On January 17 MAGA Republican election denier and failed candidate Solomon Peña was arrested in connection with 4 shootings at the homes of Democrats Bernalillo County Commissioner Adriann Barboa, former Bernalillo County Commissioner Debbie O’Malley, and Speaker of the House Javier Martínez. It is alleged that he is the “mastermind” behind the shootings and that he conspired with and paid at least 4 other men to carry out the shootings and that he himself participated in one of the shootings.
On January 18, Solomon Peña faced Metropolitan Judge Jill Martinez over video and was seen in the court video dressed in a red jumpsuit with handcuffs. Peña did not say anything during the short preliminary hearing. The Bernalillo County District Attorney’s Office successfully argued for Peña to be held without bail until a detention hearing. Peña is represented by Albuquerque Attorney Roberta Yuric.
NEWS UPDATE: DISTRICT JUDGE RULES PEÑA TO BE HELD BEHIND BARS WITHOUT BAIL UNTIL TRIAL
In a detention hearing held on January 23, State District Court Judge David Murphy ordered Solomon Peña to remain behind bars without bail until trial. The Arnold tool suggested Peña could be released on his own recognizance.
The Bernalillo County DA’s Office pushed for Peña to be held behind bars until trial, arguing the evidence of the case and Peña’s prior criminal history indicate there are no conditions of release that would ensure the community’s safety. Deputy District Attorney Natalie Lyon argued “Shortly after his release from conditions of probation, he’s working with other people to commit these violent acts toward elected officials.” Peña’s defense in part argued that he has no history of violent crimes, crimes with firearms or crimes with drugs. Peña’s attorney Roberta Yurcic argued “For seven of those years your honor, [Peña] was out in the community and had no contact with the criminal justice system.”
Bernalillo County District Court Judge David Murphy decided that Peña will stay in jail through trial. Second Judicial District Judge David Murphy found that Pena presents a danger to the community and that no conditions of release could be fashioned that would ensure public safety. Following the pretrial detention hearing, Judge Murphy ruled :
“Based on the nature and circumstances of the charges, as well as defendant’s own history as a convicted felon, and the allegations of possession and use of an assault rifle, as well as the allegation that he has provided firearms to his conspirators, I do find the state has met its burden there.”
The Arnold tool suggested Peña could be released on his own recognizance but Judge Murphy said the tool is “merely a tool.”
Peña is facing 15 charges in the case that’s received national attention.
APD CHIEF HAROLD MEDINA SHOOTS BIG MOUTH OFF
In a truly remarkable example of pure political opportunism at its worst, APD Chief Harold Medina took the opportunity to again open his big mouth to declare our criminal justice system is broken and to attack the courts. He declared the courts are responsible for our high crime rates and blasted the use of a judicial assessment tool that recommended that Peña could be released with bond pending trial.
Medina reacting to the arraignment proceedings of Solomon Peña pointed his pudgy little finger at the entire criminal justice system over the city’s high crime rate and said this:
“Yet another example that shows why the criminal justice system is broken. Prosecutors will recommend that the suspect in these shootings be held in jail until trial. But a judicial assessment recommends the suspect should be released, even though he is a convicted felon who served time in prison for committing more than a dozen felonies. This suspect is alleged to have hired hitmen to shoot up elected officials’ houses with life-threatening gunfire. While I realize the judicial assessment is just one tool that judges can consider, I believe that tool is fatally flawed. How can we require judges to use this broken tool? We need to fix this process so the public will have faith that we are keeping the community safe from dangerous criminals.”
The glaring falsehood of Medina’s remarks is the judicial assessment tool known as the “Arnold Rule” Public Safety Assessment tool (PSA) is not at all mandatory nor a “required tool that is fatally flawed” as Medina stated. Judges can give it whatever weight they want to give it and even totally ignore it if they choose. It is nothing more than a recommendation that can or cannot be followed.
