Adrian Avila is accused of allegedly killing 2 people in two separate Albuquerque shootings. Avila is accused in two shootings that occurred 6 months apart. The first is an August 2020 case where a teen was killed during a gun robbery. The second is a February 2021 case where a man was killed in front of his home by his brother’s kidnappers.

APD Detectives believe Avila is one of 4 people involved in the shooting of Donnie Brandon at Sandia Vista Park and was charged in early March in the case. Avila was also charged in December 2021 for the February 2021 murder of Elias Otero-Garcia. APD says Adrian Avila shot and killed EliasOtero-Garcia during a robbery. The Bernalillo County District Attorney office filed 2 motions to have Adrian Avila held in jail pending trial while he awaits trial on charges of murder, kidnapping and armed robbery.

Under the law, the prosecution has the burden of proof to make the case that a defendant charged with a violent crime is too dangerous to release from jail pending trial. After an evidentiary hearing, 2nd Judicial District Judge Stanley Whitaker ruled that prosecutors had credible evidence to charge Adrian Avila for the crimes, but prosecutors did not prove “no conditions of release could protect the community.”

Second Judicial District Judge Stan Whitaker granted Avila’s release on strict conditions, including GPS monitoring and a curfew. In addition to wearing a GPS ankle monitor, Whitaker ordered that Avila remain under house arrest and be allowed to leave his mother’s home only to attend a charter high school and for educational purposes. Judge Whitaker’s decision to release Adrian Avila on house arrest with a GPS monitor pending trial drew immediate sharp criticism from APD Chief Harold Medina. APD then took to social media the vilify the court’s decision.

EDITOR’S NOTE: Judge Whitaker is the presiding Judge over the District Courts Criminal Division. District Judge Stan Whitaker is one of the most experienced trial judges on the bench today. He has a very distinguished career and is respected by the New Mexico bar. Judge Whitaker is a Sandia High graduate and earned his law degree from the University of New Mexico School of Law in 1989. He was a civil litigator with two different Albuquerque law firms before going to work in the Family Crimes Unit of the Bernalillo County District Attorney’s Office, where he prosecuted child abuse cases. Judge Whitaker first came to the Second Judicial District Court as a Domestic Violence Commissioner in the Family Court Division. He left the district court to work as an Assistant U.S. Attorney for the District of New Mexico as a trial attorney. He returned to District Court in 2006, accepting an appointment as a Family Court Judge and a year later, he moved to the Criminal Division and has served there now for 15 years.

CHIEF MEDINA AND APD ENGAGES IN SOCIAL MEDIA PROPAGANDA TO VILIFY A JUDGE

APD Chief Harold Medina for his part had this to say during a TV interview:

“These people are accused of killing somebody and we’re counting on an ankle bracelet to protect the community. … [Adrain Avila is] at the root of gun violence. … [His release is] ridiculous.”

The link to the news interview is here:

https://www.kob.com/albuquerque-news/albuquerque-teen-accused-of-2-murders-released-with-gps-ankle-monitor/6425548/?cat=500

On Thursday, March 22, at 2:07 pm, APD posted on its official FACEBOOK page a photo of Defendant Adrian Avila with the following post:

“A judge released a murder suspect from jail today on an ankle monitor. Adrian Avila is charged for 2 separate murders. Think about that. Two murders. This suspect is at the root of the gun violence we’re seeing in Albuquerque and the record number of homicides.

At the same time, we are getting reports of violent suspects cutting off their ankle monitors and left to roam the streets until we re-arrest them. This is beyond upsetting. This jeopardizes the safety of our community, including our officers.”

On March 22, APD posted on its TWITTER account a photo of Defendant Adrian Avila with part of the same text:

“A judge released a murder suspect from jail today on an ankle monitor. Adrian Avila is charged for 2 separate murders. Think about that. Two murders. This suspect is at the root of the gun violence we’re seeing in Albuquerque and the record number of homicides.”

APD also posted a follow up TWEET:

“This is beyond upsetting. This jeopardizes the safety of our community, including our officers.”

FACEBOOK COMMENTS REVEAL VILIFICATION OF JUDGE

As of March 28, APD’s FACEBOOK post had over 2,200 overwhelmingly “angry emoji” reactions, over 1,900 shares and over 718 comments. The overwhelming majority of the comments were negative, derogatory and attacks on the judge in the case. Below are just a few of the posted public comments on the judge:

Judges who release dangerous criminals need to be held accountable if they commit any crimes!

Obviously, this judge is a friend of his family. This kind of corruption needs to stop.

THE DEFENSE RESPONDS

Criminal defense Attorney Ahmad Assed, who represents Adrian Avila said it is not the law that has failed but law enforcement and the prosecutors who have failed to prove their case and that his client is presumed innocent until proven guilty. Assed argued in his response to the prosecution motions to detain pending trial that the prosecution’s evidence against Avila in the August 2020 homicide is circumstantial evidence and based largely on cellphone and Snapchat account records that don’t reliably establish his involvement. In other words, there is no direct evidence such as eyewitness testimony nor forensic evidence such as fingerprints and ballistic testing linking him to the crime.

Assed said this about his client:

“[My client has] no criminal history, no history of failure to appears, he’s got a family that he’s associated with that are law-abiding citizens, hard-working folks, he reached out to law enforcement and sought out the turn-in on his own, and quite frankly conditions have never been in place where we can say he’s ever violated conditions of the court. … We don’t decide cases based on innuendo and DA’s closing arguments geared toward the eye of the media. That was the whole deal today, was just those notion of a closing argument or opening statement for the media’s purposes. It’s not for the court or the judge to discuss the details of the case. The judge must follow the law, and the law clearly requires the state to act. If the state does not act, and in this case, the state did not act, the court must follow the law.”

With respect to Chief Medina, attorney Assed said Medina’s comments were “irresponsible and reckless” statements having the potential to poison a jury pool and raise questions about APD’s ability to investigate crimes objectively and he said this:

“It’s outrageous for Albuquerque’s chief law enforcement officer, who wasn’t even at the hearing, to make a knee-jerk comment that is purely reactionary and pandering.”

Attorney Assed added that Chef Medina and he personally negotiated Avila’s surrender to APD. There was no disclosure if Medina ever asked Assad that his client be held in jail pending trial, yet Medina objects when a judge makes a finding that there was insufficient evidence to hold the accused in jail pending trial.

https://www.kob.com/albuquerque-news/albuquerque-teen-accused-of-2-murders-released-with-gps-ankle-monitor/6425548/?cat=500

https://www.abqjournal.com/2481710/apd-slams-judge-for-releasing-man-facing-2-homicide-charges.html

APD Spokesman Gilbert Gallegos was asked why Medina believed Avila was the root of gun violence. In response, Gallegos said there is probable cause to believe Adrian Avila committed 2 homicides, and the community has a right to be concerned about the release of someone who faces such serious charges. Gallegos in a statement wrote:

“Mr. Assed is entitled to his opinion. He is a defense attorney and he is understandably concerned about the murder charges against his client. … Chief Medina is focused on the safety of the community and getting justice for the murder victims and their families.”

https://www.abqjournal.com/2482782/attorney-for-murder-suspect-alleges-apd-chief-libeled-his-client.html

DEMAND FOR RETRACTION

On March 24, 2022, Ahmad Assed, the attorney for Attorney for Adrian Avila wrote a demand letter to Mayor Tim Keller demanding a retraction of the APD FACEBOOK posts and statements made by APD Chief Harold Medina on the subject of Mr. Avila’s pretrial release. The letter state’s Medina’s inflammatory statements were distributed widely through APD’s social media channels, including Facebook and Twitter, and that the statements constituted libel subjecting the City of Albuquerque, APD, and Chief Medina to suit under the New Mexico Tort Claims Act.

