Under new law, Las Cruces judges release repeat offenders

LAS CRUCES, N.M. - It’s been about a month since new bond rules for defendants in New Mexico took effect but it’s already causing problems for prosecutors in Doña Ana County.

A NewsChannel 9 investigation revealed a majority of people being prosecuted in southern New Mexico are getting out of jail without posting bond.

District Attorney Mark D’Antonio told NewsChannel 9 the new rules could be putting the public’s safety at risk.

Under the law, the only way to keep someone from getting out of jail is for a prosecutor to file a motion asking the judge to keep a defendant behind bars pending trial.

However, only a handful of those motions are being granted.

In July, the 3rd Judicial District Attorney’s Office filed 48 motions asking a judge to hold a defendant without bond. Only six were granted.  

D’Antonio said, “To say, categorically, dangerous people are being released, I can’t say that with any certainty or accuracy. Is the potential there? Very much so.”

Chief District Judge James Martin said those people would have gotten out of jail regardless but instead of paying a bondsman, they’re being released to family members or on their recognizance.

Martin said, “It’s a major change in the way criminal law is practiced. Probably the biggest change since Miranda.”

According to Martin, judges can only consider a defendant’s flight risk when setting bond.

That means a person with no criminal history facing felony charges, including murder, could be released on their own recognizance.

Martin added, “The seriousness of the charge is only one factor that goes into that. The majority of the factors is how much of a flight risk is this person and are they going to show up to court.”

Court documents obtained by NewsChannel 9 revealed some of the more shocking defendants being released.

Research also showed defendants released by judges being booked on new charges within weeks of being released.

For example, 26-year-old Juan Lugo was arrested for breaking into a car. The district attorney’s office said he was a danger to the community but the judge disagreed.

Two weeks after posting bond, he was arrested again for aggravated assault and desecrating a church.

Meanwhile, 19-year-old Tez Soto was arrested on July 2 for child abuse. Again, prosecutors filed a motion asking the judge to keep him behind bars pending trial.

The judge said no.

One week later he was arrested for shooting at a woman’s house.

Prosecutors asked the judge to keep him locked up but that motion was denied and he was released for a second time without having to post bond.

D’Antonio said, "The effect of the new law is in the balance between public safety and the rights of the accused. The courts are giving more weight to the rights of the accused and I disagree with that. If we're going to tip the scale it should be towards public safety."

Last year, Erik Cervantes was convicted of domestic violence in two different cases.

In June, he was arrested and charged with nine counts of having sexual contact with a minor.

Prosecutors asked a judge to keep him locked up. Instead the judge gave him a $10,000 bond which he posted a couple days later.

Under the new rules, prosecutors must show enough evidence that a defendant is a danger to the community. However, the New Mexico Supreme Court does not say what is enough.

Barry Massey, Public Information Officer for the Administrative Offices of the Court, told NewsChannel 9, “The constitutional amendment requires proof by ‘clear and convincing evidence’ that a defendant should be detained pretrial because no other release condition will reasonably protect public safety."

Massey added, “That determination by the court and the evidence that a prosecutor must present will vary from case to case.”

D’Antonio said, “I think anyone who poses a viable threat that can be shown through competent evidence, not necessarily a mini-trial, just through the testimony of an agent who knows or through public records, criminal history or things of that nature, they should be held.”

When asked if they think the new rules are working, officials offered different opinions.

Massey said, “Because of reforms from the constitutional amendment approved by voters and implemented through court procedural rules, New Mexico’s justice system is more fair.”

However, D’Antonio said the new rules and their strict deadlines are almost impossible to keep up with.

“It’s extremely difficult in the new timeframes,” he said. “The law enforcement officers are doing a good job at getting us the information but we need more time.”

Under the new rules, a judge must set a pre-trial detention hearing within five days of prosecutors filing their motion seeking to hold someone without bond.

However, once that hearing is scheduled, the district attorney’s office could have less than 24 hours to contact witnesses to testify.

Meanwhile, Judge Martin said it’s too early to tell if the system is working.

"It's only been a month,” he said. “We really haven't had enough time to evaluate the effectiveness. However, changes will probably occur as the rules mature and we gain a little more experience with it."

He also said, "I don't think it's a good gauge to say the DA filed over 50 cases and they've only prevailed four times. That's really not fair to the district attorney. It's also not fair to the judges because each case is decided on its own facts and under the new rules, everyone is kind of learning as we go."

In addition to changes to the way felony cases are being prosecuted, the new rules say defendants charged with misdemeanors may be released from jail without bond after a judge gives them their conditions of release.

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