The Constitution of the State of New Mexico, Article XX Section 1 provides that all elected official must take an Oath of Office and it reads “Every person elected or appointed to any office shall, before entering upon his duties take and subscribe to an oath or affirmation that he will support the constitution of the United States and the constitution and laws of this state, and that he will faithfully and impartially discharge the duties of his office to the best of his ability.”

Under our United States and New Mexico Constitutions, the bedrock foundation to our criminal justice system is that a person who is accused of any crime is presumed innocent until proven guilty “beyond a reasonable doubt”. Further the burden of proof of guilt “beyond a reasonable doubt” is the governments burden, an accused person is entitled to due process of law, is entitled to confront those who testify against them, are entitled to be represented by an attorney and if they cannot afford an attorney one can be appointed by the courts, and entitled to a jury trial. An accuse also has the guaranteed 5th amendment right against self-incrimination an cannot be forced to testify when they are on trial for the crime.

On January 1, 2017, District Attorney Raul Torrez took his oath of office to “support the constitution of the United States and the constitution and laws of New Mexico, and that he will faithfully and impartially discharge the duties of his office to the best of his ability.” Notwithstanding the oath of office he took, Torrez is attacking the New Mexico criminal justice on three major fronts:

First, Torrez accuses the judges of being the source of our high violent crime rates saying the criminal justice system is broken and is a “revolving door”;

Second, Torrez objects to the District Courts shift from grand juries to preliminary hearings to charge people with serious felonies;

Third, Torrez wants a new constitutional amendment shifting the burden of “dangerousness” of a defendant from the prosecution and have a “presumption” that a person accused of serious violent felonies are a threat to the public and should be held in custody and not be released pending trial.

TORREZ BLAMES JUDGES FOR HIGH CRIME RATES

Soon after being elected DA, Torrez began to blame the courts for the rise in violent crime rates and many, including many in the news media, bought into his bogus argument that the “revolving door” is the courts fault. 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 the District Attorney Office issue a report that outlined the so-called problems he perceived since the issuance of the Case Management Order (CMO) by the Supreme Court in February, 2015. The main points of the DA’s 2016 report were 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. Torrez was upset because defense attorneys were doing their job and asking for trials instead of convincing their clients to enter 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.

In a May 22, 2019 letter to the New Mexico Supreme Court, the District Court presented data that showed how overcharging and a failure to screen cases by the District Attorney’s Office is contributing to a combined 65% mistrial, acquittal and dismissal rate. Out of 378 charged cases in the 10-month period of July, 2018 to April, 2019, there were 128 convictions from guilty verdicts and guilty plea agreements, 174 acquittals from not guilty verdicts, DA dismissals, directed verdicts and other types of dismissals and 72 mistrials. Translated to percentage numbers, of the 378 cases charged, 34.92% were convictions, 46.03% were acquittals and 19.05% were mistrials. In other words, 65% of the 378 charged cases resulted in either a mistrial or acquittal when presented to a jury.

In the May 22, 2019 letter to the Supreme Court, District Court Judges Whitaker and Brown hit head on the accusation made by Torrez of a “revolving door problem” and its causes by saying:

“Given the specific problems in this jurisdiction which continue to exist – the delay with discovery [disclosure by the DA’s office], dismissals of cases by the District Attorney immediately prior to trial, the lack of collection of evidence, the unwillingness of witnesses to testify only discovered late in the process, the public’s apparent lack of confidence in the system, and the difficulties the District Attorney has had in obtaining convictions, leading to what has been referred to as the “revolving door problem” – the move to preliminary examinations is especially useful as experts agree the move to preliminary examinations [hearings] helps address most of these issues.”

TORREZ OBJECTS TO PRELIMINARY HEARINGS

In 2009 and 2015, the National Center for State Courts in studies of the 2nd Judicial District Court in Bernalillo County recommended the shift away from a grand jury and indictment-heavy system. The 2nd District Court is the only judicial district in New Mexico that relies extensively on grand juries as opposed to preliminary hearings to charge defendants with felony crimes. The National Center for State Courts recommended that Bernalillo County use more preliminary hearings and fewer grand juries citing preliminary hearings as a best practices model. The National Center for State Courts found that most District Attorney offices in New Mexico file a majority of their felony cases by criminal information, or complaint, rather than grand jury indictment. Five of the state’s judicial districts do not use grand juries at all. According to the 2015 National Center for State Courts report:

“Nationwide, where indictment by grand jury is permitted in state courts [approximately half the states] , it is generally reserved for the most egregious and serious cases. … Presenting all felonies to a grand jury in an urban justice system is quite unusual.”

The 2nd Judicial District Court has been shifting from grand jury use to implementing “preliminary hearing” schedule since mid-2015. Raul Torrez was sworn in as District Attorney on January 1, 2017 and from day one Torrez has resisted the change over from grand jury to a preliminary hearing process. In September, 2018 the 2nd Judicial District Court notified District Attorney Raul Torrez that it would be drastically reducing the amount of time for grand jury and shifting to preliminary hearings.

On May 10, 2019 DA Torrez and Mayor Tim Keller wrote a joint letter to the New Mexico Supreme Court requesting it to intervene and stop the District Court from shifting away from the use of grand jury system to a preliminary hearing system. In their letter to the Supreme Court, Keller and Torrez proclaimed:

“Further reductions in the grand jury without sufficient modifications to the preliminary hearing process will be untenable. … Under the District Courts stated plan, the largest judicial district in the state – one that accounts for more than half of the reported crime in New Mexico – will be allotted grand jury capacity for fewer than 10% of all referred felony cases. … This simply is problematic and leaves insufficient time for complicated long-term investigations to be presented to a grand jury in addition to other currently being presented.”

In a May 22, 2019 letter to the Supreme Court Judges Whitaker and Brown opined that preliminary hearings were necessary and will require better screening of cases by the District Attorney and said that preliminary hearings:

“will help with the high mistrial in the Second [Judicial District]. There is at least some research that suggests that case screening and the quality of evidence impacts hung juries. According to studies, the average mistrial rate [across the country] is between 14.8% to less than 3%. The federal average was 2.5%. Looking at a sample from July, 2018 through April 2019, the [2nd Judicial District Court’s] mistrial rate [for cases presented by the DA’s office] is much higher.”

According to the District Court, “between January 1, 2016, and May 16, 2019, there were 11,301 criminal cases opened in District Court (via either grand jury indictment or information) that also closed in the same time period . Of those cases, 26% (2,905 cases) were essentially dismissed via “nolle” [no prosecution notices] by the District Attorney’s Office. The average time to “nolle” [no prosecution notices by the District Attorney] was 177 days or almost 6 months.”

According to District Judges Whitaker and Brown:

“One of the most common questions that the … judges get asked by juries is “why are we here?” Jurors tend to complain that the prosecution lacked evidence and the presentation by the prosecution was confusing or muddled. Preliminary hearings can help both to winnow down charges and see what evidence remains to be collected, allowing the DA’s Office to focus on those charges it can prove and ensuring earlier that they have the necessary evidence and cooperating witnesses. The District Attorney’s Office tends to focus on getting cases into the system rather than the disposition of cases.”

On May 29, 2019, it was reported that District Attorney Raúl Torrez notified District Court that his office would no longer schedule preliminary hearings in State District Court. In a statement to the media, Michael Patrick, spokesman for the DA’s Office, called the District Court preliminary hearing process an “inefficient use of time and resources. … ” and went on to add that a third of all preliminary hearings were reset in the month of April “meaning the defendant was still in the community without felony charges initiated against them.”

TORREZ PROPOSES CONSTITUTIONAL AMENDMENT

Bernalillo County District Attorney Raúl Torrez is proposing a new constitutional amendment that would create a “presumption” that a defendant is a threat to the public when charged with a violent crime and that they should be jailed until pending trial without bond or conditions of release. The presumption would shift the burden of proving dangerousness from the prosecution and require defendants accused of certain crimes to show and convince a judge that they should be released on bond or conditions of release pending their trial on the charges.

According to Torrez, the 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. Such a shift of burden of proof could conceivably require a defendant to take the stand during a detention hearing before their trial and a waiver of their 5th Amendment Constitutional Right against self-incrimination.

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

https://www.petedinelli.com/2019/05/22/backass-backwards-your-presumed-violent-until-you-prove-otherwise/

COMMENTARY AND ANALYSIS

All elected District Attorneys and elected Judges take the very same an oath of office to preserve, defend and protect our United States and New Mexico constitutions. The difference between elected District Attorneys and Judges is that an elected District Attorney is afforded far more first amendment rights to free speech and the press on an almost daily basis, especially in Bernalillo County, the most populous county in the state.

Elected Judges on the other hand are strictly prohibited by the Supreme Court Rules and the Code of Judicial Conduct from commenting on pending cases and voicing opinions that call into question their fairness and impartiality, especially in criminal cases. Criticizing judges for their release rulings is a red flag of ignorance of our criminal justice system. Judges are prohibited from defending their decisions and sentencing in a public forum outside of their courtroom so criticizing judges is like “shooting fish” in a barrel.

District Attorney Raul Torrez attacking our Judicial system and judge’s rulings is a familiar tactic of way too many politicians running or already elected to office or who have higher ambitions. It is particularly disturbing when DA Torrez attacks judge’s ruling on bond and release rulings and blames judges for rising crime rates.

The most nefarious conduct is when Torrez as an elected prosecutor tries to shift the burden of proof by the prosecution of dangerousness of a defendant to a presumption of dangerousness based on an “alleged” yet to be proven crime. What Torrez wants is a system of “presumption of dangerousness” where a defendant is charged with a violent felony and the person charge be held in custody pending trial. With the presumption of dangerousness the legal burden of proof will be on the defense, which must collect and present compelling evidence to the court in order to for a defendant to be released pending a trial, if a trial ever in fact occurs and not dismissed. That is not how our criminal justice system works, Torrez does not like it, he so he wants to change it in order to make his job a lot easier.

It is way too easy to ignore the United States Constitution when you are pandering and running for office and essentially say “catch them and lock them up and throw away the key”. Vilifying the judiciary is a pathetic, ignorant tactic of politicians who seek to divide in order to get elected and to ingratiate themselves with voters and to garner publicity. To deny one-person due process of law, no matter how much we think they are guilty, is to deny us all of the constitutional rights we cherish in this country.

District Attorney Raul Torrez should read the paragraph in the May 22, 2019 letter written by District Court Judges Stan Whitaker and Charles Brown to the New Mexico Supreme Court that explains the goals of the criminal justice system:

“The goal of the criminal justice system is not simply to charge a defendant and then try to get as much pretrial time as possible before [voluntarily dismissing the case or] “nolleing” the case; rather the criminal justice system is intended to dispose of cases, protecting the rights of the innocent, while ensuring that the guilty are convicted and sentenced accordingly. Simply charging someone does not protect the community. If that individual is dangerous and guilty of the charged crime, it is the ability to get a conviction that protects the community in the long term.”

Torrez thinks he has problems now, but his troubles are only beginning if he continues his assault on the courts, including an uphill battle for reelection if he does not get his act together, buckle down and do his job instead of looking for television cameras and reporters to blame judges for all his problems.