The Assad letter is remarkable in its content and states in part as follows:

“According to APD’s Facebook page, [the FACEBOOK post] was shared approximately 1,800 times. Some comments … advocated for “street justice” against Mr. Avila, which can only be interpreted as calls for violence against a young man, presumed to be innocent, who had proven to the court that there are a set of conditions that that can keep the community and other people safe while he is on release. This is consistent with the law that governs pretrial release. …

APD must retract this statement, not only because it subjects itself to legal consequences otherwise, but also in the interest of preserving public confidence in its ability to protect our community.”

You can review the entire unedited Assad letter at this link:

https://www.kob.com/kobtvimages/repository/cs/files/2022_03_24%20Letter%20to%20Mayor%20re%20APD%20statement.pdf

ALBUQUERQUE CRIME RATES IN A NUTSHELL

According to the 2020 FBI Unified Crime Reports:
Albuquerque has a crime rate of 194% higher than the national average.
Albuquerque’s Violent Crime Index for 2020 is 346% of the national average.
Albuquerque Property Crime Index for 2020 is 256% of the national average.

https://crime-data-explorer.app.cloud.gov/pages/explorer/crime/crime-trend

APD AND DISTRICT ATTORNEY NOT GETTING THE JOB DONE

APD statistics for the budget years of 2019 and 2020 reflect the department is not doing its job of investigating and arresting people. APD felony arrests went down from 2019 to 2020 by 39.51% going down from 10,945 to 6,621. Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%.

In 2019 APD had 924 full time police. In 2020, APD had 1,004 sworn police or 80 more sworn police in 2020 than in 2019, yet arrests went down during the first year of the pandemic. APD’s homicide unit has an anemic clearance rate of 36%. The police union falsely proclaims officer’s hands are tied by the DOJ reforms and are afraid of doing their jobs for fear of being disciplined.

The Bernalillo County District Attorney office currently has the highest voluntary dismissal rate in its history and indicts less than half what it would indict 10 years ago. Plea agreements with low penalties are the norm. Data given to the Supreme Court by the District court revealed overcharging and a failure to screen cases by the District Attorney’s Office contributes to a combined whopping 65% mistrial, acquittal and dismissal rate.

COMMENTARY AND ANALYSIS

There is no doubt that APD Chief Harold Medina and APD Public Information Officer Gilbert Gallegos knew exactly what they were doing with their social media propaganda release attacking the judge. They knew their social media campaign would generate extreme hostility and mistrust towards the judge by the public and those who support APD. Their intent was to disparage the judge and his credibility. Based on the spike in views, the hostile comments and shares, it worked.

The condescending drivel and very dismissive remarks by APD Spokesman Gilbert Gallego’s questioning the motives of the defense attorney and to prop up and defend Medina’s comments merit repeating:

“Mr. Assed is entitled to his opinion. He is a defense attorney and he is understandably concerned about the murder charges against his client. … Chief Medina is focused on the safety of the community and getting justice for the murder victims and their families.”

Before Chief Medina and his public relations flack Gilbert Gallego single out and question the job performance of any judge, or for that matter a defense attorney, and question what motivates them, they both need concentrate on making sure APD is doing its job done. By the statistics, that is not what is happening. APD is not making felony, misdemeanor and DWI arrests, nor solving homicides, yet they want to blame the courts for all the crime in Albuquerque and “one suspect … at the root of the gun violence.”

It’s drivel like this coming APD Spokesman Gilbert Gallegos that reflect what is so very, very wrong with APD on so many levels. “Getting justice for the murder victims and their families” does not mean APD has the right to vilify a judge. It does not mean APD has the right to engage in libel and slander nor violate people’s rights of due process of law by talking and acting like “judge, jury and executioner”.

IRRESPONSIBLE HYPERBOLE

From a public information standpoint, there is no problem with law enforcement giving interviews and posting on social media information regarding law enforcement initiatives, the status of an investigation and even arrests. However, when it comes to pending criminal prosecutions, APD has no business posting on social media anything that will jeopardize the successful prosecution of a case and anything that vilifies a judge who must decide that case.

Medina and APD posting on social media to express “opinions” regarding a judge’s decision to release a defendant pending trial, no doubt with the assistance of paid public relations flack Gilbert Gallegos, was irresponsible hyperbole to inflame the public against the court and in a real sense it placed the judge in harms way.

Medina’s remarks in general stepped over the line, but then again, Medina has never cared for constitutional rights of individuals. This is the very same police chief that has a nefarious past of killing a 14-year-old having a psychotic episode who was brandishing a BB gun in a church and who years later gave the order to use “deadly force” on a veteran suffering from post-traumatic stress disorder that a jury and judge awarded $10 million after finding that the deceased was only a threat and a danger to himself.

Chief Medina, APD and spokesman Gilbert Gallegos have a misunderstanding of their role when it comes to criminal prosecutions. The police role is to investigate, gather evidence, interview witnesses, conduct forensics if necessary and prepare a case for prosecutors, prepare final supplemental reports and forward the completed cases to the District Attorney Office who then reviews the reports and then decide on the charges.

Once a person is charged with any felony, especially a violent felony, the case is no longer in police hands nor in their control. Once a person is charged, it’s the prosecutors and the courts that take over and must do so without interference from police. The last thing any successful prosecutor wants are police commenting on the merits and status of a case in public social media outlets that may have an impact on the jury pool and jury selection.

Once a person is charged and arrested, constitutional rights of due process of law and the courts must be respected. Medina and APD with their social media propaganda vilifying a judge for releasing Adrian Avila pending trial reflect that they have the philosophy of being “judge, jury, and executioner”.

CONSTITUTIONAL RIGHTS MUST BE RESPECTED

The criminal justice system in this country and this state has never been perfect and never will be. The criminal justice system at all levels is only as good as those who are responsible to make it work and succeed.

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 it is the prosecution, the state, that has the burden of proof to establish why a person should be held in custody until trial.

Imbedded in our constitution also is how justice is served, to ensure and to protect all of our constitutional rights of presumption of innocence, due process of law and requiring convictions based on evidence. The corner stone of our criminal justice system is requiring prosecutors to prove that a person is guilty beyond a reasonable doubt before a jury and in a court of law.

The courts are also strictly prohibited by the Code of Judicial conduct from ever commenting on pending cases, especially criminal cases and in the press. Anything a judge says about a pending case must be strictly confined to the courtroom and then a judge must also perform their job in a fair and impartial manner. Rulings, including the denial of bail and holding an accused must be based on evidence and not speculation and emotional appeals. A judge making comments to the press will likely result in the Supreme Court suspending a judge and perhaps remove them from office.

It is Police Officers the likes of Harold Medina with their constant vilification of the courts when they do not like a decision rendered that is dangerous. Medina knows the courts are limited to what they can say in public and that the courts cannot defend themselves. He knows it’s a lot easier to blame the courts for his department’s failure to make arrests, investigate a case and prove a case in a court of law.

Chief Medina, APD and APD Spokesman Gallegos taking to social media to inflame the general public and vilify a judge for releasing a defendant pending trial was irresponsible. It is a practice that they need to knock off immediately.

It’s a practice Mayor Tim Keller should not tolerate from his Chief let alone a public relations flack like Gilbert Gallegos as APD spokesperson. Mayor Tim Keller should order APD to take the FACEBOOK and TWITTER posts down immediately on Adrian Avila and mandate that APD confine its social media release activities to the department and not pending court cases.

_________________________

POSTSCRIPT

At the epicenter of the controversy regarding the release of Adrian Avila pending trail is the “Public Assessment Tool”. Following is an explanation of the tool and how it is used by the courts.

