STATE OF NEW MEXICO ex rel. RAÚL TORREZ, Second Judicial District Attorney, Petitioner, v. HON. STAN WHITAKER, Respondent, PAUL SALAS and MAURALON HARPER, Real Parties in Interest.
Docket No. S-1-SC-36379
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
January 11, 2018
2018-NMSC-005
ORIGINAL PROCEEDING
Office of the Second Judicial District Attorney
Presiliano Raúl Torrez, District Attorney
Kevin P. Holmes, Assistant District Attorney
Albuquerque, NM
for Petitioner
Hector H. Balderas, Attorney General
Joshua Rutledge Granata, Assistant Attorney General
Santa Fe, NM
Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Santa Fe, NM
for Respondent
Jason Benjamin Wheeless
Steven P. Archibeque
Albuquerque, NM
for Real Party in Interest Paul Salas
Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Defender
Santa Fe, NM
Jeff Rein, Assistant Public Defender
Albuquerque, NM
for Real Party in Interest Mauralon Harper
Hector H. Balderas, Attorney General
Kenneth H. Stalter, Assistant Attorney General
Santa Fe, NM
for Interested Party
DANIELS, Justice.
{1} One of the most significant new tools provided to the New Mexico criminal justice system as a result of the amendment to the bail provisions in
{2} In this case, we have been requested to address the nature of evidentiary presentation required by this new detention authority. We agree with courts in all other federal and state bail reform jurisdictions that have considered the same issues, and we hold that the showing of dangerousness required by the new constitutional authority is not bound by formal rules of evidence but instead focuses on judicial assessment of all reliable information presented to the court in any format worthy of reasoned consideration. The probative value of the information, rather than the technical form, is the proper focus of the inquiry at a pretrial detention hearing.
{3} In most cases, credible proffers and other summaries of evidence, law enforcement and court records, or other nontestimonial information should be sufficient support for an informed decision that the state either has or has not met its constitutional burden. But we also agree with other jurisdictions that a court necessarily retains the judicial discretion to find proffered or documentary information insufficient to meet the constitutional
I. PROCEDURAL HISTORY
{4} This case came before us on a petition for writ of superintending control filed by Second Judicial District Attorney Raúl Torrez. The petition sought to have this Court order Respondent District Judge Stan Whitaker to conduct new detention hearings in two specific cases, State v. Salas, D-202-LR-2017-67, and State v. Harper, D-202-LR-2017-68, and provide guidance on the nature of the evidence required in the pretrial detention hearings authorized by the 2016 constitutional amendment.
{5} We first review the history of the two cases that are the subject of the petition.
A. State v. Salas
{6} Paul Salas was arrested on March 16, 2017, and charged in a single criminal complaint with forty-seven separate armed robberies of dozens of Bernalillo County businesses in a five-month period.
{7} The complaint, prepared and signed under oath by the investigating police case agent, alleged the facts reported by the separate victims and noted that each of the robberies had been committed by a person fitting the physical description of Salas, who was dressed similarly, who brandished a firearm, and who otherwise exhibited the same modus operandi in each of the robberies; that surveillance video available in most of the robberies confirmed that the same robber, who walked with the same characteristic gait, appeared to be responsible; that in the most recent robbery, an electronic tracking device placed in the bag of stolen cash and merchandise allowed police to immediately chase down and arrest the fleeing Salas and a codefendant and retrieve the robbery proceeds and other evidentiary items; and that after his arrest Salas waived his Miranda rights and confessed to each of the forty-seven charged robberies in a lengthy debriefing with the case agent who had prepared the sworn criminal complaint, providing a detailed account of each admitted robbery that was consistent with the victim reports.
{8} The day after Salas‘s arrest, the State filed a motion for pretrial detention. The motion contended that Salas‘s alleged five-month crime spree and the fact that he was a wanted fugitive from another state demonstrated “the ability to elude police and . . . an unwillingness to abide by law and cooperate [with] law enforcement.” The motion stated that he “has shown a blatant disregard for the value of a human life and . . . a pattern for violence,” that because of the nature of his crimes Salas presented “a serious danger to the community,” and that there were no conditions “other than a no bond hold that would protect the safety of the public.”
{9} No probable cause determination had been made by a court or grand jury on any of the charged offenses by the time of the March 22, 2017, detention hearing, and the district court made no probable cause determination in connection with the detention hearing.