District Attorney Raul Torrez may want to spend a little time reading the United States and New Mexico Constitutions and after words take his oath of office once again.

It has been over 18 months since ART Bus Project on historic Route 66 Central was dedicated by former Mayor Richard Berry. The building of the bus platforms has been completed in the center of a 9 mile stretch of Central from Coors going East to Louisiana with dedicated bus lanes. The electric ART buses were supposed to start running on Central once delivered by Build Your Dreams (BYD).

On Friday, December 7, 2018 Mayor Tim Keller, after over a full year in office, held one of his daily press conferences and announced Albuquerque was taking legal action against the California based BYD bus company, the manufacturer of the 60-foot, fully electric buses for the $135 million ART Bus project. The cost to the city for the electric buses was to have been nearly $22 million for 20 buses, but only 15 buses were ever delivered and then returned and the city paid nothing for the buses.

The lawsuit filed is an 11-page Civil Complaint filed against BYD with 330 pages of attached exhibits including the Request for Proposals (RFP) and the purchase contract. The complaint contains 4 separate counts claiming Breach of Contract, Breach of Warranty, Fraudulent and Negligent Misrepresentation and violations of New Mexico Unfair Practices Act. The city was also seeking payment of its attorney’s fees and costs. The significance of an Unfair Trade Practices action is that an aggrieved party can be awarded “triple damages” of proven damages and attorney fees under the Unfair Trade Practices Act.

The complaint lists several mechanical issues, including problems with the battery charge, malfunctioning brakes, and doors flying open on their own, all discovered during driver training back in September. After the law suit was filed in State District court, the case was moved to Federal District Court. Federal court records show BYD never responded to the civil complaint.

You can read the entire 11-page civil complaint with 300 pages of exhibits at the below link:

https://media.krqe.com/nxs-krqetv-media-us-east-1/document_dev/2019/05/31/BYD%20cmplnt1_1559347129524_90133195_ver1.0.pdf

PROBLEMS WITH THE BYD BUSES

Among the reported problems found by the City with the BYD buses delivered were:

1. The center and rear brakes had zero air pressure, yet the 60-foot-long articulated buses were able to move, meaning that the center and rear axle brakes were not working and the buses were relying on their front brakes alone.
2. Rear doors would open during bus operation without any action by the driver.
3. The buses have air conditioning outages.
4. Bolts flying off doors.
5. The electric buses delivered were supposed to operate for 275 miles, but city officials found the buses could not go more than 177 miles before they needed recharging.
6. The lack of undercarriage protection.
7. Buses that wouldn’t stop when emergency doors were utilized.
8. Cracking on bus exteriors.
9. Mirrors not set up correctly.
10. Wiring problems and electrical system problems.
11. The handicap electric chair lock becoming unsecured when the driver turns on the air conditioner.
12. The bus batteries heat up so much that they can’t take a charge.
13. The batteries or not properly stored or cooled on the buses posing a fire hazard. 14.Wheelchair ramps that deploy when weight is on them
14. Doors that open while the bus is in motion.
15. Exposed high-voltage wires.
17. Failure to construct extra charging stations promised.

The 15 buses that were manufactured and delivered by BYD were picked up by BYD after the city made a demand of the company to take back the buses due to a significant number of safety and battery-life issues. One of the BYD buses returned actually broke down on the road back to California.

BRAVADO PRESS CONFERENCE

During his press conference announcing the city’s lawsuit, Mayor Keller spoke with great bravado when he said:

“The short story is we’re taking BYD to court. … We need to hold … [BYD] accountable for what they’ve done to our city and for their lack of adherence to a contract that they signed. … We think … this actually is going to all wash out at a minimum, if not us actually recouping more. … For a city of our size, the pain that we went through and the trauma that Route 66 has gone through to put this in, was that worth being the first city to have these fancy electric buses? … I don’t think so.”

https://www.abqjournal.com/1254901/city-sues-over-art-buses.html

In response to the filing of a lawsuit by the city, BYD issued a statement that it was “considering all legal options in response to the City’s actions”, which meant a counterclaim, and proclaimed:

“BYD once again disputes the Mayor’s false and misleading statements regarding BYD and its products … It is unfortunate that the City has chosen to file a lawsuit. Prior to today’s press conference the City had refused to provide BYD with inspection reports documenting alleged problems with the buses. The City has never stated the amount of damages it claims to have suffered.”

After the return of the buses to BYD and the filing of the lawsuit, the city contracted with New Flyer bus manufacturing company for 20 diesel-powered buses that have a price tag of $870,000 apiece to replace the electric BYD buses.

SETTLEMENT ANNOUNCED

On May 31, 2019, after close to six months since the filing of the lawsuit, the Keller Administration and Build Your Dreams (BYD) issued a joint, two paragraph statement that the parties had settled the case. Following is the full statement release:

“BYD and the City have reached a settlement that resolves litigation, allowing the parties to move forward at no additional cost. Since the contract was terminated, both BYD and the City have engaged in good faith dialogue to reach this resolution. Although the parties made public statements in defense of their respective positions during the dispute, they are now committed to moving forward and wish each other success.

The City supports BYD’s pursuit of its mission to expand zero-emission public transportation with the next generation of high-quality electric buses. BYD supports the City’s commitment to the Albuquerque Rapid Transit project and wishes the City best of luck on its completion and successful operation.”

https://www.krqe.com/news/albuquerque-metro/albuquerque-and-former-art-electric-bus-company-reach-settlement/2043297954

RATIONAL FOR THE SETTLEMENT

In announcing the settlement Albuquerque’s private outside counsel Robert Desiderio said:

“The city and BYD are completely freed of the contract. There are no damages paid to either. A lawsuit like this would take years – discovery would be extensive – therefore the costs would be very great. … And comparing to what we saw would’ve been the possible damages [to the city and taxpayers] it wasn’t worth proceeding. It was better for the city to move forward.”

Private counsel Desiderio noted it would have been difficult to demonstrate the city had incurred significant monetary damages because of the 60-foot electric buses and that BYD could also counter sue. According to Desiderio settling the case was the best option.

The city paid $138,322 in private outside legal fees in the case and BYD ostensibly paid its own attorneys fees and costs. In the original lawsuit filed, the city was seeking the award of attorney’s fees and costs. The City Attorney’s Office for its part has said they consider the settlement a win because Albuquerque won’t have to pay nearly $23 million for 20 electric buses it won’t be using.

https://www.abqjournal.com/1322358/city-settles-lawsuit-against-art-bus-manufacturer.html

TERMS OF THE SETTLEMENT AGREEMENT AND MUTUAL RELEASE

The “SETTLEMENT AGREEMENT AND MUTUAL RELEASE” is a mere 6-page document signed between the parties. You can read the settlement agreement at the below link.

https://media.krqe.com/nxs-krqetv-media-us-east-1/document_dev/2019/05/31/BYD%20Settlement%20Agreement_1559347213258_90134604_ver1.0.PDF

The main terms of the settlement agreement are:

1. The City and BYD release each other from “any and all claims that each party … had, now have, or can or shall have” against each other.
2. The City and BYD agreed that “no money is being exchanged” as part of the settlement and mutual release of claims.
3. Both the City and BYD agreed that the manufacturing and purchase contract for the buses “is terminated”. The City and BYD agreed to release each other from any and all compensation, damages or claims allowed under the contract.
4. The City and BYD agreed to the dismissal of the city’s complaint and any counterclaims BYD had. NOTE: According to court records, BYD never filed an Answer to the City’s Civil complaint and BYD filed no counterclaim.
5. The City and BYD agreed to issue the specific joint press statement and agreed to the language in the release issued.

MAYOR KELLER IGNORED INSPECTOR GENERAL REPORT

On June 6, 2018, a 73-page Office of Inspector General (IG) report on the ART Bus project was released to the public. The entire Inspector General report on the ART Bus project can be read here:

https://drive.google.com/file/d/1fA-D6dk6lp3DZgQzQCWVEVbziQ2vXov/view

The report found that former Mayor Berry’s Chief Operations Officer Michael Riordan allegedly “threatened” to terminate the city’s $22.9 million contract with the manufacturer of the special-order ART buses. Michael Riordan was said to have demanded a new bus be delivered in time for Berry to ride and have a photo op before he left office so he could say ART was up and running.

According to the Inspector General report, then Chief Operations Officer Michael Riordan “was adamant about having a bus transported to the City before the end of the Mayor Berry administration.” An Albuquerque transit employee told the Inspector General that “core processes on manufacturing buses was altered to ensure delivery of the first bus by the deadline.” The IG report described two city employees interviewed who recounted a “tense” and “unusual” phone call between then-city Chief Operating Officer Michael Riordan and top executives from the manufacturer. According to the Inspector General’s report the first bus delivered in August 2017, was assembled by the manufacturer using a “frame intended for buses being built for [another city’s transit authority].”

Frames intended for the Albuquerque’s buses had not yet been shipped nor received by the manufacturer. The Inspector General found that the bus manufacturer used “parts and pieces” intended for another city’s buses for the first ART bus delivered.

The city employee further reported that the first bus was moved to whatever assembly station was available to ensure it was assembled in time in order to get it shipped to Albuquerque before Mayor Berry left office.

The last 4 sentences of the 72-page Inspector General’s findings and report relating fraudulent activity is worth quoting:

“The inspection was proactive in nature and not due to any allegations that were made. While this inspection didn’t identify instances of fraud, it is important to note that it doesn’t mean fraud did not occur. The inspection did identify several problems that offer opportunities to improve and could be vulnerabilities for fraudulent behavior. City leaders should consider the problems identified and recommendations made to develop a more efficient and stronger procurement process that will help prevent and deter fraud, while also ensuring more quality and confidence in the products and services that the taxpayer funds. This is essential to protecting the public’s trust.”

Mayor Tim Keller and his administration never even bothered to forward the Inspector General’s report to a criminal investigating agency.

COMMENTARY AND ANALYSIS

A) ATTORNEY FEES PAID

Robert Desidereo is a very prominent and respected trial attorney in the legal community and he is the former Dean of the New Mexico School of Law. Ostensibly, he prepared the 11-page civil complaint and then cosigned it with City Attorney Estaban Aguilar. Desidereo evaluated the case and did the settlement negotiations in good faith acting in the best interest of the city taxpayers.

It is very difficult for the public to assess the reasonableness of the settlement not knowing the full extent of the damages the city could have proven in court, including loss revenues for two years and the viability of the threatened counterclaim. According to court records, BYD never filed an Answer to the civil complaint and never filed a Counterclaim. The only good news with the buses is that the city has never paid for any of the buses delivered and returned to BYD. One thing that appears to be certain, given the defects of the buses found and proven, it was highly likely the city would have prevailed on the breach of contract and breach of warranty claims, but the public will never know because the case has now been dismissed. There is no doubt the potential years of litigation played a major part in the settlement with continuing litigation being nothing more than stuffing taxpayer money down a “black hole”.

