Albuquerque Journal

Justice should not wait for a perfect world

- BY MICHAEL L. STOUT Michael L. Stout lives in Las Cruces and is married to a district judge.

In dictatoria­l regimes, leaders often promise democratic elections — just as soon as conditions improve. Those elections rarely occur.

In New Mexico, a wine bar displays a sign, “Free Wine Tomorrow.” Free wine is never served.

In Albuquerqu­e, the Journal takes a “wait

’til tomorrow” approach to the District Court’s plan to improve the felony charging system. That longconsid­ered — but now delayed — plan reduces the use of grand juries in favor of preliminar­y hearings for determinin­g whether charges should proceed. Acknowledg­ing “there are compelling reasons to use preliminar­y hearings instead of grand juries,” the Journal nonetheles­s labels the plan a “Recipe for Disaster”. “In a perfect world,” it says, “it would be worth going down that road. But this isn’t a perfect world.”

Exactly when will that perfect world be available? And why have many jurisdicti­ons in New Mexico been close enough to perfection to have used preliminar­y hearings for decades while Bernalillo County, among a few others, has taken the more wasteful, inefficien­t and unjust path?

A “perfect world” is an aspiration to be worked toward, not a thing we wait to be dropped from the heavens. Reform is a process and the proper process here is to follow the judges’ lead for institutio­nal improvemen­t.

Chief Judge (Nan) Nash and Presiding Criminal Judge (Charles) Brown lay out pages of convincing explanatio­n for preferring preliminar­y hearings over grand juries. For starters, jurisdicti­ons worldwide are eliminatin­g grand juries because they are not a buffer between the citizen and the government as envisioned, but instead are a tool of the prosecutor to generate charges without an objective assessment. They point out grand juries are “wasteful, expensive, time consuming and incapable of producing accurate results.”

Conversely, the judges note preliminar­y hearings increase public confidence in the system because they promote transparen­cy and allow screening of cases by both sides. Preliminar­y hearings “prevent hasty, malicious, improviden­t and oppressive prosecutio­ns.”

Prosecutor­s object to change. They’ve become accustomed to the ease of bringing charges in a secret proceeding where there is no challenge by a judge or defense attorney applying those pesky rules of evidence. They can use the leverage of a damning indictment to obtain guilty pleas — or to simply dismiss a weak case — several months into litigation after defendants have perhaps lost a job or even been jailed, and victims have been frustrated.

Saying with a straight face that criminals will consider the type of probable cause procedure before acting is not real. Likewise it is shortsight­ed and unprincipl­ed to support a grand jury procedure shown to be less just and more wasteful than the available alternativ­e.

All involved — prosecutor­s, judges, defense attorneys, victims and the Journal — agree that preliminar­y hearings are the fairer, more objective procedures at the probable cause stage. Add to that the benefits of “front loading” the system so that decisions can be intelligen­tly made by all parties, and so that cases are either resolved early or at least placed on the track to trial on appropriat­e charges, then the choice of procedures is a no-brainer.

Claims that the sky is falling because these proceeding­s will affect the crime rate ring hollow. Police are needed less, not more, for preliminar­y hearings, and will not be needed in later proceeding­s if the case is resolved. Victims want prompt resolution of cases as much as anyone, most criminals don’t act out according to the latest rule of procedure, judges desire efficiency and the accused wants a fair hearing.

Besides, the community certainly seeks justice, not just expediency.

The strength of our system is that we strive for a “more perfect union” — by improving the process — not that we wait for a perfect world before we do the right thing.

 ??  ?? Michael L. Stout
Michael L. Stout

Newspapers in English

Newspapers from United States