ROLE OF THE JUDICIARY

It is Judges who are required to make the critical decision after a person is charged with a crime about whether to release the person pending trial. That decision is made at the time of arraignment when an accused is bought before the court, the accused is informed of the charges and constitutional rights and enters a plea of not guilty or guilty. The arraignment usually includes arguments of conditions of release and bail.

Under the American system of justice, there’s a presumption that defendants are innocent until proven guilty. It is Article II, section 13 of the New Mexico Constitution that guarantees that those accused of a crime are entitled to be released from custody while awaiting trial, except in limited circumstances. There is a failure of the pretrial system if low-risk nonviolent defendants who are entitled to be released are nevertheless detained in jail simply because they cannot afford bail.

“Judges place a priority on two considerations when making pretrial release or detention decisions:

1. Whether the defendant will commit a crime, particularly a violent crime, if released, and whether the person will return to court.

2. If a defendant is to be released, judges decide whether to impose certain restrictions on the individuals, such as requiring an electronic monitor to track their location.

It runs counter to our constitution to require non-violent, low-risk offenders to spend long periods of time in jail pending trial. It is also potentially damaging to a defendant. Pretrial detention can cause defendants to lose their jobs or housing, preventing them from caring for their family or paying their bills.”

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

PUBLIC SAFETY ASSESSMENT TOOL

When money bail is a condition of release, many low-risk defendants are kept in jail because they cannot afford the bail bond. At the same time, high-risk defendants, such as repeat violent offenders who pose an elevated public safety risk, are often released if they can afford bail.

Public safety is a serious concern for judges, who must balance fairness with protecting our communities when making pretrial detention or release decisions. To mitigate the risk to all New Mexico communities and defendants, members of the state’s criminal justice system and the courts implemented the Public Safety Assessment (PSA) tool.

Under the New Mexico Constitution, people charged with a crime have a right to bail, except in limited circumstances. The law provides for the pretrial release of a defendant under the least restrictive conditions necessary to protect community safety and assure the defendant will return to court.

The Public Safety Assessment tool (PSA) provides a reliable, evidence-based information system to assist judges as they consider whether a defendant should be released to protect the public while awaiting trial. The PSA tool, using information related to a defendant’s age, criminal history, and current charge evaluates the likelihood that a defendant will commit a new crime, commit a new violent crime, or fail to appear for their court hearing if released before trial. With information from the PSA, judges can make informed decisions that are evidenced based and not speculation nor conjecture.

The criminal justice system in order to be effective must focus on protecting the public while safeguarding citizens’ rights. Objective, research-based information about the public safety risks posed by a defendant can ensure fairness in pretrial release decisions while making our justice system more effective and efficient. Local governments can save taxpayer money if judges can better identify defendants who do not need to be jailed before trial because they pose a low threat to public safety.

Judges in the Second Judicial District Court, the Bernalillo County Metropolitan Court and in the district and magistrate courts in San Juan County in the Eleventh Judicial District can use the PSA’s objective data as part of the information they consider in pretrial release decisions made soon after a defendant is arrested and charged with a crime. Court staff prepares an assessment for each criminal defendant, which is provided to judges as well as the prosecutor and defense counsel before that defendant’s initial appearance in court known as “arraignment”.

PSA RECOMMENDATIONS DO NOT SUPERCEDE JUDICIAL DISCRETION

The PSA measures the likelihood that an individual will commit a new crime, particularly a violent crime, upon release, as well as the likelihood that he or she will appear at a future court hearing. The risk assessment considers nine factors related to a defendant’s age, criminal history and current charge that research has shown accurately predict risk. The tool then generates risk scores for each defendant. This information, along with other pertinent facts from a defendant’s case, is provided to judges to assist in their pretrial decision making. The PSA does not use information that is considered potentially discriminatory, such as a person’s ethnic background, income, level of education, employment status, neighborhood, or any demographic or personal information other than age.

While the PSA can be a helpful informational tool, it is important to note that judges always have the final say in every decision. the PSA tool does not replace the judges nor impede a judge’s discretion or authority in any way. The decision about whether to release or detain a defendant and under what conditions always rests with the judge. Judges have the final say on whether or not to release a charged defendant pending trial. It is not at all mandatory or required that a Judge follow the recommendation made in the PSA report and judges are 100% free to exercise their own discretion. The PSA does not replace a judge’s discretion and does not supersede other information, including any special circumstances pertinent to a case and charges against the defendant.

THE NINE FACTORS IN PUBLIC SAFETY ASSESSMENT OF AN ACCUSED

The PSA is designed to promote public safety and to ensure that the criminal justice system operates in a fair and efficient manner. It uses 9 factors that research has shown are the strongest predictors of whether a defendant will commit a new crime, commit a violent crime, or fail to return to court if released before trial. The factors are:

1. Whether the current offense is violent.

2. Whether the person had a pending charge at the time of the current offense.

3. Whether the person has a prior misdemeanor conviction.

4. Whether the person has a prior felony conviction.

5. Whether the person has prior convictions for violent crimes.

6. The person’s age at the time of arrest.

7. How many times the person failed to appear at a pretrial hearing in the last two years.

8. Whether the person failed to appear at a pretrial hearing more than two years ago.

9. Whether the person has previously been sentenced to incarceration.

RISK SCORES PRODUCED

Using the information gleaned for the 9 factors and applying them to a charged defendant, the PSA produces two risk scores:

First, it predicts the likelihood that an individual will commit a new crime if released pending trial.

Second, it predicts the likelihood that a charged defendant will fail to return for a future court hearing.

The PSA tool also “red flags” defendants that it calculates present an elevated risk of committing a violent crime.

The PSA risk scores fall on a scale of one to six, with higher scores indicating a greater level of risk. This neutral, reliable data can help judges gauge the risk that a defendant poses.

Links to quoted and relied upon source material are here:

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

https://www.nmcourts.gov/wp-content/uploads/2020/12/Frequently-Asked-Questions-About-the-Public-Safety-Assessment-Updated-2-17-2020.pdf

On March 18, 2022, Governor Michelle Lujan Grisham and the New Mexico legislative leadership announced that the New Mexico Legislature will be called into a special session to take up measures of economic relief and take up a revised supplemental “junior” spending bill for capital investments. The governor and legislative leadership worked on and agreed to parameters for a revised spending bill, including ensuring that projects are appropriately budgeted as recurring or non-recurring funding. As it stands, the agenda includes just two items:

1. Economic relief to blunt the increased price of gas and
2. A $50 million supplemental spending package.

The Special Session is scheduled to begin on April 5 and will likely be a two day session.

SIZE AND SCOPE OF TAX REBATE STILL BEING DECIDED

The governor and lawmakers approved an $8.5 billion budget during the 2022 legislative session that ended on February 17. As the nation’s No. 2 oil producer, New Mexico is enjoying a revenue boom, with reserves projected at roughly 29% of annual spending, or around $2.5 billion. The exact way on how to spend the extra money flowing into state coffers, or to place it in reserves for future use, is at the center of debate.

During the 2022 legislative session, a round of tax rebates pasted. The rebates are set to be distributed soon after July 1, the beginning of the fiscal year. The approved legislation calls for a $250 rebate for adults who make less than $75,000 annually, or $500 for married couples filing jointly who make less than $150,000.

Tax rebates have emerged as the likely strategy to help New Mexicans afford gas prices that now exceed $4 a gallon. According to AAA, the average price of regular-grade gasoline in New Mexico is up to $4.140, a 19% jump over a month ago and a whopping 44% increase over a year ago.

It is reported that Legislators are discussing rebate checks of $250 to $400 per tax filer, or double that for couples filing jointly. This is a significant increase over what lawmakers were considering earlier which was $110 to $160 per taxpayer. The precise size, scope and timing of the rebate checks, including whether to impose an income limit on those eligible, are still under discussion.

