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Copyright © 2018 Albuquerque Journal

TAOS – District Court judges in Taos on Wednesday dismissed all the initial child abuse counts against five defendants arrested at a remote Taos County compound earlier this month, and three got out of jail late in the afternoon.

Lucas Morton, Subhanah Wahhaj and Hujrah Wahhaj were freed about 4:40 p.m. after more than three weeks behind bars. Judge Emilio Chavez had dismissed their charges at a hearing Wednesday morning, saying he had no choice because of court rules.

In a second hearing later, District Judge Jeff McElroy dismissed the same set of child abuse charges against the other two defendants, Siraj Ibn Wahhaj and Jany Leveille, for the same reason.

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But they both still face more serious charges of child abuse resulting in death after Wahhaj’s son died months ago at the compound. Leveille, a native of Haiti, was previously turned over to immigration authorities who say she has lived in the U.S. illegally for 20 years.

From the bench, McElroy also blasted the office of District Attorney Donald Gallegos of Taos for how the charges have been handled, citing a “complete failure to follow proper procedures in prosecuting the case,” which has attracted national attention because of alleged terrorism plans by the compound residents.

McElroy blamed prosecutors for putting judges in the position of having to release the defendants and for threats that another judge received over a previous ruling in the case.

The child abuse charges can still be refiled by prosecutors.

Defense attorneys pointed out in court filings that the District Attorney’s Office failed to schedule preliminary hearings within 10 days of the arrests that resulted from an Aug. 3 raid on the ramshackle compound near the community of Amalia.

Preliminary hearings, in which a judge determines whether there is “probable cause” for a case to proceed to trial, are required by the 10-day deadline when the defendants remain incarcerated instead of being free on bond pending trial.

“I’m obliged under my oath to uphold the law of the state, and there is no reason why the District Attorney’s Office didn’t file a request for a preliminary hearing,” Judge McElroy said from the bench. “… It’s disturbing to me that the District Attorney’s Office would put the court in this position. … It was not the decision of this court. It was the decision of the district attorney.”

Prosecutor John Lovelace said the DA’s Office expected the defendants to get out of jail, in which case the state would have had 60 days to hold preliminary hearings.

“Every day, we expected them to be released from custody because they were on an unsecured bond,” Lovelace said.

In a ruling from about two weeks ago, another judge denied a state motion to hold the five defendants without bail and instead ordered that they could be released on $20,000 “signature” bonds – meaning no cash is required up front – and house arrest. But the defendants were unable to find housing in Taos County, so they never got out of jail.

Child abuse charges

Siraj Ibn Wahhaj and Leveille are facing additional charges, for child abuse resulting in death and conspiracy to commit child abuse, in connection with the body of a boy found at the compound, that of Sirah Ibn Wahhaj’s 3-year-old son. The father was accused of kidnapping the boy in Georgia.

Authorities say the two adults – Leveille is the boy’s stepmother – failed to provide medication to the boy, who had a severe medical condition that was well-known to the family.

Officers say children taken from compound have said the father regularly performed a prayer service over his son during what were apparently seizures, until the youngster died during one such episode months ago.

At his hearing, Judge McElroy raised the issue of whether these more serious charges involving the death of young Abdul-Ghani Wahhaj should also be dropped, because they were filed by the Sheriff’s Office late last week, well after law enforcement’s Aug. 3 compound raid, instead of by the office of District Attorney Donald Gallegos or another prosecuting agency, such as the state Attorney General’s Office.

The judge asked attorneys from both sides to file briefs on that issue.

Four of the five defendants, excluding Siraj Ibn Wahhaj, have also been cited for criminal trespassing, because their compound had been built on someone else’s property. On the trespassing charges, a magistrate judge set conditions of release that say Morton and Subhanah Wahhaj must remain in Taos County.

But Hujrah Wahhaj, who went before a different magistrate judge and with her child abuse charges now dismissed, apparently no longer faces any travel restrictions. But her child taken from the compound remains in state custody.

Planned attacks alleged

Prosecutors, based on interviews with children from the compound, say the five Muslim adults were training some of them to make armed attacks on educational, governmental and law enforcement institutions after the boy whose body was found in a tunnel at the compound was resurrected as Jesus and would identify which “corrupt” institutions to attack.

Judge Chavez, at his morning hearing, acknowledged the backlash that fellow District Judge Sarah Backus received for her decision to allow all the defendants to be released from jail on signature bonds about two weeks ago. But Chavez said he understood that he had to follow the law on timely preliminary hearings.

“I’m well aware of the outcry and backlash against Judge Backus, and that makes my decision difficult,” Chavez said.

Backus was harshly criticized on social media by posters from around the country who said she was too lenient on terror suspects, and threats of violence against her led to closing the Taos courtroom one afternoon.

The ramshackle compound where the five adults were arrested and 11 children ages 1-15 were taken into state custody has been razed. It was on someone else’s property, authorities say.

The children were said to be malnourished when found at the compound. Each of the five adults was charged with 11 counts of child abuse, one count for each child.

At his hearing, McElroy expressed disappointment with the district attorney’s office because of the danger the District Court has faced. He said the court received thousands of messages that included the threats against Judge Backus for her ruling.

Backus ruled that prosecutors, despite the children’s accounts of planned attacks and the boy’s body discovered at the compound, had failed to meet the standard of “clear and convincing evidence” that the defendants would be a danger if released.

McElroy said he was “very disappointed” that “the court is being caught between very public, very shocking information and a complete failure to follow proper procedures in prosecuting the case.”

Lovelace said the fact that the defendants couldn’t find housing to satisfy Backus’ ruling on conditions of release was out of the state’s control. Since the defendants were expected to get out of jail on a non-monetary bond, Lovelace said, prosecutors assumed that they had 60 days – the maximum for a defendant who’s out of custody – to hold a preliminary hearing.

DA Gallegos couldn’t be reached for comment Wednesday.

Judge Chavez, at the morning hearing, said there was no way he could retroactively grant an extension of the 10-day period for a preliminary hearing. He said the New Mexico court rule governing the issue is “relatively clear.”

“That’s about as unambiguous as a rule that we get in our criminal procedure,” the judge said.

Marie Legrand Miller, Hujrah Wahhaj’s attorney, told the judge that her client “misses her daughter terribly and would like to begin the reunification process.” The daughter is 8.

Aleks Kostich, Morton’s attorney, said the preliminary hearing problem was foreseeable and that the state knew the defendants remained in custody. The fact that they were still in jail is a “clear deprivation of liberty,” he says. “The case should be dismissed, period.”

Journal reporter Megan Bennett contributed to this story.