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Copyright © 2019 Albuquerque Journal
That’s how U.S. District Judge Martha Vázquez described the federal court system in New Mexico, where there are more than 900 criminal cases for each of the four sitting District Court judges after Judge Judith C. Herrera took “senior status” in July.
Three vacant judicial positions have put local judges in “panic” mode despite federal judges from around the country coming in to help with immigration cases and civil lawsuits in the New Mexico district that is historically among the busiest in the country, in part because of the large number of drug and immigration cases.
And there is no indication when the court will get a “lifeline” in the appointment of two new judges who have been nominated but whose approval by the U.S. Senate appears to be mired in the politics of Washington, D.C.
“The increasing criminal caseload is impacting our ability to handle civil cases,” said Chief Judge William P. Johnson, who along with Vázquez sat down for an interview with the Journal.
The Administrative Office of the U.S. Courts considers each of the three vacancies in New Mexico a “judicial emergency.”
The situation is so dire that judges from New York, Ohio, Indiana, Louisiana, New Hampshire and Wyoming have come to New Mexico to help. They have taken over some civil cases and sentencing defendants for illegal re-entry cases in Las Cruces, Johnson said.
Even 10th U.S. Circuit Court of Appeals judges – Senior Court of Appeals Judges Bobby B. Baldock, Paul J. Kelly and Court of Appeals Judge Joel M. Carson – have pitched in by taking over some civil cases.
“That doesn’t happen anywhere else,” Johnson said.
Chief U.S. District Judge for Wyoming Scott Skavdahl, who has been handling cases here, said in a telephone interview, “The load of criminal cases in New Mexico is tremendous. I think I sentenced 150 people in a week in Las Cruces when I was there this year. That’s as many as I may sentence in a year in Wyoming.”
For the four remaining full-time judges, the process of filling the judicial vacancies here has been agonizingly slow, Johnson said.
Two of those seats have been vacant for more than a year, and U.S. District Judge Judith Herrera moved to senior status in July. A judge under senior status typically carries a lighter caseload.
Herrera gave notice of her intention to take senior status last September, but interviews for her replacement have only just begun.
“There are no small criminal cases in federal court,” Vázquez said. “The harsh reality is that defendants face serious prison time in federal court. People don’t walk out. The sentences are harsh. We should have the time to really consider each case.”
Vázquez, who was appointed by former President Bill Clinton, said that normally a chief judge in a district takes a reduced caseload to handle administrative tasks, which she did when she was chief judge.
“Judge Johnson hasn’t done that,” she said. “He carries a full load of cases.”
Johnson, who was appointed by former President George W. Bush, said he couldn’t “in good conscience” take a reduced caseload considering the time and effort other judges are putting into handling the caseload.
Last year, Senators Tom Udall and Martin Heinrich, both Democrats, sent a list of potential nominees to the White House after consulting with then-Rep. Steve Pearce, a Republican.
After the nominations sat in the White House for months, President Donald Trump in May nominated State District Judge Kea W. Riggs of Roswell to replace U.S. District Judge Christina Armijo, who took inactive senior status in February 2018.
Riggs’ nomination was approved by the Senate Judiciary Committee this summer and passed on to the full Senate, but no date for a vote has been scheduled.
Udall and Heinrich said they have asked Senate Majority Leader Mitch McConnell, R-Ky., to schedule a vote as soon as possible.
In June, Trump nominated U.S. Magistrate Judge Kevin Sweazea of Las Cruces to replace U.S. District Judge Robert Brack, who went to senior status in July 2018.
Sweazea’s nomination has not been scheduled for a hearing before the Senate Judiciary Committee, and staff members for Udall and Heinrich said he is still being “vetted.”
It is hard to tell if the holdup of Sweazea’s nomination is over a specific issue or just part of the larger fights between Democrats and Republicans.
Sweazea has received the American Bar Association’s highest endorsement with a unanimous “well qualified” recommendation from the ABA’s committee. Riggs received a “well qualified “recommendation from the majority of the committee
Prior to becoming a federal magistrate judge, Sweazea was a state district judge in the 7th Judicial District, which covers Catron, Socorro, Sierra and Torrance counties, one of the largest districts in the country in square miles, from 2001 to 2017.
Sweazea received high marks from attorneys and court staff in the last survey by the state’s Judicial Performance Evaluation Commission report before he became a federal magistrate judge.
His one brush with controversy came in 2012 when he ordered a marriage license issued for a pregnant 15-year-old girl and the former police officer, in his 20s, who had sex with her in what state law considered rape.
