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Copyright © 2019 Albuquerque Journal
The death of a 23-year-old University of New Mexico baseball player earlier this month spurred policing initiatives and discussions of reforms within the criminal justice system, as state and local officials struggle to get a handle on violent crime in the city.
Both Mayor Tim Keller and 2nd Judicial District Attorney Raúl Torrez have referred to the suspected shooter – Darian Bashir – as an example of someone who should not have been let out of jail in prior cases.
Some in the legal community are pointing out that one of the main reasons 23-year-old Bashir was out on the streets and not behind bars was a failure by the District Attorney’s Office to prosecute a 2017 shooting that is eerily similar to the fatal shooting of Jackson Weller on May 4.
Early one Sunday morning in September 2017, Albuquerque police say, Bashir got into a fight with a young man in the Downtown bar district, pulled out a gun and shot him in the stomach. The man was seriously injured but survived.
The primary prosecutor on that case, Timothy Williams, has since been fired. He could not be reached for comment.
“Mistakes were made; there were mistakes,” said Michael Patrick, a spokesman for the DA. “There were important deadlines that were not met.”
The case was dismissed Jan. 22, 2019, six weeks before it was set to go to trial.
The court’s order to dismiss lays out those mistakes:
• The prosecution failed to meet several trial deadlines.
• The prosecution did not respond to numerous motions filed by the defense in early November 2018, but instead showed up to a hearing in mid-January with “unendorsed copies of responses.”
• The prosecution didn’t know whether the shooting was recorded by security cameras or even if a mobile camera trailer operated by the Albuquerque Police Department and stationed nearby was capable of recording.
• Seven out of eight witnesses had not been interviewed.
• The state argued that two civilian witnesses were critical to the case and asked for material witness warrants since subpoenas hadn’t been effective. However, the prosecutor never filed a motion asking for those warrants.
“Defendant has been under strict pretrial services supervision during the pendency of this case and the State had initially sought pretrial detention of the defendant,” Judge Cindy Leos wrote in the order. “The court considered lesser sanctions, however given the upcoming trial setting and the issues discussed herein, the court determined the appropriate sanction was dismissal without prejudice (meaning the charges could be refiled).”
Three weeks after the 2017 case was dismissed, Bashir was picked up in a brand new felony case.
This time, he was accused of firing a semi-automatic assault rifle from a car at another vehicle in some sort of “gang beef.” Police say Bashir and two friends all fired, but they didn’t hit anyone.
The DA’s Office filed a motion for preventative detention, but that was denied on Feb. 25.
In an 11-page order denying the state’s motion, Judge Richard Brown laid out the reasoning behind his decision to release Bashir on his own recognizance until his trial.
Because the 2017 shooting case was dismissed, Bashir did not have any charges pending against him when he was arrested. His criminal history included three misdemeanor arrests and two felony arrests but no convictions and no bench warrants. There was no record he had failed to comply with conditions of release in prior cases, according to the order.
“The state has shown by clear and convincing evidence that defendant poses a risk to the safety of the community or any other person,” Brown wrote in the order. “However, the court finds that the risk defendant poses can be reasonably addressed with appropriate conditions of release.”
Bashir was released from jail but was being supervised by Pretrial Services at Level Three, which is one level lower than the highest. The order barred him from possessing firearms, and it required him to maintain weekly contact with his attorney, to stay in the state, and to submit to drug and alcohol tests.
Those conditions of release were in effect the night Weller was shot and killed.
In an interview with Journal editors and reporters last week, Torrez alluded to this decision, saying findings like this are one of the issues his proposed constitutional amendment would address. His proposal aims to make it easier to detain defendants accused of certain crimes and to expand the grounds for imposing pretrial detention.
“There are people that we move for preventative detention and they have a finding this guy is a danger but you can’t prove by clear and convincing evidence that there is no condition where he wouldn’t be a danger. …” Torrez said. “That’s proven to be a very hard thing for us to puzzle out.”
However, defense attorneys and public defenders have pointed out that, if the 2017 case against Bashir had still been pending when he was rearrested in February, prosecutors would have had more options for keeping him in jail then.
“Had they re-indicted, it’s very possible that he would have been in custody and would not be facing this third case,” public defender Jeff Rein said. “Somebody would still be alive.”
Rules for Bernalillo County
Deadlines are stricter for Bernalillo County than surrounding jurisdictions because of the court’s case management order, and missed deadlines are not uncommon, according to Patrick, the DA’s spokesman.
“Since January 2017, nearly 500 cases have been dismissed for issues related to the CMO,” he said in an email. “Our office estimates a large percentage of those cases would not have been dismissed if the case was launched in any other county in New Mexico other than Bernalillo.”
In a brief interview with the Journal on May 10, Torrez said the issue with Bashir’s 2017 shooting case arose from the state’s inability to contact the witnesses in the case.
“What is not included is the witnesses that we rely on were subpoenaed for pretrial interviews multiple times (and) they didn’t show up,” he said. “It’s extremely frustrating in a case like that when you have identification issues that are critically important, we have to have these witnesses cooperating.”
A couple of hours after those comments were made, Williams was fired due to the numerous issues with the case, Patrick said.
He said he could not comment on whether any disciplinary action was taken against the prosecutor before he was fired, citing personnel matters. He could also not comment on how long Williams had worked in the office.
Joseph Sullivan, Bashir’s attorney, said he thought the problems with the case were not all Williams’ fault and his firing was a case of “misplaced aggression.”
One of the problems, Sullivan said, was that video was not collected from an APD mobile camera trailer stationed at the exact location of the shooting.
“It wasn’t a good case to be charged in the first place,” he said. “If there’s a video of the incident, clearly it’s a problem if it hasn’t been collected. This is a camera that is owned, operated and maintained by APD. It seems like that would be (the) easiest thing to recover.”
APD spokesman Gilbert Gallegos said he would have to do more research to determine what camera Sullivan was referring to and what happened in this case.
“I am also skeptical of the claim that failure to turn over video was the reason this case was dismissed, at least based on the order of dismissal,” he wrote in an email.