On March 23, Senate Finance Committee Chairman George Muñoz, D-Gallup, said that he is preparing a proposal for rebates of $300 per individual, or $600 for a couple filing jointly. He estimated it would cost the state about $455 million. The checks, Muñoz said, should go out as soon as the legislation is signed into law. Munoz said:

“Now’s the time. … People are planning summer trips.”

Democratic Representative Christine Chandler of Los Alamos, chairwoman of the House Taxation and Revenue Committee said she favors sending checks to every taxpayer rather than imposing an income requirement on the next round of checks. she cautioned that the contents of the proposal are still a matter of debate and she had this to say:

“The focus of the rebates is to soften the blow of high gas prices and some other inflationary things going on right now. … That pretty much applies to everyone across the board.”

High gas prices and strong government revenue have triggered debates in state capitals across the country. In California, Gov. Gavin Newsom has proposed debit cards of $400 or $800 to help vehicle owners with gas prices. Alaska, by contrast, issues dividends each year to full-time residents based on the investment earnings on mineral royalties – resulting in dividends of $1,114 per person last year.

https://www.abqjournal.com/2482189/size-scope-of-planned-tax-rebates-unresolved.html

“JUNIOR” SPENDING BILL

On March 9 was the deadline for Governor Michell Lujan Grisham to sign into law, or to veto legislation enacted by the 2022 New Mexico 30-day legislative session that ended on February 17. The Governor announced that she vetoed SENATE BILL 48, known as the Junior Bill, that would have spent a little over $50 million in state projects. Supplemental spending bills, called “junior” budget bills, usually surface in years when the state is flush with windfall funding as is the case this year. The spending is far smaller than what’s outlined in the main state budget that authorizes $8.5 billion for spending on education, health care and other purposes.

Senate Bill 48 vetoed by the governor would have authorized about $25.2 million in one-time spending and another $25.2 million in ongoing spending. The money would have gone to a wide-ranging set of programs and priorities picked by lawmakers. Among the proposed items were law enforcement equipment, efforts to help homeless animals, student speech and debate clubs, medical equipment, meals on wheels for homebound residents and public safety programs and funding for food bank services in the East Mountains. Lawmakers have not taken up a supplemental spending bill in over 10 years before 2019, when an oil and gas boom resulted in surpluses.

https://www.nmlegis.gov/Sessions/22%20Regular/final/SB0048.pdf

https://www.governor.state.nm.us/wp-content/uploads/2022/03/Senate-Executive-Message-No.-50.pdf

The Governor’s veto of Senate Bill 48 has resulted in a very public clash between lawmakers and the Governor. There was a growing number of New Mexico legislators who who expressed support for calling themselves into “extraordinary session” through an emergency procedure that would allow them to override Governor Lujan Grisham’s veto of a $50 million spending bill. Convening such a session requires support from three-fifths of each chamber of the Legislature. Democrats in the House and Senate, who have solid majorities in both chambers, meet privately to debate whether to pursue an extraordinary session.

The end result is that the “new and improved” Junior Bill will be essentially the same spending bill vetoed by the Governor but will be modified to deal with her original concerns.

The Governors Office said the economic relief measures are still under development. Lujan Grisham spokeswoman Nora Meyers Sackett had this to say:

“The governor is committed to delivering economic relief to New Mexicans while maintaining fiscal responsibility. Our conversations with legislative leadership and state finance experts on the details of what that relief will look like are ongoing.”

GOVERNOR AND LEGISLATORS RESPOND TO SPECIAL SESSION CALL

Governor Michelle Lujan Grisham had this to say in her statement announcing the Special Session:

“As prices remain high nationwide, it is clear that we must act swiftly to deliver more relief to New Mexicans. Across the state, families are facing hard choices: can they afford to take their kids to school, to drive to work, to buy baby formula. It is our responsibility to do what we can to ease that burden. In this time of global and economic instability, we are taking action as one state government to protect New Mexicans’ paychecks and deliver additional relief and financial security.

“My administration has worked with this Legislature and Democratic leadership to great success, joining efforts to solve problems and deliver critical support and investments for New Mexicans, including half a billion dollars in tax relief this year alone. I look forward to continuing our work to deliver pragmatic and productive solutions that benefit New Mexicans, and I appreciate the Legislature’s agreement in prioritizing transparency and accountability in this and future sessions.”

Majority Leader Peter Wirth had this to say in a statement:

“Having a special session is a win-win for New Mexicans. … We will provide much-needed relief from high fuel costs and fund fifty million dollars in projects that will benefit communities across the state. New Mexico has had great accomplishments the last four years through the leadership of Governor Lujan Grisham working collaboratively with the legislature. This special session will be a continuation of that effort and will have a tangible, positive impact on New Mexicans.”

Senate President Pro Tempore Mimi Stewart had this to say in a statement: :

“We can all be very proud of the transformational budget that was just passed and signed. The programs and projects funded through the “junior bill” represent smaller but no less critical additions to the overall budget and I am happy we have an opportunity before us to revisit those appropriations and renew the commitments we made to our constituents to fund these important community needs.”

Speaker Brian Egolf had this to say in a statement:

“New Mexicans are counting on us to work together to provide critical funding for community projects that will make a real difference in their lives,” said “A special session will allow us to follow through on dozens of our planned local community projects and proactively assist New Mexicans with rising fuel prices.”

House Majority Leader Javier Martínez had this to say in a statement:

“Despite the fact that our state has unprecedented revenues, too many people are still hurting and rising gas prices are only making things worse. This special session, we have an opportunity to bring investment directly to every community in the state with the critical community projects in the Junior Bill and provide much needed relief for working New Mexicans who are facing rising gas prices.”

House Majority Whip Doreen Gallegos had this to say in a statement;

“By working together in a special session, we can take pressure off New Mexicans who are struggling with the sudden increase in gas prices. … Our communities are counting on us for the local investments in the Junior Bill that will help people across the state right away.”

Senate Minority Leader Greg Baca, a Republican from Belen, called the decision to hold a special session a political stunt and said in a statement:

“This special session is nothing more than a desperate attempt by the Governor to salvage her bid for reelection. … Her vindictive veto of a reasonable spending bill to fund law enforcement equipment, senior centers, aftercare programs, and other needs is inexcusable.”

https://www.kob.com/albuquerque-news/governor-calls-special-session-to-address-spending-bill-gas-prices/6422664/?cat=513

COMMENTARY AND ANALYSIS

The ugliness and nastiness reflected by Senate Minority Leader Greg Baca comments are to be expected from all the Republicans. Senate Minority Leader Greg Baca is no doubt just angry and resentful that he and the Republicans are relegated to sitting on the sidelines and not at needed at all to call a special session. What Baca wanted was an “extraordinary session” in an election year as a means to embarrass the Governor and he did not get it.

The special session is indeed a win-win proposition for both the Governor and the New Mexico Legislature.

Adrian Avila is accused of killing two people in two separate Albuquerque shootings. The first happened in August 2020. Investigators believe Avila is one of four people involved in the shooting death of Donnie Brandon at Sandia Vista Park and was charged in early Mach in the case. Avila was charged in December 2021 for the February 2021 murder of Elias Otero-Garcia. APD says Avila shot and killed Otero-Garcia during another robbery. The Bernalillo County District Attorney office filed two motions to have Otero-Garcia held in jail pending trial while he awaits trial on charges of murder, kidnapping and armed robbery.

Under the law, the prosecution has the burden of proof in to make the case that a defendant charged with a violent crime is too dangerous to release from jail pending trial. After an evidentiary hearing, 2nd Judicial District Judge Stanley Whitaker ruled that prosecutors had credible evidence to charge Avila for the crimes, but they did not prove “no conditions of release could protect the community.” Judge Whitaker granted Avila’s release on strict conditions, including GPS monitoring and a curfew. In addition to wearing a GPS ankle monitor, Whitaker ordered that Avila remain under house arrest and be allowed to leave his mother’s home only to attend a charter high school and for educational purposes.