{10} At the hearing on its detention motion, the State proffered the sworn criminal complaint in this case and a fugitive complaint on which Salas recently had been arraigned pending extradition to Arizona on a sex offense but called no live witnesses and introduced none of the underlying materials relied on by the case agent in preparing the robbery complaint.
{11} Salas offered no affirmative or rebuttal information concerning the accuracy or truthfulness of the information presented to the district court by the State and did not challenge his identity as the Paul Salas reported in the complaint to have been pursued, arrested, searched, and interrogated.
{12} Accordingly, the hearing consisted primarily of argument concerning the nature, reliability, and sufficiency of the form of documentary information offered by the State, with the defense arguing generally that the documentary evidence was insufficient to meet the State‘s clear and convincing evidence burden without a live witness to testify and be cross-examined about the documents’ accuracy and reliability.
{13} In oral and written rulings, Respondent denied the detention motion, refusing to admit the criminal complaint on the ground
B. State v. Harper
{14} Mauralon Harper was charged in a sworn criminal complaint with attempted murder, aggravated battery with a deadly weapon, shooting at a vehicle resulting in great bodily harm, and tampering with evidence.
{15} The complaint alleged that Harper shot his girlfriend in the abdomen as she got into her car after arguing with Harper and ordering him out of her apartment. The investigating detective who executed the complaint reported that he joined other officers in responding to a report of a shooting at the victim‘s address. There they found several people attending to the bleeding victim as she lay on the ground. She was able to tell officers, “Mauralon shot me,” before being transported to the hospital for emergency surgery.
{16} A neighbor who knew both Harper and the victim told police she had heard the two arguing, had heard the sound of gunshots and the victim screaming, and then saw Harper pointing a handgun toward the victim‘s car and the victim lying on the ground next to the car.
{17} Another witness who knew and could identify Harper stated that moments after she heard the gunshots she observed Harper running from the scene with a gun in his waistband.
{18} The investigating detective recited that he personally observed at least thirteen bullet holes in a car that was registered to the victim and parked at the scene and that the bullet holes and casing locations were consistent with the eyewitness accounts that Harper was standing in the area of the victim‘s apartment when he fired toward the victim‘s car.
{19} The District Attorney‘s office filed a motion to detain Harper pending trial. As in the Salas case, no determination of probable cause by a court or grand jury had been made either before or during the detention hearing.
{20} At the hearing, the prosecutor proffered the criminal complaint in support of the detention motion. The prosecutor also proffered court documents recording Harper‘s six prior convictions, including three felony convictions for bank robbery, assault on a police officer, and drug possession; documents reflecting three past domestic violence restraining orders against Harper obtained by three separate complainants; documents reflecting a pending robbery and evidence-tampering case in which Harper was currently being held without bond on a release revocation order for failure to appear; documents reflecting six past bench warrants for failure to appear; and a current district court pretrial services risk assessment that placed him in the highest risk category, calling for either intensive supervision or pretrial detention.
{21} In addition to the documentary evidence, the State proffered a video and images of text messages from the victim‘s phone, which the prosecutor represented to contain evidence that corroborated the State‘s version of the charged offenses. Although the defense argued briefly that the unreliability of the State‘s documentary evidence, in the absence of live testimony, left open to question whether Harper was the same Mauralon Harper referenced in the documents, the defense never offered affirmative or rebuttal evidence or even denied that he was the person who had shot at his girlfriend, instead relying on objections to the admissibility and weight of the State‘s submissions.
{22} Respondent denied the request for detention in oral and written rulings but then ordered Harper to be placed on multiple pretrial conditions of release that included close supervision, monitoring, and a secured bond in the amount of $100,000.
C. The Petition for Writ of Superintending Control
{24} After Respondent denied the State‘s detention motions in Salas and Harper, Petitioner Torrez sought a writ of superintending control from this Court. Respondent, Defendants Salas and Harper, whom the petition named as real parties in interest, and the Attorney General filed separate responses to the State‘s petition, pursuant to
{25} As framed in the petition, the controversy between the parties was a clash of absolutist positions that centered on whether the prosecution must always present live witnesses, as the petition alleged the Respondent was requiring, or whether live witnesses can never be required, as the petition seemed at times to contend. Petitioner asked this Court to order the district court to reconsider the State‘s motions for pretrial detention and to issue a written opinion providing guidance to inferior courts on how to interpret and apply the new pretrial detention provisions recently added to
{26} In his response to the State‘s petition, Respondent took the position that due process of law may require live witness testimony to satisfy confrontation rights at pretrial detention hearings and that in these two cases he did not abuse his judicial discretion in denying the State‘s motions for pretrial detention.