When outside counsel Desidereo said: “The city and BYD are completely freed of the contract. There are no damages paid to either side” he was saying to taxpayers you will not have to pay anything to BYD for the buses returned to them and that the city never used. The City gets nothing from BYD in the form of damages originally alleged in the lawsuit, including loss of use of the buses for two years and revenue. No punitive damages for unfair trade practices that were originally alleged will be paid to the City. The City will not be reimbursed for the attorney’s fees and costs of $138,322 paid to its private outside counsel for seven months of work to file and negotiate the settlement.

The City’s Legal Department, or City Attorney’s Office, employs 60 full time employees and has a budget of $6.3 million a year. The City Attorney’s office employs upwards of 30 attorneys’ in the office. City Attorney Esteban Aguilar Jr. is paid $110,296.80 a year and former Berry Administration City Attorney Jessica Hernandez, under whose watch the BYD contract was approved, was paid $150,217 a year. Assistant City Attorneys and Deputy City Attorneys are paid anywhere from $75,000 a year upwards of $110,000 a year depending on their years of experience. City attorneys review city contracts, terms and conditions and they are licensed to practice law in both state and federal courts. You can review the entire city attorney budget on page 118 of the 2019-2020 approved city budget at this link: http://documents.cabq.gov/budget/fy-20-proposed-budget.pdf

It is pathetic when Mayor Tim Keller and the City Attorney Estaban Aguilar have to retain outside counsel to represent the city in a contract dispute such as the one with BYD. Retaining outside counsel gives the appearance that the city attorneys are incapable of doing trial work. If Mayor Keller does not have faith in his own City Attorney’s Office to the point he has to pay an outside council $138,322 for 7 months of representation in a contract dispute, Mayor Tim Keller and City Attorney Estaban Aguilar need to start recruiting attorneys who have the know how and the experience to do trial work and who are not afraid of a courtroom and who will not settle cases to avoid trial.

B) WHAT? NO PRESS CONFERENCE?

During the first year he was in office, Mayor Keller would give monthly updates on the ART Bus project, the status of the construction project and delivery of the special-order electric buses from BYD. During his early press conferences, Mayor Keller declared ART “a bit of a lemon” and then declared that the buses were “unsafe at any speed” and he grounded the buses, all which were major news stories for him.

It was very disappointing that Mayor Tim Keller used opportunistic references to Route 66 when he first announced the civil lawsuit and admitted for the first time the damage done to the historic Route 66. In an effort to distance himself from his own failure to act for well over a year, Keller proclaimed harm to local citizens. Mayor Keller made no mention of the pain the Federal lawsuit filed by 250+ businesses along Central caused with many of those businesses having to close or go out business because of ART construction.

During his campaign for Mayor and while he has been Mayor, Tim Keller has proclaimed his administration is “open and transparent.” Mayor Keller held a press conference to announce that the city was filing a lawsuit, but when the city settles the case, the settlement is announced by press release without any press conference, without fanfare and late on a Friday afternoon with the paid outside counsel responding to all the news inquiries. So much for openness and transparency.

C) NOT HOLDING PEOPLE ACCOUNTABLE

During his year and a half quest to become Mayor of Albuquerque, Tim Keller never called upon his predecessor to stop the ART Bus project, nor to cancel the bus contract nor did he ever condemn it as destroying historical Route 66. Tim Keller did not attend a single public hearing or meeting held by the Berry Administration on the project, including the meetings hosted by city councilors where councilors were urged to place it on the ballot. When the federal lawsuit was filed to enjoin and stop the construction of ART, Keller did not attend any of the federal court hearings to stop the project.

When announcing the lawsuit, Mayor Keller proclaimed “We need to hold … [people] accountable for what they’ve done to our city … .” When Tim Keller was New Mexico State Auditor before becoming Mayor, he was a champion for accountability to stop “waste, fraud and abuse of taxpayer money”. The lawsuit filed and the settlement negotiated is not holding “[the people responsible for ART] accountable for what they’ve done to our city … .” As NM State Auditor, Keller was never reluctant to turn cases over to prosecuting agencies which garnered him much publicity.

Those truly responsible for ART were not BYD. The ones that need to be held accountable for “what they have done to our city” are former Mayor Richard Berry, former Chief Operations Officer Michael Riordan and former Transit Director Bruce Rizzeri. What many taxpayers feel is that crimes occurred with the ART Bus project, but we will never know because no law enforcement agency has investigated it.

CONCLUSION

Keller supporters are always quick to go to his defense over ART saying it was a project he inherited and he is doing his best to fix it. No matter what Mayor Keller says or does now, no matter what eventually happens with the ART Bus Project and if it ever is up and running, it is now Mayor Tim Keller’s lemon to own.

Keller must be held responsible and accountable for his failure to act given his reluctance to scrap and suspend the project from the get-go after he was sworn in as Mayor. Keller failed to turn the entire ART Bus project matter over to law enforcement for a complete investigation.

The Albuquerque City Counsel bears a significant amount of responsibility for the ART Project by refusing to place it on the ballot for voter approval and repeatedly voting to fund the project with no questions asked. The Albuquerque City Council should demand and schedule a public hearing requesting Mayor Tim Keller, City Attorney Estaban Aguilar and Outside Counsel Desiderio to explain to the public the details and rational of the settlement.

In the meantime, the ART platforms will be sitting empty for some time and according to the City Transit at least to the beginning of 2020. Further, absolutely no one will be held accountable for the disastrous ART Bus project that destroyed so many businesses and historic Route 66.

___________________________________________________________________________

POSTSCRIPT OF ART UNDER MAYOR TIM KELLER

The $135 million ART Bus project was considered a legacy project of former Mayor Richard Berry and spans 9 miles of Central Avenue from the West side to Louisiana with dedicated bus lanes and specially built platforms to transform the Central corridor into a Rapid Transit area.

CHRONOLOGY OF ART UNDER MAYOR TIM KELLER

Former Mayor Richard Berry dedicated the ART Bus project in November of 2017 with only one bus that had been delivered to the city. The only purpose for the delivery of the one bus was so that Berry could have his photo op before he left office.

Keller was sworn into office December 1, 2017.

Within 6 weeks after taking office, Keller proclaimed the project “as bit of lemon” but pushed forward to try and salvage the project anyway.

https://www.petedinelli.com/2018/01/10/this-project-is-a-bit-of-a-lemon/

In January of 2018, Mayor Tim Keller and the City Attorney were urged to file a civil complaint for breach of contract, breach of warranties, misrepresentation and unfair trade practices and Keller declined the suggestion.

Two months after taking office, Mayor Keller was urged by many within the community to scrap the project and find alternatives, but he refused saying it would be too costly.

https://www.petedinelli.com/2018/01/22/mayor-keller-should-scrap-art-bus-project-and-find-alternatives/

In June of this year, Mayor Keller said the buses were like kids in a divorce where parents are fighting for who gets custody.

https://www.petedinelli.com/2018/06/04/want-a-divorce-hire-a-lawyer/

On June 6, 2018, the city of Albuquerque’s Inspector General (IG) issued a report on the ART Bus Project. According to the Inspector General’s report the first bus delivered in August 2017, was assembled by the manufacturer using a “frame intended for buses being built for [another city’s transit authority].” Frames intended for the Albuquerque’s buses had not yet been shipped nor received by the manufacturer. The Inspector General found that the bus manufacturer used “parts and pieces” intended for another city’s buses for the first ART bus delivered. The last 4 sentences of the 72-page Inspector General’s findings and report is worth quoting relating fraudulent activity:

“The inspection was proactive in nature and not due to any allegations that were made. While this inspection didn’t identify instances of fraud, it is important to note that it doesn’t mean fraud did not occur. The inspection did identify several problems that offer opportunities to improve and could be vulnerabilities for fraudulent behavior. City leaders should consider the problems identified and recommendations made to develop a more efficient and stronger procurement process that will help prevent and deter fraud, while also ensuring more quality and confidence in the products and services that the taxpayer funds. This is essential to protecting the public’s trust.”

One question Mayor Keller was asked during one of his many the status conference after the Inspector General’s Report is if any attempt will be made to hold former Mayor Richard Berry accountable for the ART Bus Project given that he rushed to have buses delivered to dedicate the project before he left office. Keller laughed off the question and declined to answer.

After the Inspector General’s report was released, Mayor Keller was urged turn the ART Bus project over to the City Attorney, the New Mexico Attorney General and the District Attorney, to investigate for criminal activity but Mayor Keller declined to make the referral.

https://www.petedinelli.com/2018/06/11/give-art-work-to-city-attorney-nm-attorney-general-and-district-attorney/

On November 1, 2018, Keller proclaimed that the buses delivered were “unsafe at any speed”, demanded the manufacture pick up the buses and he threatened litigation by the city.

https://www.petedinelli.com/2018/11/02/keller-new-art-buses-unsafe-at-any-speed/

On Tuesday, November 13, 2018, Mayor Tim Keller held a press conference to announce the city’s plans to cancel the manufacturing contract with Build Your Dreams (BYD).

https://www.petedinelli.com/2018/11/19/when-you-hire-a-lawyer-you-keep-your-mouth-shut-depose-berry-riordan-rizzieri-on-art-bus-project-under-oath/

On November 28, 2018, it was reported that all 15 of the BYD buses were picked up by the manufacturer.

https://www.kob.com/albuquerque-news/art-buses-sent-back-to-manufacturer/5160241/

https://www.krqe.com/news/albuquerque-metro/bye-bye-buses-art-vehicles-leave-albuquerque/

On May 31, 2019, the Keller Administration announced in a joint press release with BYD that it settled the civil lawsuit with a mutual release of claims and no damages would be paid to either party and the case is dismissed.

The 2019 Albuquerque 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. The final day to collect and turn in $5.00 qualifying donations is Friday, May 30, 2019. The City Clerk has already reviewed and certified a number of candidates for public finance. The final day to turn in qualifying nominating petition signatures from registered voters is June 28, 2019.

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.

There is legislation still pending before the city council creating a “rank voting election” for the November 5, 2019 election and eliminating run off that has yet to make it out of city council committee. 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.

CANDIDATES FOR CITY COUNCIL

District 2 incumbent City Councilor Isaac Benton, has 5 opponents seeking to replace him. The candidates are: Steve Baca (D), Joseph Griego (D), Robert Raymond Blanquera Nelson (D), Zack Quintero, (D) and Connie Vigil, (I). All candidates in District 2 sought public financing.

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. Four candidates in District 4 are seeking public financing with one candidate notifying the City Clerk she abandoned her efforts to seek public finance and will privately finance..

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. Trudy Jones has elected to finance her campaign with private financing and has never sought public financing of her campaigns.

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. 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.

NOTE: ALL CANDIDATES HAVE UNTIL 11:59 P.M., MAY 31, 2019, TO TURN IN THE $5.00 QUALIFYING DONATIONS AND VOTERS HAVE UNTIL THEN TO CONTRIBUTE.

