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Copyright © 2017 Albuquerque Journal
Bernalillo County District Attorney Raúl Torrez said he’s frustrated that state district judges have blocked most of his office’s attempts to keep those he says are dangerous criminal defendants in jail until their trials.
Prosecutors this year have tried 78 times to use a new state constitutional amendment – which voters overwhelming supported in the 2016 general election – that allows judges to keep some suspects in jail until trial if prosecutors can show there are no reasonable release conditions that will protect the public. About two-thirds of those requests have been denied.
So on Wednesday, Torrez petitioned the New Mexico Supreme Court, asking for a written opinion that guides lower courts on how to interpret the recent amendment that allows certain defendants to be held without bond while awaiting trial. He is also asking the justices to direct 2nd Judicial District Judge Stan Whitaker to reconsider his recent orders that denied prosecutors’ attempts to keep two suspects in jail without bond – called a no-bond hold.
One was an armed robbery suspect accused of holding up nearly 50 local businesses, and the other was a man accused of shooting his ex-girlfriend.
Local defense attorneys blasted Torrez’s petition as a waste of resources and an “outrageous” attempt to keep people in jail based on nothing but a police report.
“It’s absolutely chilling in its basic denial of basic due process,” Jeff Rein, an attorney with the public defender’s office, said of the petition. “We think this is an unfair challenge to judges when this is the DA’s responsibility and the DA’s problem.”
The same amendment also is aimed at keeping judges from setting bail amounts that prevent defendants from posting bail solely because of their financial inability to do so.
The amendment says that “bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”
Torrez said his office seeks the pretrial detention orders in fewer than 10 percent of the criminal cases that are filed. The defendants’ criminal histories and the nature of the charges they face determine whether prosecutors will seek the orders.
“I’m frustrated, and I know the community is frustrated,” he said.
As another measure to ensure that one of the suspects named in the petition remains in jail without the possibility of bond, Torrez asked the U.S. attorney to charge Paul Salas with federal charges in addition to the state charges.
During a federal hearing Wednesday morning that lasted about 10 minutes, U.S. Magistrate Judge Karen Molzen quickly ordered that Salas be held in custody until his trial. Salas, 46, is accused of committing 47 armed robberies in Albuquerque in recent months.
In state court, prosecutors tried to have Salas held without bond, but instead he was given a $100,000 cash-only bail. He has remained in jail since his arrest.
During Salas’ state court detention proceeding, prosecutors provided Whitaker with a criminal complaint – a sworn affidavit written by law enforcement that charges a person with a crime – to support the detention.
Defense attorneys said Wednesday that trying to get such detention orders only using court documents and no other evidence clearly contradicts established law in the state.
“The defendant has no way of challenging that. You are essentially at the mercy of the creative writing skills of a law enforcement officer,” Jason Wheeless, one of Salas’ attorneys, said in an interview. “I’m willing to bet police academies will start giving classes on how to write criminal complaints to get no-bond holds.”
Whitaker also said during the hearing that prosecutors had to provide some additional evidence – such as calling a detective on the stand to confirm the person in court is the suspect in the case – to get that detention order.
“I’m a little perplexed that we don’t have some testimony, some evidence other than a reference to a criminal complaint to support this,” the judge said during last week’s hearing. “There’s got to be more than just a presentation of documents.”
Torrez wrote in his petition that Whitaker “then represented that all of the criminal judges in the 2nd Judicial District Court had concluded that the State was required to call witnesses or provide ‘some evidence or testimony’ beyond information in the criminal complaint.”
Torrez said that amounts to forcing prosecutors to put on “mini-trials” shortly after a suspect is arrested to get a detention order. He said a criminal complaint should suffice in some cases.
“If the information in a criminal complaint is sufficiently reliable to take a presumed-innocent citizen, publicly charge him or her with a nefarious deed, and then put him or her in jail, there is no principled reason why it would not be sufficiently reliable to keep him or her there while awaiting trial,” Torrez wrote.
Journal staff writer Katy Barntiz contributed to this report