{27} Salas and Harper argued that Respondent did not abuse his discretion to require live witnesses at a pretrial detention hearing when he found the exhibits and proffers insufficient to meet the State‘s burden of proof.
{28} The Attorney General urged this Court to follow federal detention hearing precedents and hold that a court may rely on proffers and documents alone without violating the due process rights of an accused but to recognize that the court retains the discretion to require one or more live witnesses when there is a question about the credibility or authenticity of nonwitness information.
{29} Following oral argument on the petition, this Court delivered an oral ruling from the bench granting the writ, providing guidelines for the evaluation of evidence in detention hearings, directing Respondent to conduct new hearings in light of those guidelines, and advising the parties that the Court would issue a full precedential opinion amplifying our oral ruling. This is that opinion.
II. DISCUSSION
{30}
{31} While a writ of superintending control should not “be used as a substitute for . . . appeal,” Chappell v. Cosgrove, 1996-NMSC-020, ¶ 6, 121 N.M. 636, 916 P.2d 836, at the time the petition was filed in this case we had not yet promulgated our July 1, 2017, rules providing expedited appeals from detention-hearing decisions. See, e.g.,
{32} In order to address the proper interpretation of the new detention authority created by the November 2016 constitutional amendment and the resulting July 2017 court rules, it is important to understand the reasons for their creation and the sources and historical construction of the provisions we are called on to explicate in this case.
{33} In State v. Brown, 2014-NMSC-038, 338 P.3d 1276, this Court conducted a comprehensive review of the origins and requirements of then-existing United States and New Mexico bail law. While Brown created no new rules of law, but simply traced the history and requirements of existing law, it took notice of the “enduring inequalities in our nation‘s system of bail,” which has come to rely heavily on an accused person‘s ability to purchase a bail bond as the determining factor in releasing or detaining a person before a trial that would decide guilt or innocence. Id. ¶ 35. The combination of those realities resulted in a system lacking in rational justice, where clearly dangerous defendants or those who pose substantial flight risks have been able to buy their way out of jail, while large numbers of poorer, low-risk defendants have been held in jail simply for lack of money, with substantial harm done to them, their families, and the taxpayers who bear the ultimate burden of housing, feeding, guarding, medicating, and caring for them. See id. ¶¶ 33-35.
{34} In Brown we traced key features of bail reforms in the United States, including the movement toward minimizing the detention of low-risk defendants simply for lack of money to buy a bond, as reflected in the provisions of the federal
{35} Many other jurisdictions have also followed the federal model in explicitly prohibiting pretrial detention simply for lack of money to buy a bail bond. See
{36} A number of states have taken other steps to decrease the justice system‘s reliance on commercial sureties and other monetary bail. See, e.g.,
{37} While those reforms focused on alleviating one of the worst consequences of using money to decide who will be released pretrial—jailing people for lack of money instead of for any real risk they posed—they did little to address the other primary undesirable result of the money system—releasing dangerous defendants into the community simply because they could arrange to buy their way out of jail. To address that very serious problem, new legal authority for judges to deny pretrial release based on findings of dangerousness has been created in a growing number of federal and state jurisdictions.
{38} Those community safety reforms began in the District of Columbia four years after passage of the federal
A. District of Columbia
{39} Prior to 1970, in the vast majority of jurisdictions defendants had a constitutional or statutory right, at least on paper if not always in practice, to be released on bail prior to trial for virtually all crimes not punishable by death. Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966, 967 (1961). As we noted in Brown,
{40} In a significant change from that history, Congress gave new risk-focused pretrial detention authority to District of Columbia judges as part of the
{41}
{42} The constitutionality of pretrial detention and the evidentiary requirements applicable to detention hearings in the District of Columbia were addressed thoroughly in United States v. Edwards, 430 A.2d 1321 (D.C. 1981).
