Bernalillo County District Attorney Raúl Torrez is proposing a new constitutional amendment that would require defendants accused of certain crimes to show and convince a judge that they should be released pending their trial on the charges. According to Torrez, cases where a defendant would be required to show they do not pose a threat to public and should be released pending their trial would include “the most violent and serious cases” such as murder, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm and defendants who are on supervision or parole for another felony.
Under a 2016 voter approved constitutional amendment, a court can only detain a defendant pending trial if prosecutors can show by “clear and convincing evidence” that no conditions of release will reasonably protect the safety of the community and there is no immediate threat of harm. The voter approved constitutional amendment was necessitated in part by the fact that so many defendants were awaiting arraignments or trials, being denied bail and being held in jail, for months, and at times years, to the point that jails were becoming severely overcrowded. A 30 year federal lawsuit for jail overcrowding was recently settled by Bernalillo County.
KILLING WAS CATALYST FOR PROPOSED CHANGE TO LAW
Torrez’s push for another constitutional amendment comes after his office mishandled another case involving the defendant accused of the May 4, 2019, killing of 23-year-old University of New Mexico student Jackson Weller who was shot and killed outside a crowded Imbibe Night Club in the heart of Nob Hill. The killing was the 26th person killed by gun violence in Albuquerque this year.
Darian Bashir, the man charged in the Weller killing, was out on conditions of release in another shooting where the case was dismissed and had to be refiled a second time. In November 2017, Darian Bashir was charged with aggravated battery after he allegedly walked up to another young man in Downtown Albuquerque and shot him at point-blank range in the chest. According to DA Torrez, the November 2017 case was dismissed by the Bernalillo County District Attorney’s office because the victim, who survived being shot, did not testify.
In January 2018, the first case was dismissed “without prejudice” against Bashir by the District Court after the DA’s Office failed to comply with court mandated hearing deadlines, including not arranging witness interviews. The District Court made findings that the Bernalillo County District Attorney’s Office was culpable and ultimately responsible for the dismissal of the charges and made the following findings:
“10. In determining the appropriate sanction under these circumstances, the court is to analyze the State’s culpability, whether the State’s conduct give rise to prejudice and whether exclusion was the least severe sanction appropriate under the facts and circumstances of the case … [the court finds]:
[1] The state was culpable in failing to comply with the deadlines imposed by this Court in the May 15, 2018 Scheduling Order.
[2] They did not arrange witness interviews by the deadline,
[3] They did not seek an extension of the deadlines,
[4] They did not properly request a material witness warrant,
[5] They did not file a response to any of the motions and
[6] The state had no explanation for the failing to comply with this Court’s order.
[7] The State’s conduct did give rise to prejudice.
This matter is set for trial on March 4, 2019, after and extension the Court granted when the State failed to appear at the Pretrial Conference on December 28, 2018. The December 28, 2018 PTC [Pre-Trial Conference] was scheduled during the Scheduling Conference on May 15, 2018. Defendant has been under strict Pretrial Services supervision during the pendanancy of this case and the State initially sought pretrial detention of Defendant. The Court considered the lesser sanctions, however given the upcoming trial setting and the issues discussed herein, the Court determined the appropriate was dismissal without prejudice.”
11. As a result of the foregoing, this matter is dismissed without prejudice.”
You can read the entire 5-page court order dismissing the case at the following link:
https://drive.google.com/file/d/1aB7emjMC0zdPhYKO3cz7DCiY2AGML2qm/view
After the January 22, 2019 motion hearing District Court Judge Cindy Leos under the Rules of Criminal Procedure had any number of options available as sanctions against the DA’s office when she made her 7 findings of improper and culpable conduct by the District Attorney’s Office. Those sanctions included:
1) Suppress and exclude all the evidence requested to be suppressed from the trial in the 5 motions that the District Attorney Office did not respond to in writing as ordered to and required by the Rules of Criminal Procedure.
2) Declare the District Attorney Office in direct contempt of court for falling to follow an order and impose a fine or impose jail time.
3) Refer the matter to the New Mexico Bar Disciplinary Board for bar license suspension.
4) A “Dismissal With Prejudice”. This would have prevented the prosecution from every bringing the charges again against defendant Brashir.
5) “Dismissal Without Prejudice meaning the court dismisses charge but allows prosecutors to refile charges or indict at a later date.
