Copyright © 2019 Albuquerque Journal
The mayor and district attorney have teamed up in a plea to New Mexico’s chief justice seeking intervention as Bernalillo County’s District Court continues on a path to shift the way that felony cases must be initiated.
And District Court is firing back, saying that the shift is necessary, “given the historic failure of the District Attorney’s Office to frontload cases,” resulting “in a waste of resources for all criminal justice stakeholders.”
District Court has been gradually reducing the number of grand jury hours available per week, meaning prosecutors must launch an increasing number of cases using preliminary hearings – a process Mayor Tim Keller and District Attorney Raúl Torrez say is resource-heavy and time-consuming.
Torrez said that in a grand jury system, it’s easy to notify an officer of the precise time he or she is needed.
“When we subpoena a police officer (for a preliminary hearing), we say, ‘Come at 1:00; bring a book.’ I have no idea if the defendant is going to show up. I have no idea if the witness is going to show up,” Torrez said in an interview with Journal editors and reporters. “And in contrast, with a grand jury I say, ‘Officer, come in at 3:15; you can do a presentation to the grand jury. I’ll have you back in the car answering calls for service at 3:30.’ ”
Torrez said preliminary hearings are routinely reset when a witness, officer or defendant fails to show up in court. And he worries that the reset cases will compound on top of new hearings.
He says there are two possible solutions: The Supreme Court could intervene to stop the grand jury cuts or consider changing the rules for preliminary hearings.
In their response, District Judges Stan Whitaker and Charles Brown wrote that preliminary hearings are efficient and effective. And “recognizing (the court’s) responsibility to push the system toward best practices” efforts to increase their use have been in the works for years.
And defense attorneys argue that preliminary hearings are a fair and transparent way of starting a felony case. They require parties to evaluate the strength of a case quickly, sometimes leading to earlier resolutions.
Pros and cons
It’s the latest flare-up in an ongoing argument in the 2nd Judicial District about how cases should be started.
Most are brought in one of two ways: a grand jury proceeding before a group of citizens or a preliminary hearing before a judge. The jury or judge is tasked with determining whether there is probable cause to support formal charges. The grand jury signs off on an indictment if it determines probable cause.
In a grand jury hearing, the panel of citizens determines whether to indict based, in general, on the testimony of a case agent during a secret and relatively short proceeding. A defendant is not present unless he or she is testifying. Torrez says it is easier to charge using a grand jury because they employ less strict evidence rules.
More witnesses – law enforcement officers and sometimes the crime victim – testify in a preliminary hearing, which is like a minitrial. It is open to the public and held before a judge.
A defendant is present and represented by an attorney who is allowed to question witnesses and present evidence.
Public defense attorney Jon See said that when his clients are confronted with the evidence and testimony at a preliminary hearing, they’re equipped to consider whether an early resolution is the best option.
“They were running a video, you looked drunk in it, or you had this drug on you, or you admitted that you did it,” See said he might tell a client. “Do you want to spend the next six months waiting for a trial and you’re going to probably get a worse plea offer? Or do you want to take this pretty good deal right now?”
More than half of the cases routed for a District Court preliminary hearing from Jan. 1 to May 15 this year resulted in a plea, according to District Court.
On the other hand, the state may see the weaknesses in its case.
“We’ve definitely had hearings where afterwards the plea got much better,” See said. “They’re like, ‘Wow, our evidence was not as good as we thought it was.’ ”
The judges suggest that sort of early evaluation might mean prosecutors end up dismissing fewer cases later in the process. They say that of cases opened and closed from January 2016 to May 2019, 26% were eventually dismissed by the prosecution, on average six months into the case.
“The DA’s Office tends to focus on getting cases into the system rather than the disposition of cases,” the judges wrote.
Torrez said his office has been using preliminary hearings for “Tier 3” cases, predominantly drug possession and property crime cases in which a defendant has a nonviolent history.
In recent months, preliminary hearings have taken place in both Metropolitan and District courts. But the DA recently notified District Court that it would no longer schedule preliminary hearings there.
Torrez said those hearings were being used mainly to clear a backlog, which has essentially been taken care of.
The shift away from an indictment-heavy system was recommended by the National Center for State Courts in studies of Bernalillo County in 2009 and 2015. And the court started a schedule to decrease grand jury time in November.
In the latter of those studies, the National Center for State Courts wrote that most prosecutors in New Mexico file a majority of cases by information rather than indictment. The court letter says that five of the state’s judicial districts do not use grand juries at all.
“Nationwide, where indictment by grand jury is permitted in state courts (approximately half the states), it is generally reserved for the most egregious and serious cases,” NCSC wrote. “Presenting all felonies to a grand jury in an urban justice system is quite unusual.”
Brown and Whitaker say the court has agreed to maintain some grand jury availability so that the DA’s Office can indict certain sensitive and complicated cases.
According to District Court, in late 2014, the court had one grand jury panel each day, five days a week, with a second on Wednesdays.
Now, panels meet for eight hours a day on Monday, Wednesday and Thursday. If the court’s reduction plan is fully implemented, a grand jury will be available only six days a month, according to Torrez and Keller.
That would allow prosecutors to start fewer than 10% of the county’s felony cases through indictment. Keller and Torrez estimate the system would then need to complete 23 preliminary hearings a day.
“Perhaps even more troubling, and again, from a policing perspective, assuming an average of two officers required for each hearing, the Albuquerque Police Department will have more than forty-five officers every single day sit in court for potentially hours on end, waiting to testify rather than answering calls for service,” according to their letter.
Judges Brown and Whitaker wrote in their letter to the Supreme Court that “preliminary hearings only require sufficient evidence to establish probable cause and many cases would not require an officer to appear at all.”
And they say the court has offered to design a schedule that would conserve as much officer time as possible.
Still, Torrez worries about the effect this would have on his office’s ability to keep up with cases.
“If there’s no accommodation either with the rules for preliminary hearings or access to the grand jury, you’re going to have another substantial backlog,” Torrez said. “Charged cases will drop, and the number of uncharged cases will go up. And they will sit in a stack.”