{43} In a significant holding for the future of pretrial detention laws, Edwards held that the language and history of the excessive bail prohibition in the
{44} After resolving the constitutionality of pretrial detention as a general concept, Edwards addressed arguments relating to
{45} Edwards also held that neither the Confrontation Clause nor the Due Process Clause precludes reliance on hearsay and proffers at bail and detention hearings. See Edwards, 430 A.2d at 1337. In considering what process is due in a detention proceeding, Edwards relied on Gerstein v. Pugh, 420 U.S. 103 (1975), in which the United States Supreme Court held that, while a prompt judicial determination of probable cause is required to justify restraints on the liberty of a defendant pending judicial resolution of criminal charges, using hearsay and written information to make that determination did not violate a defendant‘s federal constitutional rights. See Edwards, 430 A.2d at 1335. Because the protections provided in the D.C. Act were greater than those approved in Gerstein, Edwards held that it was constitutionally permissible to “proceed by the use of proffer and hearsay” at a pretrial detention hearing, “subject to the discretion of the judge” to require more in particular cases. Edwards, 430 A.2d at 1336-37.
B. Federal Courts
{46} Encouraged by the experience with the D.C. Act, in 1984 Congress enacted similar detention authority for all federal courts in the
{47} As with the D.C. Act, the Federal Act allowed federal courts to detain defendants pretrial if clear and convincing evidence at a detention hearing demonstrated that no release conditions would “reasonably assure . . . the safety of any other person and the community.”
{48} The United States Supreme Court directly addressed the constitutionality of the Federal Act in United States v. Salerno, 481 U.S. 739 (1987). As had the District of Columbia Court of Appeals in Edwards, the Supreme Court held that the
{49} Salerno also held that the procedural protections encompassed in the Federal Act, such as the right to counsel, the right to cross-examine any witnesses who do appear at the hearing, the right to present information by proffer or otherwise, and the clear and convincing burden of proof provided “extensive safeguards . . . [that] far exceed” what is required by the due process standards articulated in Gerstein. Salerno, 481 U.S. at 751-52; see
{50} Since Salerno, a number of federal courts have specifically addressed whether the Federal Act permits a defendant to be detained pretrial based solely on nontestimonial information proffered by the government. For example, United States v. Gaviria, 828 F.2d 667, 669 (11th Cir. 1987), relied
C. Massachusetts
{51} Following the federal example, in 1994 the Massachusetts Legislature enacted new procedures to permit pretrial detention of proven dangerous defendants in prosecutions for designated felony and domestic abuse cases. See 1994 Mass. Acts 614, 617, now codified as
{52} The Massachusetts pretrial detention statute, like the D.C. Act and the Federal Act, was promptly subjected to a court challenge. See Mendonza v. Commonwealth, 673 N.E.2d 22, 35 (Mass. 1996) (upholding the constitutionality of detaining a defendant on clear and convincing proof of dangerousness). The Supreme Judicial Court in Mendonza also addressed a challenge to the provision of Section 58(A)(4), see 1994 Mass. Acts 617-18, that allows reliance on hearsay in pretrial detention hearings and provides that “[t]he rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing.” See Mendonza, 673 N.E.2d at 31-32.
{53} Noting that the United States Supreme Court had upheld the “analogous [f]ederal procedure” against constitutional attack, the Mendonza Court concluded that the Massachusetts statutory guarantees of the rights of the defense to cross-examine any witnesses the prosecution does call and to offer hearsay and other information, including witnesses, were sufficient to comply with due process requirements. Mendonza, 673 N.E.2d at 32 (citing Salerno, 481 U.S. at 751-52).
{54} While Mendonza settled the lawfulness of considering hearsay information in a detention hearing, it did not directly address whether a detention order could be entered without any live testimony at all. That question was directly answered in Abbott A. v. Commonwealth, 933 N.E.2d 936 (Mass. 2010), which upheld the exclusive use of
D. Ohio
{55} Ohio faced a greater challenge than the federal government and Massachusetts in authorizing pretrial detention of dangerous defendants. Since its admission to the Union, the
{56} As a result of that constitutional guarantee, Ohio had to amend its constitution before it could promulgate any pretrial detention procedures in noncapital cases. In 1997, the Ohio Legislature proposed and the voters passed a constitutional amendment to add new pretrial detention authority to
{57} Subsequent statutory enactments specified enumerated felonies for which a defendant could be detained and, as have laws in other pretrial detention hearing jurisdictions, provided that “rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing” and that the court “shall consider all available information regarding” the factors relevant to the defendant‘s dangerousness.
