Southwest Crimes Against Children Inaugural Conference

Child maltreatment rates in New Mexico are among the highest in the nation. (Approximately 15 in every 1000 children under the age of 18 have been victims of abuse) With these numbers in mind, my office is initiating the first Annual Southwest Crimes Against Children Conference in New Mexico. The guiding principle in my office and work continues to be “victim’s first”. With a good portion of my career being devoted to specializing in crimes against children, a conference initiative such as this is embedded in the fabric of our organizational purpose. In the fiscal year of 2022 approximately 11% of the cases in my district were Felony Child Abuse. Extrapolate those numbers across the entire state and it’s clear that action must be taken. Unfortunately, we receive cases when crimes have already been committed so we can’t stop the abuse. But we can work collaboratively with our judicial partners in order that the outcome of each case is fair, just, and right. We feel that through a coordinated approach to each case we can ensure that more abuse is not inflicted on children through the judicial process.

Within our district we have always had increased success with crimes against children cases by employing a collaborative multi-disciplinary team approach – when law enforcement agencies, investigators, forensic interviewers, victim advocates and prosecutors work with singular focus on the case at hand.

Thanks to a generous grant we are able to produce this free 2-day conference to bring together all who work directly with child victims of crime. We know from experience that a collaborative approach to cases from investigation to prosecution, including practical and interactive instruction can only result in better outcomes particularly for the victims. The conference design will include hands on workshops, case studies, panel discussions and plenaries focused on improving understanding, and awareness in the handling of criminal child abuse cases with the guiding force being to reduce trauma for young victims. We will bring together representatives from all law enforcement agencies, social workers, prosecutors, child advocates, forensic interviewers, and members of the court in a collaborative setting to share best practices and knowledge, receive training in new aspects of the law, investigative techniques and protocols and prosecutorial approaches with the end goal of improving the handling of child abuse and neglect in New Mexico.

The State of New Mexico has a higher percentage of rural counties compared to much of the rest of the nation at around 23%. Six of the state’s 33 counties are considered by the U.S. Census as completely rural. Also, with 22 tribal communities New Mexico has a 10.6 percent Native population. Because this conference is for the entire state, and representatives from all corners of the state are invited, the conference will provide a great opportunity for building capacity beyond the urban populace into the rural frontier and on Native lands. Because of a recent ruling by the Supreme Court (Oklahoma v Castro-Huerta) that says that the “Federal government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country”, many of the cases on tribal lands that were previously handled by the United States Attorney’s Office, will now be handled by local District Attorney offices and law enforcement. To this end we will include workshops by Native instructors on cultural consideration and competence when handling cases involving Native children and their families.

Our keynote speaker will be noted expert in the field, Victor Vieth of the Zero Abuse Project. Victor has trained thousands of child-protection professionals on numerous topics pertaining to child abuse investigations, prosecution, and prevention. I will offer a workshop to guide prosecutors on how to charge child abuse cases. Workshops will include presentations on the importance of forensic interviews and how to read medical reports. Additional workshops will include the cross examination of defense experts, interviewing suspects, methods for dealing with secondary trauma in this line of work, a case studies and the use and benefits of Court Assistance Dogs and Child Care Rooms when working with young victims.

This conference is free and open to all who work directly with child victims of crime, especially those who are involved in the prosecution and investigation of these crimes. More information and registration information can be found on our website www.13th.nmdas.com

I am so pleased to be able to bring this initiative statewide to all those working in the state on these very important cases,

Competency vs. Incompetency

The recent special legislative session held interest for me and my office for its emphasis on public safety issues. Since the session only lasted five hours, in the end there was not much to see.

I did notice in much of the reporting the issue of competency/incompetency which my staff faces daily. It was stated repeatedly and incorrectly that if a defendant is found incompetent then the case is dismissed.

To be found incompetent to stand trial a defendant must not know right from wrong, not be able to contribute to his/her own defense by aiding his/her defense attorney, nor be able to understand the court process. In these situations, the case is stayed, and the defendant is sent for evaluation professionally by a psychologist or psychiatrist pending agreement by all parties- the Judge, the Defense Attorney and my office.  It is up to the judge to determine if the defendant is to be held in custody or not during this process.

If in this situation and after the evaluation a defendant is deemed not competent to proceed in a criminal trial, and the court finds that the defendant is not dangerous the “court may dismiss the case…in the interests of justice.” (NMSA Section 31-9-1.2, 1978)

If a defendant has been found incompetent but has been charged with a murder, rape, aggravated arson or a crime involving the use of a deadly weapon then my office will proceed with a “dangerousness hearing”.  If the court finds by clear and convincing evidence that the defendant did commit the crime charged (a lower standard than beyond a reasonable doubt) then the court will order the defendant be sent to the State Hospital in Las Vegas, NM to receive treatment to aid in returning to competency. If the defendant’s condition is such that s/he cannot be brought back to competency the court may order the defendant to remain in the State Hospital, a locked secured facility for as long as the crime charged allows.

