Copyright © 2017 Albuquerque Journal
In the months since New Mexicans voted overwhelmingly in support of a constitutional amendment allowing dangerous defendants to be held in jail without bond pending trial, the state’s busiest District Court is grappling with who counts as too dangerous and how that determination should be made.
Newly elected District Attorney Raul Torrez says his office, which represents cases in Bernalillo County, has met resistance from judges who often find that prosecutors have offered insufficient evidence to support pretrial detention. He says judges are asking for unrealistic “mini-trials” in order to find detention is necessary, while ignoring the will of the voters.
Defense attorneys say they are left unsure how to prepare for hearings. They are worried that the DA’s Office is trying to misuse the amendment and that judges’ decisions are confusing and vary widely.
“There are murder cases where it’s denied, there’s been one receiving/transferring (a stolen vehicle case) where it was granted. There’s no rhyme or reason,” said Jonathan Ibarra, an Albuquerque public defender. “Different judges have different ideas. Even the same judge has different ideas on different days.”
Judges say they take the pretrial detentions very seriously and question whether the DA is seeking them in cases in which they aren’t warranted.
The one thing prosecutors, defense lawyers and judges do seem to agree on: a need for more guidance interpreting the amendment.
Relief may be in sight. The state Supreme Court has been in the process of giving such guidance and has agreed to hear oral arguments April 12 on Torrez’s petition asking the court for a written opinion on how courts should interpret and apply the law related to pretrial detention hearings.
Prosecutors say they have filed motions for pretrial detention 72 times – only about 10 percent of their felony cases – and Bernalillo County judges have agreed to pretrial detention in only 26 of those.
Among those rejected by judges are suspected murderers, armed robbers (one is accused of holding up 47 businesses), abusive partners (often repeat offenders), armed carjackers and others.
“What I think is that we’re not delivering on the promise that was made when we presented the constitutional amendment to the voters,” Torrez said. “I don’t think we are meeting the public’s expectations about what that constitutional change would mean.”
His office targets for preventive detention those cases involving violent crimes or repeat offenders accused of “substantial property crimes,” he said. Prosecutors then consider the person’s criminal history, the charges in the current case and the strength of the evidence.
“In 90 percent of the (felony cases) we file, we don’t seek preventive detention,” Torrez said. “This is not something we are overusing, or using without taking into consideration the individual defendant’s character. We’re using it strategically, thoughtfully.”
In the state cases in which the motions are denied, judges often note either orally or in written orders that the state did not offer sufficient evidence to support preventive detention. The amendment requires judges to find clear and convincing evidence that “no release conditions will reasonably protect the safety of any other person or the community.”
Prosecutors often present a criminal complaint, which offers a narrative written by law enforcement of events surrounding a defendant’s charges. In orders denying preventive detention, judges have repeatedly called criminal complaints “unreliable evidence.”
Often, judges say that prosecutors should have brought a witness to the hearing – someone whom the defense can question, someone who can help authenticate the evidence presented.
A former assistant U.S. attorney, Torrez argues that – unlike state courts – federal courts “uniformly and consistently” find that prosecutors can make a case for preventive detention without calling witnesses.
And even though state judges continue to ask for more evidence, Torrez said prosecutors will continue to provide only the evidence that he believes is necessary. He called it a “principled disagreement.”
He points out that sometimes state court judges do find preventive detention is necessary, even when the state has only offered documents as proof.
“We are all trying to figure this out together,” he said. “I would in no way argue that judges are not applying the law according to their own best understanding, I just happen to disagree with what that standard is.”
No trend obvious
The cases in which prosecutors have sought pretrial detention vary tremendously.
Public defender Ibarra said he has seen preventive detention motions on just about every type of felony case.
“I think there’s a sense that (prosecutors are) filing it on ridiculous cases,” he said. “There are some cases they’re filing it on where it makes sense, but there’s plenty where it doesn’t. There’s a reason they’re winning on less than a third of their motions.”
Ibarra pointed to a domestic violence case he felt was particularly inappropriate for preventive detention. The case was against a man accused of choking his girlfriend unconscious and threatening to kill her, he said.
The defendant was not arrested until three weeks after the alleged incident, and Ibarra said the woman sent a letter to the court “saying that the incident never happened and that she lied.”
“This is a perfect example of a case that there is probably no way the state can win,” he said. “They are arguing he is so dangerous he can’t be out, even though the officer waited weeks to file a complaint.”
In a hearing Friday, the judge released the defendant on his own recognizance but ordered pretrial services, Ibarra said.
In another case, Judge Jacqueline Flores denied a detention motion for Morris Mora, a man accused of stealing a car and possessing heroin. In her order, Flores wrote that the state only offered court documents in support of its motion – three criminal complaints, plea and sentencing documents from a 2008 case, a risk assessment evaluation that did not recommend preventive detention, but that noted three failures to appear.
She said the allegations in the complaint were concerning, but the state did not meet its burden of proof.
