Court: Judge wrong to drop child rape charges
Suspect now faces trial, but finding him may not be easy
In the spring of 2015, when the state District Court in Albuquerque was under new orders to speed up prosecutions of criminal defendants, a judge dismissed charges against Michael James Lucero, who was accused of child sexual abuse, because prosecutors weren’t ready to go to trial.
Recently, a state Court of Appeals panel ruled that state District Judge Stan Whitaker “abused his discretion” in dismissing the case.
The case against Lucero is supposed to go back to District Court for further proceedings. But a spokesman for the Bernalillo County District Attorney’s office said last week that Lucero isn’t in custody to face the charges.
Three days before dismissing the charges in April 2015, Whitaker released Lucero on his own recognizance. Earlier, Lucero had been held on a $100,000 cash-only bond.
The release order shows only an address and a phone number
for Lucero. The phone was no longer in service when the Journal tried to reach Lucero last week. He was represented by the public defender’s office in 2015, but it wasn’t clear from court records which defense attorney might handle his resurrected case.
Lucero’s was among more than 750 criminal felony cases that Whitaker was juggling back then under a special Supreme Court pilot program aimed at reducing the backlog of old cases, according to a court spokesperson. Some cases dated back to 1999.
Lucero, now 46, was among the newer defendants. The dismissal of his case came 14 months after Lucero was indicted on two counts of first-degree criminal sexual penetration of a child under the age of 13 and one second-degree criminal sexual contact of a child under the age of 13.
Whitaker’s dismissal was “without prejudice,” so prosecutors could refile the case in the future, but the Bernalillo County District Attorney’s office chose to appeal the order.
A spokesperson for the Bernalillo District Court told the Journal that Whitaker couldn’t respond to a request for comment on the appeals court decision because the New Mexico Code of Judicial Conduct prohibits a judge from commenting on a pending case.
Amendment applied
Two of Judge Whitaker’s rulings have recently been the subject of a District Attorney’s request to the state Supreme Court for guidelines regarding a new state constitutional amendment that permits judges to deny bond to defendants they consider a danger to the community.
District
Attorney
Raúl Torrez is asking that Whitaker be instructed to reconsider his recent orders that denied prosecutors’ attempts to keep two suspects in jail without bond — called a no-bond hold. One was an armed robbery suspect accused of holding up more than 50 local businesses, and the other was a man accused of shooting his ex-girlfriend.
In the child molestation prosecution, Lucero’s case was placed on a special track because he was indicted in February 2014. Under a special pilot case management order imposed by the state Supreme Court, criminal cases filed before July 1, 2014, were placed on the special court calendar with strict deadlines.
Four Bernalillo County district judges were chosen to handle the special calendar, each assigned to an average of 750 felony cases after the order was imposed in February 2015.
The Supreme Court order said judges shall impose sanctions — which could include dismissal, reprimand or monetary fines — if either the prosecutor or defense attorney failed to comply with any provision of the scheduling order. The Supreme Court also announced it would track judges who allowed cases to fall behind timetables.
The special order stemmed from a backlog that contributed to serious crowding at the Metropolitan Detention Center in Albuquerque.
In anticipation of the new rules, presiding Bernalillo County District Court Judge Nan Nash predicted in late 2014 that the new rules would “change the way we do business.”
The Supreme Court modified the order last year after heavy criticism by the Albuquerque Police Department and thenDA Kari Brandenburg, who contended that the strict rules could put dangerous criminal defendants back on the streets if criminal cases were dismissed — even if there was an option to refile.
Errors by judge
In its opinion April 3, the Appeals Court panel stated that Judge Whitaker dismissed Lucero’s case, “based on his views that the parties were ready for trial, and in an effort to move the case along more quickly.” He rescheduled Lucero’s criminal trial to start April 6, 2015 — a full year earlier than the trial date set forth in the scheduling order, the ruling stated.
During a pretrial hearing on April 3, 2015, an assistant district attorney told Whitaker that prosecutors still needed to interview a therapist and the state wasn’t ready to proceed to trial.
“As a sanction, the district court dismissed the case,” the appeals ruling stated, noting that Judge Whitaker abused his discretion in three ways.
The dismissal was based on the “faulty premise that the case should not be delayed further for pretrial interviews,” the appeals court stated. But an existing deadline for completing witness interviews was still eight months away, in December 2015.
The appeals panel noted that Whitaker had “expressed his concern that the case was old and stated at one hearing ‘we’re not delaying this for pretrial interviews.’ ”
Lucero was indicted on criminal charges for alleged sexual acts with a child that dated back to October 2002. The unlawful contacts continued through October 2006, according to the indictment. Pending trial, prosecutors sought orders to protect the victim and the victim’s relative from contact with Lucero.
The judge also erred in finding that the prosecutor filling in for the assistant district attorney assigned to the case on March 31, 2015, had indicated that the prosecution was ready for trial. The appeals panel reviewed a transcript of that hearing and discovered that the substitute prosecutor told the judge he “didn’t know if the state was ready to proceed to trial.”
In addition, Judge Whitaker considered another pretrial hearing on Lucero’s conditions of release as a docket call, even though the docket call deadline was set for later that month, according to the ruling.
The judge’s dismissal of the case was “clearly against the logic and effect of the facts and circumstances of the case” and, therefore, was an abuse of discretion, the appeals panel stated.