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Attorney general supports district attorney in no-bail jail dispute

District Attorney Raul Torrez

District Attorney Raul Torrez

New Mexico Attorney General Hector Balderas

N.M. Attorney General Hector Balderas

ALBUQUERQUE, N.M. — The state Attorney General’s Office is supporting Bernalillo County District Attorney Raúl Torrez’s position that District Court judges are at times demanding too much evidence before holding dangerous defendants in jail without bond prior to trial.

The state Supreme Court this week is set to hear arguments over Torrez’s March 29 request for guidance on the implementation of a constitutional amendment allowing pretrial detention. He also wants the justices to force District Judge Stan Whitaker to reconsider his denial of pre-trial detention in two cases.

Whitaker on Friday filed his response with the court, saying prosecutors failed to meet the high burden of proof required for holding someone in jail without bond. He says there isn’t grounds to show that he “abused his discretion” and Torrez’s request to overturn Whitaker’s ruling in the two cases should be denied.

Torrez has complained that District Court judges have thwarted his attempts to fulfill the public’s wish to hold dangerous people in jail, noting that two-thirds of his office’s attempts for pre-trial detention have been denied.

The constitutional amendment saw overwhelming approval in 2016, and is designed to allow state District Court judges to outright deny bail to a felony defendant if there is “clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.” It was intended to replace the unconstitutional practice of judges setting high bonds as a de facto pre-trial detention.

But exactly what is necessary to meet the “clear and convincing” standard hasn’t been clear, leaving judges, prosecutors and defense attorneys wrangling.

Torrez claims some judges, including Whitaker, are asking for “mini-trials” and won’t accept a criminal complaint written by a law enforcement officer as sufficient evidence in support of pre-trial detention. He has asked the Supreme Court to clarify for the entire court system what evidence is necessary and the process for the detention hearings. Torrez also is asking the justices to force Whitaker to reconsider denials in two cases – those of Paul Salas, who is accused in 57 robberies and armed robberies, and Mauralon Harper, who is accused of shooting his girlfriend.

Attorney General Hector Balderas in his response filed Friday supports Torrez’s position, urging the Supreme Court to find that a district court can accept documentary evidence, like a criminal complaint or cellphone video, without violating a defendant’s due process rights and that, subject to case-by-case discretion, the state can meet the clear and convincing evidence standard through such evidence.

Whitaker says Torrez’s prosecutors failed to present “clear and convincing evidence” in support of their request for pretrial detention in those cases.

“In fact, the state does not even attempt to meet the clear and convincing standard necessary to take away a person’s liberty pending trial,” Whitaker’s attorney Joshua Granata wrote in the response.

Whitaker said both Salas’ and Harper’s cases needed “something more” than what the state offered as evidence, adding that witness testimony sometimes differs substantially from the description an officer outlines in a criminal complaint.

“(Torrez) is mistaken in his belief that holding the state to its burden is impractical – it is constitutional,” Whitaker said in his response.

Attorneys for Salas and Harper also filed responses on Friday.

Salas’ attorney, Jason Wheeless, wrote in his response that if Torrez wants another hearing, he should just file another motion demanding detention without bond. He said prosecutors now have Whitaker’s order “at hand to provide guidance on what sort of proof might be necessary to carry his burden.”

And Harper’s attorney, Jeff Rein, emphasized the fact that both men remain behind bars.

“This is not a case challenging a decision to grant bail despite the prosecution’s best efforts to present information on dangerousness,” Rein wrote. “Instead it is a test of how little information the State may present either to obtain or compel a decision taking away the freedom of a presumptively innocent person.”

Oral arguments in the case are set for Wednesday morning.