Saturday, June 27, 2009

6-Month Trial Rule Gets Assist From RR Case

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 a subject of concern to defense lawyers.
        Until now, a case had to be dismissed if it wasn't tried in time, absent permission from the court.
        "There must be some consequence for the state's missteps and miscommunications. ... While dismissal may seem like an excessive remedy, unfortunately, no less drastic remedies are available to us," the court wrote in its June 17 opinion dealing with charges against Richard D. Duran.
        Immediately after issuing its 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.
        Abuse allegations
        The case against 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 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 ongoing negotiations, witness interviews and other factors contributed to her late filing.
        The case eventually was dismissed and cannot be refiled.
        Daniel Tallon, the attorney who represented Duran, said that although he won the battle for him, "There was quite a bit of consternation when those rule changes were announced. ... On the one hand, my client gets dismissal, and at the same time, they say they're changing the rule."
        Courts' alternatives
        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.
        Todd Heisey, chief deputy district attorney in Bernalillo County's 2nd Judicial District, said the ruling is a boon for prosecutors, though the six-month rule isn't violated often.
        "Running a rule has always been a very serious matter for a prosecutor, so people are extra vigilant about trying to stay on top of that," he said. "Before, if the rule ran, it was like they said, 'That's it.' Now at least you can argue there wasn't any prejudice (to the defense). I think it's a good thing for the prosecution."
       

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