Judge Whitaker’s decision to release Otero-Garcia on house arrest with a GPS monitor pending trial drew immediate sharp criticism from both District Attorney Raul Torrez and APD Chief Harold Medina.
Bernalillo County District Attorney Raúl Torrez had this to say:

“I think it’s frankly astonishing that somebody can stand accused of not just one, but two separate murders, pretty violent acts they’re brought before the court and they’re put back out on the streets. … All I can say is if we’re not successful at detaining people that are accused of two separate homicides, who are we going to be able to detain under this framework. … We strongly disagree with the Court’s assessment that GPS monitoring is sufficient to protect the community from someone like Adrian Avila, who stands accused of not one, but two violent homicides. ”

Torrez said his office will appeal the Judge Whitaker’s decision, which will likely fail. In order for a reversal, Torrez will have to prove that Judge Whitaker abused his discretion in releasing Adrian Avila when in reality there was no abuse of discretion and Whitaker’s decision was within the confines of the law. It was the prosecution that failed in its burden of proof. The prosecution would be better served if they filed a motion to reconsider Otero-Garcia’s arrest and APD investigate more to established dangerousness.

APD Chief Harold Medina for his part had this to say:

“These people are accused of killing somebody and we’re counting on an ankle bracelet to protect the community. … [Adrain Avila is] at the root of gun violence. … [His release is] ridiculous.”

Medina said he understands monitoring those accused of property crimes, such as car theft, but said “there’s a line in the sand”that comes with violence. Medina acknowledged judges are following guidelines but argued that those guidelines, like the Arnold tool, which scores a defendant’s risk of flight or new crime, need to be changed.

THE DEFENSE RESPONDS

Criminal defense Attorney Ahmad Assed, who represents Adrian Avila, said it is not the law that has failed but law enforcement and the prosecutors who have failed to prove their case and that his client is presumed innocent until proven guilty. Assed argued in his response to the prosecution motion to detain his client pending trail that the prosecution’s evidence against Avila in the August 2020 homicide is circumstantial evidence and based largely on cellphone and Snapchat account records that don’t reliably establish his involvement. In other words, there is no direct evidence such as eyewitness testimony nor forensic evidence such as fingerprints and ballistic testing linking him to the crime.

Assed said this about his client:

“[Adrian Avila has] no criminal history, no history of failure to appears, he’s got a family that he’s associated with that are law-abiding citizens, hard-working folks, he reached out to law enforcement and sought out the turn-in on his own, and quite frankly conditions have never been in place where we can say he’s ever violated conditions of the court. … We don’t decide cases based on innuendo and DA’s closing arguments geared toward the eye of the media. That was the whole deal today, was just those notion of a closing argument or opening statement for the media’s purposes. It’s not for the court or the judge to discuss the details of the case. The judge must follow the law, and the law clearly requires the state to act. If the state does not act, and in this case, the state did not act, the court must follow the law.”

With respect to Chief Medina, attorney Assed said Medina’s comments were “irresponsible and reckless” statements having the potential to poison a jury pool and raise questions about APD’s ability to investigate crimes objectively and he said this:

“It’s outrageous for Albuquerque’s chief law enforcement officer, who wasn’t even at the hearing, to make a knee-jerk comment that is purely reactionary and pandering. ”

Attorney Assed added that Chef Medina and he personally negotiated Adrian Avila’s surrender to APD. There was no disclosure if Medina ever asked Assad that Adrian Avila be held in jail pending trial, yet Medina objects when a judge makes a finding that there was insufficient evidence to hold the accused in jail pending trial.

https://www.kob.com/albuquerque-news/albuquerque-teen-accused-of-2-murders-released-with-gps-ankle-monitor/6425548/?cat=500

https://www.abqjournal.com/2481710/apd-slams-judge-for-releasing-man-facing-2-homicide-charges.html

INTRODUCTION

This blog article is an in-depth discussion of bail bond reform and the critical role that judicial discretion plays in protecting the public. The article also discusses what is referred to as the “Arnold Rule” which is a matrix tool used by the courts identifying those factors that are considered in holding an accused pending trial. Several studies have shown the Arnold tool has an impressive success rate and the state’s pretrial detention system is, in general, effective in most cases. It’s the exception and not the rule that has proven problematic for the courts when it comes to public perception.

BAIL BOND REFORM

On November 8, 2016, the “New Mexico Denial of Bail Measure” was approved by New Mexico voters by a landslide vote. The constitutional amendment largely eliminates the former system of money bail bonds. The constitutional amendment allows the courts to deny pretrial release to defendants charged with a felony only if a prosecutor proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. The amendment also prohibits the courts from denying pretrial release for defendants who are not considered dangerous and do not pose a flight risk. The change was viewed as necessary to prevent low-level defendants from being kept in jail because they lacked money to post bail. As a result of bail bond reform, bookings at the Bernalillo County jail plummeted from 38,349 in 2010 to 17,734 in 2020.

“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.”

https://www.ncsc.org/~/media/Microsites/Files/PJCC/PJB%209%20-%20Preventive%20Detention%20Brief%20FINAL.ashx

TORREZ BEGINS DRUM BEAT BLAMING THE COURTS

In May, 2019, District Attorneys throughout the state argued the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, 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. Bernalillo County District Attorney Raul Torrez for his part voiced the opinion that it 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. It was at this time that Torrez began beating his drum for “rebuttable presumption” to hold an accused charge with a violent crime until trial. Torrez was quoted as saying at the time:

“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.”

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

FALSELY ACCUSING THE COURTS FOR INCREASING CRIME

In May, 2019, District Attorney Raul Torrez also accused the District Court and the Supreme Court’s case management order (CMO) for being the root cause for the dramatic increase in crime and the dismissal of cases. The Supreme Court issued the order mandating disclosure of evidence within specific time frames and to expedite trial. Torrez challenged the case management order before the New Mexico Supreme Court and also took action against an individual judge claiming the judge was requiring too much evidence to prove that a defendant was too violent to be released with bond.

On September 15, the Administrative Office of the Courts issued the results of a report to take sharp issue with recent proposals to change the bail bond system. The study was conducted by the University of New Mexico (UNM). The report supports the proposition that the existing system does not endanger the public. The UNM study reviewed 10,289 Bernalillo County felony cases from July 2017 to March 2020 in which defendants were released from jail while awaiting trial. The statistical findings were decisive and reported as follows:

Of the cases analyzed, only 13 were arrested for a first-degree felony while on pretrial release, or about 0.1% of the total. 19% of felony defendants released from jail pending trial, 1,951 of 10,289, were arrested for new criminal activity during the pretrial period. Most of those arrests were for fourth-degree felonies and misdemeanors, including property, drug and violent crimes. Fewer than 5% of defendants, or up to 480, released pretrial were arrested for new violent crimes. Of the cases analyzed, 95.3% were not arrested for violent crimes during the pretrial period.

Artie Pepin, director of the Administrative Office of the Courts, had this to say about the study:
“The evidence from research clearly shows that the great majority of people released pending trial are not committing new crimes. … Objective research validates the pretrial justice improvements under way in New Mexico. Blaming judges and courts for crimes highlighted in news accounts does nothing to make anyone safer.”

Jennifer Burrill, then the president-elect of the New Mexico Criminal Defense Lawyers Association had this to say about the “rebuttable presumption against release”:

“That basically means [the Governor, Keller and Torrez] are sacrificing … constitutional rights for their own political career. … We continue to ask the Legislature to make sure whatever decisions are made are based on evidence and not some kind of knee-jerk reaction, because that does not make the problem better. … That’s the same thing that we need to ask of our leaders on this situation.”

