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EVENTS, THOUGHTS AND UPDATES FROM THE 13th JUDICIAL DISTRICT ATTORNEY'S OFFICE

By Barbara Romo, District Attorney



The District Attorney’s Office is tasked with prosecuting cases and seeking justice through a fair and transparent judicial process. This encompasses a strong commitment not only to a fair judicial process but also the creation and practice of principled policies for the people of the 13th Judicial District. Our consistent aim in the pursuit of justice is advocacy for, and commitment to, victims of crime, their rights and access to a variety of comprehensive services.


What sometimes gets lost is the understanding that while the DA’s office is entirely committed to protecting a victim’s constitutional rights, we also have to prove the crime in a court of law beyond a reasonable doubt while protecting both the rights of the victim and the rights of the defendant. Protecting the rights of the defendant is part of our duty and as ministers of justice, and also insures a conviction is immune to reversal if the case is appealed. Sometimes this requires us to make difficult choices along the way.


The cooperation of a victim throughout the court process often is key to a successful unsuccessful outcome. Rights of victims include the right to be informed, the right not to be harassed, the right to be present and the right to be consulted. Though a victim has these rights it is not always the easiest process for a victim to take advantage of them out of fear, residual trauma and other reasons. This is where our Victim Assistance staff comes in. Our staff assists victims with crisis intervention, counseling referrals, obtaining restitution and emergency assistance, case status notification, and escorts them to every court appearance.


In the last year, our victim assistance staff across the district has helped almost 1500 victims of crime. It is important to understand that the number is much greater when we consider the families of victims of crime who are also greatly impacted. The victim assistance staff work to provide a secure, comfortable, supportive environment where victims, witnesses and and their families are introduced to the extensive services available to them through the District Attorney’s Office and beyond. Victims also receive information about their rights in the criminal justice system.


Carol, a survivor of attempted murder and kidnapping initially did not want to pursue the case against her perpetrator. She was understandably fearful of the process and her abuser. With the encouragement and support of the victim assistance staff throughout the process, she was ultimately able to find the strength to cooperate with our office and testify against her abuser. He was found guilty and sentenced to 26 years in prison. Carol found she was capable of more than she ever believed.


Krissy was the victim of a violent crime. As a result of the crime she became emotionally unstable, very weak and somewhat broken. She was not sure she could face her abuser in court. Her Victim Assistant supported her through the entire case process and was with her when she testified in court. She stood in court just a few feet a way from her abuser and explained how the she felt and how the abuse left her physically disabled for the rest of her life. During her testimony she broke down and cried but when she walked out of that courtroom she held her head high and expressed pride in herself and said she was leaving her fear and self-doubt behind.


In some circumstances the support for victims extends to resources beyond the DA’s office as in the cases of family members that have lost a loved one and have no idea how to pay for the funeral in order to lay them to rest. The Victim Assistance staff makes referrals to services such as the Crime Victim Reparation Committee www.cvrc.state.nm.us which provides financial assistance in these instances.


The last week in April is National Crime Victims Right’s Week (April 25-30). The theme for the awareness week this year is Rights, access, equity for all victims. This theme mirrors the daily intents and goals of the 13th Judicial District Attorney’s Office — to reach and support victims of crime, especially the most vulnerable and marginalized, and to support them through the criminal justice system which can be confusing and overwhelming, in order to seek the justice, they so deserve. For more victim services information and resources please visit https://www.13th.nmdas.com/victimassistance


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  • mhowden6

The Third and Final Installment in the After the Arrest Series - By Chief Deputy District Attorney Jessica Martinez




VOIR DIRE: JURY SELECTION

The first stage of the trial is called Voir Dire which translates to “See the truth”. At this stage, a panel of 40 or more jurors who reside in the county in which the trial is taking place are selected using a lottery system. The Judge speaks with all the potential jurors and ask them questions. Once the judge is finished asking the jurors questions the District Attorney can ask questions of the jurors. Once the District Attorney has finished asking questions, the defense attorney asks questions of the jurors. The goal here is to get to know as much as possible about each potential juror to select jurors who do not possess biases and preconceived notions about the case before hearing the evidence. The state and the defense want jurors who will decide the outcome of the case based solely on the evidence presented during trial.