{58} Although the Ohio appellate courts have not yet squarely addressed the extent to which live witnesses could be required under their detention laws, appellate affirmances of detention decisions have included cases in which witnesses personally testified and in which they did not. See, e.g., State v. Urso, 11th Dist. Trumbull No. T-0042, 2010-Ohio-2151, ¶¶ 4, 27, 77 (affirming a detention decision based on testimony of an investigating officer who summarized facts of the instant case and of the defendant‘s dangerous criminal history, primarily on the basis of hearsay documents), ¶ 70 (characterizing the evidence as not “weak,” as contended by the defendant, “but rather [as] overwhelming“); State v. Foster, 10th Dist. Franklin No. AP-523, 2008-Ohio-3525, ¶ 8 (affirming a detention decision where the evidentiary record consisted of proffered representations and summaries by both sides and observing that the statute might “under other circumstances call for a more elaborate evidentiary hearing” but that “the facts of this case lend themselves to the approach taken“).
E. New Jersey
{59} New Jersey is the most recent jurisdiction, other than New Mexico, to provide authority for courts to deny pretrial release to dangerous defendants following a hearing. Its comprehensive bail reforms “changed the landscape of the State‘s criminal justice system relating to pretrial release” by moving “away from heavy reliance on monetary bail,” granting judges “the authority to detain defendants prior to trial if they present a serious risk of danger, flight, or obstruction,” and releasing on nonmonetary conditions “[d]efendants who pose less risk.” State v. Robinson, 160 A.3d 1, 4 (N.J. 2017).
{60} The
{62} In 2013, the New Jersey Supreme Court created a broad-based committee to study the need for reforms, with representation “from all three branches of state government including the Attorney General, Public Defender, private attorneys, judges, court administrators, and representatives of the Legislature and the Governor‘s Office.” Robinson, 160 A.3d at 6 (internal quotation marks and citation omitted). A key focus of the committee‘s recommendations the following year was to move from a resource-based, or money-based, system of release and detention to a risk-based system that relies on individualized evidence of danger or flight risk. Joint Committee on Criminal Justice, Report (March 10, 2014) at 2-4, available at https://www.judiciary.state.nj.us/courts/assets/criminal/finalreport3202014.pdf (last visited January 5, 2017). As the committee recognized, in order to accomplish that shift it would be necessary to amend the state constitution. Id. at 68.
{63} In 2014, the New Jersey Legislature passed and voters adopted an amendment to the
{64} Pursuant to this new authority, new sections of the
{65} At 1:08 a.m. on the very day the new statutes and rules became effective, Amed Ingram, a convicted felon, was arrested on a number of serious firearm charges. State v. Ingram, 165 A.3d 797, 799-800 (N.J. 2017). The State moved for detention under the new laws, relying at the hearing on nontestimonial evidence consisting of “the complaint-warrant, the affidavit of probable cause, the PSA [risk-based public safety assessment], the PLEIR [preliminary law enforcement incident report], and defendant‘s criminal history.” Id. at 800.
{66} The defendant appealed the resulting detention order, arguing that allowing the prosecutor to proceed by a nontestimonial proffer alone violated the defendant‘s constitutional due process rights as well as the detention statutes. Id. at 801. Both the intermediate appellate court and the New Jersey Supreme Court affirmed the decision of the trial court, agreeing that neither the wording of the detention statutes nor principles of constitutional due process require testimony from a live witness at every detention hearing. Id. at 801, 809-10. As had courts in other jurisdictions facing the issue, the New Jersey Supreme Court confirmed that “the State is not obligated to call a live witness at each detention hearing” but that “the trial court has discretion to require direct testimony if it is dissatisfied with the State‘s proffer.” Id. at 809-10.
F. New Mexico
{67} New Mexico‘s release and detention reforms came shortly after the New Jersey reforms. After this Court issued Brown in
{68} The Committee, like similar bodies in other states, determined that public safety and the equal administration of justice were ill-served by our historical reliance on the ability to afford a secured bond as the determining factor in whether an accused defendant was entitled to be released pending trial, and that pretrial release decisions should instead focus on evidence-based assessments of individual risks of danger or flight.