The link to quoted source material is here:

https://www.abqjournal.com/2429583/courts-pretrial-release-doesnt-fuel-violent-crime.html

REBUTTABLE PRESUMPTION FAILS

Governor Michelle Lujan Grisham joined District Attorney Raul Torrez and Mayor Keller to support a “rebuttable presumption against release” in crimes including first degree and second-degree murder, voluntary manslaughter, and sexual exploitation of children. The Governor made “rebuttable presumption against release” a part of her anti-crime legislation that she placed on the 2022 legislative 30-day short session.

During the 2022 New Mexico 30-day session that ended on Thursday, February 17, all legislation failed to enact the rebuttable presumption of being violent to permit jailing until trial. However, as a substitute crime bill was enacted and signed into law by the Governor. The crime bill as enacted expands surveillance of criminal defendants as they await trial with 24-hour monitoring of ankle-bracelet tracking devices. It mandates the courts to provide greater supervision of defendants by requiring courts to share ankle monitoring data with law enforcement agencies upon request. It requires the courts to turn over GPS monitoring data to police and prosecutors during a criminal investigation to allow better tracking of pretrial defendants on electronic monitoring in an effort to prevent a charge defendant awaiting trial from committing another crime. The goal of the GPS monitoring is keep close tabs on a charged defendant to prevent them from committing another crime.

https://www.abqjournal.com/2471031/tax-cuts-crime-package-sent-to-governor.html

ROLE OF THE JUDICIARY

It is Judges who are required to make the critical decision after a person is charged with a crime about whether to release the person pending trial. That decision is made at the time of arraignment when an accused is bought before the court, the accused is informed of the charges and constitutional rights and enters a plea of not guilty or guilty. The arraignment usually includes arguments of conditions of release and bail.

Under the American system of justice, there’s a presumption that defendants are innocent until proven guilty. It is Article II, section 13 of the New Mexico Constitution that guarantees that those accused of a crime are entitled to be released from custody while awaiting trial, except in limited circumstances. There is a failure of the pretrial system if low-risk nonviolent defendants who are entitled to be released are nevertheless detained in jail simply because they cannot afford bail.

“Judges place a priority on two considerations when making pretrial release or detention decisions:

It runs counter to our constitution to require non-violent, low-risk offenders to spend long periods of time in jail pending trial. It is also potentially damaging to a defendant. Pretrial detention can cause defendants to lose their jobs or housing, preventing them from caring for their family or paying their bills.”

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

JAILING LOW RISK OFFENDERS COUNTER PRODUCTIVE

Researchers have found that the longer a low-risk defendant is jailed awaiting trial, the greater likelihood that person will reoffend.

“In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. … [Researchers have found] that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average.

Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the causal effect of detention.”

The link to download research study quoted is here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2809840

PUBLIC SAFETY ASSESSMENT TOOL

When money bail is a condition of release, many low-risk defendants are kept in jail because they cannot afford the bail bond. At the same time, high-risk defendants, such as repeat violent offenders who pose an elevated public safety risk, are often released if they can afford bail.

Public safety is a serious concern for judges, who must balance fairness with protecting our communities when making pretrial detention or release decisions. To mitigate the risk to all New Mexico communities and defendants, members of the state’s criminal justice system and the courts implemented the Public Safety Assessment (PSA) tool.

Under the New Mexico Constitution, people charged with a crime have a right to bail, except in limited circumstances. The law provides for the pretrial release of a defendant under the least restrictive conditions necessary to protect community safety and assure the defendant will return to court.

The Public Safety Assessment tool (PSA) provides a reliable, evidence-based information system to assist judges as they consider whether a defendant should be released to protect the public while awaiting trial. The PSA tool, using information related to a defendant’s age, criminal history, and current charge evaluates the likelihood that a defendant will commit a new crime, commit a new violent crime, or fail to appear for their court hearing if released before trial. With information from the PSA, judges can make informed decisions that are evidenced based and not speculation nor conjecture.

The criminal justice system in order to be effective must focus on protecting the public while safeguarding citizens’ rights. Objective, research-based information about the public safety risks posed by a defendant can ensure fairness in pretrial release decisions while making our justice system more effective and efficient. Local governments can save taxpayer money if judges can better identify defendants who do not need to be jailed before trial because they pose a low threat to public safety.

Judges in the Second Judicial District Court, the Bernalillo County Metropolitan Court and in the district and magistrate courts in San Juan County in the Eleventh Judicial District can use the PSA’s objective data as part of the information they consider in pretrial release decisions made soon after a defendant is arrested and charged with a crime. Court staff prepares an assessment for each criminal defendant, which is provided to judges as well as the prosecutor and defense counsel before that defendant’s initial appearance in court known as “arraignment”.

PSA RECOMMENDATIONS DO NOT SUPERCEDE JUDICIAL DISCRETION

The PSA measures the likelihood that an individual will commit a new crime, particularly a violent crime, upon release, as well as the likelihood that he or she will appear at a future court hearing. The risk assessment considers nine factors related to a defendant’s age, criminal history and current charge that research has shown accurately predict risk. The tool then generates risk scores for each defendant. This information, along with other pertinent facts from a defendant’s case, is provided to judges to assist in their pretrial decision making. The PSA does not use information that is considered potentially discriminatory, such as a person’s ethnic background, income, level of education, employment status, neighborhood, or any demographic or personal information other than age.

While the PSA can be a helpful informational tool, it is important to note that judges always have the final say in every decision. The decision about whether to release or detain a defendant and under what conditions always rests with the judge. Judges have the final say on whether or not to release a charged defendant pending trial. It is not at all mandatory or required that a Judge follow the recommendation made in the PSA report and judges are 100% free to exercise their own discretion. The PSA does not replace a judge’s discretion and does not supersede other information, including any special circumstances pertinent to a case and charges against the defendant.

THE NINE FACTORS IN PUBLIC SAFETY ASSESSMENT OF AN ACCUSED

The PSA is designed to promote public safety and to ensure that the criminal justice system operates in a fair and efficient manner. It uses 9 factors that research has shown are the strongest predictors of whether a defendant will commit a new crime, commit a violent crime, or fail to return to court if released before trial. The factors are:

1. Whether the current offense is violent.
2. Whether the person had a pending charge at the time of the current offense.
3. Whether the person has a prior misdemeanor conviction.
4. Whether the person has a prior felony conviction.
5. Whether the person has prior convictions for violent crimes.
6. The person’s age at the time of arrest.
7. How many times the person failed to appear at a pretrial hearing in the last two years.
8. Whether the person failed to appear at a pretrial hearing more than two years ago.
9. Whether the person has previously been sentenced to incarceration.

RISK SCORES PRODUCED

Using the information gleaned for the 9 factors and applying them to a charged defendant, the PSA produces two risk scores:

First, it predicts the likelihood that an individual will commit a new crime if released pending trial.

Second, it predicts the likelihood that a charged defendant will fail to return for a future court hearing.

The PSA tool also “red flags” defendants that it calculates present an elevated risk of committing a violent crime.

The PSA risk scores fall on a scale of one to six, with higher scores indicating a greater level of risk. This neutral, reliable data can help judges gauge the risk that a defendant poses.

Links to quoted and relied upon source material are here:

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

https://www.nmcourts.gov/wp-content/uploads/2020/12/Frequently-Asked-Questions-About-the-Public-Safety-Assessment-Updated-2-17-2020.pdf

SOBERING STATISTICS

The final tally of murders Albuquerque for 2021 is 117. It shattered the previous 2019 record by 36 murders. 97 of the homicides involved guns. The dramatic increase in homicides and robberies is drug related and involves guns.