6) Order the removal of the office from the prosecution of the case and order the appointment of a special prosecutor.
After charges in the first case were dismissed without prejudice, the charges were again filed by the District Attorney Office. Court records show prosecutors again asked for Darian Bashir to be held until trial in the case, but another District Court Judge denied the request, noting that Bashir had a “minimal criminal history” and “no felony convictions.”
TORREZ RATIONALE FOR ANOTHER AMENDMENT
On November 8, 2016, the “New Mexico Denial of Bail Measure” was approved by New Mexico voters by a landslide vote. The constitutional amendment allows the courts to deny pretrial release to defendants charged with a felony only if a prosecutor proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. The amendment also prohibits the courts from denying pretrial release for defendants who are not considered dangerous and do not pose a flight risk based solely on the defendant’s inability to post a money or property bond.
“In June 2017, the New Mexico Supreme Court issued Rule 5-409 of the New Mexico Rules of Criminal Procedure for the District Courts that governs preventive detention in the District Courts. The court may order pretrial detention only if the defendant is charged with a felony and the prosecutor files a motion for pretrial detention that states the specific facts supporting the motion. The prosecutor may file a motion for pretrial detention at any time, but the hearing on the motion must be held within five days of filing or the arrest of the defendant based on the motion.”
“The court rule spells out the defendant’s rights, which include the right to appointed counsel. The prosecutor has the burden of proving “by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.” If the prosecutor fails to meet this burden, the court follows the provisions to issue an order setting the conditions of release. If the court finds that the burden has been met, the court must file written findings of the specific facts that explain the detention. The court also must expedite the trial date for any defendant detained pending trial.”
(Reference: https://www.ncsc.org/~/media/Microsites/Files/PJCC/PJB%209%20-%20Preventive%20Detention%20Brief%20FINAL.ashx )
District Attorneys throughout the state argue the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, have made it way too difficult for them to prove to a judge that a defendant poses a threat to the public justifying that a violent felon be denied bail and be held in custody pending trial. DA Raul Torrez for his part has voiced the opinion that is way too difficult for prosecutors to establish that an accused violent felon is a danger to the public and that there are no conditions of release that can reasonably protect the public. Torrez is quoted as saying to the Albuquerque Journal:
“For a community that’s dealing with crimes of violence, if you have a loaded firearm readily accessible to you in connection with a felony crime, … [when charged with a violent crime you] should be subject to rebuttable presumption [that you are violent and a danger to the public]. How am I going to prove by clear and convincing evidence that Charles Manson couldn’t be put on some supervision? … Theoretically, if you put him on GPS and had a guy walk around with him all day long that was armed, maybe. … Most jurisdictions have three things: dangerousness, flight risk, or obstruction of the criminal justice process (such as intimidating a witness, threatening somebody) … Those last two are gone, they’re not in our constitutional amendment.”
According to Torrez, his office is also running into numerous issues relating to the formatting of the motions it files for preventative detention hearings. The complaints include that the prosecutors are “copying and pasting parts of the criminal complaint into the motion” rather than making substantive arguments of the facts or of the law. According to Torrez: “This is what’s crazy. … Why are we not talking about the gun and the crime; why are we dismissing cases over the font size?”
Torres noted to the Albuquerque Journal that he is a former federal prosecutor and said he was surprised when he took office as 2nd Judicial District Attorney to learn that the process for keeping defendants behind bars until trial was going to be so complicated in state court and stated:
“I’m a guy who comes in from the feds. … [Where] … the motions to detain are one paragraph and you literally write his name in and we don’t even file those any more because the magistrate was saying, ‘Why are you wasting the paper?’ ” Frankly it is doubtful any Federal Magistrate would make such a claim and Torrez did not give a name for verification.
THE BERANLILLO COUNTY DISTRICT ATTORNEYS OFFICE UNDER RAUL TORREZ
The Bernalillo County District Attorney’s Office is the largest law firm in New Mexico that employs attorneys, paralegals, investigators, victim advocates and legal support staff. The Bernalillo County District Attorney’s Office employs 330 full time personnel which includes at any given time approximately 128 full time prosecutors assigned to prosecute felonies. Attorneys are also assigned to the Bernalillo County Metropolitan Court that handles misdemeanor domestic violence cases and aggravated DWI cases.