1. The November 2016 Constitutional Amendment
{69} One of the first recommendations made by the Committee was to follow the recent Ohio and New Jersey examples and seek an amendment of the antiquated right-to-bail provisions of our state constitution to replace the money-based system of pretrial release with an evidence-of-risk-based system by giving judges new lawful authority to deny release altogether to defendants who pose unacceptable risks of public danger or flight, whether or not they can afford a bail bond.
{70} The original proposal submitted by the New Mexico Supreme Court in 2015 to the Legislature‘s interim Courts, Corrections and Justice Committee was based on federal and state reforms elsewhere. That proposal would have added language to the Pennsylvania model right-to-bail provisions in
{71} The Court‘s original proposed language was amended during the course of the legislative process to restrict judicial detention authority over dangerous defendants to judges in courts of record, which currently by statute does not include courts below the district courts; to permit detention only in felony cases; to require a prosecutorial request before the court may consider pretrial detention of a dangerous defendant; to textually place the burden of proving dangerousness on the prosecution; to remove any judicial authority to deny bail outright to nondangerous defendants who pose only a flight risk; and to add an explicit right to prompt judicial consideration of a motion alleging that a defendant cannot meet a particular amount of secured bond that a court has imposed.
{72} The resulting version, passed by the Legislature in the 2016 Regular Session as Senate Joint Resolution 1 and subsequently approved by 87% of New Mexico voters casting ballots on the issue in the November 2016 general election, amended
Bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. . . .
A person who is not detainable on grounds of dangerousness nor a flight risk in the absence of bond and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money
or property bond. A defendant who is neither a danger nor a flight risk and who has a financial inability to post a money or property bond may file a motion with the court requesting relief from the requirement to post bond. The court shall rule on the motion in an expedited manner.
S.J.R. 1, 52nd Leg., 2nd Sess. (N.M. 2016), final version, available at https://www.nmlegis.gov/Sessions/16%20Regular/final/SJR01.pdf (last visited January 5, 2018);
2. The July 2017 Procedural-Rule Amendments
{73} At the time the rulings were made in the Salas and Harper detention hearings, all the participants were learning how to apply the new detention authority provided by the constitutional amendment. This Court had not completed the process of seeking and considering input on proposals from the Committee and others for procedural rule changes to regulate compliance with the constitutional requirements. See Albuquerque Rape Crisis Ctr. v. Blackmer, 2005-NMSC-032, ¶ 7, 138 N.M. 398, 120 P.3d 820 (discussing state law establishing that under the
{74} While the constitutional amendment required few changes in
{75} Only the district courts now have authority to enter detention orders, at least until and unless the Legislature designates any other courts as courts of record for detention hearings, and accordingly it was necessary to create a new district court pretrial detention process in our Rules of Criminal Procedure for the District Courts. See
{76}
{77}
{78} If the district court denies the state‘s motion for pretrial detention, it must articulate what it found to be insufficient.
{79} If the court orders detention,
{80} There is nothing in the text of the rules or their legislative history that would require live witnesses in every case or that otherwise would limit the discretion of the court in relying on information that it may find reliable and helpful. In fact,
{81} To provide even more clarity, the published commentary to new
{82} Our court rules simply do not impose any live witness limitations on the information considered at a pretrial detention hearing. We therefore address whether there are other federal or state constitutional constraints that might impose different requirements.
3. Federal Constitutional Law
{83} The federal precedents previously discussed in this opinion should put to rest any question whether the
{84} Salerno, 481 U.S. at 751, authoritatively disposed of general federal due process attacks on the kind of detention-for-dangerousness authority that is now part of both federal and New Mexico law: “When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, we believe that, consistent with the Due Process Clause, a court may disable the arrestee from executing that threat.”
{85} The United States Supreme Court has never directly addressed the issue whether live witnesses are required at detention hearings, but decades of federal circuit and district court opinions, as well as state appellate decisions, have consistently answered that question in the negative, as discussed earlier in this opinion.
