Three compound defendants file to dismiss charges - Albuquerque Journal

Three compound defendants file to dismiss charges

TAOS – Lawyers for three of the defendants arrested at a remote Taos County compound earlier this month have filed motions to dismiss the child abuse charges against them, arguing that prosecutors missed a crucial deadline.

The dismissal motions were filed by lawyers for Lucas Morton, 40, Subhanah Wahhaj, 35, and Hujrah Wahhaj, 37. The lawyers say that prosecutors missed a 10-day deadline to hold preliminary hearings for the incarcerated defendants to determine if there is sufficient “probable cause” to proceed to trial, and that the child abuse charges therefore should be dismissed.

Taos compound defendant Subhanah Wahhaj smiles at a court hearing last week after a judge ruled she could get out out of jail. But she and other defendants have not be able to find accommodations in Taos County and remain behind bars. (Roberto E. Rosales/Albuquerque Journal)

During the Aug. 3 raid of the ramshackle compound, officers found 11 children ages 1 to 15 who they say appeared to be malnourished. Each of five adults arrested after the raid faces 11 counts of felony child abuse.

The two other compound defendants, Siraj Ibn Wahhaj and Jany Leveille, both 35, have been in different legal situations. Leveille, a native of Haiti, was turned over to immigration authorities, who say she has lived in the U.S. illegally for 20 years. Siraj Ibn Wahhaj was being held under warrants out of Georgia for the alleged kidnapping of his 3-year-old son, Abdul-Ghani Wahhaj, in December.

Child remains found on the compound have been identified as those of the missing boy. The Taos district attorney is waiting on determination of cause of the death before filing any charges in the death.

Officials said Thursday that Georgia is no longer seeking extradition of Siraj Ibn Wahhaj. That means he now faces the same conditions of release as Morton, Subhanah Wahhaj and Hujrah Wahhaj. They can get out of jail if they have places to stay – under a controversial decision by District Court Judge Sarah Backus last week – but all of the defendants have remained in custody, because they can’t find local accommodations.

In one of the motions to dismiss the child abuse charges because of prosecution delays, Megan Mitsunaga, attorney for Subhanah Wahhaj, wrote: “Defendant has not caused delay in her case, as Defendant has requested no continuances and Defendant remains in jail. It is the State’s responsibility to transport Defendant for prosecution and timely (sic) to commence the hearing when she is in the custody of the State.”

Tom Clark, Siraj Ibn Wahhaj’s attorney, said Thursday that he planned to file a similar motion to dismiss.

There was no comment from the District Attorney’s Office.

In another development Thursday, a magistrate judge rescinded $5,000 cash-only bonds for Morton and Subhanah Wahhaj that had been imposed for criminal trespassing citations

Mitsunaga and Morton’s attorney, Aleksander Kostich, argued that for a judge to set bail on a trespassing charge, the Taos County Sheriff’s Office had to file a sworn affidavit that includes probable cause. Instead, the citations were issued on traffic tickets, but with “Non-Traffic” written on top by hand. The citations do say that the defendants had been asked to leave the compound site by the property owner.

“You can’t arrest someone on a criminal charge with a traffic citation,” Kostich said in court. “This is absolutely insufficient and fatally flawed under the law of New Mexico.” Ortega changed the bond to a $5,000 unsecured appearance bond, meaning the two defendants have to pay only if they are found to have violated any conditions of release.

Prosecutors maintain the defendants are dangerous, partly based on statements from compound children who say they were being trained for armed attacks on corrupt educational and government institutions that would be identified by Siraj Ibn Wahhaj’s dead son when he was resurrected as Jesus. An appeal of Judge Backus’ decision to allow the defendants out of jail is expected.

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