In response to the May 17 Albuquerque Journal op-ed regarding bail reform, it must be made clear it is absolutely not the New Mexico Supreme Court, nor the new bail system, that led to the recent tragic death of (UNM baseball player) Jackson Weller.
To provide background: New Mexico’s new cash-bail system gives judges the power to jail criminal defendants without bail when the prosecution shows a defendant is dangerous. It creates fairness whereby dangerous defendants are held – even if they have the money for bail – and non-dangerous defendants are released – even if they don’t have the money for bail.
It is the local district attorneys who must follow these bail rules, and others to provide justice and keep communities safe. In this case, that did not occur.
The Second Judicial District Attorney’s Office has named Darian Bashir as being responsible for Jackson Weller’s death. Bashir is, of course, legally presumed innocent of that crime. But today, precisely because of the new bail reform and because the prosecution did its job, he is in jail without any chance to get out on bail.
However, a look at the facts shows this new case was not the district attorney’s first opportunity to put Bashir in jail. In 2017, Bashir was charged in another shooting. If the prosecution had pursued that case, Bashir could have been jailed for up to four years. Instead this happened:
• Law enforcement failed to collect video of the shooting from a camera placed Downtown as part of Albuquerque’s Real-Time Crime Center. These cameras are supposed to capture what happened even when nobody is around to witness a crime.
• The prosecution failed to attend a hearing, missed deadlines extended by the court, and failed to file timely responses to motions.
• The prosecution failed to set up witness interviews and ensure witness availability using court rules.
• The prosecution failed to bring any witnesses to hearings in which prosecution witness testimony was required.
• The court considered all these failings and dismissed the case on Jan. 22, 2019. In the court’s dismissal, the judge gave the prosecution a chance to re-file the dismissed case and do it correctly. The prosecution didn’t re-file the case.
After that dismissal, the prosecution would have one more opportunity under the new bail reform to put Bashir in jail and keep him there.
Prior to bail reform in New Mexico, almost all defendants had a constitutional right to bail. That meant defendants known to be dangerous were constitutionally entitled to reasonable bail. Judges had no choice. If a dangerous defendant could pay that bail, they were released back onto the streets. This was catch-and-release of known dangerous criminals.
Now, judges have the power to jail dangerous defendants with no way to get out on bail. If a prosecutor moves for a defendant to stay in jail and can show the judge the defendant is dangerous, that defendant is not released.
But this system depends on the prosecution doing its work. It has to bring the witnesses and show the facts.
The prosecution had a chance to do this work in February when Bashir was arrested on a second case. But at the hearing to detain Bashir as dangerous, the prosecution called no witnesses at all and failed to show dangerousness. The court’s order noted the prosecution failed to produce the needed evidence or call any witnesses and also that the first case the prosecution brought against Bashir had been dismissed in January and not re-filed.
A fair justice system relies on prosecutors to re-file cases against dangerous defendants and provide evidence to the court to hold a dangerous defendant without bail. It relies on prosecutors to work their cases and provide proof. When the prosecution fails to do that, responsibility lies with it and not trial judges, the bail system or the New Mexico Supreme Court.