Stakes high for those held prior to trial

In January 2020, a dramatic scene unfolded at the intersection of Coors and Bluewater NW.

Witnesses told Albuquerque police the occupants of two trucks were firing at each other and then one crashed into a bystander’s red SUV. The other driver fled the scene and was not found.

Darin Gonzales, then 19, was taken into custody and charged with shooting at or from a motor vehicle, receiving stolen property and tampering with evidence.

Prosecutors asked for him to be held pending trial, saying his “conduct is dangerous because the defendant was allegedly firing a gun on a crowded street in a residential area. Several eyewitnesses were able to see the altercation and the discharge of the firearm which put them at risk of being struck by a bullet.”

That motion was granted and Gonzales was kept behind bars.

Five months later the case was dismissed, because — due to conflicting police reports — prosecutors said they were unable to prove the crime beyond a reasonable doubt. The defense had argued for dismissal based on a report by a gun crime detective that stated “there was not enough information to charge Darin with shooting at or from a motor vehicle because his statement could be seen as self defense.” That detective had declined to take the case and advised the officer not to charge Gonzales.

Gonzales wasn’t the only person in this situation over the past several years.

The Law Offices of the Public Defender found that 22% of defendants who were held pending trial didn’t end up being convicted of the crime for which they were locked up. Of the 2,129 cases — where detention motions were granted — that resolved by the end of 2020, 476 ended without a conviction. That number does not include cases that were turned over to federal prosecutors, were dismissed because of pleas in other cases or where the defendant was found incompetent, or where the defendant died.

“This whole system is predicated on innocent until proven guilty,” said Jonathan Ibarra, the felony supervisor at the Public Defender’s office who compiles that data for the office. “We don’t get to punish people because of something we think they did. You have to prove it and proving it means actually proving it — it doesn’t mean keeping somebody sitting in jail as some sort of other fix.”

Second Judicial District Attorney Raúl Torrez agreed that more needed to be done to effectively resolve cases in a timely way, but he stressed that the acquittal rate for cases is about .6%. He said a lot of the dismissals come down to witnesses or victims not being able to be located again or not cooperating with the prosecution within the case deadlines.

“I don’t have resources to go out into the community and track that person down and if I don’t get some way to find that person, we really run into challenges…,” Torrez said, adding that investigators send certified mail or email. “If there’s going to be an expectation that we get victims and witnesses to comply with (Case Management Order) deadlines then we need to fund the ability to go and track those people down.”

Torrez said this issue has gotten significantly worse during the pandemic and provided data that showed dismissals due to a lack of victim or witness cooperation more than doubled from 11.5% of cases where a pretrial motion was granted before the pandemic to 27% of cases since the pandemic began.

Noah Gelb, Gonzales’s public defender said his client’s case is illustrative of what’s happening.

“The government knows so little about these cases and these people at the time that they are asking for detention that you often find yourself in a situation as here, where not only was detention not warranted but essentially there was a very strong case that Mr. Gonzales was wrongly accused to begin with,” Gelb said. “There were a huge number of problems that developed in the state’s case against him.”

Changes to pretrial detention

Leading up to the legislative session, lawmakers, local law enforcement officials and political leaders have been advocating for changes to the pretrial detention system that would make it easier to keep certain people charged with violent crimes in jail pending trial. The push is part of the governor’s crime package, which also includes stiffer penalties for some violent crimes and more funding for law enforcement statewide.

Proponents of the legislation say New Mexicans are fed up with crime and want to put an end to the system’s apparent revolving door for violent criminals. But defense attorneys say that if it passes, a lot more people will be held in jail waiting for their case to be dismissed and who don’t deserve to be there.

In 2016 voters overwhelmingly approved a constitutional amendment to do away with cash bail. The move made it so a defendant would no longer be held indefinitely because they couldn’t pay a $100 bond while a defendant with means could pay and be released.

Currently, after a prosecutor files a pretrial detention motion, a judge can hold a person in jail pending trial if they are deemed to be dangerous and no conditions of release would ensure the safety of the community.

Rep. Marian Matthews, D-Albuquerque, is sponsoring the pretrial detention bill that will be part of the governor’s package. The bill had not been pre-filed by Monday and a draft has not been provided to the Journal.

“So the concept is to hopefully help us get a grip on the level of violence in the city and in the state…,” Matthews said. “What it does is essentially define a set of crimes — serious, violent offenses — which if a person is arrested for them and charged can create a presumption — which is rebuttable — that they are a danger to the community and there aren’t any conditions of release that would protect people or the community. So they would be held pretrial.”

Rep. Bill Rehm, an Albuquerque Republican, pre-filed a bill that would presume a defendant is dangerous and no conditions of release will protect the community if they are charged with a serious violent offense, brandished or discharged a firearm during a violent offense, committed the offense while on probation, parole or post-conviction supervision, failed to appear to a hearing in a felony case in the past, or have demonstrated a pattern of failure to follow conditions of release.

He said he based House Bill 27 on “watching the news and seeing who gets re-arrested.”

“I think the community is demanding that we revisit bail bond and they are totally upset with the way it’s working,” Rehm said. “I’m responding to the community’s concerns.”

A Journal poll conducted by Albuquerque-based Research & Polling in October found that more than three quarters — 77% — of likely city voters favored changing pre-trial detention to make it easier for those accused of certain crimes to be held in jail until trial. Among Republican voters, 86% supported the change and among Democrats 71% supported it.

UNM research

The University of New Mexico’s Institute for Social Research has been studying cases filed in Bernalillo County and looking at those who were re-arrested after being released from jail. Researchers have examined 23,345 cases filed in a period of four years — from the beginning of July 2017 through the end of June 2021.

