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District attorney seeks changes to reduce dismissals

Copyright © 2017 Albuquerque Journal

District Attorney Raúl Torrez

District Attorney Raúl Torrez said an increasing crime rate, a higher percentage of cases going to trial and “gamesmanship” by defense attorneys were unforeseen problems caused by a court case management order, which set deadlines for criminal cases in Bernalillo County in an attempt to get speedier trials and deal with an overcrowded jail.

Torrez said he is trying to persuade the state Supreme Court to adjust those orders so that judges have more leeway in deciding what to do when strict deadlines for prosecutions aren’t met.

The District Attorney’s Office on Monday released a report that outlines problems that started after the case management order, or CMO, went into effect in February 2015.

Torrez said he will ask the Bernalillo County Criminal Justice Coordinating Council to approve his suggested reforms during its meeting this week and send the proposal to the Supreme Court for consideration.

The DA’s Office report says that the CMO is the “most likely reason” for a recent increase in crime in Albuquerque because so many cases have been dismissed.

Prosecutors also allege that criminal defense attorneys “game” the deadlines to try to get cases dismissed. They said defense attorneys will try to extend cases by making discovery requests in hopes that prosecutors will miss a deadline so that a case is dismissed, which also explains why an increasing number of cases are going to trial instead of ending with plea agreements.

Torrez’s suggestions include ending the practice of dismissing cases because of inmate transportation issues and giving judges more discretion when deadlines aren’t met.

He said the deadlines for prosecutors in Albuquerque are much more strict when compared with the rest of the state and that hundreds of cases have been dismissed on “technicalities.”

“It’s like showing up to a baseball game and they say you were supposed to wear blue shoes and you wore white shoes, so the game is forfeited,” Torrez said. “It’s not connected to the core question: Is this person guilty or not guilty?”

Richard Pugh, a district defender for the Law Offices of the Public Defender, said the CMO improved the local criminal justice system but the office would consider the proposed changes. He said public defenders will comment to the Supreme Court about Torrez’s recommendations.

Matt Coyte, the president of the New Mexico Criminal Defense Attorneys Association, said the CMO created a more efficient local criminal justice system. He criticized Torrez’s analysis that the rules were leading to an increase in jury trials.

“Although some changes may be necessary, it is wrong for the DA to criticize the fact that more trials are taking place under the CMO than ever before,” Coyte said in an email. “Jury trials make up the backbone of a healthy justice system. Coercive plea bargaining must be tempered with access to an efficient trial process.”

Officials for the 2nd Judicial District Court said the report would be discussed at the Criminal Justice Coordinating Council’s next meeting on Thursday, but court officials declined to comment Monday. The council is comprised of prosecutors, defense attorneys, city and county officials, judges, pretrial services and others.

Torrez’s recommendations include:

• Ending the practice of allowing judges to dismiss cases because defendants weren’t transported to a hearing or a hearing was scheduled in a way that violated CMO deadlines, which are matters that prosecutors don’t control.

• Changing language that says judges “shall sanction” prosecutors for CMO violations to “may sanction.”

• Creating deadlines for criminal defense attorneys to ask for discovery items or witness lists.

The CMO was created by the coordinating council and approved by the state Supreme Court. The order aimed to address several problems with the local criminal justice system – criminal cases were being significantly delayed and the county jail was overcrowded with long-term pretrial detainees – with deadlines for prosecutors and court cases.

Thousands of criminal cases in recent years since then have either been dismissed by judges or voluntarily dismissed by prosecutors who couldn’t make those deadlines.

The prosecutors’ report said from 2014 to 2016, Bernalillo County saw a 250 percent increase in trials even though the office has 40 percent fewer pending property crime and violent crime cases.

In the same time, the county saw a 117 percent increase in automobile theft, a 42 percent increase in robberies and a 103 percent increase in murder, according to the report.

The report says the CMO is the “most likely reason.”

Torrez, prosecutors and other officials from the 2nd Judicial District Attorney’s Office said in an interview with Journal reporters and editors on Monday that the CMO has created a new type of “gamesmanship” in criminal courts. They said defense attorneys can make voluminous discovery requests at different points in the case to create more chances that prosecutors will miss a deadline and have a case dismissed.

“The CMO created a new discovery game when there wasn’t one before,” said Thomas Outler, a senior trial attorney for the prosecutor’s office. “Before the CMO, if there was a discovery issue it would get worked out, usually cooperatively, by the parties. … Now, it’s created a game where if we miss any kind of discovery deadline or can’t produce a single piece of evidence, however relevant or irrelevant, it becomes an opportunity for (the defense) to win.”

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