4. New Mexico Constitutional Law
{86} Because the
{87} In language substantively indistinguishable from that of the
{88} We have previously recognized that the Due Process Clause of the
{89} Counsel for Respondent Judge Whitaker relies on Segura and State v. Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904, to contend that due process requires presentation of live witness testimony and a right of personal confrontation at a pretrial detention proceeding. But those cases do not establish any such bright-line requirements.
{90} In Segura, the defendant allegedly violated his pretrial conditions of release. 2014-NMCA-037, ¶¶ 1, 5. The district court revoked his release and ordered him into custody without providing notice of the revocation proceeding, the opportunity to examine witnesses who actually testified at the hearing, and the opportunity to present evidence in opposition to detention. Id. ¶¶ 6, 24. The Court of Appeals appropriately held that the defendant‘s due process rights were violated. Id. ¶ 25. But Segura did not hold that the state must call live witnesses in order for a defendant to have a meaningful opportunity to challenge the state‘s evidence. With particular relevance to the issues before us, Segura simply stands for the proposition that when the state does present the direct testimony of a witness at a hearing, due process requires the opportunity to cross-examine. Id. ¶¶ 24-25.
{91} In Guthrie, we addressed what process is due to a defendant in a probation revocation hearing. 2011-NMSC-014, ¶¶ 1-2. Significantly, we held that live testimony of probation officers or other adverse witnesses ”is not always required during probation revocation hearings” and that “[t]he trial court should focus its analysis on the relative need for confrontation to protect the truth-finding process and the substantial reliability of the evidence.” Id. ¶¶ 12, 43. Guthrie specifically approved the use of “conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence” in probation revocation hearings as long as the “evidence offered has particular indica of accuracy and reliability.” Id. ¶¶ 13, 20 (emphasis, internal quotation marks, and citations omitted). We stressed that “due process is flexible and calls for such procedural protections as the particular situation demands” and that “not all situations calling for procedural safeguards call for the same kind of procedure.” Id. ¶ 11 (emphasis, internal quotation marks, and citation omitted).
{92} No New Mexico precedent has ever held that the
{93} While the authority of a New Mexico court to detain a defendant based on a finding of dangerousness is new, our courts have routinely made pretrial release and bail decisions on the basis of recorded materials, proffers, and other nontestimonial information with no appellate decision ever suggesting constitutional infirmity in this process. As discussed in Brown, 2014-NMSC-038, ¶¶ 28, 31, 35, these bail decisions have often resulted in pretrial detention for defendants who could not afford the bail amount set by the court. There is no principled reason why detaining arrestees because they are a danger to the community, rather than because they lack money to buy a bond, should require a different constitutional standard.
{94} Because the detention-for-dangerousness provisions of the
{95} Our
{96} We emphasize that pretrial detention of an accused person, prior to assessing individual guilt or innocence under the protections of constitutional due process, is not to be imposed lightly. Salerno, 481 U.S. at 755 (“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.“); Mendonza, 673 N.E.2d at 35 (cautioning that pretrial detention must not be permitted on a “casual and untested” basis); Robinson, 160 A.3d at 14 (“Balanced against important concerns for public safety are the defendants’ liberty interests.“). A detention-hearing court must take into account both the personal rights of the accused and the broader public interest as it makes a pretrial detention decision.
5. Determining Dangerousness
{97} This Court has not been asked to reverse or affirm the particular decisions denying detention in Salas or Harper but merely to determine the appropriate modes of testimony at detention hearings and to remand for new hearings in accordance with our opinion. We will attempt to provide the requested guidance in general terms, without prejudging their application to particular cases.
{98} Like other courts addressing the issue, we caution that judges are still required to make reasoned judgments in evaluating evidentiary presentations. Making judgments about the persuasiveness of evidence is a core function of being a judge. While prosecutors may make proffers, tender documents and other exhibits, and ask the court to consider information in court records, a court may find the weight of any evidence, testimonial or nontestimonial, insufficient to meet the clear and convincing standard for detention in particular cases.