The Courts discretion has not been usurped by the Arnold rule. Under the law, the prosecution has the burden of proof in to make the case that a defendant charged with a violent crime is too dangerous to release from jail pending trial and there are no reasonable conditions of release to protect the public. When it comes to Solomon Peña, the judicial system is working, he is in jail and yet Medina felt compelled to say something.
The postscript to this blog article provides and explanation on the Arnold Public Safety Assessment Tool and how it works.
NOT THE FIRST TIME
This is not the first time that Medina has taken to the media and aim at the court’s releasing someone accused of a crime until trial. It was on March 22, 2022 that Medina and APD engaged in an orchestrated effort to disparage the reputation of Second Judicial District Judge Stan Whitaker who approved the release pending trial of Defendant Adrian Avila on strict conditions, including GPS monitoring and a curfew. After an evidentiary hearing, 2nd Judicial District Judge Stanley Whitaker ruled that prosecutors had credible evidence to charge Adrian Avila for the crime of murder, but prosecutors did not prove “no conditions of release could protect the community.”
Whitaker’s decision drew immediate sharp criticism from APD Chief Harold Medina and APD took to social media the vilify Judge Whitaker. APD Chief Harold Medina had this to say during a TV interview:
“These people are accused of killing somebody and we’re counting on an ankle bracelet to protect the community. … [Adrain Avila is] at the root of gun violence. … [His release is] ridiculous.”
On March 22, APD posted on its TWITTER and FACEBOOK accounts a photo of Defendant Adrian Avila with the text saying in part about the pretrial release using the Arnold Rule:
“A judge released a murder suspect from jail today on an ankle monitor. … This is beyond upsetting. This jeopardizes the safety of our community, including our officers.”
Within a few days APD’s FACEBOOK post had over 2,200 overwhelmingly “angry emoji” reactions, over 1,900 shares and over 718 comments. The overwhelming majority of the comments were negative, derogatory and very personal attacks on Judge Stan Whittaker.
ARNOLD TOOL TO GET SENATE JUDICIARY COMMITTEE SCRUTINY
The arrest of Solomon Peña for the 4 politically motivated shootings in Albuquerque has quickly resulted in debate during the 2023 Legislative session over whether to make it easier to hold more defendants in custody as they await trial. Citing the Solomon Peña shooting case, Las Cruces area Democrat Senator Joseph Cervantes, renewed his opposition to rebuttable presumption in pretrial detention but called for broader scrutiny of how courts are using the public safety tool for pretrial release. Senator Cervantes is a seasoned and highly respected trial attorney and is the chairman of the powerful Senate Judiciary Committee and he opposes the “rebuttable presumption” standard to deny bail.
Cervantes praised the decision of a Metropolitan Court Judge Jill Martinez to keep in custody Solomon Peña until a full detention hearing can be held. Cervantes said the Solomon case is evidence that judges already have the discretion they need to hold defendants in jail when it’s appropriate as they await trial.
However, Cervantes took issue with the Public Safety Assessment (PSA) tool, also know as the “Arnold Tool”, being used by the courts as an excuse in their decision making to release a defendant pending trial. Cervantes said the public safety assessment tool has not recommended the highest levels of supervision if the defendant were released. Cervantes told his senate colleagues:
“The judge is doing the appropriate thing here [with Solomon Peña] … we’ll be looking for that same level of protection for all New Mexicans, not just elected officials. … The Arnold Tool is just like any other computer program and we all know the ‘garbage in, garbage out’ phrase. It would seem very clear the Tool is being used to make recommendations for a lot of individuals being released that shouldn’t be. Seventy-five percent (of those charged) with murder in Albuquerque in 2021 were recommended to be released. The Arnold Tool can also be used as an excuse for why certain individuals have been released and why they’re committing horrible murders while they’re on release. There is an argument being made that the Arnold Tool really serves very little purpose because all it does really is aggregate information that the judge would already have.”
Cervantes also spoke out against the introduced legislation that would create a “rebuttable presumption” of dangerousness for defendants charged with certain violent crimes and they be held without bond pending trial. The aim of rebuttable presumption proposals is to make it easier for more defendants to be held in custody before they’ve been convicted and to keep them from committing new crimes. Proponents of rebuttable presumption say it will reduce violent crime. Opponents of rebuttable presumption say courts can already keep a defendant in jail if there’s no other way to protect the public.