Last year during the 2018 New Mexico Legislative session, DA Raul Torrez asked the New Mexico State Legislature for a 30% increase in the budget of $18.2 million, or a $5.4 million increase. Torrez told legislators he wanted the increase in his budget in order to hire an additional 34 attorneys. Torrez said that the lack of resources was the main reason his office could not come close to prosecuting all the pending cases in his office and could not handle the bond and detention hearings mandated by the constitutional amendment.
During the 2018 legislative session, Torrez said there were “simply too many criminals and not enough staff … If we don’t get sufficient resources in this legislative session, I would think several thousand felony cases simply will become too old, too stale for us to act on. It’s not justice”.
Last year DA Torrez had 45 vacant positions which included 18 vacant attorney positions that he was not able to fill during his first year in office. Notwithstanding the vacancies, the 2018 Legislative session approved a budget for the Bernalillo County District Attorney’s Office and it went from $18.2 million to $21.5 million-dollars.
When it comes to vacant positions, things have gotten worse for the Bernalillo County District Attorney’s Office during the last year. The New Mexico Government Sunshine Portal has been updated to include 2019 data effective May 3, 2019. The sunshine portal reflects that District Attorney Raul Torrez now has 50 vacant positions. During the 2019 legislative session, the Legislature once again increased the budget for the office. According to the State Sunshine Portal the Bernalillo County District Attorney’s office is fully funded for 331 full time positions with a personnel budget of $15,027,216 with a total budget of approximately $24 million. As of May 3, 2019, of the 331 fully funded positions, only 281 are filled and active with 50 vacant positions listed. The 50 vacant positions include 17 vacant “at will” attorney, assistant trial attorney, senior trial attorney and trial attorney positions and 10 vacant Secretarial and Legal Secretary positions.
https://ssp2.sunshineportalnm.com/#employees
NOT FIRST TIME TORREZ CASE MANAGEMENT CALLED INTO QUESTIONED
The Darian Bashir case is not the first time the management of the Bernalillo County District Attorney’s case load by District Attorney Raul Torrez has come into serious question. According to a February 14, 2019 Channel 13 news story, an anonymous tipster within the District Attorney’s office sent News 13 pictures of stacks of domestic violence cases piled up on a table in the Bernalillo County District Attorney’s Office. The photos were of 3 stacks of roughly 500 domestic violence case reports. Each one of the domestic violence reports were linked to a domestic violence victim left waiting from 2 to 5 months without hearing anything after calling police reporting misdemeanor domestic violence crimes including assault, theft and restraining order violations.
Below is the link to the story:
Torrez went on camera with Channel 13, but only after a week had passed giving him time to clear out the backlog. District Attorney Raul Torrez explained the stacks of reports were made up of “criminal summons” cases where police did not arrest anyone for various reasons such as suspects had already left the scene of the crime. Torrez acknowledged that victim advocates before would call people who reported domestic violence cases within 2 weeks compared with an average of 2 months to 5 months because there use to be more investigators and victim advocates working the cases for his office.
According to Torrez, taking quick action on court cases is one of the best ways to deter someone from committing more crimes in the future. Torrez said focusing resources to move fast on the few repeat offenders responsible for the majority of crime is working to drop the overall number of criminal cases in Bernalillo County. DA Raul Torrez went on to tell News 13 that he has requested another budget increase this year from the 2019 Legislature and placed a budget increase request for more investigators and victim advocates. Torrez failed to disclose that he had 44 fully funded vacancies within his office that he has failed to fill over the past year despite his repeated complaints of lack of staff. The 44 vacant positions included at the time 11 vacant “at will” attorney positions, 15 classified legal secretary positions and 2 victim/witness positions (victim advocates).
COMMENTARY AND ANALYSIS
This is really back ass backwards and embarrassing when it comes to our constitutional rights of presumption of innocence until proven guilty by the prosecution. DA Torrez wants to shift the burden of proof to the accused with a presumption that a person who is merely charged with a violent crime is therefore violent and the accused must prove they are not an immediate danger to the public or be held in jail until trial. The questions that need to be answered is where did Mr. Torrez get his get his law degree and did he fail constitutional law in law school.
