carrier.”

When Pat Davis Does Not Speak At Press Conference, He Has His Own; Bike Patrols Ineffective To Deal With Violent Crime

On Thursday, May 16, 2019, Albuquerque City Councilor Pat Davis held a press conference. Councilor Davis was photo graphed behind a podium in front of the Triangle Substation, he was all alone at the podium with two cops standing 5 feet or more away from him with new bicycles and helmets. No other city official was in attendance to announce spending of $6,000 to purchase 6 new bikes for five APD bike officers, a sergeant and a lieutenant so they can patrol Nob Hill on bikes.

According to Pat Davis, the “bike patrol” is a new crime-fighting tool for the southeast area of town and the initiative includes an increase in bike patrols to Albuquerque Police’s Southeast Area Command Problem Response Team. Davis proclaimed during his press conference:

“I’m proud to help our officers put their community policing training to work for our neighborhoods. … Having Officers with the ability to get out of their cars and closer to residents and businesses makes APD more visible and reinforces our community policing vision.”

https://www.kob.com/albuquerque-news/city-councilor-announces-bike-patrol-expansion-in-southeast-albuquerque/5356121/?cat=500

TWO WEEKS EARLIER

On May 3, 2019, Albuquerque City Councilors Isaac Benton, Pat Davis, Klarissa Peña and Ken Sanchez held a press conference to announce public safety initiatives for Nob Hill. The 4 City Councilors announced their proposal to invest up to $1.5 million in specific Central corridor for “public safety” initiatives and marketing measures for fiscal year 2020. Included is $500,000 in one-time funding for grants to nonprofit business associations and merchant groups along the central corridor.

Many business owners along the Central Corridor where the ART Bus project was constructed have complained about repeated vandalism in the area, break-ins resulting in the businesses having to spend money on expensive repairs and even security measures. Other Nob Hill business owners have expressed mounting frustration, fear and anger struggling to recover from the 18 months of Albuquerque Rapid Transit (ART) construction.

ONE WEEK EARLIER

On Friday, May 10, 2019, in reaction to the murder of 21-year-old Jackson Weller, Mayor Tim Keller, APD Chief Michael Geier, UNM President Garnett Stokes, 2nd Judicial District Attorney Raúl Torrez held a joint press conference to announce initiatives aimed at making the Nob Hill Business District safer and reducing violent crime up and down the Central corridor. City Councilor Pat Davis attended the press conference held in his City Council District, but he did not speak.

The initiatives announced at the May 10 press conference include:

1. Assigning an additional 50 New Mexico State Police officers from across the state to work out of Albuquerque. Seven NM sate police officers already work here which will bring the number up to 57. 2. Giving UNM police access to the substation and having them coordinate patrols with Albuquerque Police Department officers.
3. Expanding the hours of the Triangle Community Substation on Central and Dartmouth until 3 a.m. on Fridays and Saturdays after bars close.
4. Stationing three bike patrol teams to work in Nob Hill during the day and three or four additional officers to patrol on Friday and Saturday nights.
5. Working with the Fire Marshal and the New Mexico Registration and Licensing Department to crack down on issues relating to overcrowding and over-serving in bars that could contribute to late night violence.
6. Using the National Integrated Ballistic Information Network to match casings to guns used in shootings throughout the state.

https://www.kob.com/albuquerque-news/gov-assigns-50-nmsp-officers-to-patrol-albuquerque-to-crack-down-on-violent-crime/5348521/?cat=500

A FEW HOURS LATER

Within a matter of hours after Pat Davis’ May 16, 2019 press conference, and 6 days after the governor sent 50 additional New Mexico State Police officers to Albuquerque to help local police fight crime, two of those state police officers fired their weapons in separate incidents in Albuquerque. The shootings were unrelated, but both started with attempted traffic stops in different areas of Albuquerque, one in the southwest part of the city and the other in the northeast.

Both officer-involved shootings occurred in the evening an hour apart. No officers were injured in either shooting, but one officer hurt his shoulder when his vehicle collided with a civilian vehicle during a “hot pursuit”. State Police Officials said one suspect was shot in the shoulder and said they were still searching for others who escaped after the second shooting.

https://www.abqjournal.com/1316731/state-police-involved-in-shooting-in-sw-abq.html

COMMENTARY AND ANALYSIS

What is clear from the two officer involved shootings the same day as the Pat Davis press conference, bike patrols are not going to cut it when your dealing with Albuquerque’s violent crime and murder rates. Bike patrols are effective when you want some extent of police presence for community-based policing, but bike patrols are a serious waste of resources when dealing with violent crimes and criminal investigations.

Every APD sworn police officer is given a fully equipped $45,000 plus take-home vehicle with a secured back area to transport arrested suspects.

Pat Davis is not one to ever shy away from a TV news camera to take credit for any action in his City Council District. Pat Davis did not announce his Nob Hill Bike Patrols at the May 10, 2019 press conference with Mayor Keller and DA Torrez even though it would have been totally appropriate and timely to do so, but he no doubt knew that he was going to have his own press conference six days later so he could take all the credit for the Nob Hill Bike patrols.

Hopefully the bikes Pat Davis had purchased come equipped with “bungy cords” to strap arrested defendants to take them to jail after a “hot pursuit”.

Pat Davis is running to get elected again to the Albuquerque City Council. Davis has only one opponent: Gina Naomi Dennis, a progressive Democrat and a Bernie Sanders delegate two years ago.

You can contact City Clerk Katy Duhigg at (505) 924-3650 or at cityclerk@cabq.gov for further information on the November 5, 2019 municipal election.

ALB City Councilors Isaac Benton and Pat Davis Both Need To Voted Out Of Office And Thanked For Their Service

Pat Davis Not Worthy To Be Elected To City Council A Second Term; Congresswoman Debra Haaland Needs To Distance Herself from Davis.