On May 10, 2019, Bernalillo County District Attorney Raul Torrez and Albuquerque Mayor Tim Keller 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 New Mexico Supreme Court has administrative and regulatory and rule making powers over virtually every court in the state.

The 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 he has opposed the shift to preliminary hearings.

DA Torres and Mayor Keller wrote to the Supreme Court in part:

“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].
…
“Additional cuts to the grand jury will only further destabilize an already overburdened system and will result in our respective institutions spending considerable more resources to resolve felony cases. … “

Torrez and Keller wrote that when the District Court’s reduction in grand jury time is fully implemented, it would offer grand jury capacity for “fewer than 10% of all referred felony cases.” According to their letter, prior to 2015 the District Court Court offered grand jury capacity for around 6,000 indictments per year.

On May 22, 2019, the State District Court wrote a response letter to the New Mexico Supreme Court responding to the Torrez-Keller request for intervention. In their written response to the Torrez-Keller letter to the Supreme Court, the District Court 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.”

DA’s 65% COMBINED DISMISSAL, ACQUITTAL AND MISTRIAL RATE

The District Court provided an extensive amount of statistics that the Bernalillo County District Attorney’s Office under Raul Torrez has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries. The data presented showed in part how overcharging and a failure to screen cases by the District Attorney’s Office is contributing to the high mistrial and acquittal rates. 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.”

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.

THE SUPREME COURT DECLINES TO INTERVENE

On May 31, 2019, Chief Justice Judith Nakamura responded to the Torrez-Keller letter urging District Attorney Torrez to work with the Bernalillo County Criminal Justice Coordinating Council (BCCJCC) to resolve his concerns about ongoing cuts to the grand jury system.

Chief Justice Judith Nakamura said the Supreme Court refused to intervene by writing:

“We believe the issue raised in your letter is more appropriate for review, discussion and resolution by the [Bernalillo County Criminal Justice Coordinating Council (BCCJCC)] at this time … A successful resolution however, will depend upon the full and cooperative participation of key stakeholders, a thorough review of all the data, and a willingness to consider both evidence-based best practices and community needs.” Nakamura urged Torrez to “participate personally in this process or, at a minimum, designate a representative with policy and decision-making authority to attend on … [your] behalf.”

The BCCJCC consists of 11 council members, including the chief judges of the District and Metropolitan Court, the DA’s office, the district public defender, the sheriff, police chief and others. The BCCJCC has been in existence for upwards of 30 years and its goals have always been to identify issues in the legal system along with potential solutions and to maximize efficient use of resources.

Bernalillo County Commissioner Maggie Hart Stebbins serves as chairwoman of the BCCJCC, and said that the council is the appropriate place to discuss the preliminary hearing system by saying:

“[BCCJCC is] a mechanism that was established specifically to bring all entities to the table to resolve issues that arise in the criminal justice’s system.”

Chief Public Defender Ben Baur, who also sits on the BCCJCC, agreed with Commissioner Hart Stebbins that the purpose of the council is to address conflicts in the criminal justice system and find solutions. Bauer added: “In the same way that preliminary hearings are designed for everybody to understand a particular case early in the process and make decisions, the coordinating council is designed so that people’s ideas and proposals get vetted and discussed early in the process. ”

On June 6, 2019, DA Torrez wrote back to Chief Justice Nakamura asserting he has no confidence that the concerns of prosecutors and police will have an effect on the members of the BCCJCC proclaiming it has repeatedly opposed the request for more grand jury time. Torrez wrote:

“Despite these misgivings, I will personally ask the BCCJCC to vote on a resolution that we maintain sufficient grand jury capacity to handle no less than 1/3 of our current felony referrals and that no additional cuts be considered until the crime rate in this community matches the rest of the state … ”

Michael Patrick, the spokesman for the DA’s Office, stated the office receives around 10,000 felony referrals each year and that about 4,000 cases are filed in State District Court each year. According to Patrick “We are forced to leave roughly 60 percent of referred cases on the table because the current system can’t handle it.”