Some people believe that a person who is mentally incompetent will always be and cannot be treated. There are occasions for example, when someone is found to be incompetent because of drug use, and/or because they are not taking the drugs for a mental illness which would facilitate their competency. Within 30 days the facility is required to submit an evaluation of an assessment and treatment plan and report on the cooperation of the defendant to receive and participate in treatment designed to return them to competency. The timeline for this is usually 9 months. If, however, after 30 days the facility (through the department of health) the defendant has been sent to says they don’t have the capacity to meet the medical needs of him/her they may refuse the defendant.  In these cases, then a motion is made for a hearing to determine dangerousness. If the defendant is determined not to be dangerous then it is likely the case will then be dismissed. If after 9 months the defendant is still not deemed competent but is making good progress, then it is possible to amend the treatment order for more time.

In the case of Senate Bill 10 relating to competency proceedings which in the end was not taken up by the legislature in the special session, the bill was intended to fill some of the gaps in the current law. For example, to provide the opportunity for a defendant to opt for treatment voluntarily in which case all the parties must agree. For non-violent cases that would ordinarily result in a dismissal if the defendant was found incompetent. One of the missing links in this case would be the question of capacity. Do we have the facilities necessary to provide such treatment?  The other question has to do with the ethical responsibility of a defense lawyer. They cannot agree to their defendant opting voluntarily for treatment if they have already been deemed incompetent which means they do not have the capacity to voluntarily agree.

Perhaps, as has been stated, the bills weren’t quite ready, I am not the qualified judge of that. I just know that there is an entire world that needs to be considered in order to meet the intended goals of what on the surface is a good idea to increase the safety of our communities.  On more than one occasion a piece of legislation that looks good on paper has come down to the District Attorneys to execute without consideration for our budgets and staff capacity. We step up to the challenge always understanding that nothing is ever going to be perfect, and we have to start the necessary change somewhere.

BRADY GIGLIO LAWS- What are they? What is their impact?

Recently we have found ourselves facing a situation in which a law enforcement officer in one of our counties described a situation in court which could affect the outcome of the case, which was not truthful, a violation of Brady Giglio Laws. Law enforcement officers and prosecutors are understandably held to a higher standard. The public expects nothing but utmost integrity from law enforcement officials. So, it is not surprising when a local prosecutor or a law enforcement officer gets into trouble, it gets more media attention than it would ordinarily receive if it involved someone who has not been entrusted with upholding the law. While picking up criminal charges might affect someone’s job, lacking integrity during an investigation or during the prosecution of a case can have bigger consequences beyond the person’s job.

 A 1963 Supreme Court case, Brady v. Maryland, mandates that the prosecution disclose any evidence favorable to the defendant that is material to either guilt or punishment to prevent miscarriages of justice and ensure all relevant evidence is available to the defense. The Supreme Court later expanded on the Brady ruling in 1972 in Giglio v. United States holding that any information that could challenge a witness’ credibility must be disclosed to the defense as well.

This Supreme Court ruling spawned the creation of a list in the law enforcement community, which has become known as the Giglio List. When a law enforcement officer has been found to be untruthful, the prosecution must inform the defense in any case in which that law enforcement officer is a witness, and at a minimum, the officer will have to answer those past indiscretions during cross examinations during every subsequent trial.

Gratefully, in our district it is rare to find a law enforcement officer to be untruthful. However, since in one of our district’s counties, a law enforcement official was found by a Court to have been untruthful in an affidavit for a warrant the case was dismissed by the Court and my office now must review every case in which that officer is a witness,  to determine whether these cases have  been tainted because of the officer’s lack of integrity to such an extent that they too must be dismissed.

The situation we face was particularly egregious and potentially had significant consequences not only for one case but for all cases (as mentioned above) this officer engaged in, and the officer’s future employment. Once an officer makes the Giglio list, S/He can never be removed from the list. If the officer continues a career in law enforcement, the past indiscretion must be disclosed, and the officer will have to respond to it in every case the officer is involved in, and the district attorney then has to make a decision whether every case that officer is a witness in is prosecutable based on officer’s lack of integrity for that one particular case.

Another challenge is determining what constitutes material evidence. The subjective nature of this standard can lead to disputes over whether certain evidence should have been disclosed. The Courts must then assess whether the nondisclosure of evidence would have had an influence on the outcome of the trial.

In instances where prosecutors have failed to disclose Brady or Giglio material, either intentionally or inadvertently, such misconduct can result in wrongful convictions and undermine public trust in the legal system. In my office, prosecutorial misconduct is ground for immediate dismissal. The Brady and Giglio laws play a crucial role in safeguarding the rights of defendants and ensuring the integrity of the criminal justice system. By requiring the disclosure of exculpatory and impeaching evidence, these laws help prevent wrongful convictions and promote transparency in legal proceedings.

Since taking office, ongoing education, oversight, and accountability have been a priority. The effective implementation of these rules depends on the diligence and integrity of all legal practitioners.