The girl’s parents petitioned the court for the marriage license under another state law that “permits a person under the age of 16 to be married only in the event of pregnancy.”
Sweazea heard the petition – which was unopposed – at a public hearing where a prosecutor was present and signed the order that the marriage license be granted. The girl and the adult male were married by another judge the same day.
Subsequently, the former police officer was charged with fourth-degree criminal sexual penetration and other crimes. The case was later dismissed with prejudice by Judge Fernando Macias of Las Cruces.
But Sweazea is not alone in having his nomination languish.
Other Trump court nominees announced in June have also not been scheduled for committee hearings, including nominees for posts in California whose nominations were sent to the Senate in February.
The ranking Democratic member of the Judiciary Committee, Sen. Diane Fienstein, D-Calif., has been at odds with the White House over judicial nominations, with both sides accusing each other of failing to cooperate in the nomination process.
Udall’s and Heinrich’s offices report that they are now interviewing potential candidates to replace District Judge Herrera.
“The backlog facing our courts needs to be addressed to ensure our justice system operates how it is supposed to with speedy and fair trials. That’s why we are working to see these vacancies filled with qualified candidates as soon as possible,” Udall and Heinrich said in a joint statement.
New Mexico has long had one of the heaviest criminal court dockets in the United States court system, along with other judicial districts on the U.S.-Mexican border.
Immigration cases make up about three-quarters of the more than 3,900 federal criminal cases filed in New Mexico over the last year. Those cases include 4,500 defendants.
While many immigration cases are disposed of quickly – often taking a little more than a month from arrest to sentencing – the court is facing an increasing number of more complex criminal cases.
The Department of Justice has announced programs to target violent street crime and crimes on tribal lands in addition to increased enforcement of immigration violations.
The U.S. Attorney’s Office in New Mexico received funding for 19 additional prosecutors who have been hired to target violent crimes and gun crimes around the state, domestic violence and violent crimes on tribal lands, and border crimes.
The number of federal prosecutors working on crimes on tribal lands nearly doubled in the last two years from six to 11 attorneys. New prosecutors have also been assigned to a special section in Las Cruces to handle border crimes, in particular re-entry by people who have been deported previously.
In addition to the new hires, three assistant district attorneys from Albuquerque have been commissioned as special assistant U.S. attorneys devoting their time to gun and violent crimes that would otherwise be prosecuted in the state courts.
Bernalillo County District Attorney Raúl Torrez, in cooperation with U.S. Attorney John Anderson, is pushing as many violent felony cases as he can into the federal system because defendants tend to be held in custody pending trial and face much tougher sentencing.
Johnson said he “understands the District Attorney’s position, but it is only going to increase our caseload.”
Nights and weekends
For years, federal judges from Wyoming have been coming to Las Cruces to handle a week’s worth of felony sentences to give New Mexico judges a break to preside over civil cases or criminal trials, or even to take a vacation.
Three years ago, federal judges in Wyoming began taking on 40 civil cases each year that are assigned randomly from the New Mexico district. They often travel here for hearings.
“The civil cases are very important,” U.S. District Judge Nancy Freudenthal of Cheyenne said in a telephone interview. “The criminal docket is very burdensome, but citizens in civil cases deserve a timely hearing of their cases.”
Freudenthal compared trying to manage both civil and criminal dockets in New Mexico to “managing a fire hose with the water coming at you.”
The judiciary uses different methods to determine the weight of the caseloads on individual judges, but by any measure the federal district in New Mexico has one of the heaviest caseloads in the country.
“The only way to deal with that is working nights and weekends,” Freudenthal said. “The judges in New Mexico go beyond the call of duty.”
In a recent anti-fracking case filed against the Bureau of Land Management by two environmental groups, Johnson made it clear to attorneys that it would not be moving quickly.
“Counsel for various parties have repeatedly called my office requesting information on a possible hearing date for (a preliminary injunction request) and members of my staff have informed counsel that a setting in the near future was unlikely, in light of the current state of affairs in this district,” Johnson wrote.
“… The overall caseload of the District combined with the current judicial vacancies has created a situation where … I am not able to proceed to adjudicate civil cases as timely and as efficiently as in the past. …
“I must give priority to criminal defendants because their liberty interests are at stake.”
• New Mexico’s seven-judge federal court has three vacancies.
• There are more than 900 criminal cases for each of the four sitting judges.• Federal judges from across the country come in to help out by handling some civil cases.
• Two of the vacancies occurred more than a year ago; Washington has been “agonizingly slow” to fill them.