Albuquerque Criminal Lawyer Blog

Receipt of a target letter means that you are the subject of a felony criminal investigation. More specifically, it means that your case and your charges have been set for a grand jury investigation. The target letter will provide all the particulars regarding the alleged crimes, the statues, the time and location of the grand jury proceedings. What the target letter does not provide is an explanation of the process or your rights in the process.

In the past, it was said that the grand jury would indict a ham sandwich. The truth of this adage led the New Mexico Supreme in Jones v. Murdoch to set forth an accused procedural rights for introducing exculpatory evidence at grand jury. In addition to what has turned out to be a very limited right to present exculpatory evidence, the accused has a right to testify on his or her own behalf at grand jury. In the past, most attorneys would rarely if ever allow a client to testify at grand jury. There is a small trend toward allowing clients to testify. Some research has indicated that jurors are more balanced in their judgment than the ham sandwiches would have you believe.

On the other hand, the risks are great. Any testimony and/or admissions given at grand jury is under oath and may later be used at trial in the case of indictment. Worse yet, the attorney for the accused is allowed only minimal participation. The attorney may not present evidence, examine state witnesses or even question his or her own client. Essentially the attorney is limited to whispering in the client's ear for guidance. Clearly, this is not looked upon favorably by jurors as few like seeing a lawyer whispering into the ear of an alleged felon. As a result, the attorney will typically simply sit and observe fingers crossed hoping the client does tank the defense so early in the game.

Despite the studies showing that grand jurors might be more open minded than thought in the past, favorable outcomes are quite rare while damage to the defense and the client are more the norm. And in the end, the grand jury remains a rubber stamp except in rare and exceptional cases. Energy is arguably better spent working on a defense or possible favorable dispositions than fighting the grand jury. Any risk of harming the defense before felony charges have even been filed seems ill advised for ham sandwiches, soups and salads alike.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The 10th Circuit Court Appeals addressed the 6th Amendment Right to a speedy trial in U.S. v. Seltzer. Though the constitutional protections under New Mexico law are typically more expansive than federal law, the 10th Circuit in the Seltzer case appears more respectful of the 6th Amendment than the recent New Mexico Supreme Court decision of State v. Garza.

In State v. Garza, the court set forth a sliding scale related to a criminal defendant's right to a speedy trial in New Mexico. The court suggested speedy trial parameters as follows: 1) 12 months for simple cases, 2) 15 months for cases with intermediate complexity, and 2) 18 months for complex cases. The New Mexico Supreme Court even allowed for some leeway in the these standards by stating that these time limits were mere thresholds for further inquiry.

The 10th Circuit in U.S. v. Seltzer set forth a number of considerations in the determination of whether or not a defendant's right to a speedy trial have been violated. The Court stated that a delay of more than one year from the date of arrest or indictment, whichever is earlier, was "presumptively prejudicial" to the defense. The court noted that in particularly complex cases, longer delays, even a two year delay might not be unreasonable. The court noted further that in straightforward cases, even a minor delay might be considered prejudicial and unreasonable.

The Court found that the charges against the defendant Seltzer related to counterfeiting, drug possession, and firearm possession by a felon were not complex and a delay of more than one year was presumptively unreasonable. The Court stated that even lesser delays might prove prejudicial in cases involving eyewitness testimony.

Once the presumption of prejudice has been found, it is up to the State to "provide an inculpable explanation for delays in speedy trial claims." The Court cited the 1972 United States Supreme Court case of Barker v. Wingo as follows: "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." Thus the burden quickly shifts to the State to show a legitimate reason for any delay impacting the defendant's speedy trial rights. This burden becomes harder to meet in cases involving simple charges.

Unlike the New Mexico Court in State v. Garza, there is a heavy burden on the State to justify any delay impacting the defendant's 6th Amendment right to a speedy trial. New Mexico typically zealously protects the constitutional rights of its citizens. The protections under New Mexico's Constitution are generally much broader than under federal law. In State v. Garza, the burden appears to be on the defendant to prove prejudice, rather than on the State where the burden belongs. Hopefully, the New Mexico Supreme Court will take the lead of the 10th and revisit the 6th Amendment rights that are so important to due process and a fair trial.

www.CollinsAttorneys.com

There are often delays in indictment on felony cases in Albuquerque, and throughout New Mexico. We often get questions regarding the legality of the delay in indictment following the first appearance.

