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Courts play New Mexico hold ’em

A photo of a defendant is projected during a morning meeting in the District Attorney's Office where personnel discuss potential candidates for pretrial detention. (Greg Sorber/Albuquerque Journal)

A photo of a defendant is projected during a morning meeting in the District Attorney’s Office where personnel discuss potential candidates for pretrial detention. (Greg Sorber/Albuquerque Journal)

Copyright © 2019 Albuquerque Journal

One man stands accused of killing and beheading a woman. Another of dumping that same victim’s body. Yet another man is charged with pointing a gun at his girlfriend. A fourth defendant was reportedly caught with a firearm, fentanyl and thousands of dollars in cash in his car. And then there was the man who police say was wearing only underwear and a mask as he threatened an off-duty officer with a metal bar.

It’s a Tuesday morning in state District Court in Downtown Albuquerque, and on this particular June day these are the people judges in the 2nd Judicial District have been asked to keep locked up until trial.

Six months into the year, prosecutors in Bernalillo County had sought to detain roughly 550 people, according to the District Attorney’s Office. Judges rejected about half of those requests, finding the state was unable to prove the person needed to be kept behind bars.

On this Tuesday, however, prosecutors are beating their average.

Of the five defendants facing detention motions, one, the man alleged to have had drugs, cash and a gun in his vehicle, is ordered to be released. Two are detained by the judge. A defense attorney agrees to the detention of another, simultaneously bringing up concerns about his competency. And the fifth, a man with mental health issues who both sides worried could be a danger to himself, will be released when his defense team can find a stable place for him. The prosecutor in that case goes to great lengths to explain that she doesn’t want to incarcerate the man, but detention seems to be the only avenue that might lead to an appropriate solution.

Under current law, the state has to prove to the court that no release conditions will reasonably protect the safety of the community.

Pretrial detention has been a contentious issue since 2016, when New Mexico voters overwhelmingly approved an amendment to the state Constitution that all but eliminated monetary bonds and spurred many policy changes.

In the years since, law enforcement and prosecutors have argued that judges and the current system have allowed dangerous criminals back on the streets, while defense attorneys continue to stress that released defendants are still considered innocent.

At times, including after the shooting death of a University of New Mexico baseball player allegedly at the hands of someone who had earlier been released by a judge, public officials have argued that the current system is broken and must be fixed.

pie chartThe rate at which judges in Bernalillo County deny detention motions has hovered around 50% since the new system took effect. District Attorney Raúl Torrez cites the percentage as he pushes for a constitutional amendment that would, among other things, make it easier to detain defendants who are accused of certain crimes.

Some say Torrez’s proposal may overestimate the danger posed by defendants who are facing specific charges.

Prosecutors say that they are doing their best to detain people who they think are dangerous under the current rules.

Defense attorneys counter that the DA’s Office is requesting detention too liberally. And that even if a defendant is ultimately released, he or she may be stuck in jail for days before a determination is made. That time in custody can have serious consequences, including getting fired, getting evicted and even losing custody of a child.

Deciding on motions

Each morning around 6:30 a.m., a group of paralegals and attorneys gather in the DA’s Office to pore over the latest felony arrests, determining which are detention candidates. To ensure a defendant remains in custody, the motions are filed by 1:30 p.m., when Metropolitan Court holds felony first appearances.

Under the office’s policy, the cases are divided into three tiers, and detention is discussed for each Tier One defendant – anyone who “by his present actions, criminal history, or both, appears to present an identifiable danger to public safety.” The criteria for defendants to make it into that tier include:

• Anyone facing one of 14 offenses, ranging from murder to shooting from a vehicle.

• Anyone facing a felony charge who “at the time of the crime or arrest, had a firearm immediately accessible.”

• Certain defendants with a history of multiple arrests – or convictions – that include a violent felony.

In the past year, the local district attorney has sought to detain 73% of Tier One defendants, according to a spokesman.

Office policy discourages prosecutors from focusing on the outcome – whether a judge is likely to grant or deny the motion – when they consider seeking detention. It says that “above all, prosecutors should attempt to assess the defendant’s potential dangerousness through the common sense perspective of the public at large, not based on the likelihood of success of the pretrial detention motion.”

Adolfo Mendez, chief of policy and planning, said the final call is the judge’s, but that doesn’t stop prosecutors from filing when they think a person poses a danger.

“We think that they are righteous decisions. We think we’re doing the right thing. It’s not arbitrary; it’s thought out,” Mendez said. “Is the right thing to do, to protect the community, moving to detain?”

The DA’s Office says 30% of defendants released after a detention motion pick up new charges while they’re on release – many more than the University of New Mexico’s Institute for Social Research found in its own review of around 1,500 local cases.

