Lady Justice depicts the moral force in judicial systems. Her attributes include a blindfold, a sword and a set of scales that weigh the merits of evidence, for and against, in any given case.
It’s a personification that dates back centuries. The Egyptian Book of the Dead depicts a scene in which a deceased person’s heart is weighed against the feather of truth. The concept was embraced by Greeks and Romans.
But those scales in New Mexico often tilt in favor of criminal defendants on a range of issues, from pretrial detention to the rules governing preliminary hearings to the high premeditation bar for first-degree murder.
We even have a court-established right to privacy in trash placed in an alley Dumpster – meaning police in New Mexico need a search warrant before they can examine the contents. It’s a search-and-seizure protection that goes well beyond that set by the U.S. Supreme Court.
Bernalillo County District Attorney Raúl Torrez wants the Legislature to give those scales a nudge to better balance the rights of victims of sex abuse and violent crime by amending the state Victims of Violent Crime Act to:
• Prohibit the defense from interviewing minor children or developmentally delayed adults prior to trial.
• Make it easier to introduce evidence at trial of previously recorded statements of children and disabled adults – typically done in a Safehouse setting by professionals whose job is to ascertain what happened rather than to bolster or shoot holes in the case. Many cases never advance beyond this stage because they just don’t hold up.
• Allow adult victims of serious violent crime to refuse to be interviewed by the defense before trial; in all of these cases, child and adult, the defense could present written questions to a judge who would determine which of them could be asked by law enforcement.
The defense bar reacts with, “We object!” citing the Sixth Amendment right to confront and cross examine one’s accuser. But the law is clear: that right applies to trial – and it still would. Defense lawyers could still ask whatever they wish in front of a judge and jury.
Chief Public Defender Bennett Baur calls the proposals misguided and says they would actually cause more trauma. “If trial is the only place questions can be asked, then more cases are going to go to trial,” Baur contends. And “more children and victims would have to testify in public.”
That’s a difficult proposition to accept.
These proposals are not out of step with most of the United States. Far from it. It is New Mexico’s scales of justice that are out of sync. In the federal system, Torrez says, there are NO required pretrial interviews of witnesses. Other states allow victims of violent crime to refuse pretrial interviews. And more than 30 states, ranging from Texas to Tennessee, provide for the admission of previous statements by an alleged child victim.
“Asking a 7-year-old (by a defense investigator during a pretrial interview) to recount every graphic detail of a violent sexual attack is not what we stand for,” Torrez says.
Well, actually it is what we stand for under the current state of the law.
Torrez has asked Gov. Michelle Lujan Grisham to put the issue on the call for next year’s 30-day session, arguing this is a balanced proposal that protects the privacy and dignity of victims while ensuring basic due process to defendants.
His request should receive serious consideration from the governor, who has taken a tough-on-crime stance. Taking reasonable steps to reduce the trauma on victims of violent crime and child sexual assault is a much-needed balancing nudge of our scales of justice.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.