DA Torrez

More today on the intense debate over that constitutional amendment that reset bail standards and is being blamed by some for abetting the ABQ metro crime epidemic, including BernCO District Attorney Raul Torrez.

An anonymous reader/attorney wrote in Tuesday agreeing with the DA's argument and called the measure approved by voters in 2016 a "catch and release" program for criminals. We expressed some sympathy for that view and that brought in the email from other attorney/readers who disagreed vigorously.

Those concerned about the amendment, including the DA, have had plenty of media time to make their case so let's go to the rebuttals. The first is an anonymous offering from an attorney who practices in the BernCO district:

Joe, there is some context behind the application of the bail reform amendment in Bernalillo County that doesn't make it into the media narrative being driven by District Attorney Torrez.

First, Mr. Torrez has decided to make the issue political rather than crafting a practical approach to use pretrial detention to combat violent crime. For example, his office uses a set of rigid criteria to determine whether to file for preventative detention that is divorced from the reality of whether the defendant is actually dangerous.

By way of illustration, if you were stopped in Bernalillo County and you had 2 ounces of marijuana you purchased legally in Colorado and you happened to have a legal firearm, the DA's office would move to detain you pending trial despite the lack of criminal history or any allegation of violence. This is plainly ridiculous. Meanwhile, while a judge would probably order you released, you would sit in jail for up to 5 business days before the hearing. I suspect the policy is designed to provide political cover and shift the blame to the judiciary.

The policy has further effects that negatively impact the administration of justice and the overall crime rate. Mr. Torrez files so many of the motions that his office is often ill prepared for the hearings. His attorneys are forced to argue numerous petty motions that reduces the time they have to prepare for cases that might actually support a "dangerousness" finding. 

Let's look at the numbers. In 2018 the Second District Attorney's office filed 1,345 motions for pretrial detention. The success rate was an abysmal 39.3%. Looking deeper into the numbers, the office filed 481 cases that the Arnold Foundation Public Safety Assessment flagged as non-violent. To illustrate, 42 motions to detain were filed on a case where the underlying charge was possession of a controlled substance: a 4th degree felony.

The issue with pretrial detention only scratches the surface of the problems with the Second District Attorney's Office. He has implemented a strategy that virtually deprives his attorneys of any discretion in the disposition of their cases. Nearly all resolutions must be approved by a supervisor and often 2 supervisors. This creates a situation where cases are backlogged and burdening the attorneys with unworkable case loads they are unable to resolve because of the backlog. This has cascading effects where motion responses are not filed, interviews are not conducted, and judges are forced to dismiss cases.

The examples are legion but Mr. Torrez has shown that his political strategy and approach to crime is to shift blame and avoid any culpability. The media has become his unwitting enabler. Before we discuss changing the rules, Mr. Torrez should have to explain to the public why he has chosen to pursue a crime strategy that maximizes his political cover rather than the safety of the community.

WORKING OR NOT?

Jody Neal-Post

ABQ defense attorney Jody Neal-Post goes long and deep on why the public may be confused as to whether the bail amendment is working for them or against them:

I am the attorney, along with co-counsel, Jeff Rein (currently the Albuquerque District Defender), who litigated State v. Walter Brown, which led to the ‘”bail amendment.” I was also the House Judiciary Committee attorney who did the legal analysis on the amendment at the legislative session following the Supreme Court decision in Brown.

I can tell you what is going on. The judges are following the law to require clear and convincing evidence of dangerousness to detain. The prosecutors in Albuquerque are simply dug in, refusing to bring that evidence before the court in an ill-advised power struggle with our judges.

. . . Take the tragic case of the slain UNM baseball player. The alleged suspect in that case is reported to have been indicted for shooting someone in the stomach before this newest allegation. Then the alleged suspect was arraigned in a shooting where no one was injured. Now the allegations in the latest tragedy, a third set of allegations.

In the alleged stomach shooting, the case was dismissed without prejudice for the District Attorney’s failure to meet court deadlines. The District Attorney could have re-indicted the very next day. He did not. Prosecutorial discretion as to what charges to bring and when is absolute. No judge or defense counsel can affect that decision-making. So, the District Attorney made his lawful decision not to prioritize that first shooting case via prosecution.

Then the second set of allegations. The State tries to detain the defendant but because they failed to maintain the first prosecution, the defendant on the 2nd set of charges has no ongoing conditions of release he can be alleged to have violated because he is not on any conditions, thanks to the dismissed initial case. . . Then, in the detention hearing on the second case, the District Attorney continued his pattern since the bail amendment went into effect--that he almost categorically refuses to put on live witness testimony in a detention hearing.

What the District Attorney does put on is the criminal complaint or indictment on paper. Both of those documents establish probable cause for the state to proceed to prosecute. Probable cause is akin to a 35% certainty of criminal wrongdoing. Our bail amendment requires clear and convincing evidence of dangerousness to detain, akin to a 75% or so certainty. Thirty-five percent simply never equals 75 percent. Period. The District Attorney must put on more proof, and in our present example, a significant part of that proof would have come from either a conviction on the first case or violation of conditions of release on the first case, which the District Attorney did not have because he failed to meet his deadlines and successfully prosecute that first case or failed to immediately re-indict it.

The Second Judicial District District Attorney litigated whether live witness testimony is required to succeed in a detention hearing. Our Supreme Court said “no,” in a trilogy of cases decided in January 2018. But the Court also said the clear and convincing evidentiary standard is high. The court let practitioners know that merely reiterating the indictment is 35% certainty and will rarely ever meet the clear and convincing standard of 75% certainty. The prosecutor proceeds at their own risk, hence the risk to the public every time prosecutors ignore the directives of the Supreme Court in detention hearings. . .

Our judges are doing their jobs. Criminal defense attorneys have almost no role in detention hearings, other than to say the District Attorney has not put on clear and convincing evidence when that is the case. Complete control of what evidence is put on in detention hearings rests in the absolute discretion of the prosecutor and the prosecutors are refusing to put the required evidence in their possession before the courts to establish clear and convincing evidence of dangerousness.

The bail amendment has never been tested to gauge its impact on public safety because of the power struggle the District Attorneys have taken against the judges in refusing to just put on the evidence and see what results. When the public demands the prosecutors participate as partners in the criminal justice system’s role in public safety, and the prosecutors give in and bring the courts the necessary evidence, then we will know if the bail amendment can meet the voters’ expectations in the detentions of the most dangerous defendants. Only then.

BernCo DA Torrez says he is going to go back to the legislature seeking remedies to issues he has with the courts. Whether all this enters the political arena will be determined by whether Torrez--who is expected to seek re-election--receives a primary challenge next June for the Democratic nomination. No Democrat or Republican has yet announced a 2020 DA candidacy.

THE BOTTOM LINES 

State Senate Majority Leader Peter Wirth was the chief sponsor of the bail amendment. He was asked on the Richard Eeds show on KTRC radio in Santa Fe about the criticism it was getting on the Tuesday blog. He defended the amendment, pointing out it had both Dem and GOP sponsors from ABQ. That full interview is here.

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(c)NM POLITICS WITH JOE MONAHAN 2019