Sunday, June 4, 2023

ABQ Cops Skipped Court, Let Hundreds Go Free

Nolle Prosecui is a Latin phrase that directly translates to “not to wish to prosecute,” according to Cornell Law School

As the legislature considers whether or not to make it easier to jail people prior to conviction, records received from the 2nd Judicial District Attorney’s office indicate that it’s not just those accused of crimes that fail to appear for court proceedings. In fact, law enforcement officers from Albuquerque Police Department, Bernalillo County Sheriff's Office, and New Mexico State Police failed to participate or appear nearly 1,000 times, but they didn’t face any consequences from the court system.

The DA’s office tracked 989 times that law enforcement officers from APD, BCSO, and NMSP missed court-related appearances between May 2019 and August 2022. The various appearances included trials, grand juries, preliminary hearings, and pretrial interviews in both the metro and district courts. The DA’s records did not include cases where officers were the sole prosecutors such as minor misdemeanors and simple traffic offenses, like speeding.

Practice, but not law

There is no specific law in New Mexico requiring officers to appear in court or otherwise cooperate with the district attorney’s office to see a case through to completion after arrest. BCSO and APD have policies in place, and NMSP relies on the state’s Administrative Code to require officers to follow-through with requests from prosecutors as part of the normal job duties.

That means it is up to each individual police agency in the state to enforce requirements that officers appear for court, repeatedly, for each case, and make themselves available for interviews with prosecution and defense, prior to trial. If an agency doesn’t enforce any such policy, there’s little that can be done.

Prosecutors can subpoena an officer, and if that officer fails to appear in response to the subpoena, the district attorney could file a motion asking the judge to order the officer to explain their lack of appearance, but those familiar with the court system couldn’t recall a time that had ever happened.

Different Standards

While officers have a lot of leeway, the situation isn’t the same for those who have been accused of a crime. When someone charged with a crime fails to appear at court, a bench warrant may be issued. Even if the officer failed to appear at the same hearing.

According to the records received from the 2nd DA, that’s exactly what happened in 33 of the 989 times that officers missed court appearances. The defendant also failed to appear and a bench warrant was issued.

Dismissed by Motion, Nolle Prosecui

When someone charged with a crime does appear for court, but the officer is absent, sometimes repeatedly, the prosecution may have no choice but to dismiss the case, often by filling a motion for Nolle Prosecui. Other times, although rarer, a judge enters an order to dismiss the case because the officer failed to appear, and without the officer, there is no witness to the alleged crime. But how often has that happened?

In the data from the DA’s office, there were 324 cases dismissed as a direct result of the officers attached to the case failing to participate or appear. APD accounts for the majority of those dismissed cases, with a total of 183 cases, BCSO ranks second with 110, and NMSP comes in with a total of 31 cases dismissed.

That’s not to say that there aren’t valid reasons for officers who miss court. Some of the cases were dismissed because an officer was no longer working in the metro area, or others were dismissed because an officer was on military leave, but those cases are the exception, not the rule.

Violent & Non-Violent Crimes

There seems to be no rhyme or reason to the types of cases where officers failed to appear for hearings or interviews, and some of those cases include the murder charges faced by Dakota Briscoe, who is accused of murdering two men, burning their bodies and then carjacking a woman to make his escape. Three APD officers “Failed to Appear without Explanation” for pretrial interviews in the case in March 2022, according to the DA’s office which noted the officers were told in February of the upcoming interview. The case is still pending.

But the outcome was different in another case, involving Keon Harris, who was charged with Aggravated Assault with a Deadly Weapon, Negligent Use of a Deadly Weapon, and Receipt, Transportation or Possession of a Firearm or Destructive Device by Certain Persons after he allegedly took part in a gunfight outside a funeral home is no longer facing charges. The DA dropped the charges after APD officers failed repeatedly to appear for necessary interviews. “4th for this case,” notes state.