Refusing to take no for an answer, DA Torrez has asked Justice Nakamura to direct the court to halt the planned cuts to the grand jury system as he makes his presentation to the BCCJCC.

https://www.abqjournal.com/1325226/court-grand-jury-cuts-are-local-issue.html

COMMENTARY AND ANALYSIS

The fact that District Attorney Raul Torrez is not taking “NO” for an answer and asking Justice Nakamura and the Supreme Court to direct the District Court to halt the planned cuts to the grand jury system until he makes a presentation to the BCCJCC should come as absolutely no surprise to anyone. Since day one of being sworn into office as District Attorney, Torrez has done nothing but complain about lack of resources, despite having 50 vacant position within his office including 17 vacant “at will” attorney positions, and attempting to blame the courts for all of his problems and complain about the shift to preliminary hearings and attacking the criminal justice system. For more detail, see the below postscript to this article.

It was no accident that Justice Nakamura urged Torrez to “participate personally in this process or, at a minimum, designate a representative with policy and decision-making authority to attend on … [your] behalf.” The problem has been that Torrez himself has repeatedly failed to attend BCCJCC meetings. Even the Albuquerque Journal, which consistently puts Torrez on its front pages in a positive light, noted in a recent editorial about the shift to preliminary hearings when it wrote “Unfortunately, Torrez hasn’t helped his cause by not personally and regularly attending meetings of the Criminal Justice Coordinating Council, where these issues are supposed to be hashed out.” You can read the full editorial at this link:

https://www.abqjournal.com/1323251/grand-jury-cuts-akin-to-pouring-gasoline-on-a-fire.html

Torrez has made things worse when he notified the District Court that his office would no longer schedule preliminary hearings in State District Court after he and Keller wrote the New Mexico Supreme Court asking it to intervene. Since August of 2015, the 2nd Judicial District Court has worked with law enforcement and defense lawyers to gradually increase the use of preliminary hearings in lieu of grand jury proceedings. The BCCJCC has been arguing for some time over the best way to launch new cases in District Court, but Torrez has been nowhere to be found.

Torrez troubles are only beginning if he continues his assault on the courts and the criminal justice system, 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 and the courts for all his problems.
_________________________

POSTSCRIPT

Since taking office on January 1, 2017, District Attorney Raul Torrez has attacked the New Mexico criminal justice system on three major fronts:

FIRST: Torrez accused the judges of being the source of our high violent crime rates saying the criminal justice system is a “revolving door”. 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, Torrez had the DA’s Office issue a report that outlined the problems he perceived since the issuance by the Supreme Court of the Case Management Order (CMO). The main points of the DA’s 2016 report were that defense attorneys were “gaming” the systems discovery deadlines, refusing to plead cases, demanding trials or dismissal of cases when not given evidence entitled to under the law. The District Court did their own case review of statistics and found that it was the DA’s Office that was dismissing the majority of violent felony cases, not the courts.

SECOND: Torrez objects to the District Courts shift from grand juries to preliminary hearings proclaiming in part his office does not have the resources. The truth is 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.

THIRD: The most nefarious conduct to attack the court’s and our criminal justice system is when Torrez promotes a Constitutional Amendment 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.

For related blog articles see:

DA Torrez Attacks Justice System He Took Oath Of Office to Uphold

DA Torrez: “WHAAAA, I Do Not Want To Play Anymore, I’m Taking My Ball And Going Home!”; DA Torrez Playing With Fire Taking On The Courts

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

They say to forget history is to repeat mistakes of the past. Today marks the 75th Anniversary of D-Day, the most important day in the lives of the “Greatest Generation”. During these very difficult times, we damn well better remember all those who served during World War II. We especially need to remember who are allies were and who they really are today, especially Great Britain and France. If not, history will repeat itself. If our elected officials forget who are allies really are, this country could be easily standing alone. This country could just as easily loose all that was preserved in time of war 75 years ago that already made this country great.

