Copyright © 2017 Albuquerque Journal
Dairon Romero’s felony auto burglary case should have been dismissed Aug. 4.
Instead, the case remained open for 25 more days because the court violated a rule that requires dismissal if prosecutors fail to formally file charges in District Court within 10 days.
That’s according to a writ filed in state District Court on Monday by Romero and another man alleging Bernalillo County Metropolitan Court judges routinely violate the 10-day rule.
According to the rule cited in the writ, if a defendant is in custody, his or her case must be filed in District Court within 10 days. For a defendant who is not in custody, the state has 60 days to take the case to District Court. If those deadlines aren’t met, “the court shall dismiss the case without prejudice and discharge the defendant,” the rule states.
While court records show Romero was in custody on other violations, his attorney said he would have gotten out of jail sooner if the court had dismissed his auto burglary case when it was supposed to.
The other petitioner, Dustin Jessamine, was accused in late July of domestic violence charges. The writ contends his case should have been dismissed Aug. 10, but dragged on until Aug. 28.
“You want to prosecute them? Prosecute them,” said public defender Alan Wagman, who is representing the petitioners. “But don’t hold them in jail just because nobody feels like letting them out.”
Asked for comment Wednesday, a spokesman for the Attorney General’s Office, which is representing the Metro Court judges, said they would review legal options when they were properly served with the pleadings. Judges Christine Rodriguez, Linda Rogers and Edward Benavidez are named as respondents.
But according to the writ, some judges don’t believe they have the authority to dismiss a case, or they believe the District Attorney’s Office is responsible for doing so.
Romero was finally released Aug. 29 when the DA’s Office filed dismissal documents that said investigation into the incident was ongoing and charges would be brought at a later time.
The writ argues that for a few weeks, Judge Edward Benavidez agreed to dismiss cases when the 10-day limit expired for incarcerated defendants. To make that arrangement work, attorneys agreed to submit to Benavidez daily lists of cases eligible for dismissal under the rule, because the court has no mechanism for keeping track of such cases.
According to the writ, that’s a sign that judges do have jurisdiction to dismiss cases that have missed the rule’s deadlines.
Wagman said in an interview Wednesday that a pending felony case has serious implications for defendants both in and out of custody. He said some cases, even though they appear to be abandoned, may drag on for years.
“They’ve got an open pending felony case that the DA may never prosecute. The DA may have figured out there is no case,” Wagman said. “And it’s open and pending and they’re losing jobs, they’re losing housing, they’re losing their children or are in danger of losing their children, because the court is not doing its duty and dismissing the cases.”
The petition asks the District Court to direct Metro Court judges “to immediately and to henceforward” follow the rule.