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New Mexico District Attorneys Express Concern About Pre-Trial Detention Rules

on October 2, 2017 - 6:34am
Los Alamos Daily Post

First Judicial District Attorney Marco Serna joined District Attorneys from New Mexico’s 13 Judicial Districts Sept. 26 in expressing concern regarding the implementation of the recently adopted pretrial detention rule, 5-409 NMRA in a letter to Chief Justice Judith K. Nakamura.

The District Attorneys collectively asked her to amend the rule to better protect the public, comport with established federal precedent and align with the intent of the recently adopted amendment to the state Constitution.

The letter to Justice Nakamura states that Rule 5-409 sets forth a procedure for prosecutors to initiate pretrial detention proceedings by motion and for district courts to hear and decided those motions. The rule was implemented in July as a result of the November 2016 amendment to the state Constitution which was intended to create a new, constitutionally-sound basis to detain dangerous defendants prior to trial. The letter indicates that the public voted overwhelmingly for the measure because they understood that it would mean that dangerous defendants would be kept in jail.

As implemented, the District Attorneys believe the rule has given rise to lengthy, cumbersome hearings and discovery litigation in district court resulting in defendants who pose significant risks to the public being released.

“For example, despite that the Second Judicial District Attorney (Raul Torrez) is exercising extreme caution by filing on less than 15 percent of eligible felony cases, his office is able to secure detention only one-third of the time,” the letter states. “Consequently, while violent crime is rising by significant amounts across Bernalillo County, the effective rate of pre-trial detention in that jurisdiction is less than five percent.”

In comparison, the detention rate for the U.S. District Court for the District of New Mexico is about 74 percent.

The District Attorneys state that in contrast to remarks made by Justice Charles Daniels in an extraordinary writ that “it doesn’t take longer than 15 minutes to hold one of these hearings; judges have been doing it for decades,” prosecutors from across the state are “routinely engaged in mini-trials that go on for hours, thereby wasting precious judicial, prosecutorial and police resources”.

The letter states that language pertaining to evidence for the hearings is routinely incorrectly interpreted to require production of all case-related discovery prior to detention hearing. It also raises that the rule as currently constructed has led to district courts believing that they can’t consider the nature of the current charges when determining defendant dangerousness.

“Demonstrably violent offenders – accused murderers, serial rapists, armed robbers and child pornographers – are being released because of this refusal,” the letter says.

The District Attorneys presented Justice Nakamura with amendments to the rule that they believe are “even-handed and conservative”, and are consistent with how pre-trial detention is handled in the federal system.