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Copyright © 2019 Albuquerque Journal

District Attorney Raúl Torrez says he plans to propose a new constitutional amendment that would require defendants accused of certain crimes to show that they should be released pending trial.

That would be a shift from the amendment in place now, which allows the court to detain a defendant pending trial only if prosecutors can show by clear and convincing evidence that no release conditions will reasonably protect the safety of the community.

In a meeting with Journal editors and reporters on Monday, Torrez said the new amendment would make it easier to hold defendants until trial in “the most violent and serious cases.”

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Those cases would include murder, first-degree sexual assault, human trafficking, first-degree robbery and crimes involving a firearm. He said it could also apply to people on supervision or parole for another felony.

Right now, the DA’s Office is successful in detaining about 46% of the defendants it files motions on, he noted.

Torrez’s push for the constitutional amendment comes on the heels of a 23-year-old University of New Mexico baseball player being shot and killed outside a club in Nob Hill. Darian Bashir, the man charged in that shooting, was out on conditions of release in another shooting case in which he is alleged to have gotten into a gunfight with the occupants of another vehicle.

Court records show prosecutors asked for Bashir to be held until trial in that case, but a district court judge denied the request, noting that Bashir had a “minimal criminal history” and “no felony convictions.”

“For a community that’s dealing with crimes of violence, if you have a loaded firearm readily accessible to you in connection with a felony crime, you should be subject to rebuttable presumption,” Torrez said.

He plans to formally announce his proposed reforms to the current preventive detention process at a news conference this morning, where he will be joined by representatives from the business community, victims and law enforcement.

However, Torrez said, he is not suggesting returning to the cash-bail system New Mexico had in place previously.

Chief Public Defender Ben Baur called the idea broad and alarming. Defense attorneys are rarely equipped to make that sort of argument in the earliest stages of a case, and the consequences of failing to do so would be severe.

“The consequences are – let’s not sugarcoat it – it’s keeping people in cages who haven’t been convicted of crimes,” he said. “There’s a reason that the burden is on the state to prove that someone is guilty in trial. There’s also a reason the burden is on them to show the court why somebody should be held.”

He said that the DA’s Office has a “problem following through on the cases that they file.”

“Too often, they file serious charges only to dismiss them months later when they realize they don’t have a case,” he said. “Now, they want to incarcerate people, without bond, while they do that.”

Torrez, however, said his prosecutors have run into numerous issues relating to the formatting of their preventative detention motions – including complaints that they are copying and pasting parts of the criminal complaint into the motion – rather than the substance of the arguments.

He said he hopes the proposed amendment would clarify procedural requirements.

“This is what’s crazy,” he said. “Why are we not talking about the gun and the crime; why are we dismissing cases over the font size?”

Torrez also voiced concerns about language in the current amendment that requires a finding that no conditions of release could reasonably protect the community.

“How am I going to prove by clear and convincing evidence that Charles Manson couldn’t be put on some supervision?” Torrez said. “Theoretically, if you put him on GPS and had a guy walk around with him all day long that was armed, maybe.”

And he said that defendants who are determined to be a flight risk, but not a danger, are not eligible for detention under the existing amendment.

“Most jurisdictions have three things: dangerousness, flight risk, or obstruction of the criminal justice process (such as intimidating a witness, threatening somebody),” Torrez said. “Those last two are gone, they’re not in our constitutional amendment.”

As a former federal prosecutor, Torrez said he was surprised when he took office as 2nd Judicial District Attorney to learn that the process for keeping defendants behind bars until trial was going to be so complicated in state court.

“I’m a guy who comes in from the feds,” he said. “The motions to detain are one paragraph and you literally write his name in and we don’t even file those any more because the magistrate was saying, ‘Why are you wasting the paper?’ ”