Artie Pepin, director of the state Administrative Office of the Courts, disputed Senator Cervantes contention. He said the Arnold Tool simply recommends the level of supervision if a judge determines the defendant can be released before trial. It’s up to a judge, he said, to determine whether release is appropriate. Pepin said this:
“Researchers have validated that the [Arnold Public Aafety Assessment Tool] reliably gauges the likelihood of whether the person will return to court for future hearings and remain arrest-free.”
BAIL BOND REFORM
It was on November 8, 2016, the “New Mexico Denial of Bail Measure” was approved by New Mexico voters by a landslide vote. The final vote was 87.23%, with 616,887 voting YES and 12.77%, with 90,293 voting NO. The constitutional amendment largely eliminates the former system of money bail bonds. Before passage of the amendment, a defendant’s bail and release from jail pending trial on charges could be denied for the following 3 reasons:
- Only for a defendant charged with a capital felony, or
- A defendant has two or more felony convictions or
- A defendant is accused of a felony involving the use of a deadly weapon if the defendant has a felony conviction in New Mexico.
The constitutional amendment allows the courts to deny pretrial release to defendants charged with a felony only if a prosecutor proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. The amendment also prohibits the courts from denying pretrial release for defendants who are not considered dangerous and do not pose a flight risk. The change was viewed as necessary to prevent low-level defendants from being kept in jail because they lacked money to post bail.
CHIEF JUSTICE URGES LAWMAKERS TO BALANCE PUBLIC SAFETY WITH RIGHTS OF THE ACCUSED
On January 25, New Mexico Supreme Court Justice Shannon Bacon cautioned the legislators on the need to balance the rights of accused persons while protecting the public safety. She noted New Mexico voters overwhelmingly approved a constitutional amendment in 2016 that largely abolished the system of money bail bonds. She said the old bond system resulted in most criminal defendants being free until trial.
Bacon said told legislators this:
“We all feel deep sorrow and fear when we read about a senseless death and other tragedies as a result of crime, … Yet we must remember why our Constitution protects the rights of every person, including those accused of crime. … With the elimination of money bail, judges now have the ability to assess dangerousness. … In Bernalillo County, this has resulted in the detention of over 3,000 defendants pending trial – something that could not happen before with the bail bond system.”
DISTRICT ATTORNEYS OBJECT TO BAIL BOND REFORM
District Attorneys throughout the state argue the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, make it way too difficult for them to do their jobs and 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. As crime rates increased judges were accused of allowing “catch and release of violent felons”.
Prosecutors and law enforcement across the state repeatedly slam judges and the court system for letting out those accused of violent felonies, particularly when they re-offend. They know damn well that judges are bound by the Code of Judicial conduct and no judge can comment and defend themselves on any pending case or even make any kind of an attempt to publicly defend themselves in the court of public opinion.
REBUTTABLE PRESUMPTION AGAIN INTRODUCED
Governor Michelle Lujan Grisham made “rebuttable presumption against release” a part of her anti-crime legislation that she placed on the 2022 legislative 30-day short session. She supported “rebuttable presumption against release” in crimes including first degree and second-degree murder, voluntary manslaughter, and sexual exploitation of children. Governor Lujan Grisham has again made passage of “rebuttable presumption legislation a priority in the 2023 legislative session with legislation already introduced.
LFC REPORT DISCREDITS REBUTABLE PRESUMPTION
It was last year on January 20, 2022 the powerful Legislative Finance Committee released a 14-page memo analysis of the proposed “rebuttable presumption of violence” legislation for pretrial detention. The report was also a status update on crime in Bernalillo County, law enforcement and bail reform.
LFC analysts found that low arrest, prosecution and conviction rates have more to do with rising violent crime rates than releasing defendants who are awaiting trial. The LFC report called into serious question if violent crime will be brought down by using a violent criminal charge to determine whether to keep someone accused of a crime in jail pending trial.