As of May 30, 2019, the Albuquerque City Clerk has verified qualifying donations as follows for each candidate:

DISTRICT 2- 433 Qualifying Donations Needed For Public Finance, 3 candidates qualify

A)QUALIFYING CANDIDATES FOR PUBLIC FINANCE:

Isaac Benton: 552 Verified, 0 Remaining To Collect, 100% Of Requirement met
Joseph Griego: 454 Verified , 0 Remaining To Collect, 100% Of Requirement met
Zachery A. Quintero: 467 verified, 0 remaining to collect, 100% of requirement met

B)CANDIDATES NOT QUALIFYING FOR PUBLIC FINANCE:

Robert Raymond Blanquera Nelson: 165 verified, 268 remaining to collect, 38% of requirement met
Steve Baca: 8 verified, 425 remaining to collect, 2% 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:

A)QUALIFYING CANDIDATES FOR PUBLIC FINANCE

Brook L. Bassan: 406 verified, 0% remaining to collect, 100% of requirement met

B)CANDIDATES NOT QUALIFYING FOR PUBLIC FINANCE

Athena Ann Christodoulou: 126 verified, 267 remaining to collect, 32 % of requirement met

Ane C. Romero: 305 verified, 88 remaining to collect, 78% of requirement met
NOTE: Ane C. Romero with only 88 remaining donations to submit is within striking distance to qualification and has until 11:59 pm to submit donations to the city clerk.
https://www.cabqcleancampaign.org/candida…/view/ane-c-romero

Haley Josselyn Roy: 136 verified, 257 remaining to collect, 35 % of requirement met

NOTE: Mary Sue Flynt notified the City Clerk she abandoned her efforts to seek public finance and will privately finance. Before that she had submitted 3 verified $5.00 donations.

DISTRICT 6 – 323 Qualifying Donations Needed For Public Finance. Both candidates have qualified for public finance.

Pat Davis: 331 verified, 0 remaining to collect, 100% of requirement met
Gina Naoi Dennis: 348 verified, 0 remaining to be collect, 100% of requirement met

DISTRICT 8 – 424 Qualifying Donations Needed For Public Finance. Incumbent City Councilor Trudy Jones is not seeking public financing and will be relying on private donation but her opponent S. Maureen Skowran sought public finance and has now qualified:

S. Maureen Skowran – 454 verified, 0 remaining to collect, 100% of requirement met.

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 dis As of May 30, 2019, the Albuquerque City Clerk has verified qualifying nominating petition signatures as follows for each candidate:

DISTRICT 2 (Incumbent Isaac Benton)

Steve Baca: 61 verified, 439 more needed
Isaac Benton: 371 verified, 129 more needed
Joseph Griego: 574 verified, -0- more needed
Robert Raymond Blanquera Nelson: 224 verified, 276 more needed
Zachery A. Quintero: 104 verified, 396 more needed
Connie Vigil: 121 verified, 397 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)

Trudy E. Jones: 0 verified, 500 more needed
S. Maureen Skowran: 137 verified, 363 more needed

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

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

COMMENTARY AND ANALYSIS

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 simply do not like to donate to politicians. Only 7 out of a total 15 candidates for City Council have qualified for public finance. To each of the 7, congratulations and thank you for your participation.

Technically, Joseph R. Griego running in District 2 against incumbent Isaac Benton is the only one of all the 15 candidates who has secured the 500 required nominating petition signatures. Collecting the required number of nominating signatures is not that difficult. With over a full month left to gather nominating petition signatures from register voters it is more likely than not that a solid majority, maybe even all, of the 15 candidates will qualify for the ballot by collecting the 500 qualifying signatures.

Once all the candidates secure their positions on the ballot, the races no doubt will heat up and voters can expect knocks on the door from candidates seeking their support. All too often, it is only during election time that voters see and hear personally from their City Councillors. Usually the only time voters see their City Councillors is in news reports or at press conferences to take credit for something they had little to do with.

Voters need to take advantage of the opportunity to ask the candidates where they stand on the issues that are critical to their districts. Hopefully voters will ask Isaac Benton, Pat Davis and Trudy Jones why they were such strong supporters of the disastrous ART Bus project and why they allowed the destruction of one of the finest police departments in the country by failing to exercise their oversight authority and calling into question the previous administration’s management of APD. When its all said and done, voters must understand who they are voting for and if a candidate does indeed represent their best interests and not the candidates own personal agenda.

For related blog articles see:

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

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

On May 29, 2019, US Justice Department Special Counsel Robert Mueller ended his two-year investigation into Russian interference in the 2016 election with a remarkable, 10-minute public statement taking no questions. Special Counsel Mueller announced he was closing the special counsel’s office saying “Our investigation is complete,” resigning, and to returning to private life.

You can view the statement in full here:

https://www.youtube.com/watch?v=vdQypBnitXM

Mueller outlined 5 primary conclusions of his investigation and made clear that the next steps belong to the United States Congress to decide to impeach, convict and remove President Trump.

The 5 major points made by Robert Mueller in his statement were clear:

1) Had he been able to clear the president on the question of obstruction, he would have done so, but he did not. Mueller noted the Justice Department’s longstanding policy against indicting a sitting president and said that his office was never able to even consider bringing charges against Donald Trump, either openly or under seal until Trump left office. According to Mueller:

“We concluded that we would not reach a determination—one way or the other—about whether the president committed a crime. … Charging the president with a crime was therefore not an option we could consider.

As set forth in our report, after that investigation, if we had confidence that the president clearly did not commit a crime, we would have said that.”

2) What happens now is up to the United States Congress. Mueller went out out of his way to describe how his investigation team had gathered and preserved evidence for future investigators, adding pointedly “The Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”

3) Americans should be deeply concerned by Russia’s broad and systemic interference with the 2016 election. According to Mueller, “There were multiple, systematic efforts to interfere in our election. That allegation deserves the attention of every American.” In his report, Mueller made cleat Russian efforts were aimed at hurting Democrat Hillary Clinton.

4) Mueller doesn’t intend to say anything further but if he testifies before congress, he will not deviate from his report and said:

“Any testimony from this office would not go beyond our report. It contains our findings and analysis, and the reasons for the decisions we made. We chose those words carefully, and the work speaks for itself. The report is my testimony.”

5) Mueller took deliberate issue with the accusations Trump and others have made that his investigation had been conducted by conflicted, angry Democrats on a witch hunt by saying:

“I want to thank the attorneys, the FBI agents, the analysts, and the professional staff who helped us conduct this investigation in a fair and independent manner. These individuals, who spent nearly two years with the Special Counsel’s Office, were of the highest integrity.”

https://www.wired.com/story/robert-mueller-breaks-silence-russia-investigation/

TRUMP’S REACTIONS

Immediately after the Special Counsel Mueller’s statement, President Trump tweeted his reaction:

“Nothing changes from the Mueller Report. There was insufficient evidence and therefore, in our Country, a person is innocent. The case is closed! Thank you.”

Trump’s first reactions to Mueller’s statement were more muted than his usual to his “No Collusion, No Obstruction, Complete and Total EXONERATION.”

https://www.vox.com/2019/5/29/18644280/mueller-statement-trump-tweet

The day after the special council’s statement, and true to form, Trump attacked Robert S. Mueller as “totally conflicted” and “a true never-Trumper”. Trump made the false claim that the special counsel would have brought charges against him if he had any evidence which is totally opposite to what Mueller said in his public statement the day before.

Trump told reporters:

“Robert Mueller should have never been chosen” Trump told reporters that he considered Mueller “totally conflicted” because he had discussions about the position of FBI director early in the Trump administration and is friendly with former FBI director James B. Comey, whom Trump fired in 2017. “He loves Comey. Whether it’s love or a deep like, he was conflicted.” Trump claimed.

Trump also again attacked the Russian probe:

“Russia, Russia, Russia! That’s all you heard at the beginning of this Witch Hunt Hoax. … And now Russia has disappeared because I had nothing to do with Russia helping me to get elected. It was a crime that didn’t exist.”

Trump told reporters at the White House that Russia had not helped him get elected when he said:

“You know who got me elected? I got me elected. … Russia didn’t help me at all. Russia, if anything, I think, helped the other side.” In his report, Mueller made it clear that Russian efforts were aimed at hurting Democrat Hillary Clinton to benefit Trump.

https://www.washingtonpost.com/politics/trump-attacks-mueller-says-he-would-have-brought-charges-if-he-had-evidence-of-a-crime/2019/05/30/bf8ab798-82ca-11e9-bce7-40b4105f7ca0_story.html?noredirect=on&utm_term=.29cc1c1ffff0

A ROADMAP FOR IMPEACHMENT BUT NOT REMOVAL

Despite the fact that the special counsel’s report on Russian interference did not come to a conclusion as to whether President Trump obstructed justice, the Mueller Report did disclose at least 10 “discrete acts” in which Trump may have “obstructed justice”. Mueller left it up to congress to decide for themselves if there was obstruction of justice.

Any one of the 10 acts could form the basis of impeachment by the Democratic Controlled US House of Representatives, but not necessarily result in a conviction by the Republican US Senate. The Mueller Report says the 10 instances of potential obstruction of justice can be divided into “two phases, reflecting a possible shift in the president’s motives.”

The first phase of obstruction of justice took place before Trump fired FBI Director James Comey after Trump had been reassured by Comey he was not personally under investigation. After Comey was fired by Trump and after Mueller’s appointment as special counsel, the report states Trump realized or knew he was under investigation for possibly obstructing justice and he changed course and became more aggressive to discredit the investigation.

The Mueller report states:

“At that point, the president engaged in a second phase of conduct, involving public attacks on the investigation, non-public efforts to control it, and efforts both in public and private to encourage witnesses not to cooperate with the investigation.”

CBS News did an exceptional summary of the 10 times Trump may have obstructed justice. Following are the 10 times Trump may have obstructed justice quoting a CBS News article with the link below:

1.”THE CAMPAIGN’S RESPONSE TO REPORTS ABOUT RUSSIAN SUPPORT FOR TRUMP”

“The first instance of possible obstruction detailed in the report occurred during the 2016 campaign, when questions first “arose about the Russian government’s apparent support for candidate Trump. The report states that while Mr. Trump was publicly skeptical Russia had released emails from Democratic officials, he and his aides were also trying to get information about “any further Wikileaks releases.” The report also notes that despite Mr. Trump’s insistence he had no business connections to Russia, his namesake company was trying to build a Trump Tower in Moscow. And once the election was over, Mr. Trump “expressed concerns to advisers that reports of Russia’s election interference might lead the public to question the legitimacy of his election.”

2.”CONDUCT INVOLVING FBI DIRECTOR COMEY AND MICHAEL FLYNN”

“The second instance involves Mr. Trump’s first national security adviser, Michael Flynn, who left the administration just weeks into Mr. Trump’s presidency after he misled FBI agents and top administration officials — including Vice President Mike Pence — about his conversations with Russian Ambassador Sergey Kislyak. Flynn had said he had not discussed sanctions on Russia with Kislyak, a lie that Pence and others then repeated. The day that Mr. Trump found out Flynn had lied to Pence and the FBI, he had dinner with Comey, whom he asked for “loyalty.” Mr. Trump then secured Flynn’s resignation on Feb. 13, 2017. “Now that we fired Flynn, the Russia thing is over,” he told an outside adviser, who disagreed with the president’s assessment. That same day, Mr. Trump had another meeting with Comey and encouraged him to stop investigating Flynn. “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go,” Mr. Trump said. The president then asked Deputy National Security Adviser K.T. McFarland to draft an internal memo “stating that the president had not directed Flynn to discuss sanctions with Kislyak. McFarland declined because she did not know whether that was true, and a White House Counsel’s Office attorney thought that the request would look like a quid pro quo for an ambassadorship she had been offered.”

3.”THE PRESIDENT’S REACTION TO THE CONTINUING RUSSIA INVESTIGATION”

“The third instance involves then-Attorney General Jeff Sessions, who was debating whether to recuse himself from the Russia investigation in February 2017, as well as Comey. Mr. Trump asked White House Counsel Don McGahn to talk Sessions out of recusal, and became angry when Sessions announced he would recuse himself on March 2. The president then asked Sessions to “unrecuse” himself. After Comey testified to Congress that there was an FBI investigation into Russian interference in the 2016 election, Mr. Trump reached out to his CIA and NSA directors to help “dispel the suggestion that the President had any connection to the Russian election-interference effort.” Comey had told Mr. Trump he wasn’t under investigation and, against Mc Gahn’s advice, the president twice called the FBI director to ask him to say that publicly.”

4.”THE PRESIDENT’S TERMINATION OF COMEY”

“The fourth instance stems from Mr. Trump’s decision to fire Comey, which directly led to Mueller’s appointment. Mr. Trump decided to fire Comey in May 2017 — days after the FBI director declined to tell Congress that Mr. Trump wasn’t under investigation. After Mr. Trump dismissed Comey, the White House insisted he had done so at the recommendation of the Department of Justice. In reality, Mr. Trump had not consulted with the Justice Department before deciding to fire Comey. In conversations that followed, Mr. Trump indicated the Russia investigation was the real reason he had let Comey go: “The day after firing Comey, the president told Russian officials that he had ‘faced great pressure because of Russia,’ which had been ‘taken off’ by Comey’s firing. The next day, the president acknowledged in a television interview that he was going to fire Comey regardless of the Department of Justice’s recommendation and that when he ‘decided to just do it,’ he was thinking that ‘this thing with Trump and Russia is a made-up story.’”

5.”THE APPOINTMENT OF SPECIAL COUNSEL AND EFFORTS TO REMOVE HIM”

“The fifth instance revolves around Mr. Trump’s reaction to Mueller’s appointment. Upon hearing the news that Deputy Attorney General Rod Rosenstein had tasked Mueller with investigating the Russia matter in May 2017, the president privately declared it was “the end of his presidency.” Mr. Trump then demanded Sessions’ resignation, although he did not accept it at the time, and told aides Mueller had conflicts of interest that should preclude him from acting as the special counsel. It was then reported in June that Mueller was investigating Mr. Trump for obstruction of justice, prompting the president to publicly attack Mueller and the Justice Department. Within days of the first report, he told Mc Gahn to tell Rosenstein that Mueller had conflicts of interest and must be removed. Mc Gahn ignored the request, explaining that he would rather resign.”

6.”EFFORTS TO PREVENT PUBLIC DISCLOSURE OF EVIDENCE”

“The sixth instance stems from the June 2016 meeting between top campaign aides and “a Russian lawyer who was said to be offering damaging information about Hillary Clinton as ‘part of Russia and its government’s support for Mr. Trump.’” Mr. Trump told his aides “not to publicly disclose the emails setting up the June 9 meeting, suggesting that the email would not leak and that the number of lawyers with access to them should be limited.” Donald Trump Jr., who had been present at the Trump Tower meeting, wrote a press release saying “the meeting was with ‘an individual who [Trump Jr.] was told might have information helpful to the campaign’” — a line that was edited out about the president. Mr. Trump’s personal lawyer then denied to reporters the president had “played any role” in Trump Jr.’s statement.

7.”FURTHER EFFORTS TO HAVE THE ATTORNEY GENERAL TAKE CONTROL OF THE INVESTIGATION”

“The seventh instance has to do with Mr. Trump’s repeated attempts to have Sessions “reverse his recusal.” Mr. Trump asked Sessions to do this in the summer of 2017. The following December, Mr. Trump told Sessions he would be a “hero” if he took control of the investigation. Additionally, in October 2017, the president asked Sessions to “take [a] look” at investigating Hillary Clinton.”

8.”EFFORTS TO HAVE MCGAHN DENY THAT THE PRESIDENT HAD ORDERED HIM TO HAVE THE SPECIAL COUNSEL REMOVED”

“The eighth instance concerns Mr. Trump’s efforts to get Mc Gahn to dispute press accounts that the president had instructed him to try and get rid of Mueller. In early 2018, Mr. Trump told White House officials to tell Mc Gahn to rebut the stories, but Mc Gahn told the officials the stories were true. Mr. Trump then personally appealed to Mc Gahn, telling him in an Oval Office meeting to deny the reports. In the same meeting, the president also asked McGahn why he had told the special counsel about the president’s efforts to remove the Special Counsel and why McGahn took notes of his conversations with the president,” the report states. “McGahn refused to back away from what he remembered happening and perceived the president to be testing his mettle.”

9.”CONDUCT TOWARDS FLYNN, MANAFORT, [REDACTED]”

“The ninth instance stems from Mr. Trump’s response to the prosecutions of Flynn and Paul Manafort, his former campaign chairman, as well as an individual whose identity was redacted. “After Flynn withdrew from a joint defense agreement with the president and began cooperating with the government, the president’s personal counsel left a message for Flynn ‘s attorneys reminding them of the president’s warm feelings towards Flynn, which he said ‘still remains,’ and asking for a ‘heads up’ if Flynn knew ‘information that implicates the president,’” the report states. When Flynn’s counsel reiterated that Flynn could no longer share information pursuant to a joint defense agreement, the president’s personal counsel said he would make sure that the president knew that Flynn’s actions reflected ‘hostility’ towards the president. Meanwhile, Mr. Trump praised Manafort during his “prosecution and when the jury in his criminal trial was deliberating. At one point, he praised Manafort as “a brave man” who refused to “break.”

10.”CONDUCT INVOLVING MICHAEL COHEN”

“The tenth and final instance of potential obstruction concerns Mr. Trump’s behavior toward Michael Cohen, his onetime personal lawyer. Mr. Trump profusely praised Cohen when he remained loyal to the administration, at one point personally calling to encourage him to “stay strong,” only to criticize him viciously when he began cooperating with the government. After the FBI searched Cohen’s home and office in April 2018, the president publicly asserted that Cohen would not ‘flip,’ contacted him directly to tell him to ‘stay strong,’ and privately passed messages of support to him,” the report states. Cohen also discussed pardons with the president’s personal counsel and believed that if he stayed on message, he would be taken care of. But after Cohen began cooperating with the government in the summer of 2018, the president publicly criticized him, called him a ‘rat,’ and suggested that his family members had committed crimes.”

You can review the full unedited CBS News report here:

https://www.cbsnews.com/news/obstruction-of-justice-10-times-trump-may-have-obstructed-justice-mueller-report/

COMMENTARY AND ANALYSIS

Congressional Democrats are now at a crossroad when it comes to President Trump with the end of either road not at all promising or guaranteed. If impeached by the house, Trump is not likely to be convicted and removed by the Senate. Trump will be the Republican nominee, and with 24 democrats running, the eventual Democrat nominee may be so weakened by a bitter primary battle and a divided Democratic Party to hand the election to Trump.

Articles of Impeachment in the US House of Representatives are passed by a simple majority vote, but conviction and removal is a long shot at best. It is clear that the Democratic controlled House of Representatives has more than enough grounds from the Mueller Report and more than a majority of votes to impeachment Trump for obstruction of justice. What is as equally clear is that the Republican controlled United State Senate would never vote to convict and remove Trump from office.

After Articles of Impeachment are passed by the House, the charges are forwarded to the United States Senate for a trial presided over by the Chief Justice of the Supreme Court which today is John Roberts. Two-thirds of the Republican controlled Senate, or 67 votes, are needed to convict and remove Trump. If all 48 Senate Democrats would vote yes to convict, 19 Republican Senators would have to vote with all the Democrats to convict and remove. Nineteen Republican Senators voting to convict is not at all likely given Trumps strangle hold over the Republican Senators and the Republican Party.

When you review the entire 466 page Mueller Report, the one conclusion that any reasonable person can come to is that the Russian probe uncovered evidence of a President “giving aid and comfort” to Russia to influence his election to become President and to hide or stop the Russia investigation to disrupt the 2016 election by firing FBI James Comey or both.

Trump has spent a lifetime being loyal to only two things: himself and his money. Given the millions and millions of dollars involved with Russian financing of Trump enterprises, Trump’s love of money and his love for Russia probably outweighs his love for his own country if he really ever had love for the country in the first place.

Today, the Republican Majority in the Senate is led by the 3 Republican Stooges Mitch McConnel, Lindsay Graham and John Cornyn who publicly help or gives credibility to the “Fool In Chief” because they are desperate to hold onto power and running for reelection with Trump in 2020. Any one of the 24 Democrats and even the one Republican running to replace Trump would be a better President than Trump could ever hope to be.

No doubt impeaching Trump will take upwards of a year and into the 2020 election cycle with no sure outcome. Beating Trump at the polls is the only guaranteed way to end the moral and political disaster he has been. The only sure way to remove Trump as President once and for all and to end the nightmare and insanity is to beat Trump both at the polls and in the electoral college, but who can do that remains to be seen.

On May 10, 2019, Albuquerque Mayor Tim Keller and Bernalillo County District Attorney Raul Torrez wrote a joint letter to the New Mexico Supreme Court requesting it to intervene and stop the District Court from shifting away from the use of grand jury system to a preliminary hearing system. In their letter to the Supreme Court, Keller and Torrez proclaimed:

“Further reductions in the grand jury without sufficient modifications to the preliminary hearing process will be untenable. … Under the District Courts stated plan, the largest judicial district in the state – one that accounts for more than half of the reported crime in New Mexico – will be allotted grand jury capacity for fewer than 10% of all referred felony cases. … This simply is problematic and leaves insufficient time for complicated long-term investigations to be presented to a grand jury in addition to other currently being presented.”

Because of the change, the District Attorneys Office will have to schedule and prepare for preliminary hearings to charge defendants. Preliminary hearings can take place in either State District Court or Metropolitan Court. Torrez argues that preliminary hearings use stricter evidence rules require multiple witnesses, while grand juries decide whether to indict based, in general, on the testimony of a case agent.

On May 22, 2019, State District Court Judges Stan Whitaker and Charles Brown wrote to the New Mexico Supreme Court a letter in response to the May 10, 2019 joint Keller and Torrez letter. In their written response to Mayor Keller’s and District Attorney Torrez letter to the Supreme Court, the Judges were very blunt writing:

“… the move to preliminary hearings is particularly important given the historic failure of the District Attorney’s Office … to frontload cases … by interviewing witnesses and reviewing evidence early in the process which results in a waste of resources for all criminal justice stakeholders” … [T]he change is needed because preliminary hearings are efficient and effective. … The DA’s Office tends to focus on getting cases into the system rather than the disposition of cases” and noted “recognizing [the court’s] responsibility to push the system toward best practices [efforts] to increase the use of preliminary hearings have been in the works for years.”