My father, 3 uncles, and my father in law all fought in World War II. My father Paul Dinelli and my Uncle Pete Dinelli, for whom I was named after, both served in the US Army during World War II when the United States was at war with Italy, Germany and Japan. My father and uncle were first generation born Americans and the sons of Italian immigrants who settled in Albuquerque in the year 1900 to live the American dream. My Uncle Pete Dinelli was killed in action when he stepped on a land mine. My father Paul Dinelli was a disabled American Veteran when he returned to Albuquerque after World War II.

My uncles Fred Fresques and Alex Fresques, my mother’s two brothers, also saw extensive combat in World War II. My Uncle Alex Freques served in England and was in the Air Force. My uncle Fred Freques saw extensive action in the US Army infantry to the point that he refused to talk about what he saw to to anyone. After the war, my Uncle Fred returned to Albuquerque and raised a family in Barelas. Over many years, my Uncle Fred was active in the Barelas Community Center and was a trainer for the “Golden Gloves” competition teaching young adults the sport of boxing.

My father in law, George W. Case, who passed away a few years ago at the age 93, served in the United States Navy during World War II and saw action while serving on a destroyer. My father in law George Case was so proud of his service that he wore a World War II Veterans cap every day the last few years of his life. After the war, my father in law George Case returned to Albuquerque was married to my mother in law Laurel Del Castillo for 50 years, raised a family of 4 girls. George eventually owed a liquor store for a few years and then went on to build, own and operate the Old Town Car wash and was in the car wash industry for a number of years.

We must never, ever forget.

There are a total of 16 candidates running for city council in the 4 city council seats that will be on the November 5, 2019 ballot. Only 31 days were given to candidates running to collect $5.00 qualifying donations to secure public financing. The time to collect donations expired on May 31, 2019.

The number of $5.00 donations needed in each city council district to qualify for public financing differs based on voter registration. The breakdown is: in District 2: 413 donations, in District 4: 393 donations, in District 6: 323 donations and in District 8: 425 donations.. On June 4, 2019 the City Clerk updated its web page listing those candidates who have submitted enough qualifying donation to secure public finance.

The final day to turn in qualifying nominating petition signatures from registered voters is June 28, 2019.

CANDIDATES FOR CITY COUNCIL

District 2 incumbent City Councilor Isaac Benton has 6 opponents seeking to replace him. The candidates are: Steve Baca (D), David B. Bearshire, Joseph Griego (D), Robert Raymond Blanquera Nelson (D), Zack Quintero, (D) and Connie Vigil, (I). 6 of 7 candidates in District 2 originally sought public financing and 4 have qualified: Benton, Griego, Nelson and Quintero.

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 (D), Haley Josselyn Roy. Four candidates in District 4 sought public financing with one candidate notifying the City Clerk she abandoned her efforts to seek public finance.

District 6, incumbent City Councilor Pat Davis has 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. Both Davis and Dennis qualified for public finance.

District 8 City Councilor Trudy Jones has one challenger and she is S. Maurreen Skowan who qualified for public financing. Trudy Jones has elected to finance her campaign with private financing and has never sought public financing of her campaigns.

QUALIFYING CONTRIBUTIONS

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 with 4 candidates qualifying.

A) QUALIFYING CANDIDATES FOR PUBLIC FINANCE:

Isaac Benton: 552 Verified, 0 Remaining To Collect, 100% Of Requirement met.
Joseph Griego: 461 Verified , 0 Remaining To Collect, 100% Of Requirement met.
Zachery A. Quintero: 532 verified, 0 remaining to collect, 100% of requirement met.
Robert Raymond Blanquera Nelson: 532 verified, 0 remaining to collect, 100% of requirement met.

B)CANDIDATES NOT QUALIFYING FOR PUBLIC FINANCE:

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) DISTRICT 4 QUALIFYING CANDIDATES FOR PUBLIC FINANCE

Brook L. Bassan: 412 verified, 0% remaining to collect, 100% of requirement met.
Ane C. Romero: 446 verified, 0 remaining to collect, 100% of requirement met.
Haley Josselyn Roy: 428 verified, 0 remaining to collect, 100% of requirement met.