When a felony action is commenced in Albuquerque, the case typically begins in the Metropolitan Court on a first appearance. During the first appearance, the court will address the statement of probable cause. The burden for probable cause is pretty low at this stage. The statement of probable cause need only establish that a crime was committed and that logically a jury could find the defendant guilty based upon that statement if true.

It is rare that the court would find probable cause lacking. In cases where probable cause is found, the Albuquerque Metropolitan Court judge will first address bond. Assuming that bond has been satisfied, the judge will set 60 day conditions of release. These conditions are fairly routine such as no further violations of the law, no contact with the alleged victim, no return to the scene of the crime, no deadly weapons, no drugs or alcohol, and no leaving the County without approval of the Court.

Many people accused of crimes believe that once the 60 days is up, the State is barred from taking the case to grand jury. That is not the case. The only consequence of failing to take the case to grand jury within the 60 day conditions of release is that those conditions lapse. The State is still free to bring the charges at a later date, and unfortunately for the defendant over whom the charges are hanging, often a much later date.

The only deadlines for getting the case to grand jury and formal charges filed is the statute of limitations. The statute of limitations for criminal cases in New Mexico are quite lengthy as set forth in by statute as follows:

• • Capital or 1st degree violent felony - no limitation,
• • 2nd degree felony - 6 years from the date of the crime,
• • 3rd or 4th degree felony - 5 years from the date of the crime,
• • Misdemeanor - 2 years from the date of the crime, and
• • Petty Misdemeanor - 1 year from the date of the crime.

These deadlines are pretty lengthy so that a delay generally does not mean much regarding the intentions of the District Attorney. However, in less serious cases, no news is good news. In the meantime, if you are in this situation, you should keep your head down and avoid any contact with law enforcement. This means at a minimum staying out of trouble. It would be unfortunate to raise a red flag on an old case due to subsequent violations of the law.

www.CollinsAttorneys.com

The felony process can be pretty confusing for accused persons in Albuquerque and throughout New Mexico. In addition, the process differs from county to county. The process below applies to the process followed by the district attorney's office in Albuquerque.

A felony criminal action may begin with an arrest or a felony warrant. If you are arrested, you are taken into custody until your first appearance or until you are able to post bond. If you are able to post bond, then you are released pending the first appearance which will generally occur within a few days of your release.

If you are unable to post bond, then the prosecutor must take the case to the grand jury within 10 days of arrest. Failure to bring the case to grand jury within 10 days will result in release from custody. It does not mean the case goes away. It simply means that the State must release you from custody pending the grand jury investigation.

If you are able to post bond, the case will be set for first appearance. At the first appearance, the prosecutor will present a statement of probable cause outlining the charges against you. The statement of probable cause requires no presentation of evidence. The defendant may dispute probable cause but again the statement is taken at face value and the statements very rarely fail to state adequate probable cause for the arrest. It is simply a statement of the case by the prosecutor or the arresting officer. These are taken at face value by the judge.

Assuming the judge finds probable cause, the judge will then set conditions of release and bail. The conditions of release for felony cases typically include the following terms:

1. The defendant may no possess firearms or dangerous weapons,
2. The Defendant will not return to the location of the alleged incident,
3. The Defendant will not possess or consume alcohol/illegal drugs or enter liquor establishments,
4. The Defendant will not violate federal, state or local criminal law,
5. The Defendant notify the Court of any change of address,
6. The Defendant will not leave the jurisdictional county of the court,
7. The Defendant will maintain contact with his or her attorney,
8. The Defendant will have no contact with the alleged victim or any witnesses,
9. The Defendant will no drive without a valid license.

The conditions of release continue for 60 days or until the date of arraignment if the Defendant is eventually indicted. This does not mean the case goes away after 60 days if the prosecutor has not indicted the Defendant by that time. It simply means the conditions of release lapse.

The prosecutor has very liberal time limits on obtaining the indictment. The only limitation is set by the statute of limitations which are very long in criminal cases. On rare occasions, a Motion to Dismiss for pre-indictment delay may be filed but these are very difficult to win.

www.CollinsAttorneys.com