The link to quoted source material is here:

https://www.abqjournal.com/2458296/remembering-some-of-2021s-homicide-victims-in-abq-ex-total-

ALBUQUERQUE CRIME RATES IN A NUTSHELL

According to the 2020 FBI Unified Crime Reports:

Albuquerque has a crime rate of 194% higher than the national average.
Albuquerque’s Violent Crime Index for 2020 is 346% of the national average.
Albuquerque Property Crime Index for 2020 is 256% of the national average.

SOURCE:

https://crime-data-explorer.app.cloud.gov/pages/explorer/crime/crime-trend

Albuquerque has made the top 100 list of most dangerous cities 5 years in a row. Neighborhood Scout’s provides comprehensive database of real estate data and compiles a listing of what it considers are the 100 most dangerous cities in the United States based on violent crime rates and population. Over the last 5 years, the city has gone from the low rank of #74 to a rank of #21. Following is Albuquerque’s rankings out of 100:

2021: #21 Ranking
2020: #23 Ranking
2019: #25 Ranking
2018: #50 Ranking
2017: #74 Ranking

https://www.neighborhoodscout.com/blog/top100dangerous

NEW MEXICO CRIME RATES

In 2021 and into 2022, New Mexico continues to have a higher-than-average crime rates across the board. New Mexico has the second-highest violent crime rate in the US, behind Alaska with 8.4 incidents per 1,000. In a recent poll of New Mexico residents, 56% of respondents named gun violence as a top safety concern and above the US average of 53%.

The link to news source material is here:

https://www.fbi.gov/news/pressrel/press-releases/fbi-releases-2020-incident-based-data

https://crime-data-explorer.app.cloud.gov/pages/explorer/crime/crime-trend

https://www.safewise.com/blog/safest-cities-new-mexico/

COMMENTARY AND ANALYSIS

Given the sobering statistics of murders and violent crime, it is not at all surprising that the general public is looking to their elected officials, prosecutors and judges to come up with solutions. The criminal defense bar cannot simply stand on the sidelines but need to also assist and help the criminal justice system full fill its obligation to provide due process of law, protection of constitutional rights as well as to protect the public.

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 it is the prosecution, the state, that has the burden of proof to establish why a person should be held in custody until trial.

Imbedded in our constitution also is how justice is served, to ensure and to protect all of our constitutional rights of presumption of innocence, due process of law and requiring convictions based on evidence. The corner stone of our criminal justice system is requiring prosecutors to prove that a person is guilty beyond a reasonable doubt before a jury and in a court of law.

A negative perception of the courts is created when judges release violent felons and not holding them for trial without bond. It’s common knowledge that Judges are concerned about their disqualification rates, appeals and reversals and how they are perceived by the Judicial Performance Evaluation Commission. Judges are reluctant to make decisions and hold off on making the hard decisions to avoid controversy.

Whether true or false, the courts are viewed as part of a much bigger problem of causing spiking violent crime rates. That negative perception is aggravated when individual judges are perceived by the public to be way too lenient in releasing violent felons and not holding them for trial without bond. Prosecutors and law enforcement officials across the state repeatedly slam judges and the court system for letting out those accused of violent felonies, particularly when they re-offend.

The courts are also strictly prohibited by the Code of Judicial conduct from ever commenting on pending cases, especially criminal cases and in the press. Anything a judge says about a pending case must be strictly confined to the courtroom and then a judge must also perform their job in a fair and impartial manner. Rulings, including the denial of bail and holding an accused must be based on evidence and not speculation and emotional appeals. A judge making comments to the press will likely result in the Supreme Court suspending a judge and perhaps remove them from office.

It is prosecutors like Raul Torrez and Police Officers like Harold Medina with their constant complaining and whining about the criminal justice system being broken that undermines the credibility of the courts. They both know the courts are limited to what they can say in public and that the courts cannot defend themselves. They both know it’s a lot easier to pander to the public and blame the courts for their own failures to prove a case “beyond a reasonable doubt”.

The criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken. The criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance or political opportunism at its worst. The criminal justice system at all levels is only as good as those who are responsible to make it work and succeed. It is way too easy to declare the system “broken” when problems identified within the criminal justice system would go away if the stakeholders would just do their own jobs and concentrate on doing their jobs in a competent manner.

The Public Safety Assessment tool and the Arnold Metric the courts use to apply it should never be a replacement for sound judicial discretion. The PSA reports should not be a “crutch” used by Judges who simply want to use it to avoid making controversial decisions. The PSA reports cannot provide a 100% accurate report as to whether a defendant poses a safety or flight risk, that is why it is not mandatory and allows for judicial discretion. Judges need to rely upon their common sense, their own perception of a defendant and use their judicial discretion to keep the public safe and ensure due process of law and justice is also served. It is always a fine balancing act.

THINKING OUT OF THE BOX

Prosecutors, Judges and defense attorney for that matter, have the right and should think out of the box. They cannot ignore the demands of a community to be kept safe, especially in light of the city’s high violent crime rates. Conditions of release are always subject to review by the court and can be changed or modified at anytime.

Perhaps when it comes to those charge with a violent felony, the prosecution, the defense and the courts could rely on the Arnold matrix tool to release a charged defendant during the day on a GPS monitor but also mandate that they turn themselves in at night for 8 hours of confinement with sleeping accommodations to be released the next day again on a GPS monitor.

As time progresses, and trials are being delayed to unreasonable length of time by the prosecution, conditions of release could be modified to full house arrest. The New Mexico legislature could also help by funding the Department of Correction to build or even lease centrally located holding facilities with minimum security operated by the New Mexico corrections department and the probation and parole department.

It’s called thinking out of the box and not relying upon a matrix as a crutch to avoid making a hard decision to confine or not to confine pending trial.

JIM LARSON is a long-term resident of Albuquerque. Mr. Larson has an extensive and diversified career in law-enforcement both on the Federal and State levels. His law enforcement career includes being a former United States Secret Service Agent, a Dallas Texas Police Officer, and Investigator with the New Mexico Attorney General’s Office and working at Sandia National Laboratories. After retiring from Sandia National Laboratories, Mr. Larson served as a Court Appointed Special Advocate for abused and neglected children. He has been involved with APD civilian police reform including serving a short period of time on the Civilian Police Oversight Board.

BACKGROUND

On November 14, 2014, the City of Albuquerque and the Department of Justice (DOJ) entered into a Court Approve Settlement (CASA) mandating 271 reforms of the Albuquerque Police Department APD. The settlement was a result of a year’s long investigation of the APD and findings of “excessive use of force” and deadly for and a “culture of aggression.” A major reform measures mandated the creation of a full time, professional Civilian Police Oversight Agency (CPOA) with a full time Director and investigators and with a 9-member, all-volunteer, civilian Police Oversight Board appointed by the city council.

The CPOA board is ultimately responsible for investigations of police misconduct and making recommendations to the Chief of Police for disciplinary actions. The board also reviews investigations and examines APD policy and procedures. The major goal of the Civilian Police Oversight Agency and its board is that it’s to be the outside entity watching over the APD department when the Federal Court Approved Settlement Agreement is finally dismissed and the Federal Court appointed Independent Federal Monitor is no longer necessary.

For the past two years, the CPOA and its board have been in a constant state of turmoil. The longtime executive director, the chairman and board members resigned and there has been understaffing at the agency. At one point there were only two investigators with the agency, leading to a dramatic decline in the number of cases completed.

On February 23, it was reported that the Albuquerque City Council was attempting to fix the Civilian Police Oversight Agency by making changes to the ordinance creating the agency.

There are two significant changes that were being considered:

1. Reduce the board from nine members to seven and directing the agency to only investigate complaints concerning sworn officers, not civilian personnel.

2. Removed the directive that CPOA board members shall review and approve or amend findings of all agency investigations.