Once questioning is finished, the court goes through each juror one by one and asks the defense and the state if they would like to keep that juror or strike them. The State picks first and gets three strikes. The defense gets 5 strikes. The first 12 jurors who are not stricken will be selected to sit on the jury.


TRIAL

Once a jury is Impaneled, opening statements commence. The State always goes first during a trial. Opening statements are a chance for the State and the Defense to tell the jury what they believe the evidence will show. It’s a chance to give the jury an introduction into what the case will be.


After opening Statements, the state then puts on what’s called its Case in Chief. The state calls all their witnesses to testify about the nature of the case, presents physical evidence through these witnesses such as photographs, videos, clothes with blood on it or the weapons used during the crime. Once the state has finished asking questions of each witness the defense may then cross examine the witness to test that witness’ credibility. After cross examination the state may then ask follow up questions only regarding what was discussed in cross examination. The state cannot go beyond anything discussed in cross examination. This is called, Outside the Scope of Cross and an objection will be raised by the defense if this happens.


Also, during the state’s case in chief, the state must make sure to prove each element of the charges. For example, a charge of a battery on a household member, the state must show

1. The defendant intentionally touched or applied force to the victim, a household member.

2. The defendant acted in a rude, insolent, or angry manner.

3. This happened in New Mexico on or about the day of incident.

A household member means a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, a co- parent of a child, or a person with whom the Defendant has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member.

The state then attempts to prove these elements by presenting testimony from the victim about what happened, when it happened, where it happened, the relationship between the victim and the defendant, and asking the victim to identify that the defendant is in fact the person who caused the injuries to her/him on the day in question to prove each element of battery on a household member.


The state may also call other witnesses to corroborate the victim’s testimony such as law enforcement officers who responded to the call and who maybe saw marks on the victim’s body, or wounds on the defendant’s knuckles, or who collected the assault weapon. Other witnesses may also be called to testify who may have seen the incident take place, and possible forensic scientists who tested the evidence for fingerprints, DNA, or blood.

When the state has finished presenting all the evidence the state possesses against the defendant the State will rest. The defense then makes a motion for a Directed Verdict and argue that the state failed to meet its burden of proof, failing to prove each element of the crime charged. While this motion is standard practice it is rarely granted in full, however, occasionally a case will get dismissed because the evidence presented did not prove each element of the crime charged.


If the court denies the directed verdict motion, the defense then can put on its own defense. The defendant is not obligated to put on its own defense. If the Defendant chooses not to put on his/her own defense the jury will be instructed not to consider this choice in their deliberations as it is the defendant’s constitutional right to do so and should not be judged for invoking this right.


After all evidence has been presented, the State and the defense will present their closing arguments. Closing arguments are a chance for both parties to explain to the jury why they should reach a certain verdict based on the evidence presented in court. The State will present first, followed by the defense. Once the defense has finished their closing argument, the State will present a rebuttal closing argument.

DELIBERATION

After the State and the defense have finished presenting their cases and evidence to the jury, the judge reads the jury a series of instructions called Uniform Jury Instructions. The jury must follow these instructions during their deliberations and must unanimously answer yes to every question in the jury instructions to reach a verdict of guilty. If they answer no to any of the questions, then their verdict must be not guilty. If the jury cannot unanimously reach a decision, then the jury will hang. This is called a hung jury. If this occurs, the judge will declare a mistrial and new trial will commence to a new panel of jurors.

If the jury reaches a guilty verdict the court moves on to sentencing the defendant. Most often if the judge has discretion on the range of sentencing the judge will order a Pre-Sentence Report. This report is prepared by probation and parole. It includes the defendant’s background such as childhood experiences, past and current drug abuse, any mental or physical conditions, employment history and criminal history. The judge uses this report to help make his/her decision at sentencing.