The risk assessment tool does not reflect prior arrests – only convictions and pending charges. It has been called into question in the 2nd Judicial District, where the previous district attorney dismissed thousands of cases, saying her office couldn’t meet court-imposed time limits.
While the new charges against Mora were not as serious as some other cases in which prosecutors sought pretrial detention, prosecutors pointed out that Mora had two prior felony convictions. A DA’s Office spokesman also said Mora had dozens of previous arrests dating to 2003 and that his “activity has escalated” in recent months.
Presiding Judge Nan Nash said some cases have left her thinking, “This does not logically make sense when you think about the seriousness of preventive detention.”
Ibarra said he also hasn’t been able to track down any trends as to what leads a judge to grant or deny a motion. He said it is good that judges are evaluating each individual case on its merits, but the unpredictability means it’s tough to prepare for a hearing.
Torrez names two cases in his petition seeking guidance from the Supreme Court. In both cases, Judge Stan Whitaker denied the request for pretrial detention, ruling that each suspect should be held on $100,000 bond.
But a major argument by proponents of the amendment was that judges were setting excessively high bonds in violation of constitutional requirements in an effort to keep dangerous defendants behind bars pending trial. Proponents said the new amendment would allow pretrial detention without treading on the constitution.
One of the cases, which has received much media attention, involves Paul Salas, 46, accused of robbing 47 local businesses – sandwich chains, ice cream shops, auto parts stores. He confessed to the robberies, and in at least one case he is accused holding a gun to an employee’s head.
A prosecutor provided the criminal complaint detailing the allegations and evidence that Salas is a fugitive out of Arizona.
The other case involves Mauralon Harper, 38, accused of shooting and injuring his pregnant girlfriend.
In both cases, Whitaker denied the motions for no bond after determining that the state failed to offer clear and convincing evidence to support pretrial detention.
Jeff Rein, Harper’s attorney, said Whitaker expressed concern that prosecutors did not offer witnesses who could authenticate video evidence, a criminal complaint and images of text messages that the state intended to introduce in support of its motion. The DA’s Office did not provide witnesses in Salas’ case, either.
One indication of how important the courts view this issue is the fact that the Supreme Court scheduled oral arguments within two weeks of Torrez filing his petition.
6 defendants’ cases illustrate how judges make the call
Cases in which preventive detention was denied
Jorge Correa-Reyes is accused of killing a man during a drug deal, according to prosecutors. He also had a warrant for failing to appear in a Metropolitan Court case. Judge Briana Zamora wrote that she recognized that the allegations in the criminal complaint were concerning, “the state chose not to present any credible evidence in support of its motion.” She also said admitting the complaint without the presentation of testimony would violate Correa-Reyes’ due process rights. His bond is set at $100,000 cash or surety, and the judge ordered pretrial services. If released, he must also wear a GPS monitor.
Mauralon Harper is accused of shooting his girlfriend in the stomach after she told him to leave her apartment, according to prosecutors. Harper also has a pending robbery case and a warrant for failing to appear, prosecutors said. In denying the state’s motion, Judge Stan Whitaker wrote that the case had not been indicted and that a prosecutor chose not to call a witness from the investigating agency or a witness “who may have some personal knowledge as to the allegations.” Whitaker set Harper’s bond at $100,000 cash or surety, if released, Harper will have to be supervised by pretrial services and wear a GPS monitor.
Morris Mora is accused of stealing a car from a grocery store, according to prosecutors. When he was stopped, officers found a gun and heroin in the vehicle. Judge Jacqueline Flores wrote that Mora had not yet been indicted on the charges. She said that Mora was not provided an opportunity to challenge the state’s evidence, which included criminal complaints, documents from a 2008 case and a risk assessment, which did not recommend preventive detention. His bond was set at $1,000 cash only and the judge ordered pre-trial services.
Cases in which preventive detention was granted
Frankie Trujillo is one of three people accused of breaking into a home, tying up three occupants, blindfolding them and robbing them of their car keys and wallets at gunpoint, according to prosecutors. Trujillo faces dozens of felony charges in this case and has a separate pending murder case, according to court documents. In her order granting the motion, Judge Cindy Leos said based on those allegations, combined with Trujillo’s conviction history, probation violation and pending murder case, she found the state proved that no other release conditions would protect the safety of others.
Aaron Evangel shot at his girlfriend eight times as she tried to leave her home, according to prosecutors. He also beat up another woman “for extra drugs,” choking her to unconsciousness, prosecutors said. Judge Charles Brown mentioned in his order another pending case in which Evangel was afforded release, including GPS monitoring and bond. “None of these options have ensured the defendant’s compliance with court orders or appearances.”
Marcos Cordova is linked to 12 robberies at knife point in January and February, many of which were caught on surveillance video, prosecutors said. Judge Briana Zamora, in granting the motion, wrote that two criminal complaints establish the defendant “has repeatedly committed armed robbery.” She even said that one of the complaints was “particularly reliable and persuasive.”