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Amendment would expand pretrial detention in New Mexico

Copyright © 2015 Albuquerque Journal

EDITOR’S NOTE: This is another in a series of stories on changes in the state’s bail system, including a proposed constitutional amendment. The previous stories can be found at

Despite a long rap sheet and a history of failing to appear for court hearings, Joseph A. Jaramillo of Albuquerque was entitled under the New Mexico Constitution to release on bail after he was jailed in May on 13 charges, including battery, child abuse, assault and felon in possession of a firearm.

State District Judge Brett Loveless set bail at $30,000 cash or surety, meaning Jaramillo at a minimum would have to pay or agree to pay a $3,000 fee to a bail bond company to get out of jail. Loveless also ordered the court’s Pretrial Services Division to supervise Jaramillo if he posted bail.

JARAMILLO: Failed to report to Pretrial Services

JARAMILLO: Failed to report to Pretrial Services

Jaramillo sat in jail for more than five months before he was able to get a bail bond company to post his bail Nov. 2. Four days later, a bench warrant was issued for his arrest for failing to report to Pretrial Services.

And, on Nov. 11, Jaramillo was dead, shot by Bernalillo County sheriff’s deputies after he allegedly rammed a deputy’s car with a stolen truck he was driving.

Sheriff Manny Gonzales says the incident began when deputies tried to pull over Jaramillo, 31, in the South Valley. Three deputies opened fire after Jaramillo crashed into one of the police vehicles, according to Gonzales.

Dangerous suspects who get out of jail on bail and then commit more crimes are the reason some state policymakers want to amend the state Constitution to allow judges to hold some defendants without bail until trial.

Federal judges can do that, and Jaramillo would likely have been held without bail if charged in federal court based on the seriousness of the charges he faced; the seriousness of his criminal record, including convictions for aggravated assault with a deadly weapon and armed burglary; and his failure to appear in court in at least eight different criminal cases since 2009.

Tony Torrez, the suspect in the fatal shooting of 4-year-old Iliana “Lilly” Garcia, and Davon Lymon, accused in the fatal shooting of Albuquerque police officer Daniel Webster, are being held without bail by federal authorities on weapons charges.

Under a constitutional amendment proposed by the New Mexico Supreme Court and backed by prosecutors and defense lawyers, a state judge could deny bail to a defendant if “the court finds by clear and convincing evidence that no release conditions will reasonably ensure the appearance of the person as required or protect the safety of any other person or the community.”

The amendment also includes language intended to keep defendants charged with nonviolent crimes from being held in jail simply because they can’t afford to post even a low bond.

As for the most violent felonies, currently a state judge can deny bail in only some first-degree murder cases and in limited cases in which a defendant has been previously convicted of one or more felonies. And the courts and defense lawyers tend to view a judge setting an exceptionally high amount of bail as denying it.

Amendment concerns

The Legislature will consider the proposed constitutional amendment in its 30-day session beginning in mid-January. If approved, the amendment will go to voters next November.

The proposal, which Democratic Sen. Peter Wirth of Santa Fe has agreed to sponsor, has run into some turbulence.

At a committee hearing on the amendment in October, Sen. Cisco McSorley, D-Albuquerque, said if the proposal becomes law, criminal defendants will need legal resources to fight for bail because, he said, defendants who are denied bail are more likely to be convicted.

Senate Judiciary Chairman Richard Martinez of Española, a retired state magistrate judge, said he was concerned that judges would misapply the standard of clear and convincing evidence, keeping jailed those defendants who should be freed pending trial.

Supreme Court Justice Charles Daniels said the standard is well established in law and that no defendant is going to be held on a judge’s whim. He also said those held without bail would have the right to an expedited appeal to the Appeals or Supreme Court.

So, what is clear and convincing evidence?

According to legal resources, clear and convincing evidence is a medium level of burden of proof. It is a more rigorous standard than “preponderance of the evidence,” which is roughly defined as at least 51-49, but a less rigorous standard than “evidence beyond a reasonable doubt,” which is required for conviction.

In order to meet the standard of clear and convincing evidence, a party must prove that something is substantially more likely to be true than untrue. Also, a judge must have a firm belief or conviction in its truth.

Possible restrictions

Under the bail system for federal defendants, a person can be jailed until trial if the government proves by clear and convincing evidence that no conditions of release would reasonably assure the safety of the community. A person can also be held if the government proves by a preponderance of the evidence that no conditions of release would reasonably assure the defendant’s appearance at trial.

Federal law, however, limits the situations under which a pretrial detention hearing can be held. Such a hearing is required before a defendant can be jailed before trial.

The government can seek a hearing when a defendant poses a serious flight risk or there is a serious risk that the defendant will obstruct justice or threaten a witness. Also, it can seek a hearing in cases that involve one of the following:

  • A crime of violence.
  • An offense with a maximum sentence of life in prison or death.
  • An offense for which the maximum term of imprisonment is 10 or more years as prescribed by the Controlled Substances Act.
  • Any felony if the defendant has been convicted of two or more of the above federal offenses or comparable state offenses.
  • Any felony involving a minor victim or involving the possession or use of a firearm or destructive device.

At detention hearings in these cases, there is a presumption that a defendant shouldn’t be released pending trial if the defendant’s criminal history and pending charge meet certain criteria.

If the Legislature chooses to approve the proposed constitutional amendment on bail, which would then go to voters, it could also pass a law to implement that amendment. That law – like the federal law – could restrict when a judge could hold a hearing on whether to detain a person pending trial. The Supreme Court could also adopt rules governing how the amendment is implemented.

The court now has rules for judges on how to set bail, and Arthur Pepin, director of the Administrative Office of the Courts, said the Supreme Court would adopt new rules for pretrial detention of defendants if the constitutional amendment is approved by the Legislature and voters.

Pepin said he couldn’t speculate on what the rules might include but said the Supreme Court would likely have a committee draft proposed rules, then seek public comment on them.