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Judges and defense lawyers respond to DA’s proposal to Supreme Court

ALBUQUERQUE, N.M. — Second Judicial District Court judges and defense attorneys found common ground in urging the Supreme Court not to change the penalties that can be levied against prosecutors when they miss deadlines in criminal cases.

Their position outlined in reports and letters puts them at odds with District Attorney Raúl Torrez, who says prosecutors need more leniency when they miss those deadlines.

The sides are struggling over the impact of the Case Management Order, or CMO, which went into effect in February 2015, that Torrez says has caused many cases to be dismissed on “technicalities” and is the “most likely reason” for an increase in crime in the city.

Judges, public defenders and criminal defense attorneys each released reports recently in response to Torrez’s proposal to make changes to the order.

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Torrez in his June report asked the state Supreme Court to loosen possible sanctions when prosecutors miss deadlines so fewer cases will be dismissed.

Local judges and court officials said in their CMO reports that the sanctions should be stricter, not less strict. The court did say it is not opposed to other changes to the CMO, including some suggested by public defenders and the district attorney, such as extending the time limit for arraingments for out-of-custody defendants and changing deadlines for pretrial interviews.

“The reasonable conclusion to be drawn from the continued failures to disclose evidence and locate and make available witnesses is not that the deadlines should be extended or that sanctions should be loosened, but rather that stricter deadlines and stricter court adherence to those deadlines is warranted,” the court’s assessment states.

The Law Office of the Public Defender and the New Mexico Criminal Defense Lawyers Association also said sanctions shouldn’t be relaxed.

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The public defender’s office, in its CMO report, disagreed with the DA’s position that linked Albuquerque’s recent crime increase to  case dismissals due to technicalities. The public derfenders contended that a much more likely reason Albuquerque has seen an increase in crime is a complex issue linked to poverty, substance abuse and mental health.

Their report adds that the city’s police department is making significantly fewer arrests than in previous years. In 2010, Albuquerque police occasionally booked more than 2,000 people in jail in a given month. In 2016, the department arrested as few as 1,000 people per month, according to the CMO report by public defenders.

“We don’t give much credence to (Torrez’s) cause and effect. If there is a rise in crime, that largely comes from not having enough police officers on the streets,” said Scott  Wisniewski, a public defender who worked on the office’s CMO report.”If there’s not arrests being made, if there’s not cases being brought before the court in the first place, the rules of court aren’t going to make an impact at that point.”

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Torrez said that while overall Albuquerque police arrests have declined, the number of felony arrests has been relatively stable.

He said because of the CMO, his prosecutors can’t handle caseloads like they previously did because they have more difficult deadlines. Since criminal cases must be adjudicated much more quickly under the CMO, prosecutors can’t handle as many cases at once.

The CMO “was essentially an unfunded mandate,” Torrez said. “The rule was created without an appreciation for available resources. Either you have to change the resource or you have to change the rule.”

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Crime in Bernalillo County has been increasing since about 2010, according to FBI crime statistics. The CMO went into effect in February 2015.

“Their proposals would gut the rule and set us back to where we were three years ago with massive amounts of pretrial incarceration for people who are eventually going to be proven innocent,” Wisniewski said on the DA’s proposed changes to the CMO.

Since February 2015, criminal cases in Bernalillo County have had to follow a Case Management Order issued by the state Supreme Court setting earlier deadlines for proceedings in a case. The purpose of the order was to quicken the pace in which criminal cases were litigated.

Torrez, however, said after some cases were dismissed because prosecutors couldn’t meet CMO deadlines, some of those defendants have committed additional crimes, raising the city’s crime rate.

The Supreme Court asked the courts and defense attorneys to weigh in on the issue before it decides whether to make any changes.

The Case Management Orders were part of broader efforts to reform the local criminal justice system, which for years had an overcrowded jail packed with people waiting to have their cases tried. The Metropolitan Detention Center’s population now stands at about half of what it was in 2013.

“We are not saying that the courts shouldn’t have the availability to sanction us,” Torrez said. “All we’re asking for is that there is a case-specific discretionary determination that goes into those sanctions and it’s not an automatic thing.”


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