SENTENCING

Before the judge decides on how to sentence the defendant, the judge hears arguments from the state, which is usually for a stricter punishment, and the defense, which is normally for a more lenient punishment. After hearing the arguments and statements from family members or victims the judge decides and sentences the defendant. The sentence can range anywhere from probation to incarceration depending on the nature of the charges and the defendant’s history.

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  • Jessica Martinez

PART II - By Jessica Martinez, Chief Deputy District Attorney


AFTER INDICTMENT: ARRAIGNMENT.

Once an indictment or a Criminal Information has been filed, the district court schedules an Arraignment Hearing. At this hearing, the defendant is informed of the charges brought against him /her and the maximum penalties for the charges. The question of the defendant’s bond will be addressed. If the defendant is out of custody the judge will likely let him/her remain out of custody if he/she has stayed out of trouble since first released from jail. The judge will however, set conditions that must be followed to remain out of custody while the case is pending trial. If the defendant is still in custody the judge decides whether release is appropriate based on whether the defendant is a flight risk and/or continues to pose a threat to the community.


AFTER THE ARRAIGNMENT: DISCOVERY

The Discovery process begins after the Arraignment. The state files a list of all the witness to be called to testify at trial. The State also makes available to the defendant and his/her defense attorney all reports, statements made by witnesses, video recordings, pictures, forensic lab results, in some cases medical reports, and anything else the state will use as evidence to prove the charges brought against the defendant.

The defense attorney then reviews the evidence and works with the District Attorney to interview every witness the State has disclosed on its witness list about their involvement in the case. These are called Pretrial Interviews, or PTI’S for short. If a witness does not appear for his/her scheduled PTI and makes no attempt to re-schedule, that witnesses’ testimony at trial will likely be suppressed by the court and that witness will be barred from testifying at trial.



After all interviews have been completed the defense may file Motions with the court asking the court to limit the use of some evidence presented against the defendant or in some cases may ask the court to dismiss the case because the defense believes the evidence was collected in an unconstitutional way. For example, law enforcement collected evidence without a warrant, the defendant’s statement was taken without Miranda warnings being read to him/her first, or a key witness failed to cooperate in the pretrial interview process. The state has 15 business days to respond to the defense motions once they are filed. The court then holds an evidentiary hearing where testimony may be taken from officers if the motions involve a fourth Amendment, search and or seizure violation allegation. The court will hear arguments from the state and defense and will ultimately decide on whether to grant the defendant’s motion.


If the court grants a suppression motion, the state then must re-analyze the case and determine if the remaining evidence is sufficient to prove the charges beyond a reasonable doubt at trial. If a key witness is suppressed, for example a victim who incurred injuries because of the defendant battering him/her, the state may not be able to proceed because of the defendant’s constitutional right to confront his accusers and rules of evidence disallowing hearsay. If the evidence is sufficient the case will continue to a trial.


Once all motions have been addressed the case will be scheduled for a jury trial or plea negotiations may occur. During the trial, the State has the burden of proving the defendant committed each crime charged beyond a reasonable doubt. Reasonable Doubt is a doubt based upon reason and common sense -- the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life.


PLEA NEGOTIATION

There is a common misconception that when a defendant takes plea charges are reduced or dismissed. However, this not always the case. Often, if a prosecutor has sufficiently vetted his/her case before charging the risks of any evidence or testimony getting suppressed because of a constitutional violation is less likely. Also, if the evidence against the defendant is strong, there is a chance the defense attorney may advise the defendant to plead guilty to the charges for an agreed upon sentence rather than take her/her chances at trial and risk the judge imposing the maximum penalty.


However, there are times when, yes, a plea offer does involve a reduction in charges or sentencing. This can happen for several reasons. Witnesses have become uncooperative, or evidence has been suppressed, or sometimes a witness is cooperative but going through a trial is too emotionally burdensome. When these scenarios happen, the State will evaluate the case and offer a plea to charges that could still be proven at trial despite the suppressed evidence or to charges the victims are comfortable with when they prefer to forgo a trial.

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NOTE: For a Glossary of Terms, please see Part 1 of After the Arrest


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