Copyright © 2018 Albuquerque Journal
SANTA FE – In an eight-page court order, Taos District Court Judge Sarah Backus spells out what prompted her to rule for release on a signature bond for five adults arrested at a makeshift compound in Amalia earlier this month.
People have threatened serious harm to Backus since the ruling on Monday, and the courthouse was put on lockdown Tuesday afternoon.
Backus wrote that prosecutors didn’t provide any evidence of child abuse when asking her to hold Siraj Ibn Wahhaj, 39, Lucas Morton, 40, Jany Leveille, 35, Hujrah Wahhaj, 38, and Subhanah Wahhaj, 35. All five remain in custody as of Wednesday evening.
The judge did admit that she was presented with “troubling” evidence at Monday’s no-bond hearing in Taos, but that it didn’t prove dangerousness to the community. And she said prosecutors asked her to make a lot of assumptions.
Taos District Attorney Donald Gallegos said he plans to file an appeal by the end of the week.
The five defendants were arrested at the makeshift compound Aug. 3 while the Taos County Sheriff’s Office was executing a search warrant.
Sheriff Jerry Hogrefe said in an affidavit for a search warrant that a message came from the compound saying the residents were starving, and the sheriff also had information that Siraj Ibn Wahhaj and his son, then-3-year-old Abdul-Ghani Wahhaj, were at the compound.
Siraj Ibn Wahhaj was wanted in Georgia for allegedly abducting the boy. Eleven children, ages 1 to 15, appeared to be malnourished and were taken into CYFD custody.
All the defendants were charged with 11 counts of child abuse. Siraj Ibn Wahhaj was also charged with custodial interference and Morton was charged for aiding a felon.
Though Backus ruled that the defendants would be allowed to visit their children under supervision, state Children, Youth and Families Department Secretary Monique Jacobson said Wednesday there are no such plans right now.
“We don’t have any visits planned with them,” Jacobson said. “Unless they are court ordered, I don’t see us having visits anytime soon.”
She said there are also no plans right now to enroll the children in public school.
At Monday’s hearing, prosecutors told Backus that Siraj Ibn Wahhaj was training the children to use firearms in a tactical way to bring down “corrupt institutions,” like the educational system, law enforcement and banks.
But Backus wanted to hear more about the condition of the children, and prosecutors Timothy Hasson and John Lovelace never obliged.
“The charges in all these cases are for child abuse,” Backus wrote. “The State produced no evidence of any abuse. … The Court has no information and none was presented as to their current conditions.”
Backus said she was presented evidence that a yet-to-be-identified child – family members have reportedly claimed that it’s Abdul-Ghani – died while in the defendants’ care, but no charges have been filed in his death. She said there was no evidence regarding his cause of death or that he didn’t receive adequate medical attention.
“The only evidence received by the Court regarding this child is that he was ill and disabled and that the defendants prayed over him and touched him on the forehead prior to his death,” the judge wrote. “…While the Court finds these allegations extremely disturbing, the allegations, without more, do not rise to the level of evidence that clearly convinces the Court that the defendants are a danger to any other person (all other children are in the custody of the State) or to the community at large.”
The Office of the Medical Investigator said it could take weeks to identify the body due to the level of decomposition. Prosecutors said at the hearing that one of the children said the boy died in February during one of the prayer ceremonies.
Prosecutors seemed to hinge a big part of their argument on information that the children were being trained to carry out terrorist acts. The judge said there was no evidence of that, either.
“No actual threats of terrorism or any credible evidence of a substantive plan was produced regarding the same,” Backus wrote.
One child told an FBI agent that Siraj Ibn Wahhaj had said that Abdul Ghani would be resurrected as Jesus and instruct them on what institutions to destroy.
“From this meager evidence the Court is requested by the State to surmise that these people are dangerous terrorists with a plot against the Country or institutions,” Backus wrote. “The Court may not surmise, guess or assume.”
Evidence was presented that the children were being trained to use guns and there was a shooting range on the compound, but Backus wrote, “The State conceded that any children exposed to firearms should be trained in their use.”
And none of the weapons were stolen or illegal, she noted. They are readily available for purchase at retail stores.
The defendants also didn’t have a criminal history, which is one criterion judges use when determining dangerousness.
“The State did not produce any evidence of any history of violence that would cause the Court to conclude that they are a danger to the community or are unlikely to appear at hearings or to abide by their conditions of release,” the judge wrote.
The DA’s Office said in court that Siraj Ibn Wahhaj took a trip to Saudi Arabia and suggested that he became radicalized on his return, but prosecutors also noted that devout Muslims are required to travel to Mecca, in Saudi Arabia, once in their lifetimes.
“The State apparently expected the Court to take the individuals’ faith into account in making such a determination,” Backus wrote. “The Court has never been asked to take any other person’s faith into account in making a determination of dangerousness. The Court is not aware of any law that allows the Court to take a person’s faith into consideration in making a dangerousness determination.”
The state rules for pretrial detention said, “The court shall deny the motion for pretrial detention if, on completion of the pretrial detention hearing, the court determines that the prosecutor has failed to prove the grounds for pretrial detention by clear and convincing evidence.”
The judge acknowledged in the court order that her decision would be controversial, and she said that law enforcement has worked “tirelessly” and “honorably” on the case.
“The Court is aware that it will receive criticism about this decision,” Backus wrote. “The canons of judicial ethics require that judges not concern themselves with public opinion and base their decisions in the law and the evidence presented in Court.
“In Court, the burden was on the prosecution to prove its case and it did not do so. For that reason, the Court has denied the motion for detention without bond.”
Gallegos said he stands by his attorneys’ presentation.
“Judges disagree with us all the time. That’s how the system works. I wasn’t surprised by the decision.”
Two of the defendants won’t be released under the terms set by Backus.
Siraj Ibn Wahhaj will held on a Georgia warrant for the alleged abduction of his son. Leveille, originally from Haiti, was taken into custody by federal immigration authorities on Tuesday.
“Leveille has been unlawfully present in the U.S. for more than 20 years after overstaying the validity of her non-immigrant visitor visa,” Immigration and Customs Enforcement spokeswoman Leticia Zamarripa said in an email Wednesday.