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Saturday, June 27, 2009
Court Tweaks 6-Month Trial Rule
By Scott Sandlin
Copyright © 2009 Albuquerque Journal
Journal Staff Writer
A none-too-happy but unanimous New Mexico Supreme Court this month issued an opinion allowing dismissal of child abuse charges against a Rio Rancho man because prosecutors didn't bring him to trial quickly enough.
But the court clearly wasn't happy about it and has taken steps to make sure dismissal isn't the only option where there is a violation of the "six-month rule."
Under new guidance, courts have discretion to consider other remedies, such as fining the prosecutor or changing conditions of release for a defendant — a change being applauded by prosecutors and is the subject of concern by defense lawyers.
Until now, a case had to be dismissed if it wasn't tried in time, absent permission from the court.
Immediately after issuing its June 17 opinion, the court said it's no longer mandatory to dismiss charges if the state fails to bring a case to trial within the allotted time of six months or one year with a court extension. The court extended the rule to Children's Court, Metropolitan Court and other courts of limited jurisdiction.
The case against Richard D. Duran involved allegations of trauma to a baby that were vigorously disputed by the defense.
Rio Rancho police responded on Jan. 19, 2007, to University of New Mexico Hospital concerning a 10-week-old baby with a severe brain injury and hematoma. CAT scans revealed an old injury in his brain from a previous trauma, and an MRI showed that the old and new hemorrhages were consistent with nonaccidental trauma, according to a Rio Rancho police report.
Duran was indicted in 2007 by a Sandoval County grand jury on two counts of child abuse resulting in great bodily harm, and his trial was scheduled for July 2008. The prosecution asked for an extension, and the trial was reset for that October.
Prosecutors then filed for a second extension, which required Supreme Court approval. It was granted.
But the defense then asked for the high court to withdraw its decision to grant the second extension because the request was filed too late. Assistant District Attorney Boglarka Foghi had claimed that ongoing negotiations, witness interviews and other factors contributed to her late filing.
The case was eventually dismissed and cannot be refiled.
Sheila Lewis, an appellate defender and former president of the New Mexico Criminal Defense Lawyers Association, said the most significant part of the opinion is that there are now alternatives to dismissing charges when prosecutors delay.
Dismissal, she said, "is a more powerful incentive to keep the state on track" than alternatives.
"Most prosecutors by far comply with this rule. It's the rare case where a prosecutor can't meet the requirements of this rule because they're so clear-cut.
"But for those who want to live outside the rules, this was an important safeguard that was watered down," she said.
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