I AM TAKING MY BALL AND GOING HOME!

The New Mexico Criminal Defense Lawyers Association (NMCDLA) has come out in favor of the District Court’s efforts to reduce grand jury time and go to a system of preliminary hearings. NMCDLA proclaims that preliminary hearings protect an individual’s constitutional rights to a lawyer, due process of law, right to confront witnesses, presumption of innocence and a speedy trial.

On May 29, 2019, it was reported that District Attorney Raúl Torrez notified District Court that his office would no longer schedule preliminary hearings in State District Court. In a statement to the media, Michael Patrick, spokesman for the DA’s Office, called the District Court preliminary hearing process an “inefficient use of time and resources. It is not surprising defense attorneys are defending district court preliminary hearings because it benefits their clients at the expense of public safety”. Patrick went on to add that a third of all preliminary hearings were reset in the month of April “meaning the defendant was still in the community without felony charges initiated against them.”

NMCDLA suggest in a news release that DA Torrez made the decision not to schedule preliminary hearing in District Court:

“in retaliation for the Second Judicial District Court reducing the number of available grand jury hours. … Such politics have no place in the courtroom. This will create an unnecessary backlog and greatly restrict the ability of the accused to exercise their constitutional right to have the (charges) against them reviewed for probable cause. After being given $6 million last year by the legislature, District Attorney Torrez has abandoned his promise to make his office more efficient, instead deciding to embark on a war against judges.”

The NMCDLA past-president Matthew Coyte added in a news release:

“District Attorney Torrez wants to remove judicial involvement in the determination of who is dangerous and who gets to be locked up until his office can find the time and resources to prosecute the case. … His latest request seeks to remove judges and defense attorneys from the probable cause determination entirely.”

https://www.abqjournal.com/1321125/defense-attorneys-weigh-in-on-court-plan-to-reduce-grand-juries.html

THE DEFENSE BAR RESPONSE

The criminal defense bar argues that preliminary hearings are a fair and transparent way of charging and disposing of cases. Defense attorneys argue that preliminary hearing require the parties to evaluate the strength of a case quickly and efficiently that often leads to earlier resolutions of the cases by plea agreements and/or dismissal charges or cases.

Public Defender Jon See explained that when his clients are shown the evidence and testimony at a preliminary hearing, the accused defendant are able to consider an early resolution of the case and it explained it this way:

“They were running a video, you looked drunk in it, or you had this drug on you, or you admitted that you did it . … Do you want to spend the next six months waiting for a trial and you’re going to probably get a worse plea offer? Or do you want to take this pretty good deal right now?”

https://www.abqjournal.com/1319815/grand-jury-system-under-fire.html

SHIFTING BURDEN OF PROOF

Bernalillo County District Attorney Raúl Torrez is also 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.

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. Such a shift of burden of proof could conceivably require a defendant to take the stand during a detention hearing before their trial and a waiver of their 5th Amendment Constitutional Right against self-incrimination.

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

https://www.petedinelli.com/2019/05/22/backass-backwards-your-presumed-violent-until-you-prove-otherwise/

COMMENTARY AND ANALYSIS

Do you remember playing baseball growing up and one kid gets mad and strikes out, starts crying and says “WHAAAA, I do not want to play anymore, I’m taking my ball and going home!” That is exactly what District Attorney Raul Torrez thinks he is doing with preliminary hearings when in fact he is playing with fire and is about to get seriously burned.

In his statement to the media Michael Patrick, spokesman for the DA’s Office, called the District Court preliminary hearing process an “inefficient use of time and resources. It is not surprising defense attorneys are defending district court preliminary hearings because it benefits their clients at the expense of public safety”. Patrick added that a third of all preliminary hearings were reset in the month of April “meaning the defendant was still in the community without felony charges initiated against them.”

DA Raul Torrez and office spokesman and Michael Patrick have not responded to the statistics disclosed in the May 22, 2019 letter from State District Court Judges Stan Whitaker and Charles Brown to the New Mexico Supreme Court. The statistics revealed an alarmingly high 65% mistrial rate, acquittal rate, dismissal rate in cases where the District Attorney tried cases charged by grand jury versus those cases charged by preliminary hearings.

The statistics show how overcharging and a failure to screen cases by the District Attorneys Office is contributing to the high mistrial and acquittal rates. Out of 378 charged cases in the 10-month period of July, 2018 to April, 2019, there were 128 convictions from guilty verdicts and guilty plea agreements, 174 acquittals from not guilty verdicts, DA dismissals, directed verdicts and other types of dismissals and 72 mistrials. Translated to percentage numbers, of the 378 cases charged, 34.92% were convictions, 46.03% were acquittals and 19.05% were mistrials. In other words, 65% of the 378 charged cases resulted in either a mistrial or acquittal when presented to a jury.

Raul Torrez was elected Bernalillo District Attorney in November, 2016. The District Court has been implementing the “preliminary hearing” since mid 2015. During his campaign for District Attorney Torrez proclaimed our criminal justice system was broken, but the issue of the use of preliminary hearings was never brought up or debated by Torrez nor did he object during his campaign.

After being elected DA, Torrez began to blame the courts for the rise in violent crime rates and many, including many in the news media, bought into his bogus argument that the “revolving door” is the courts fault. 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 the 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.

In their May 22, 2019 letter to the Supreme Court, District Court Judges Whitaker and Brown hit head on the accusation made by Torrrez of a “revolving door problem” and its causes by saying:

“Given the specific problems in this jurisdiction which continue to exist – the delay with discovery [disclosure by the DA’s office], dismissals of cases by the District Attorney immediately prior to trial, the lack of collection of evidence, the unwillingness of witnesses to testify only discovered late in the process, the public’s apparent lack of confidence in the system, and the difficulties the District Attorney has had in obtaining convictions, leading to what has been referred to as the “revolving door problem” – the move to preliminary examinations is especially useful as experts agree the move to preliminary examinations [hearings] helps address most of these issues.”

The conversion process from grand jury to preliminary hearings has been going on since 2015 and Torrez has resisted it from day one of his election. The Bernalillo County District Attorney Office is one of the largest law firms in the State of New Mexico having 330 fully funded and full-time employees including attorneys, paralegals, administrative assistants, victim advocates, investigators, IT managers and personnel and finance divisions.

Torrez has been a major failure in tackling the resource problem himself after he secured significant funding increases from the New Mexico legislature. Torrez has failed to fill 50 vacant positions within his office. 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.

The New Mexico Supreme Court has yet to respond to the May 10, 2019 and May 22,2019 respective letters from Mayor Tim Keller, District Attorney Raul Torrez and State District Court Judges Stan Whitaker and Charles Brown. For that reason alone, Torrez is playing with fire when he orders the cancellation and the scheduling of preliminary hearings.

Raul Torrez and his entire office could very easily be brought before the New Mexico Supreme Court on a “Writ of Superintendent Control” and the Supreme Court could order his office to use preliminary hearings or face contempt of court charges and be referred to the New Mexico Disciplinary Board. Torrez thinks he has problems now, but his troubles are only beginning, including an uphill battle for re election if he does not get his act together, buckle down and do his job instead of looking for television cameras and reporters to blame judges for all his problems.

You can read a related blog article at the below link:

District Court Exposes DA Torrez 65% Dismissal, Mistrial And Acquittal Rates; Mayor Keller Tries To “Bail Out” DA Torrez From Preliminary Hearings

On May 10, 2019, Albuquerque Mayor Tim Keller and Bernalillo County District Attorney Raul Torrez wrote a joint letter to the New Mexico Supreme Court requesting it to intervene and stop the plans of 2nd Judicial District Court (SJDC) to shift away from the use of grand jury system to a preliminary hearing system. The letter was addressed to New Mexico Supreme Court Chief Justice Judith Nakamura. The New Mexico Supreme Court has administrative and regulatory and rule making powers over virtually every court in the state.

It was In September of last year the 2nd Judicial District Court notified District Attorney Raul Torrez that it would be drastically reducing the amount of time for grand jury and shifting to preliminary hearings. At the time, Torrez strenuously objected. On August 25, 2018, the District Court notified Torrez that it would “scale back” the planned reduction in grand jury and that the decline would be a phased in process. The District Court has continued with its plans for more preliminary hearings. District Attorney Raul has now convinced Mayor Tim Keller that he should also object to preliminary hearings.

https://www.abqjournal.com/1319815/grand-jury-system-under-fire.html

In a nutshell, both the grand jury and preliminary hearing are probable cause hearings to charge someone with a crime The grand jury is confidential, behind closed doors, where evidence is presented to a jury of citizens who decide the charges in an indictment. A preliminary hearing is in open court where a Judge decides if there is probably cause to support criminal charges filed and if the case should go forward or be dismissed. The major differences between a “grand jury” and a “preliminary hearing” are provided in the postscript below to this blog article.

TORREZ AND KELLER LETTER TO NM CHIEF JUSTICE

The May 10, 2019 Torrez-Keller letter is a mere two and one-half page letter to New Mexico Supreme Court Chief Justice JUDITH NACAMURA. Below are the most critical excerpts of the Torrez/Keller letter:

“We write to you with an urgent request that the New Mexico Supreme Court take immediate action to prevent further elimination of existing grand jury panels in the Second Judicial [District Court].

“Our community has already endured more than enough change to the criminal justice system in recent years, and now is not the time for this type of experimentation. On behalf of the citizens, we ask the New Mexico Supreme Court to intervene and we also ask that the judiciary take no further action that imposes significant burdens on the criminal justice stakeholders as we continue or work to reduce crime and rebuild public confidence. … .”

A NEW PLAYER WITH SAME OLD OBJECTIONS

The only thing new about the contact with the New Mexico Supreme Court is Mayor Tim Keller getting involved objecting to a “preliminary hearing” system. Both Torrez and Keller assert law enforcement resources will be wasted claiming there will be diverting police officers to court and reducing the Albuquerque Police Departments (APD) ability to take calls for service. Both Keller and Torrez are proclaiming preliminary hearings are too resource intensive and time consuming for both the Albuquerque Police APD and the Bernalillo County District Attorney’s Office.

According to Torrez in a separate news report, preliminary hearings are administratively burdensome and a drain on resources his office does not have to channel more cases through the process. Torrez worries about scheduling conflicts and having witnesses or others not show up for preliminary hearings by saying:

“The effects of a 70 percent reduction [in grand juries] … would have been catastrophic. … My concern is that we are going to have the same reduction, we’re just going to implement it through slow cuts over time. This is not the time to mess with a good thing … While that allows everyone to adjust, you’re still not tackling the fundamental resource question.”

https://www.abqjournal.com/1202062/court-plans-major-cuts-to-grand-jury-system.html

Torrez argues that preliminary hearings are too difficult to prepare for with respect to witness preparation and evidence preparations. Further, preliminary hearings are routinely cancelled and reset when a witness, officer or defendant fails to show up in court. According to Torrez, with the grand jury it is easier to notify an officer of the precise time for court the officer is needed by saying:

“When we subpoena a police officer [for a preliminary hearing], we say, ‘Come at 1:00; bring a book.’ I have no idea if the defendant is going to show up. I have no idea if the witness is going to show up … and in contrast, with a grand jury I say, ‘Officer, come in at 3:15; you can do a presentation to the grand jury. I’ll have you back in the car answering calls for service at 3:30.’ ”

Currently, grand jury panels meet for eight hours a day on Monday, Wednesday and Thursday. In their joint letter to the Supreme Court, Mayor Keller and District Attorney Torres said if the court’s reduction plan is fully implemented, a grand jury will be available only six days a month that would result in prosecutors to start fewer than 10% of the county’s felony cases through indictment.