{99} The first step in a detention hearing is to assess which information in any form carries sufficient indicia of reliability to be worthy of consideration by the court. In determining whether any information presented
{100} The court should then consider the extent to which that information would indicate that a defendant may be likely to pose a threat to the safety of others if released pending trial. While the goal of a pretrial detention hearing is not to impose punishment for past conduct, Brown, 2014-NMSC-038, ¶ 52, a defendant‘s past actions and statements can provide a sound basis for justifiable evidentiary inferences of likely future actions, which is the proper focus for the court and the parties under the new constitutional detention authority. See
{101} Both law and behavioral science recognize that in anticipating human behavior, “[o]ne of the predictive tools . . . is the consideration of one‘s character traits based on patterns of past conduct.” Martinez, 2008-NMSC-060, ¶¶ 16, 23 (summarizing approaches to predicting behavior and discussing why the rules of evidence limit using evidence of bad character at trial for policy reasons, despite its undeniable “logical relevance“). Detention decisions, like release conditions, should not be based categorically on the statutory classification and punishability of the charged offense. But the particular facts and circumstances in currently charged cases, as well as a defendant‘s prior conduct, charged or uncharged, can be helpful in making reasoned predictions of future dangerousness. The fact that a defendant has shown a propensity for engaging in dangerous conduct in the past may be helpful in predicting whether that behavior is likely to continue in the future. That is why we stated in Brown that although “[n]either the Constitution nor our rules of criminal procedure permit a judge to base a pretrial release decision solely on the severity of the charged offense,” a judge is required “to make an informed, individualized decision about each defendant.” Brown, 2014-NMSC-038, ¶ 52. In order to do so a judge must consider all relevant information, including the conduct of a defendant in connection with the charged offense, in determining the kind of evidence-based, instead of charge-based, release conditions that would be reasonably necessary to assure return to court or to assure the safety of others. See id. ¶ 55.
{102} Finally, the court must determine whether any pretrial release conditions it could impose “will reasonably protect the safety” of others, as required by the new standard in
{103} It is not surprising that the
{104} In both the Salas and Harper detention orders the district court denied pretrial detention and then conditioned release on posting $100,000 bonds. Money bonds are not light substitutes for principled pretrial detention. The lawful purpose of a money bond is not to protect public safety but only to provide additional assurance that a released defendant will return to court. See State v. Ericksons, 1987-NMSC-108, ¶ 6, 106 N.M. 567, 746 P.2d 1099. A posted money bond does nothing to protect against commission of future crimes and cannot even be forfeited under New Mexico statutes “for anything other than failure to appear.” State v. Romero, 2007-NMSC-030, ¶ 3, 141 N.M. 733, 160 P.3d 914; see
{105} Although we need not speculate on the purpose for the six-figure bonds in the two cases not before us for appellate review, courts have long recognized that we “should not be ignorant as judges of what we know as [people].” Watts v. Indiana, 338 U.S. 49, 52, 55 (1949) (holding a coerced confession unconstitutional and observing that our serious concerns about crime cannot be a justification for ignoring “the safeguards which our civilization has evolved for an administration of criminal justice“). It is common knowledge among judges and others who have worked in our courts that in the vast majority of cases imposition of high-dollar bonds for any but the most wealthy defendants is an effort to deny defendants the opportunity to exercise their constitutional right to pretrial release.
{106} Setting a money bond that a defendant cannot afford to post is a denial of the constitutional right to be released on bail for those who are not detainable for dangerousness in the new due process procedures under the
{107} Other jurisdictions have recognized this constitutional principle. As the Massachusetts Supreme Judicial Court emphasized, “a judge may not consider a defendant‘s alleged dangerousness in setting the amount of bail, although a defendant‘s dangerousness may be considered as a factor in setting other conditions of release.” Brangan v. Commonwealth, 80 N.E.3d 949, 963 (2017). The court noted that if a defendant would pose a danger to the community under nonfinancial conditions of release, the court should comply with its detention authority granted by statute or constitution and court rules and by the accompanying due process requirements. See id. at 963-64. But if a defendant does not pose a danger to the community, the court should release the defendant under appropriate conditions. See id. at 964-65; cf. Smith v. Leis, 2005-Ohio-5125, 835 N.E.2d 5, ¶¶ 1, 66 (holding that imposition of a high-cash bond for the purpose of denying release of a defendant is unconstitutional but observing that the state could move to detain in compliance with the due process procedures in Ohio law).
{109} We now confirm our contemporaneous rulings in this case.
III. CONCLUSION
{110} We hold that neither the
{111} IT IS SO ORDERED.
CHARLES W. DANIELS, Justice
WE CONCUR:
JUDITH K. NAKAMURA, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
BARBARA J. VIGIL, Justice