That analysis determined 17% of people who were released after the DA’s Office sought detention went on to commit new crimes, which is marginally higher than the 15% reoffense rate among people the DA’s Office did not try to detain. Still, a handful of especially egregious release cases have made headlines. Soon after Charles Taylor was released in an auto theft case, he was accused, and eventually convicted, of breaking into an elderly woman’s home and raping her.

Fighting detention

Jonathan Ibarra, an assistant public defender who tracks detention outcomes, said judges generally detain defendants facing the most serious crimes, like murder and rape. And they are more likely to hold people who have a history of performing poorly under court-ordered conditions of release.

“That’s a huge problem for us,” he said. “That’s probably the biggest indicator.”

Although the defense frequently succeeds in the end, Ibarra said defending a detention motion requires considerable resources, and defendants are left behind bars as they await a hearing.

“These take a lot of time for us,” Ibarra said. “We have to do it quickly. Everything else has to get pushed to the side in order to try to do our best to get ready to defend a detention motion. … Frankly, that sucks.”

It’s even worse for the people who are sitting in jail simply waiting for the hearing where they will ultimately be released, he said.

Hearings have to take place within five days, but Ibarra said it’s possible for a defendant to spend more time in custody from arrest to release. And that much time in custody can destabilize a person’s life.

“Maybe they’ve lost jobs, they could lose homes, custody of their kids, things like that, because they’re stuck in jail,” Ibarra said. “And there’s nothing they can do about it.”

Difficult decisions

Caught between prosecutors and defense attorneys are state district judges, who are called upon to make these high-stakes decisions on a daily basis.

Earlier in her career, Judge Cristina Jaramillo might have stayed up at night wondering whether a person she freed would do something awful.

“I’ve been on the bench for 16½ years,” she said. “I gave up trying to predict the future a long time ago.”

Now, she understands that she has to live with the decisions that she makes. Her job, she said, is to craft the best ruling that she can with the information presented to her.

“No crystal ball, no predictive abilities,” she said. “You just make a decision.”

Judges consider a series of factors: charges in the case, the weight of the evidence, criminal record and a public safety assessment designed to predict likelihood for reoffense and flight, among others.

Sometimes people who are released go on to reoffend, but a judge’s personal feelings or fear can’t be a factor, Jaramillo said.

“I mean, if we lived by that fear, everybody would stay in custody,” she said. “And that’s not right because there’s been no adjudication of guilt and it rubs against the law, our Constitution, our morals and our beliefs.”

Among the factors judges consider is a Public Safety Assessment, which aims to predict whether a defendant will behave on release and return to court based on information such as age, criminal record and a defendants history of failure to appear. In Bernalillo County, each person is placed into one of six color-coded categories ranging from dark green, release without conditions, to bright red, detain or release with maximum conditions.

Jaramillo said judges are seeing lots of red-category cases where the state has not requested detention, and she points out that judges can’t impose pretrial detention without that motion.

On that same Tuesday in June, the district attorney has declined to seek detention for two defendants whose assessment scores recommend it. Both are accused of nonviolent drug and property crimes. On the previous day, prosecutors decided against attempting to detain two more high-scoring defendants: a man facing fraud and larceny charges, and a woman accused of punching her neighbor and stealing several items from her apartment.

Torrez’s proposed constitutional amendment would allow the court to bring its own detention motions.

mug shots

Outcomes

One by one, defendants clad in shackles and orange jumpsuits make their way into the heart of the courtroom. With an attorney at their side, they listen as prosecutors argue, in many cases, that nothing short of incarceration will protect the community.

On the Tuesday in June, Andrew Garcia, the man accused of murder, lands in the yellow category – release with Level 3 conditions. His lawyer agrees to detention before Judge Charles Brown. His co-defendant, Eric Emerson, is in that most egregious red category. Brown notes Emerson’s history of skipping hearings and failing to comply with court orders, and agrees to detain him.

In another courtroom, Judge Jacqueline Flores frees Gabriel Ramirez, the man police say had drugs and cash in his vehicle. Ramirez is in the middle-green category: release with Level 2 conditions. His lawyer notes that he had been with another person and it was not clear who owned the items. Flores also declines to detain Ethan Castillo, who lawyers worry is mentally ill and might hurt himself. Instead, she says he will be released when a stable residence is found for him.

Flores opts to detain Mark Arnold, even though he is ranked in the lowest, greenest category by the Public Safety Assessment: release on his own recognizance. Arnold is in court that morning amid allegations that he pointed a pistol at his girlfriend during an argument. While he has no criminal convictions, prosecutors say he’s faced several domestic violence allegations since 2011. Flores detains him.

“The pattern is undeniable,” she says.

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