According to the Torrez – Keller letter to the Supreme Court, they estimate the system would then need to complete 23 preliminary hearings a day and argued:

“Perhaps even more troubling, and again, from a policing perspective, assuming an average of two officers required for each hearing, the Albuquerque Police Department will have more than forty-five officers every single day sit in court for potentially hours on end, waiting to testify rather than answering calls for service.”

Mayor Tim Keller and District Attorney Raul Torrez say there are two possible solutions to what is happening: 1) The Supreme Court should intervene to stop the grand jury cuts or 2) Consider changing the rules for preliminary hearings.

DA Torrez proclaims:

“If there’s no accommodation either with the rules for preliminary hearings or access to the grand jury, you’re going to have another substantial backlog. … Charged cases will drop, and the number of uncharged cases will go up. And they will sit in a stack.”

https://www.abqjournal.com/1319815/grand-jury-system-under-fire.html

https://www.petedinelli.com/2018/08/28/da-torrez-fails-to-tackle-resource-problem-for-preliminary-hearings/

THE DISTRICT COURT RESPONDS TO KELLER AND TORREZ

On May 22, 2019, State District Court Judges Stan Whitaker and Charles Brown wrote to the New Mexico Supreme Court a letter in response to the May 10, 2019 joint Keller and Torrez letter. It was a 16-page, single spaced letter with statistics reflected in bar graphs and pie charts. District Judge Stan Whitaker is the Chief Presiding Judge of the Criminal Division and is a former Assistant United States Attorney. Judge Charlie Brown is the Criminal Division Presiding Judge and is also a former prosecutor and one of the most experienced trial attorneys on the bench. Combined the two District Court Judges have at least 45 years, if not more, of trial experience. Raul Torrez has been District Attorney for 2 years and 6 months and Tim Keller has been Mayor for 18 months, he is not an attorney and has no law enforcement background.

In their written response to Mayor Keller’s and District Attorney Torrez letter to the Supreme Court, the Judges were very blunt writing:

“… the move to preliminary hearings is particularly important given the historic failure of the District Attorney’s Office … to frontload cases … by interviewing witnesses and reviewing evidence early in the process which results in a waste of resources for all criminal justice stakeholders” … [T]he change is needed because preliminary hearings are efficient and effective. … The DA’s Office tends to focus on getting cases into the system rather than the disposition of cases” and noted “recognizing [the court’s] responsibility to push the system toward best practices [efforts] to increase the use of preliminary hearings have been in the works for years.”
…

Judges Brown and Whitaker dismissed the concerns of both Keller and Torrez that preliminary hearings are resource intensive and wrote:

“[P]reliminary hearings only require sufficient evidence to establish probable cause and many cases would not require an officer to appear at all …

“Further, the District Attorney’s Office has asserted that law enforcement time will be wasted with preliminary examinations because they will have to sit for “potentially hours on end”. The reality is that the DA’s office failure to front load cases and late nolle’s [no prosecution notices] wastes significant amounts of time for everyone, including law enforcement who has to appear for pretrial interviews and evidence hearings. While preliminary examinations often do not require an officer to testify because the officer is unnecessary to prove probable cause, officers are always required to appear for pretrial interviews and they are often required for evidence hearings. And while the average time to conduct a full preliminary examination in Metropolitan Court is 39 minutes, pretrial interviews and court proceedings take hours. Moreover, based on the data , only around 4% of cases will result in a full preliminary hearing; in most cases the officer will appear and be released because the case will resolve.”
…
“Two of the major reasons for [the DA filing no prosecution notices] are a lack of cooperation by the witnesses and the inability to locate witnesses. By requiring the District Attorney’s Office to present witnesses early in the process (rather than untested hearsay evidence presented at a grand jury), it forces the District Attorney to contact witnesses, review the file, check the witness contact information. … this screening is important to the DA’s office ability to later proceed with the case. Since opposing counsel is also present, it allows the parties to discuss a plea. …”

Brown and Whitaker further stated the court has offered to design a schedule that would conserve as much officer time as possible.

DA’S HIGH DISMISSAL, MISTRIAL AND ACQUITTAL RATES EXPOSED

District Court Judges Stan Whitaker and Charles Brown in their response letter included an extensive amount of statistics, pie and bar graphs comparing the success and failure of preliminary hearing and trials based on grand jury indictment. The statistics revealed an alarmingly high mistrial rate, acquittal rate, dismissal rate in cases where the District Attorney tried cases charged by grand jury versus those cases charged by preliminary hearings.

Judges Whitaker and Brown opined that front-loading the system and better screening of cases by the District Attorney:

“will help with the high mistrial in the Second [Judicial District]. There is at least some research that suggests that case screening and the quality of evidence impacts hung juries. According to studies, the average mistrial rate [across the country] is between 14.8% to less than 3%. The federal average was 2.5%. Looking at a sample from July, 2018 through April 2019, the [2nd Judicial District Court’s] mistrial rate [for cases presented by the DA’s office] is much higher.” The judges reported that in the 10-month period from July 2018 to April 2019, there were 99 trials and 22 of those trials (or 22.22%) resulted in a mistrial.

One pie chart presented data that showed how overcharging and a failure to screen cases by the District Attorneys Office is contributing to the high mistrial and acquittal rates. Out of 378 charged cases in the 10-month period of July, 2018 to April, 2019, there were 128 convictions from guilty verdicts and guilty plea agreements, 174 acquittals from not guilty verdicts, DA dismissals, directed verdicts and other types of dismissals and 72 mistrials. Translated to percentage numbers, of the 378 cases charged, 34.92% were convictions, 46.03% were acquittals and 19.05% were mistrials. In other words, 65% of the 378 charged cases resulted in either a mistrial or acquittal when presented to a jury.

According to the District Court, “between January 1, 2016, and May 16, 2019, there were 11,301 criminal cases opened in District Court (via either grand jury indictment or information) that also closed in the same time period . Of those cases, 26% (2,905 cases) were essentially dismissed via “nolle” [no prosecution notices] by the District Attorney’s Office. The average time to “nolle” [no prosecution notices by the District Attorney] was 177 days or almost 6 months.”

According to District Judges Whitaker and Brown:

“One of the most common questions that the … judges get asked by juries is “why are we here?” Jurors tend to complain that the prosecution lacked evidence and the presentation by the prosecution was confusing or muddled. Preliminary hearings can help both to winnow down charges and see what evidence remains to be collected, allowing the DA’s Office to focus on those charges it can prove and ensuring earlier that they have the necessary evidence and cooperating witnesses. The District Attorney’s Office tends to focus on getting cases into the system rather than the disposition of cases.”

SUCCESS OF PRELIMINARY HEARINGS

The District Court has been implementing the “preliminary hearing” since mid 2015 with Raul Torrez elected District Attorney in November, 2016.

District Judges Whitaker and Brown reported that the preliminary hearing process has been very successful in the early resolution of cases. The judges reported that 51% of the cases filed by criminal information or criminal complaint resulted in a guilty plea early in the process.

Second Judicial District Court data reflects that in 2017 there were 2,551 cases indicted by the DA’s office and there were 650 preliminary hearings held by the court’s criminal division. From January 1, 2018 to June 30, 2018 there were 418 preliminary hearing with 1,688 cases indicted. In 2017, 61% of felony preliminary hearings in the 2nd Judicial District Court led to a plea agreement at the hearing.

According to the District Court, from January 1, 2019 to May 15, 2019, more than half of the cases routed for a District Court preliminary hearing resulted in a plea agreement. In their letter to the Supreme Court, the District Court Judges also argue that preliminary hearings mandate a much earlier evaluation of a case by the prosecution that results in prosecutors dismissing fewer cases later in the process. According to the District Court, cases opened and closed from January 2016 to May 2019, 26% were eventually dismissed by the prosecution, on average six months into the case.

JUSTIFICATION FOR THE CHANGE: THE REVOLVING DOOR

Judges Whitaker and Brown hit head on the “revolving door problem” and its causes by saying:

“Given the specific problems in this jurisdiction which continue to exist – the delay with discovery [disclosure by the DA’s office], dismissals of cases by the District Attorney immediately prior to trial, the lack of collection of evidence, the unwillingness of witnesses to testify only discovered late in the process, the public’s apparent lack of confidence in the system, and the difficulties the District Attorney has had in obtaining convictions, leading to what has been referred to as the “revolving door problem” – the move to preliminary examinations is especially useful as experts agree the move to preliminary examinations [hearings] helps address most of these issues.”

In 2009 and 2015, the National Center for State Courts in studies of the 2nd Judicial District Court in Bernalillo County recommended the shift away from a grand jury and indictment-heavy system. The 2nd District Court is the only judicial district in New Mexico that relies extensively on grand juries as opposed to preliminary hearings to charge defendants with felony crimes. The National Center for State Courts recommended that Bernalillo County use more preliminary hearings and fewer grand juries citing preliminary hearings as a best practices model.

National Center for State Courts found that most District Attorney offices in New Mexico file a majority of their felony cases by criminal information, or complaint, rather than grand jury indictment. Five of the state’s judicial districts do not use grand juries at all. According to the 2015 National Center for State Courts report:

“Nationwide, where indictment by grand jury is permitted in state courts [approximately half the states] , it is generally reserved for the most egregious and serious cases. … Presenting all felonies to a grand jury in an urban justice system is quite unusual.”

WORKING WITH STAKE HOLDERS WITH A NO SHOW MAYOR TIM KELLER

The District Court has been implementing the “preliminary hearing” system since mid 2015 with Raul Torrez elected District Attorney in November, 2016 and Tim Keller elected Mayor in November, 2017. During the implementation period the District Court met with all the major stakeholders in law enforcement, but District Attorney Raul Torrez declined to actively participate. The District Court also offered to met with Mayor Tim Keller. When the Court never heard from Mayor Tim Keller, a meeting was arranged with law enforcement to work out a schedule to conserve officer time. According to the District Court letter “In July of 2018, after seeing no efforts by the DA’s Office to adapt to the move towards preliminary hearing, [the District Court] decided to implement the final push towards preliminary hearings and notified the DA’s Office that it would be reducing the grand jury …” During the course of the discussions regarding the reduction of grand jury time the Court worked to refine its preliminary hearing process.

THE DISTRICT ATTORNEY’S 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. In 2017 there were 2,551 cases indicted by the DA’s office and there were 650 preliminary hearings which by appearance were handled without difficulty despite the fact Torrez had at the time 45 vacancies out of 304 full time staff and he complained about lack of resources.

https://www.berncoda.com/

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.