The CPOA is required to publish semiannual reports, however the 2021 data has yet to be made public. Interim CPOA director Diane McDermott said throughout last year there had been only 3 cases where investigators found policy violations, where the police chief differed, sending a letter of non-concurrence. McDermott added that the Chief Medina’s non-concurrences have increased in recent months.
According to McDermott, this sometimes could be due to the department not wanting to hold an officer accountable but there could also be aggravating or mitigating factors that she is not aware of.

https://www.abqjournal.com/2472721/councilors-consider-changes-to-civilian-police-oversight-ordinance.html

JIM LARSON GUEST COLUMN

EDITOR’S DISCLAIMER: The opinions expressed in this article are those of Jim Larson and do not necessarily reflect those of the political blog www.petedinelli.com. Mr. Larson was not compensated for his guest column.

Jim Larson submitted the following case study that he prepared that demonstrates continued failures to bring public transparency and police accountability into investigations of APD shootings and the CPOA review of the APD shooting investigation findings just how dysfunctional and ineffective the Citizens Police Oversight Board (CPOB) has become.

THE CASE STUDY OF ROGER SHAFER

On August 22, 2019, Roger Schafer, a 57-year-old homeless man with a history of mental problems, drug and alcohol abuse and confrontations with law enforcement was spending his time in and around the bus stop just south of the 1-40 interstate freeway and in front a closed Boston Market building. Around 3:00 p.m., calls began to come into 911 about a man acting strangely and pointing a handgun at motorists stopped in traffic in front of the bus stop. Those calls generated an immediate response from the Albuquerque Police Department, including four field officers and three nearby members of the SWAT team.

As they arrived, the officers gathered on the south side of the closed Boston Market building and observed Schafer laying down in front of the bus stop. They approached from the south of the bus stop, arrayed in a line facing Schafer and could better see that he was laying on his back, his hands behind his head. Shafer was confused but obeyed the initial offer’s orders to raise his hands as he raised to a sitting position with his arms on his knees with no weapon visible in his hands. He became argumentative and cursed at officers wanting to know why they were pointing machine guns at him and refused to obey their commands.

Then he sat up on the bench and reached for his waistband. The officers shot him 9 times. The fatal shooting takes place 41 seconds after the officers first contact with Schafer. The attached APD video of the shooting is presented here for context of some of what video the Board reviewed.

The link to APD video is here:

https://www.yeoutube.com/watch?v=gX_OO-w2VZg

The CASA monitoring team members have given inordinate amounts of “technical assistance” provided to APD and the CPOA over the past years and for every “out-of-compliance” outcome found by the monitor, there are recommendations developed to guide APD into compliance. Despite this assistance, the following timeline and explanation of events demonstrate continued failures to bring public transparency and police accountability in the investigations of APD shootings and the CPOA review of the APD shooting investigation findings.

TIMELINE OF EVENTS

On July 23, 2020, the APD Internal Affairs Force Division presented the results of their joint investigation with the Multi-Agency Task Force (MATF) to the Force Review Board (FRB). The investigation determined the shooting was within policy, there was no officer misconduct and no disciplinary action, and the FRB agreed with the results, although the FRB thought there were some deficiencies in tactics, policy, training, equipment, and supervision.

On April 8, 2021, nine months after, the APD Internal Affairs Force Division reported the shooting investigation results to the FRB, the Board voted to request the full investigative file from the FRB for their review.

On August 12, 2021, two years after the shooting and one year after the Force Review Board concurrence with the APD Internal Affairs Force Division findings that the shooting was within policy, the APD Schafer shooting investigation results were on the Board’s agenda.

ROLL AND ACTIONS OF CIVILIAN POLICE OVERSIGHT AGENCY

The Civilian Police Oversight Agency (CPOA) Board (Board) is required by ordinance to review and monitor all APD Internal Affairs and other administrative investigations, and conclusions related to officer involved shootings. The CPOA Director at that time was required to prepare and submit the findings and recommendations of his review to the Board relating to officer involved shootings.

The CPOA Director was on vacation and did not attend the meeting. The CPOA Board member Bill Kass specifically presented the “description of the case as presented in the Director’s findings” for the Board’s information. He concluded the description saying, “I’ll forego the director’s finding at this point.” After significant Board discussion, Kass said he wanted wrap things up and read “the findings of Director Harness who reviewed this case and attended the FRB because of his belief it’s important to have his findings on record with the Board.” The Director found misconduct by four of the officers. However, Kass did not identify the misconduct, or the Standard Operating Procedures violated, nor was any recommendation of disciplinary action noted.

BEWILDERING MYSTERY THAT REMAINS PUBLICLY UNANSWERED

Why are these details so important? These details are vital because of the following truly bewildering mystery that remains publicly unanswered and not of concern to the Board. After all the referencing to the CPOA and Director Harness findings letter in this OIS case, Interim Director Diane McDermott responded that “I am afraid I do not have any access to the Director’s findings for any of the use of force cases” when asked if “by any chance she had Director Harness’s findings or opinions on the Force Revie Board dealings in this [fatal officer-involved shooting] case” by the then Acting Chair Chantal Galloway at the December 9, 2021, Board meeting.

Shockingly the Board lacked any curiosity or questioning of what “I do not have any access” to the former Director CPOA records means or what the heck was member Kass reading and referring to and where are the records? Instead, they silently accepted her answer and moved on without any interest in clarification.

The Board’s primary questioning targeted concerns of potential officer-created jeopardy where the actions of officers who, without sound justification, willingly fail to take advantage of available tactical concepts like distance, cover, and concealment. Also, they may willingly abandon tactically advantageous positions by moving into disadvantaged positions without justification, or act precipitously on their own without waiting for available assistance from supervisors or other officers.

EMOTIONAL BOARD MEETING

The Board discussion of the CPOA review of the shooting was emotional when they discussed their misgivings about this shooting. They were skeptical regarding the APD conclusions of no policy violations and no officer misconduct when Kass reported the Director found four of the seven officers were guilty of misconduct.

The Board discussion was frequently animated as they discussed their concerns of numerous deficiencies that the Board questioned in tactics; policy; training, and supervision and that were also identified by the FRB.

It was approximately 10 minutes from when the urgent call was dispatched until Schrader was killed. The Board’s concerns included the following:

1. There was no on scene supervisor or anyone in charge of the ad-hoc team of mixed non-supervisory field service and tactical officers
2. There was a seemingly hasty response after 10 seconds of discussion after the officers walked to the corner of the building, especially since they at that time they recognized the victim was no longer waving the gun around and was laying down and
3. There was no attempt to slow down the events to consider alternative approaches that may provide officers a chance to surprise and control him;
4. The was failure to use a vehicle for a tactical advantage of cover, resulting in standing in line the open placing officers and Schafer at greater risk.
5. The Board was concerned the frontal approach reduced or eliminated de-escalation options and limited their array of force options.

Several Board members expressed strident concerns because they “were under the impression that if a police officer shot someone that they would have to administer medical care to that person immediately.” The way officers treated the victim after he was shot was disrespectful, especially when an officer noticed Mr. Schafer was still breathing and it took, as timed by the Board of the video, 5 minutes before any officer began CPR or other medical intervention.

PROSECUTORIAL REVIEW

A prosecutorial review memo of the fatal shooting by Michael Cox, DA Special Prosecutor, was cited in a Journal article August 28, 2020. Additionally, the Board was notified via email on November 27, 2021, from Charles Arasim, a concerned citizen advocate, about the existence of the DA Special Prosecutor’s review and the additional investigation related information about which they should be concerned. The email has to this day not been acknowledged, not unusual for correspondence to the Board, and no mention of the Cox review or the relevant details has been discussed by the Board, at least publicly.

Special Prosecutor Cox concluded no charges will be filed against the officers and the case will be closed. He also stated:

“This decision does not limit administrative or criminal action by other agencies, or civil actions by other parties.”</em>