Copyright © 2015 Albuquerque Journal
The state Supreme Court will revise a heavily criticized rule designed to speed up felony cases in Bernalillo County, but Chief Justice Barbara Vigil also said District Attorney Kari Brandenburg has been misreading a key provision the district attorney says requires all existing evidence to be turned over to defense attorneys at the time of arraignment.
Albuquerque police have said they simply cannot meet that deadline, 10 days after indictment, in complex cases such as the road rage shooting of Lilly Garcia. And Brandenburg has cited the provision as the reason her office has voluntarily dismissed some criminal cases until prosecutors and police are able to meet the new deadlines and the charges can be refiled.
Both Brandenburg and the Albuquerque Police Department have said that means dangerous criminal defendants can be back on the street, temporarily facing no charges and with no restrictions.
But Vigil said Brandenburg is working under “a misconception” and that prosecutors are only required to turn over the initial evidence they relied on to file the charges or have already presented to a grand jury to return an indictment.
The Case Management Order, which sets the tight deadlines for prosecutors, stemmed from a huge backlog of criminal cases that contributed to serious crowding at the Metropolitan Detention Center.
Vigil, during a two-hour meeting of Supreme Court justices and local court and law enforcement officials, said the rule doesn’t require the district attorney to turn over all evidence in a case at arraignment, but that prosecutors have a continuing duty to turn over evidence as it develops before trial.
Brandenburg said after the meeting that she is sticking with her “conservative” approach in having APD turn over completed felony investigations before seeking grand jury indictments so her office does not have cases dismissed because they failed to turn over evidence.
“We don’t want cases dismissed,” she said. “We don’t have the resources to re-indict cases.”
Chief Public Defender Jorge Alvarado said in a telephone interview after the meeting that he believed prosecutors are required under the order to disclose more than just the information they relied on to file the charges – the position taken by Vigil – but less than described by Brandenburg.
“What they are required to turn over is information they have received,” Alvarado said. “That doesn’t mean the investigation has to be completed or they have to turn over information they don’t have.”
That information can include the criminal background of the defendant and potential witnesses, contact information for witnesses and witness statements that may not have been relied on by prosecutors to file charges.
Although the new rule requires prosecutors in Bernalillo County to turn over evidence at the time of arraignment, district attorneys elsewhere in New Mexico are required to do so 10 days after arraignment. That was the former rule statewide.
A defendant in custody must be arraigned within seven days of an indictment, and a defendant who is not in custody must be arraigned within 10 days.
The Supreme Court justices are considering giving prosecutors in Bernalillo County an additional 10 days to turn over evidence to defendants or their attorneys in more serious violent felonies, bringing the rule into line with the rule prosecutors in the rest of the state follow.
A court spokesman said the court should approve a revised order with new timelines in about a month.
They are also considering loosening other timelines for prosecutors for turning over scientific evidence analyzed by APD’s forensic laboratory.
Justice Charles Daniels also discussed possible changes in the order that had put the onus on prosecutors for failing to turn over evidence requested by defense attorneys, whether it exists or not, or if the prosecutor was unaware of the information.
During Tuesday’s meeting, the five justices questioned Brandenburg, members of her staff, APD Chief Gorden Eden, Chief Judge Nan Nash, District Judge Charles Brown and members of the public defender’s office about the Case Management Order, which went into effect last February.
Vigil said the order was necessary because “in this county cases wallowed for years in the system.”
Newly appointed Justice Judith Nakamura, a former district judge in Bernalillo County, said that 60 percent of the backlogged felony cases have been cleared and that the holdup is getting time to deal with the more complex violent crimes.
Judge Brown said that many of the cases dismissed by judges because prosecutors failed to turn over information were “2 or 3 years old.”
“It is not the new cases that are being dismissed,” he said.
Sgt. Liz Thomson, who heads APD’s homicide unit, said that of 41 cases charged this year, four have been dismissed but charges in those cases have been refiled.
Brandenburg said her office will indict around 2,000 cases this year, down from 5,000 last year.
Prosecutors are charging defendants through preliminary hearings instead of indicting all cases.
Meanwhile, the number of criminal trials has nearly doubled in the past year.