B) DISTRICT 4 CANDIDATES NOT QUALIFYING FOR PUBLIC FINANCE

Athena Ann Christodoulou: 203 verified, 190 remaining to collect, 52 % 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. Her opponent S. Maureen Skowran sought public finance and has 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 district. 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.
David B. Bearshire: 0 verified, 500 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: 439 verified, 61 more needed.
Athena Ann Christodoulou: 151 verified, 349 more needed.
Mary Sue Flynt: 6 verified, 494 more needed.
Anne C. Romero: 436 verified, 64 more needed.
Haley Josselyn Roy: 49 verified, 451 more needed.

DISTRICT 6 (Incumbent Pat Davis)

Pat Davis: 173 verified, 327 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: 759 verified, 0 more needed.
You can review the full breakdown of verified donations and nominating signatures here:

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

RANK VOTING SYSTEM TO BE VOTED ON BY CITY COUNCIL

Currently, under Albuquerque’s election code, a candidate for city councilor 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. Democrat City Councilors Isaac Benton and Pat Davis, both running for reelection, and Republican City Councilor Brad Winter, who is not running for reelection, introduced and ordinance adopting a rank choice voting system for the upcoming November 5, 2019 election. Ranked-choice voting is also known as “instant runoff”. Rank choice voting is an alternative to the city’s existing runoff election system and it is used in Santa Fe municipal elections.

With rank choice voting, voters rank all candidates in a race by preference. If, after the initial tally, no candidate has at least 50% of the first-place votes, the threshold required to win a City Council races, the candidate with the fewest first-preference votes is eliminated and the ballots are counted again. The process continues until a single candidate emerges with a majority of votes, thus eliminating the need for a separate runoff election. In other words, the ultimate winner of the election is determined with a mathematical calculation of votes listed at once on a single ballot. An elimination process is used and it eliminates the need for a runoff election and all campaigning time and costs associated with a runoff.

On Monday, 5, 2019, on a 5-4 vote, Councilor Isaac Benton successfully moved to have the Rank Voting Ordinance on the Council’s June 17 agenda which is the final opportunity to make the changes effective for the November 5 municipal election. The city must submit the necessary notice to the Secretary of State for ballots.

https://www.abqjournal.com/1323841/city-council-delays-decision-on-new-voting-process-ex-councilors-for-and-against-rcv-will-discuss-options-at-june-17-meeting.html

COMMENTARY AND ANALYSIS

CANDIDATES SHOULD SHOW UP ON RANK CHOICE VOTING

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

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

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

“Rank Choice” voting sponsor District 2 incumbent City Councilor Isaac Benton has 6 opponents seeking to replace him. The candidates are: Steve Baca (D), David B. Bearshire, Joseph Griego (D), Robert Raymond Blanquera Nelson (D), Zack Quintero, (D) and Connie Vigil, (I). All 6 of the candidates running against Isaac Benton need to attend the June 17, 2019 meeting and voice their opinion on Rank Choice voting in that it will have the most impact on their race. The meeting begins at 5:00 in the Vince Griego City Council Chambers at city hall. Any member of the general public can sign up to speak before the meeting with the City Clerk, people are placed on a list, and the public is given 2 minutes each to speak. Each of the candidates should consider the June 17 meeting as their first opportunity to participate in their first city council meeting as Benton’s replacement.

PUBLIC FINANCE AND NOMINATING PETITION

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. 10 out of a total 16 candidates for City Council have qualified for public finance. To each of the 10, congratulations and thank you for your participation.

Technically, only two candidates have qualified to be on the ballot. in District 2 Joseph R. Griego running against incumbent Isaac Benton and in District 8, S. Muareen Skowran running against incumbent Trudy E. Jones are the only 2 out of 16 candidates who have secured both public financing and the required nomination petition signatures to be place on the November 5, 2019 ballot. Collecting the required number of nominating signatures is not that difficult. With 23 days 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 Councilors. Usually the only time voters see their City Councilors 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.

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

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