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NM High Court orders release of murder defendant

Copyright © 2014 Albuquerque Journal

The state Supreme Court has ordered the release of a murder defendant with mental disabilities who spent almost three years in jail awaiting trial after his cash bond was set at $250,000 – an amount the high court said was in effect impossible for him to meet.

The high court, hearing oral arguments in February, questioned whether the case indicates that rich and poor are getting different treatment when it comes to bonding out of jail, despite decades-old court rules intended to level the playing field and the constitutional provision that “excessive bail shall not be required.”

The state Constitution presumes that all defendants are bailable with “sufficient sureties.” In questioning attorneys, justices articulated a deep concern that District Judge Kenneth Martinez in this case, and possibly many other trial judges, are acting contrary to the rule – and setting bond based mainly on the charge.


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The defendant, Walter Brown, now 22, had no criminal record, no substance abuse issues, developmental disabilities resulting in an IQ of 70 and a reliance on his family for support. He also had a Pre-Trial Services psychologist’s opinion saying that he was likely to be “compliant” with any conditions that were set.

Martinez denied Brown’s request to fashion conditions that would allow his release and did not explain his reasons for doing so, either from the bench or in a subsequent order.

Martinez, who is barred from speaking on pending cases by the Code of Judicial Conduct, did not return a call seeking comment.

Brown is charged with felony murder and second degree murder in the May 13, 2011, fatal stabbing of James Moore. According to a prosecution summary of alleged facts, Brown was with two other people who entered the home of acquaintances without permission. When an argument broke out between his companions and the home’s occupants, Brown rushed in with a knife and stabbed Moore, penetrating the right side of Moore’s heart and killing him almost instantly.

Justices said they were concerned about a potentially systemic problem in trial courts, especially in the busy 2nd Judicial District Court in Albuquerque, leading to “pro forma” detention.

Justice Charles Daniels said the Constitution and state rules “created a presumption of releasability and required a judge to look at individual circumstances to determine whether this defendant is a flight risk or a danger instead of just putting a price tag on freedom… Why shouldn’t we follow the rules that we set down for our judges to follow?”

After ordering Brown’s release and sending the case back, Justice Richard Bosson said there will be an opinion issued on bail for the first time since the 1970s.

“It’s probably high time that we do so. Because if this is the state of the practice – and I say if – then we have a problem (with) our trial bench,” Bosson said.


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State rules order courts to determine the type of bail and which conditions of release will reasonably assure that the defendant will show up for court and ensure the safety of the community. A list of factors to be considered includes the nature of the crime, the weight of the evidence, the person’s history including physical and mental condition, family ties, employment status, time in the community, history of substance abuse, whether the person was on probation and whether the defendant posed any danger to the community.

“To merely take a shortcut and say it’s a serious offense is contrary not only to the letter and the spirit of the rule, but creates two classes of accused, the rich and the poor,” he said.

Defense attorneys Jeff Rein and Jody Neal-Post sought review of the bond – no other conditions had been set – by the Supreme Court after Martinez continued the bail amount.

Justices pressed both defense and prosecution about the practice on the 2nd Judicial District criminal bench.

“The judge came to a conclusion which might be within his discretion if he explained himself. What’s frustrating … is that we have no idea what he based this on,” Bosson said.

Neal-Post told the court that the psychologist who evaluated Brown had specifically addressed future dangerousness and found “no red flags … none of the kinds of indicators that make them worry someone is going to be able to comply.” And she said that during his pretrial incarceration, Brown has completed more internal jail programs.

Daniels asked the prosecutor, “What facts do we have in the record or did the judge have that would support a finding that this defendant was a greater flight risk than other defendants?”

Assistant District Attorney Guinevere Ice said she believes Brown’s high bail was maintained because the judge viewed him as a danger to the community, but she repeatedly said she could not speak for the judge’s reasons for keeping the high bond.

“In this particular case, the allegations are (that) he is the individual who went to a home with other individuals that were charged as well and he basically stabbed an unarmed man in the heart,” she said. Ice said she had consulted with the victim’s family before deciding to oppose bail.

There’s often a two- or three-year lag between indictment and trial in the 2nd District, according to the prosecution.