According to the LFC report, rebuttable presumption is “a values-based approach, not an evidence-based one.” The LFC report said that while crime rates have increased, arrests and convictions have not. It goes on to say the promise of “swift and certain” justice has a more significant impact on crime rates that rebuttable presumption does not.
The LFC memo states in pertinent part:
“Research shows the certainty of being caught is a more powerful deterrent to crime than severity of punishment. … For the criminal justice system, this means it is important to prioritize solving crimes and securing convictions, particularly for serious offenses… Neither arrests nor convictions have tracked fluctuations in felony crimes, and in 2020 when felonies began to rise, accountability for those crimes fell.
“Albuquerque’s violent crime rate rose by 85% from 2012 to 2017 and has since remained stuck at a persistently high level. … Over the same time period, arrests for violent offenses rose by only 20%, resulting in a widening accountability gap for the most serious offenses. Closing this gap should be the key legal goal for APD and the 2nd Judicial District Attorney’s Office.”
The LFC memo states that the percentage of cases that ended with a conviction in 2011 was 80% compared to 59% in 2020. The LFC memo did say the conviction rate deduction could be partly explained by the implementation of case deadlines or bail reform, which resulted in fewer plea deals since people were not being held in jail and had less incentive to enter a plea in a case. According to the report:
“Low conviction rates compromise the certainty of justice and suggest law enforcement agencies and prosecutors need collaborative strategies to improve communication and to build better cases and bring them to swift resolution.
In 2022, a substitute crime bill was enacted and signed into law by the Governor. The crime bill as enacted expands surveillance of criminal defendants as they await trial with 24-hour monitoring of ankle-bracelet tracking devices. It mandates the courts to provide greater supervision of defendants by requiring courts to share ankle monitoring data with law enforcement agencies upon request. It requires the courts to turn over GPS monitoring data to police and prosecutors during a criminal investigation to allow better tracking of pretrial defendants on electronic monitoring in an effort to prevent a charge defendant awaiting trial from committing another crime. The goal of the GPS monitoring is keep close tabs on a charged defendant to prevent them from committing another crime.
The 2023 Rebuttable Presumption Bill has been referred to the Senate Health Committee, the Senate Finance Committee and the Senate Judiciary Committee. The fact it has been referred to the 3 Senate Committees make it highly unlikely it will pass and that it is on to an early defeat.
ANALYSIS AND COMMENTARY
The criminal justice system is only as good as those responsible to make it work.
MEDINA NEEDS TO KNOCK IT OFF AND DO HIS JOB
When stakeholders such as APD Police Chief Harold Medina say the criminal justice system is broken, they are refusing to admit they are part of the problem. They are failing to do their jobs in an effective, competent manner endangering public safety.
Our criminal justice system is not broken as Chief Medina wants everyone to believe. Simply put, his allegation is a pathetic diversion from Medina’s own poor job performance. It is APD Chief Harold Medina that has been a failure as Chief in performing his own job duties. Medina has done nothing as Chief to curtail the city’s gun violence but shoot off his big mouth about the criminal justice system being broken.
The Albuquerque Police Department reported that in November, gun law violations spiked 85% this year alone. The last two years have also been two very violent years for Albuquerque. The number of homicides in the city have broken all-time records. In 2021, there were 117 homicides, with 3 declared self-defense reducing homicide number to 114. In 2022, there were 115 homicides as of December 3, 2022.
Crime rates in Albuquerque are high across the board. According to the Albuquerque Police’s annual report on crime, there were 46,391 property crimes and 15,765 violent crimes recorded in 2021. These numbers place Albuquerque among America’s most dangerous cities.
It has also been reported that there have been more APD police officer shootings in 2022 than during any other year before. In 2022, there were 18 APD Police Officer involved shootings,10 of which were fatal. In 2021 there were 10, four of which were fatal. Chief Medina recently announced only now APD is trying to figure out how to reduce police shooting under the DOJ reforms.
