Making the new rules work - Albuquerque Journal

Making the new rules work

New rules on how to handle criminal defendants accused of violating conditions of their release from jail pending trial are the latest changes to flow from voter approval of a state constitutional amendment last year.

Before July 1, there was no set deadline for when a hearing had to be held after a defendant was picked up for violating terms of release – for instance, by failing a drug test or cutting off an electronic monitoring bracelet.

Now, new court rules set by the state Supreme Court have put a time crunch on some pretrial detention hearings in New Mexico. So far, though, officials in the judicial system in Santa Fe seem to be making the new rules work and say they’ll make the criminal process more fair and get cases moving to trial more quickly.

The constitutional amendment that was passed by 87 percent of voters in November gave judges authority not to grant any bail at all for dangerous defendants, meaning incarceration until a trial or a plea. The amendment also allows defendants not deemed a danger to the community or a flight risk to be free pending trial without any requirement to post a bond.

State Supreme Court Justice Charles Daniels said the new rules on pretrial detention hearings aren’t directly related to the 2016 amendment, but are meant to reflect the spirit of it.

“The constitutional amendment calls for expedited review of detention decisions and we try to follow that lead with all of our rules by setting time limits that didn’t exist in the previous rules that ensure that these kinds of decisions, which impact defendants’ rights and community safety, be made quickly,” Daniels said.

“Our courts are underfunded, they’re understaffed, but this is a high-priority thing, so we’re requiring courts to act quickly. In virtually every one of those rules, you’ll see some time limits.”

If a defendant is incarcerated for violating conditions of release while on electronic monitoring or under pretrial services setting requirements such as drug or alcohol screening, a hearing now has to be called within three days.

If, at that initial hearing, the judge proposes revoking or changing the defendant’s conditions of release, a second, evidentiary hearing must now be held within seven days. At the evidentiary hearing, the defendant has the right to compel witnesses to testify and to confront those witnesses. The judge then must rule on keeping the defendant on the same conditions of release, modifying those conditions or revoking them completely.

The changes have forced judges to collaborate with district attorneys and public defenders on meeting the deadlines.

Before the rule changes, judges would typically schedule the hearings for when their schedules allowed, often on a “docket day” when status hearings or other matters for many different cases are considered.

The new rules requires courts to be more efficient, Santa Fe District Court Chief Judge Mary Marlowe Sommer said. Once a defendant is in custody for violating terms of release, a hearing must be held no later than three days after they are detained. A motion must also be filed by either the court or the prosecutor to consider revoking or modifying the conditions of release.

Judges still have discretion to issue a bench warrant for a defendant’s arrest if they feel that’s needed – for instance, when someone accused of battery on a household member is believed to have fled. But the new rules for bench warrants require more specificity as to how a defendant violated their conditions of release.

“If they cut the (electronic monitoring) bracelet, you’re not going to issue a summons,” Marlowe Sommer said. “You’re going to get a bench warrant immediately.”

The new time constraints means judges, prosecutors and defense attorneys need to be on the same page. Marlowe Sommer said there are staffers in the Santa Fe district attorney’s office who receive emails as soon as motions for revoking or modifying conditions of release or bench warrant are filed. In order to make sure the motions are heard before the three-day deadline, the judge now has the 4 p.m. hour blocked off every day so she can drop those hearings in as needed.

“Three days comes very quickly, so certainly you need to be more efficient and, to be more efficient, you need the collaboration of everyone,” Marlowe Sommer said. “We have not had very many problems on counsel showing up. It’s actually run pretty smoothly.

“There are more mechanics here, but in the long run I think it’s fair, and that’s really what former Chief Justice Daniels wanted to do.”

Morgan Wood, Santa Fe’s chief public defender, said the district attorney’s office has been emailing motions to her. She then sends each motion to a defense attorney who’s supposed to be in the courtroom for the three-day hearing.

Although it has been challenging to make sure she has enough personnel to cover all the hearings, Wood said she believes the new rules will cause cases to go to trial faster.

“Before, it wasn’t that automatic getting a person into court, especially so quickly,” Wood said. “It forces the court and the district attorney to get cases moving more quickly.”

On Tuesday, Marlowe Sommer held a hearing for a man accused of cutting off his electronic monitoring bracelet and a woman who a prosecutor said had three pretrial services violations. Both defendants were being held at the Santa Fe County jail.

The new rules apparently haven’t put a strain on the Santa Fe County Sheriff’s Office, which has the responsibility of transporting inmates to the courthouse, according to a department spokesman.

“We’ll get the information from the courts and we’ll abide by that time frame,” SFCSO spokesman Juan Rios said. “We adjust with the staff that we have and we’re able to cover them.”

The old rules governing revocation of conditions of release have been in effect since 1972, Justice Daniels said, and the old constitutional amendment regarding bond is modeled after the Pennsylvania Constitution of 1682. Daniels said the new amendment and rules are more in line with what other states, like New Jersey, are starting to adopt.

“I think what the voters of New Mexico have done, with an overwhelming voice, is probably the most significant improvement in our pretrial justice system here in my years in the law,” Daniels said. “I think that constitutional amendment and the rules that flowed from it help better provide for public safety and for the equal administration of justice, more than anything we’re done in the pretrial justice area in my 50 years in the law.”

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