During the 2018 legislative session, Torrez was quoted as saying 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.

During the 2019 legislative session, the Legislature once again increased the budget for the office. However, things have gotten worse when it comes to DA Torrez filling vacant positions within his office. 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. 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

APD UNDER MAYOR TIM KELLER

On April 1, 2018, Mayor Tim Keller submitted his very first proposed budget to the Albuquerque City Council which was approved. The City Council Approved Mayor Tim Keller’s spending of $88 million dollars, over a four-year period, with 32 million dollars of recurring expenditures to hire 350 officers and expand APD from 878 sworn police officers to 1,200 officers. Keller further implemented a hiring and recruitment program to offer incentives, pay raises and bonuses to join or return to APD in order to return to community-based policing. By July, 2019, APD should have up to 950 sworn police which is still 250 below the desired number of police officers.

On May 20, 2019 the Albuquerque City Council approved the Keller Administration operating budget of $1.1 billion, the first time in city history the budget exceeds $1 Billion. The 2019-2020 budget represents an overall 11% increase in spending over the current year. 47% of the General Fund expenditures fund the Police and Fire departments should not come as any surprise seeing as Albuquerque Police Department (APD) intends to spend $88 million dollars, over the next four-year period, with 32 million dollars of recurring expenditures, to hire 322 sworn officers and expand APD from 878 sworn police officers to 1,200 officers. The 2019-2020 budget fully funds 1,050 sworn police. APD is projecting that it will have 980 officers by this summer by growing the ranks with both new cadets and lateral hires from other departments, including APD retirees.

https://www.abqjournal.com/1318437/city-council-oks-1-1-billion-budget.html

COMMENTARY AND ANALYSIS

Both Keller and Torrez argue to the New Mexico Supreme Court that “preliminary hearing” will result in Albuquerque Police Department (APD) resources will be wasted by diverting police officers to court and reducing their ability to patrol the streets and take calls for service. This argument is as bogus as it gets and reflects at worst, they are misleading the New Mexico Supreme court or at best they both have a degree ignorance of law enforcement investigations of violent crimes. Keller can be excused for his ignorance of the criminal justice system because he has no law degree, no law enforcement background, but Torrez cannot and Torrez knows better.

It is fully uniformed police officers with their police vehicles who are assigned to field services after making bids for assignment and who take calls for service and involved with the prosecution of misdemeanor cases in Metro Court. Violent crimes that are the most violent and serious cases, such as murder, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm. Violent crimes are investigated by APD Detectives assigned to specialized units and the detectives do not take run of the mill calls for service such as making DWI arrests or issuing traffic citations. APD Detectives assigned to the specialized units should have little or no problem preparing for preliminary hearings.

MAYOR TIM KELLER

In 2017, then State Auditor Tim Keller campaigned for Mayor proclaiming he had the right plan for reducing crime, police reform and community-based policing. Throughout his campaign for Mayor, Tim Keller was very careful to avoid blaming the Judges for the increases in crime. Keller avoided saying the courts were releasing too many violent criminals. Two of Keller’s Republican opponents Dan Lewis and Wayne Johnson blamed the courts for the city’s high crime rates to gin up support.

On Friday, May 10, 2019, in reaction to the murder of 21-year-old Jackson Weller, Mayor Tim Keller, APD Chief Michael Geier and District Attorney Raúl Torrez held a joint press conference to announce initiatives aimed at reducing violent crime up and down the Central corridor. During the press conference and for the first time since becoming Mayor, Tim Keller adopted the practice of his predecessor Mayor Richard Berry and his opponents and began to blame the courts for a violent crime. Keller told the media during the news conference that:

“This suspect was recently released from jail on his own recognizance for a felony firearms case in February, in which he was openly firing out of a vehicle … Unfortunately, this individual was back on the street.”

Keller was essentially saying the Defendant was guilty of drive by shooting that he had never been charged with and that Jackson Weller would not be dead if the defendant had not have been free pending trial in the first place by the Courts. Keller made no mention that it was the DA’s Office that was responsible for the defendant being on the street. What has been revealed is that there was a level of malpractice by the district attorney’s office in handling of a case against the accused defendant when a Deputy District Attorney did not attend court hearings, did not follow court orders, did not respond to defense motions, missed deadlines and failed to turn over evidence as ordered by the court.

Mayor Keller needs to realize his office is not part of the Judicial branch of government and he has zero authority over it. For Keller to get involved and to confront the courts with DA Torrez in writing on how the court manages its caseloads and what types of hearings they should have is frankly none of his business. This is not his fight as Mayor and Keller should know better.

Keller’s role as Mayor is to appoint a City Attorney and APD high command to represent the city, and not get involved with the courts and their management of its case load. With Keller’s massive dedication of funding in his approved budgets, APD has sufficient resources and personnel in place in specialized units to investigate murder, first-degree sexual assault, human trafficking, first-degree robbery and crimes involving a firearm and to participate in preliminary hearings.

It is very disappointing that the Mayor Tim Keller did not even bother to meet with the District Courts with respect to preliminary hearings and grand jury, but yet Keller had absolutely no problem sending a letter to the New Mexico Supreme Court to call into question the District Courts management of its docket. How Keller publicly deals with the courts and his joint letter with Torrez crossed over a very fine line of propriety that could impact the city in civil cases where the city is a defendant. Keller could conceivably start objecting to and start telling the District Courts how to handle civil cases where the city is named a defendant. Mayor Keller needs to distance himself from DA Raul Torrez and let Torrez pick and start his own battles with the District Courts.

DISTRICT ATTORNEY RAUL TORREZ

Raul Torrez was elected Bernalillo District Attorney in November, 2016. The District Court has been implementing the “preliminary hearing” since mid 2015 during the final year in office of former Bernalillo County District Attorney Kari Brandenburg. During his campaign for District Attorney Torrez proclaimed our criminal justice system was broken, but the issue of the use of preliminary hearings was never debated by Torrez nor did he object during his campaign.

After being elected DA, Torrez very soon began to blame the courts for the rise in violent crime rates and many, including many in the news media, bought into his bogus argument that the “revolving door” is the courts fault. 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 the 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.

Torrez’s comments that “you’re still not tackling the fundamental resource question” and “this is not the time to mess with a good thing” are so laughable as to be embarrassing. The conversion process from grand jury to preliminary hearings has been going on since 2015 and he has resisted it from day one of his election. The Bernalillo County District Attorney Office is the largest law firm in the State of New Mexico having 330 fully funded and full-time employees including attorneys, paralegals, administrative assistants, victim advocates, investigators, IT managers and personnel and finance divisions.

Torrez has been a failure in tackling the resource problem himself after he secured significant funding increases from the New Mexico legislature. Torrez has failed to fill 50 vacant positions within his office. 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.

CONCLUSION

Both Raul Torrez and Tim Keller campaigned to get elected DA and Mayor on platforms that they could and would bring down our skyrocketing crime rates. No at all surprising, Mayor Tim Keller and Bernalillo County District Attorney Raul Torrez in their letter to the Supreme Court tried to take credit for crime rates being on the decline by saying “Together, we have worked to achieve the longest sustained drop in crime in this community in more than a decade” without mentioning any law enforcement agency. When a high profile killing occurs, such as the murder of the 21 year old UNM student, you can always count on Keller and Torrez to call a press conference, express their sincere condolences, announce a new crime fighting initiative or change in policy to deal with violent crime and blame the courts for the “catch and release” of violent defendants.

The 3 major law enforcement agencies that work within Bernalillo County and the City of Albuquerque and that turn cases over to the District Attorney’s office for prosecution are APD, the Bernalillo County Sheriff’s Office and the New Mexico State Police. Mayor Tim Keller presumably on behalf of APD joined DA Torrez to object to preliminary hearings, yet absolutely no objection has been heard from the Bernalillo County Sheriff’s Office nor the State Police nor any other elected official for that manner.

Both APD and the District Attorney’s office have enough resources and personnel to deal with preliminary hearings. Keller and Torrez need to do their own jobs separately. Mayor Keller and District Attorney Raul Torrez must step up to the plate and do a much better job in managing the resources they have rather than going after and complaining about judges for their release rulings, bond hearings and how the courts manage its caseloads.

The New Mexico Supreme Court must revisit the bond rules, change them 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.

One paragraph contained in the May 22, 2019 letter written by District Court Judges Stan Whitaker and Charles Brown to the New Mexico Supreme Court sums things up:

“The goal of the criminal justice system is not simply to charge a defendant and then try to get as much pretrial time as possible before [voluntarily dismissing the case or] “nolleing” the case; rather the criminal justice system is intended to dispose of cases, protecting the rights of the innocent, while ensuring that the guilty are convicted and sentenced accordingly. Simply charging someone does not protect the community. If that individual is dangerous and guilty of the charged crime, it is the ability to get a conviction that protects the community in the long term.”
_____________________________

POSTSCRIPT

GRAND JURY AND PRELIMINARY HEARINGS BOTH “PROBABLE CAUSE” HEARINGS

Given the major differences between a grand jury and a preliminary hearing, a brief explanation of both is in order. In New Mexico, prosecutors have the option to use a grand jury if made available by the courts or preliminary hearing to charge someone with a crime. Prosecutors can filed criminal complaints whereupon preliminary hearings are then scheduled by the Court.

Both the grand jury and preliminary hearing are “probable cause” hearings. In layman’s terms, probable cause is where the evidence presented shows that is it more likely than not that a crime was committed by the defendant charged. Usually, at a minimum, investigating officers and the crime victim testify at both preliminary hearing or grand jury proceedings. Notwithstanding, both types of hearings have major differences. The biggest difference between a grand jury and a preliminary hearing is that a grand jury proceeding is secret, behind closed doors, before a group of citizens whereas a preliminary hearing is in public, in a courtroom before a judge.

A “grand jury” hearing is a probable cause hearing that decides to charge a defendant when evidence is presented to the grand jury and 8 out of 12 jurors find probable cause to charge. A grand jury is a secret proceeding, defendants are not allowed to see and hear the evidence presented and a grand jury proceeding is not open to the public. A defendant is not present during a grand jury proceeding but is allowed to testifying if they want. The biggest advantage that a grand jury proceeding offers is that it is a usually a very short proceeding that is totally controlled by the prosecutor as to what is presented. The less strict rules of evidence apply. The biggest disadvantage of a grand jury is to the defendant who cannot object to evidence presented and must waive all right of self-incrimination if they choose to testify.

A “preliminary hearing” is a probable cause hearing and it is a judge, not a grand jury, who decides whether there is probable cause to support formal charges against a defendant. Many consider preliminary hearings as “abbreviated trials” or “mini trials” which they do not have to be because it is a probable cause hearing and not a trial that requires proof beyond a reasonable doubt. Preliminary hearings like trials are open to the public and held before a judge and not in secrecy as is a grand jury. During preliminary hearings, witnesses, such as the investigating officer or victim are usually called to testify. Unlike in a grand jury, in a preliminary hearing, a defendant must be present and represented by an attorney who is allowed to question witnesses and present evidence.

Easy For District Attorney To Indict A Ham Sandwich For Murder