Under the United States and the New Mexico Constitutions, all accused of a crime are guaranteed the right of due process of law no matter how heinous or violent the crime. In criminal trials, with no exceptions, any defendant is presumed innocent until proven guilty beyond a reasonable doubt by the prosecution. A person is also entitled to post bond and the prosecution has the burden of proof to establish why a person should be held in custody until a trial.
Bernalillo County District Attorney Raúl Torrez’ proposal requiring defendants accused of violent crimes to show and convince a judge that they should be released pending their trial reflects he has a very weak understanding or an ignorance of constitutional law. It also reflects that he is not capable of doing his job as District Attorney. DA Torrez’ proposal is to essentially shift the burden of proof in criminal cases from the prosecution to the defense and to have the courts presume that a person is violent and a danger to the public based on charges filed yet to be proved in a court of law.
What is stunning is Raul Torrez admitted to the Albuquerque Journal that he was “surprised” when he took office as 2nd Judicial District Attorney to learn that the process for keeping defendants behind bars until trial was going to be so complicated in state court. This is an admission coming from the very candidate in 2016 who proclaimed he was both a state and federal experienced prosecutor, who proclaimed the criminal justice system was broken and he was the guy who could fix it. After Torrez was elected, he demanded and was given more funding, more resources and more personnel for his office.
The District Attorneys’ Office is notorious for filing very serious felony charges only to dismiss them months later when they realize they don’t have a case or there is insufficient proof to convict. Under the proposed changes, Torrez wants to incarcerate people without allowing the posting of bond or allowing a release with conditions pending a trial. Torrez now wants to shift the burden of proof in criminal cases from his job as a prosecutor, create a rebuttable presumption, and make an accused defendant prove they are not violent allowing them to be released pending trial. In other words, Torrez wants an accused to take the witness stand, waive their constitutional rights against self incrimination, testify and give reasons why they are not violent and should be released from custody pending trial. Such waiver will no doubt waive any and all claims of constitutional rights against self incrimination.
Bernalillo County District Attorney Raul Torrez has an extensive history of blaming Judges for the rise in violent crime rates and many have bought into that bogus argument. Less than six months after being sworn in as Bernalillo County District Attorney, Raul Torres blamed the New Mexico Supreme Court’s Case Management Order (CMO) for Albuquerque’s increasing violent crime rates. Torrez had his District Attorney Office issue a report that outlined the so-called problems he perceived since the issuance of the Case Management Order by the Supreme Court in February, 2015.The main points of the DA’s 2016 report was that defense attorneys were “gaming” the court mandated discovery deadlines under the CMO to get cases dismissed by demanding evidence they are entitled to under the law and the Rules of Criminal Procedure and asking for trials instead of entering into plea agreements. In response to the Torrez report, the District Court did their own case review of statistics and found that it was the Bernalillo County District Attorney’s Office that was dismissing the majority of cases, not the courts.
The findings of the District Court contained in the Court Order dismissing violent felony charges against Darian Bashir reflect a serious degree of incompetence and a level of malpractice by the Bernalillo County District Attorney’s Office. It is malpractice for attorneys not to attend hearings, follow court orders, not to respond to motions, miss deadlines and fail to turn over evidence as ordered. In the private practice of law, such conduct would result in termination of an associate and perhaps even disciplinary action. Bernalillo County District Attorney Raul Torrez should be thankful the Court did not dismiss the case with prejudice or impose any sanctions against his office in the Darian Bashir case.
Torrez is now attempting to deflect his offices mishandling of the Darian Bashir case by calling for another constitutional amendment. A constitutional amendment does require action by the New Mexico legislature to pass it and place it on the ballot for voter approval. Before the legislature does that, perhaps they will demand District Attorney Raul Torrez do a better job of managing his office with the resources he has been given by them.
The New Mexico Supreme Court needs to revisit Rule 5-409 of the New Mexico Rules of Criminal Procedure for the District Courts that governs preventive detention hearings in the District Courts, modify it and change it and find a permanent solution that will give the lower court’s far more latitude and discretionary authority when it comes to the bond hearings and holding violent criminals in jail until trial. Common sense guidelines, not hard set mathematical formulas allowing no discretion, need to be given the Judges to allow them to make decisions that they believe are in the best interest to protect the public as well as the defendant’s rights to due process of law
For more on the detention of Darian Brashir pending trial see: