Gov. invokes high-profile cases in bail reform attack
But neither represents clear-cut example of amendment’s alleged flaws
William Wilson and Michelle Martens are the poster children for Gov. Susana Martinez’s attack on a voter-approved constitutional amendment she once supported that allows judges to hold dangerous suspects in jail before trial and release others not deemed to be a danger or a flight risk.
Martinez twice last week took to Facebook to announce her campaign to “repeal and replace” the bail reform amendment and court rules that implement it. She wants the Legislature to take action as early as the 30-day legislative session, which begins Jan. 16.
But her two examples may not be the best argument: Martens is still in jail pending trial on charges related to the horrific murder of her daughter. And a court audiotape shows the prosecutor in the Wilson case never filed the paperwork to hold him in jail without bail. Wilson was killed in a shootout with State Police in San Juan County on Aug. 27.
Martinez didn’t post the messages on her governor’s Facebook page, but on her “Stand with Susana” page, which describes her as a “politician.”
In early 2016, she joined the state District Attorneys Association in supporting the bail reform amendment on its journey through the Legislature.
The Republican governor then publicly endorsed the amendment last fall, releasing a statement that as a 25-year prosecutor she “understands that we need to do more to keep dangerous, violent criminals off the streets.” The amendment passed with 87 percent voter approval.
Asked about her new stance, a spokesman for Martinez told the Journal in an email Friday, “The Governor called for bail reform to allow judges to keep the most dangerous criminals in jail. Unfortunately, both the legislature and the judiciary failed to deliver — and misled voters with a proposal that is putting more violent criminals out on the streets. That’s why the Governor is once again calling on lawmakers and the courts to act and end the revolving-door criminal justice system.”
She joins a chorus of most of New Mexico’s 13 district attorneys who have criticized the way the amendment has been implemented. The prosecutors are asking the state Supreme Court to make changes but have stopped short of calling for outright repeal.
Meanwhile, the bail bond industry has consistently opposed the amendment and has gone to federal court seeking to invalidate it. That effort failed.
Advocates of the amendment argued that releasing suspects on monetary bail sets up a two-tiered justice system that permitted the wealthy to bail out, while the poor sat in jail until trial. Bail is still permitted under the amendment, but judges now have new discretion to hold certain dangerous defendants without bail. The amendment also allows low-risk defendants to be released pending trial without bail.
Martinez’s Facebook message says, “It’s clear that the judiciary is using these new provisions to return criminals back to our neighborhoods and it must stop.” She wants the legislature to “bring this issue to the voters immediately.”
In her Facebook post on Oct. 17, she blamed the San Juan County judge who released Wilson from custody on Aug. 2. District Judge John Dean Jr. required Wilson post a $25,000 unsecured appearance bond, wear a GPS monitor and stay with a third party pending trial on charges of burglary and stealing firearms from his uncle’s house in 2015. Wilson, a convicted felon, was previously jailed under a $20,000 cash bond his attorney said he couldn’t afford.
An audio recording of an Aug. 2 hearing obtained by the Journal shows the judge made his decision to release Wilson after an assistant district attorney — who called Wilson a “one-man crime wave” — conceded that the DA’s Office had never filed the paperwork to seek the defendant to be held without bail.
Procedural rules in criminal cases require a prosecutor to file a written motion with a district court to request pretrial detention of a defendant.
District Attorney Rick Tedrow of Farmington didn’t return a Journal phone call last week. Neither the judge nor Wilson’s public defender responded to Journal requests for comment.
At the Aug. 2 hearing, court records show, Assistant District Attorney Brian Decker told the judge, “It is telling that we have not filed, to the best of my knowledge, a motion for a no-bond.”
“I don’t see one in the file,” the judge responded.
“We have not,” Decker said. “So the court has to decide what conditions to let this man out on under the new rules.”
Later in the hearing, Decker told the judge: “At a minimum, we would ask that a GPS monitor be in place.”
After the judge inquired further, the prosecutor said, “Our recommendation, your honor, is that he stay in custody, but I understand that may be problematic. So at least a GPS monitor, at a minimum, we would ask for.”
Wilson, 26, was killed weeks later in a shootout in which police say he shot at a New Mexico State Police officer.
He was a passenger in a vehicle pulled over by a San Juan County sheriff’s deputy the morning of Aug. 27. The occupants were suspected in connection with the theft of a trailer and other cases of larceny and burglary.
Wilson was being handcuffed by the State Police officer who arrived on the scene when Wilson retrieved a gun, believed to be a revolver, State Police said. Wilson shot a State Police officer, hitting his law enforcement badge and bulletproof vest. The officer sustained bruising and shrapnel in the face. It isn’t clear whether Wilson had been subjected to a pat-down for weapons before the shooting.
Within hours of the shootout, San Juan County Sheriff Ken Christesen, a Republican, put the blame on the constitutional amendment and bail reform.
“They’re putting dangerous criminals back on the streets,” he said. “This nonsense of catch and release” needs to stop, he added.
Victoria’s mom
In a follow-up Facebook post on Thursday, the governor brought up the high-profile case against Martens, who is being held on $1.5 million bail after being charged in the Aug. 23, 2016, sexual abuse, murder and dismemberment of her 10-year-old daughter, Victoria.
“Had the current ‘catch and release’ system been in place at the time of her murder, Victoria’s mom would likely be free right now,” Martinez said.
She wrote that in applying the new amendment, judges created rules and “a scoresheet to determine if an accused criminal can be let back out on our streets.” Under that score sheet, which is produced through a risk assessment tool used in Bernalillo County, Martens would have only scored a 2, “making it very likely that she would be free today,” Martinez wrote.
District judges in Bernalillo County began using the risk tool last year but the scores aren’t binding.
In fact, state District Judge Christina Argyres of Albuquerque on Sept. 16, 2016, dismissed the risk assessment score to allow Martens to be released to a thirdparty with intensive supervision pending trial. The score was based on the fact that Martens had no criminal history. But the judge noted the heinous circumstances of crimes alleged.
The hearing occurred prior to the passage of the amendment. So Argyres increased the amount of bail for Martens, 35, from the original $1 million set upon her arrest to $1.5 million. She also retained the original $1 million cash bail each for co-defendants — Fabian Gonzales, 31, and Jessica Kelley, 31.
The risk assessment tool takes into consideration the criminal history of a defendant only when it involves a conviction. Critics fault the tool for not also taking arrests and certain other factors into account.