Paul Guerin, the Director of the Center for Applied Research and Analysis within the Institute, said they found people who were arrested on felony violent crimes were not more likely to commit another felony violent crime if released pending trial

The institute found the current system — the Public Safety Assessment tool — is a better predictor that a person will commit future criminal activity than a previous iteration of Rehm’s bill or whether a person is charged with a firearm offense. However, the legislation Rehm proposed in 2021 was broader than what he is proposing this year and broader than what Matthews appears to be proposing.

“The risk is if we change the way we practice pretrial detention — we begin detaining more people who are charged with a violent crime, and don’t allow them to potentially be released pretrial until they can prove that they’re not a danger to the community — we risk holding lots more people who we would not expect to commit a new crime while out of the jail pretrial,” Guerin said.

Guerin emphasized that it is impossible to predict with 100% accuracy who is going to commit acts of violence, and violent crimes make up a small fraction of crimes committed.

Judges currently grant about 50% of the DA’s requests for pretrial detention. Torrez estimates that could increase to about 80% if lawkmakers pass the new law.

The 2nd Judicial District Attorney’s Office in Bernalillo County compiled its own data and found 15.6% of the people released pending trial committed new felonies before their case closed, and 6.7% were violent felonies. When the data set includes felonies and domestic violence misdemeanors, the overall recidivism rate is 18% and the violent recidivism rate is 9.1%.

Adolfo Mendez, Chief of Policy and Planning with the DA’s Office, said the question isn’t just about whether someone will commit a new crime.

“The question is whether or not they’re dangerous and who we’re moving to detain are individuals who present a danger to the community,” Mendez said. “That’s what the voters voted on. It wasn’t about predicting the future.”

He also pointed out that, of course, they are only counting “known crimes” not those that have not been reported or have not resulted in an arrest. Extrapolating from national data, Mendez said for every 100 criminal incidents, only 19 end up being “known.”

Matthews also brought this up, referencing the fact that only about 35% of homicides committed in 2021 have been solved.

Mendez said if the system changes to include rebuttable presumptions, prosecutors won’t necessarily file pretrial detention motions on all those cases.

More people will be held

There have been a handful of high-profile cases where a person was released pending trial and then re-arrested. One such case was that of 18-year-old Devin Munford. Munford had been arrested in December 2020 and charged with receiving stolen property, distribution of a controlled substance, and shooting at a building. He was released pending trial and then arrested again about four months later when investigators said he killed a “friend” he met at jail and robbed a convenience store.

The DA’s office has often cited Munford and others as examples of people who should not have been released initially.

But researchers say such cases are anomalies, not the norm.

“My primary belief is that evidence based practices should drive policy, or at the very least inform policy, but better to drive that policy,” Guerin said.

Ibarra, a former prosecutor and judge and now a public defender, began tracking all the cases where prosecutors filed pretrial detention motions starting in the spring of 2017. Around the first of every year he goes through and updates a spreadsheet, which currently contains the details of almost 5,000 cases.

The spreadsheet contains hundreds of cases where a defendant was locked up in jail for months but ultimately not convicted of a crime. Some of the cases ended in acquittals at trial, but most others were dismissed by the court or prosecutor.

Ibarra said if the law passes there will definitely be more people in custody but there won’t necessarily be less crime.

“You can’t hold everybody and you shouldn’t hold everybody,” Ibarra said. “The real impact is going to be the hundreds or thousands more people who are going to be sitting in jail who didn’t need to be there.”

DA Torrez said his prosecutors feel a lot of anxiety about getting a case wrong and locking up someone who did nothing wrong. However, he said they are dependant on investigations turned over by detectives.

“There are conversations publicly about arrests that are approved, and subsequent deficiencies in the investigations that come out,” he said. “But there are lots of arrest warrants that are proposed that are not approved by our office because it’s not there.”

Ends in tragedy

As for the pretrial detention bill about to be unveiled, Matthews stressed that “the goal of the statute is not to detain people who shouldn’t be detained.”

“What’s happening is that we certainly have people getting out on pretrial detention who have records of a series of violent crimes or a long criminal record, and they come out and they commit a violent crime,” Matthews said. “It’s not a science. I mean, you just try to do the best you can do.”

She said if 22.3% of the people held pending trial end up with their cases getting dismissed it’s “too many.”

“There are no easy answers to this stuff,” Matthews acknowledged. “Do defendants have an absolute right to justice and due process? Absolutely, there’s no question in my mind about that. … Do victims have a right to justice and a resolution of their case? Absolutely. And quite frankly, I think this society has a right to a functioning criminal justice system which acts to deter people from getting into trouble and rehabilitate every chance they get.”

Ultimately the life of Gonzales — who had spent months in jail before his case was dismissed — ended in tragedy.

On Dec. 15, 18 months after he was released from jail, Gonzales was killed in a shooting in an apartment in Northeast Albuquerque. Officers were called to the complex near Carlisle and Candelaria NE on a Wednesday afternoon to find a man had been shot and was “beyond help.” He died at the scene.

An Albuquerque Police Department spokesman said last week that homicide detectives are making progress on the case.

Gonzales’s mother referred the Journal to his attorney.

Gelb, Gonzales’s public defender, said confidentiality rules bar him from commenting on his client’s time in jail but he can say in general five months of incarceration for a young person is “absolutely devastating” and can lead to the loss of a person’s job and relationships with family and friends.

“What always strikes me is anytime you are dealing with a person who is in the criminal justice system it’s easy to think of them as another offender or a crime statistic,” Gelb said. “But the reality is they are real people who have lives that are deeply affected by their involvement in the system and it’s important not to forget that.”