APD Chief Harold Medina needs to knock it off with his ongoing criticism of the court’s, especially his nonsensical, false accusation that it’s the Court’s that are responsible for our high crime rates.
CRIMINAL JUSTICE SYSTEM NOT BROKEN
The glaring defect of “rebuttable presumption” is that it undermines and is an affront to the most basic constitutional right guaranteed by the United States constitution which is the presumption of innocence until proven guilty “beyond a reasonable doubt”. Further, in our criminal justice system, both state and federal, it is the prosecution that has the burden of proof to present evidence to convict a person. The rebuttable presumption shifts the burden of proving dangerousness from the prosecution to the defendant accused of certain crimes to show and convince a judge that they should be released on bond with conditions of release pending their trial on the charges.
The criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken. The criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance or political opportunism at its worst. The criminal justice system at all levels is only as good as those who are responsible to make it work and succeed. It is way too easy to declare the system “broken” when problems identified within the criminal justice system would go away if the stakeholders would just do their own jobs and concentrate on doing their jobs in a competent manner.
The Public Safety Assessment tool and the Arnold Metric the courts use to apply it should never be a replacement for sound judicial discretion. The PSA reports should not be a “crutch” used by Judges who simply want to use it to avoid making controversial decisions. The PSA reports cannot provide a 100% accurate report as to whether a defendant poses a safety or flight risk, that is why it is not mandatory and allows for judicial discretion. Judges need to rely upon their common sense, their own perception of a defendant and use their judicial discretion to keep the public safe and ensure due process of law and justice is also served.
In the context of “rebuttable presumption of being violent” to hold an accused pending trial, it would be wise to remember the words of Benjamin Franklin:
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”Links to quoted news sources are here:
THE ARNOLD RULE IS PUBLIC SAFETY ASSESSMENT TOOL
The “Arnold Rule is a matrix tool used by the courts identifying those factors that are considered in holding an accused pending trial. It is a Public Safety Assessment (PSA) tool. Several studies have shown the Arnold Tool has an impressive success rate and the state’s pretrial detention system is, in general, effective in most cases. It’s the exception and not the rule that has proven problematic for the courts when it comes to public perception.
ROLE OF THE JUDICIARY
It is Judges who are required to make the critical decision after a person is charged with a crime about whether to release the person pending trial. That decision is made at the time of arraignment when an accused is bought before the court, the accused is informed of the charges and constitutional rights and enters a plea of not guilty or guilty. The arraignment usually includes arguments of conditions of release and bail.
Under the American system of justice, there’s a presumption that defendants are innocent until proven guilty. It is Article II, section 13 of the New Mexico Constitution that guarantees that those accused of a crime are entitled to be released from custody while awaiting trial, except in limited circumstances. There is a failure of the pretrial system if low-risk nonviolent defendants who are entitled to be released are nevertheless detained in jail simply because they cannot afford bail.
“Judges place a priority on two considerations when making pretrial release or detention decisions:
- Whether the defendant will commit a crime, particularly a violent crime, if released, and whether the person will return to court.
- If a defendant is to be released, judges decide whether to impose certain restrictions on the individuals, such as requiring an electronic monitor to track their location.
It runs counter to our constitution to require non-violent, low-risk offenders to spend long periods of time in jail pending trial. It is also potentially damaging to a defendant. Pretrial detention can cause defendants to lose their jobs or housing, preventing them from caring for their family or paying their bills.”
PUBLIC SAFETY ASSESSMENT TOOL
When money bail is a condition of release, many low-risk defendants are kept in jail because they cannot afford the bail bond. At the same time, high-risk defendants, such as repeat violent offenders who pose an elevated public safety risk, are often released if they can afford bail.
Public safety is a serious concern for judges, who must balance fairness with protecting our communities when making pretrial detention or release decisions. To mitigate the risk to all New Mexico communities and defendants, members of the state’s criminal justice system and the courts implemented the Public Safety Assessment (PSA) tool.