Other cases where officers from APD, BCSO and NMSP have failed to appear for court settings or interviews include child abuse, rape, assault with a deadly weapon, DWI, drug trafficking, possession of a controlled substance and shoplifting.

BCSO Focused on Improvement

BCSO Undersheriff Johan Joreno says that any case dismissed because his deputies miss court is too many. But he didn’t deny or discount the number of times that it has happened at BCSO.

“Mistakes happen,” Joreno said, “But we do have processes in place to mitigate those things.”

Joreno said that BCSO is focused on enforcing the policy for deputies to appear for court, but that some of the problems with the system were outside of the agency’s control. He explained that when trying to schedule deputy availability with court services and the DAs office, it can be challenging getting three people together at a set time.

In describing his personal experience in law enforcement, Jareno pointed out that there are a lot of reasons for cases to be dismissed, so it’s not only cases where deputies failed to follow through that are dismissed.

“I will never say anything that relieves us of our responsibility,” Jareno said. “Our duties as law enforcement do not stop at arrest. In some cases our deputies may have dropped the ball. It’s not acceptable whatsoever.”  

APD Reports 17 Verbal Reprimands

APD Public Information Officer Gilbert Gallegos pointed out department policy that requires officers to appear for court, or provide advance notice if they are unable to be there.

He noted that sometimes officers miss court because they are on patrol and handling a call at the appointed time.

“As for who is at fault for missed hearings, sometimes it is the District Attorney’s fault,” Gallegos said.  “Sometimes it is the officer’s fault.”

Gallegos said the department does have a policy that addresses the responsibilities of an officer. If the officer is suspected of violating policy, an Internal Affairs review will be initiative.

Gallegos said that in 2022, there were 34 instances of sustained policy violations related to court appearances. (DA records indicate 81 times between January and August where APD officers missed court proceedings during 2022.) Of those violations, officers were given a letter of reprimand 7 times, given verbal reprimands 17 times, and no disciplinary action was taken 9 times. Ten officers investigated were exonerated during the investigatory process.

Gallegos didn’t respond to a question about APD Chief Harold Medina’s multiple comments about failures in the court system, and how they might apply to the failure of officers to participate post-arrest, but Medina has been vocal.

“We are seeing yet another example today that shows why the criminal justice system is broken,” Albuquerque Police Chief Harold Medina said in a recent statement on Twitter regarding the arrest of Solomon Pena. “We need to fix this process so the public will have faith that we are keeping the community safe from dangerous criminals.”

A judge ruled Pena be held in jail until trial, despite Medina’s concerns with the process.

Cost to the Community

The cost to the community as a whole is high when it comes to police participation in the court process, not only for victims of crimes, but for those accused who later have their cases dismissed. Kate Thompson, Law Offices of the Public Defender Managing Attorney for Metropolitan Court said that what people often fail to realize is that everyone is innocent until they are proven guilty, but that doesn’t mean that the charges, and the time spent in jail before a case is dismissed have no impact.

“Regardless of what happens with the case, it's going to have collateral consequences for that person,” Thompson said of defendants. “It's going to have a consequence on applying for jobs on getting housing on the reputation. Even when a case gets dismissed, it still has an effect on somebody's life.”

Pretrial Detention Changes Considered

The impact that these cases have on the lives of the accused may be about to get a lot more serious, if SB 123 becomes law. The proposed legislation would make it easier for people accused of a myriad of “violent” crimes to be held in jail without bail until trial.

The proposed law would have applied in the majority of the cases that were dismissed for lack of officer participation between May 2019 and August 2022. Those people, who would possibly have spent years in jail awaiting trial, are not entitled to any recompense from the state or arresting officer. And any time they spent jailed while innocent would be for naught.

Newsrooms: Take a look at the records received from the 2nd Judicial District Attorney's Office showing how often local cops missed court by requesting a copy of the original data. Contact for republishing and data requests.


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