Under the New Mexico Constitution, people charged with a crime have a right to bail, except in limited circumstances. The law provides for the pretrial release of a defendant under the least restrictive conditions necessary to protect community safety and assure the defendant will return to court.
The Arnold Rule Public Safety Assessment tool (PSA) provides a reliable, evidence-based information system to assist judges as they consider whether a defendant should be released to protect the public while awaiting trial. The PSA tool, using information related to a defendant’s age, criminal history, and current charge evaluates the likelihood that a defendant will commit a new crime, commit a new violent crime, or fail to appear for their court hearing if released before trial. With information from the PSA, judges can make informed decisions that are evidenced based and not speculation nor conjecture.
The criminal justice system in order to be effective must focus on protecting the public while safeguarding citizens’ rights. Objective, research-based information about the public safety risks posed by a defendant can ensure fairness in pretrial release decisions while making our justice system more effective and efficient. Local governments can save taxpayer money if judges can better identify defendants who do not need to be jailed before trial because they pose a low threat to public safety.
Judges in the Second Judicial District Court, the Bernalillo County Metropolitan Court and in the district and magistrate courts in San Juan County in the Eleventh Judicial District can use the PSA’s objective data as part of the information they consider in pretrial release decisions made soon after a defendant is arrested and charged with a crime. Court staff prepares an assessment for each criminal defendant, which is provided to judges as well as the prosecutor and defense counsel before that defendant’s initial appearance in court known as “arraignment”.
RECOMMENDATIONS DO NOT SUPERCEDE JUDICIAL AUTHORITY OR DISCRETION
The Arnold Rule PSA measures the likelihood that an individual will commit a new crime, particularly a violent crime, upon release, as well as the likelihood that he or she will appear at a future court hearing. The risk assessment considers nine factors related to a defendant’s age, criminal history and current charge that research has shown accurately predict risk. The tool then generates risk scores for each defendant. This information, along with other pertinent facts from a defendant’s case, is provided to judges to assist in their pretrial decision making. The PSA does not use information that is considered potentially discriminatory, such as a person’s ethnic background, income, level of education, employment status, neighborhood, or any demographic or personal information other than age.
While the Arnold Rule PSA can be a helpful informational tool, it is important to remember that judges always have the final say in every decision. The decision about whether to release or detain a defendant and under what conditions always rests with the judge. Judges have the final say on whether or not to release a charged defendant pending trial. It is not at all mandatory or required that a Judge follow the recommendation made in the PSA report and judges are 100% free to exercise their own discretion. The PSA does not replace a judge’s discretion and does not supersede other information, including any special circumstances pertinent to a case and charges against the defendant.
THE NINE FACTORS IN PUBLIC SAFETY ASSESSMENT OF AN ACCUSED
The PSA is designed to promote public safety and to ensure that the criminal justice system operates in a fair and efficient manner. It uses 9 factors that research has shown are the strongest predictors of whether a defendant will commit a new crime, commit a violent crime, or fail to return to court if released before trial. The factors are:
- Whether the current offense is violent.
- Whether the person had a pending charge at the time of the current offense.
- Whether the person has a prior misdemeanor conviction.
- Whether the person has a prior felony conviction.
- Whether the person has prior convictions for violent crimes.
- The person’s age at the time of arrest.
- How many times the person failed to appear at a pretrial hearing in the last two years.
- Whether the person failed to appear at a pretrial hearing more than two years ago.
- Whether the person has previously been sentenced to incarceration.
RISK SCORES PRODUCED
Using the information gleaned for the 9 factors and applying them to a charged defendant, the“Arnold Rule” PSA produces two risk scores:
First, it predicts the likelihood that an individual will commit a new crime if released pending trial.
Second, it predicts the likelihood that a charged defendant will fail to return for a future court hearing.
The PSA tool also “red flags” defendants that it calculates present an elevated risk of committing a violent crime.
The PSA risk scores fall on a scale of one to six, with higher scores indicating a greater level of risk. This neutral, reliable data can help judges gauge the risk that a defendant poses.
Links to quoted and relied upon source material are here: