Double-jeopardy column did not tell all

Attorney who handled the appeal lays out how the defendant was wronged

In Joel Jacobsen’s column April 25, “New Mexico high court ruling deprived a victim of justice,” he described the case of Henry Hildreth Jr., whose case was rushed to trial after prosecutors were late turning over evidence. Hildreth’s lawyer essentially went on strike in protest. The judge pushed ahead with trial, anyway, even though there was no attorney defending Hildreth. The New Mexico Supreme Court held that the judge’s misconduct was so serious Hildreth could not be retried.

Jacobsen, a former prosecutor, argues in his column the Hildreth case illustrates problems with double jeopardy law in New Mexico. As the attorney who argued Hildreth’s case on appeal, I would like to …. respond to a few points in Jacobsen’s column.

First: Jacobsen wrote that, after prosecutors failed to turn over evidence on time, “the prosecution didn’t oppose” delaying the trial. In fact, prosecutors opposed rescheduling the trial to give the defense time to prepare. When the defense asked for more serious sanctions instead, prosecutors said that they’d prefer a delay to other sanctions, but still asked to go forward with trial that day. The prosecution also downplayed the importance of the late-disclosed evidence to encourage the judge to go forward.

Second: Jacobsen criticized the double jeopardy rule the Supreme Court applied in this case and suggested it was unprecedented, even though we’ve had this rule in New Mexico for 26 years. He also didn’t explain what the rule actually says. The rule is from a 1996 case called State v. Breit, and it boils down to this: Ordinarily, if the prosecution makes a serious error, the defendant gets a new trial. But, if prosecutors commit very serious misconduct and they know that what they’re doing could cause a mistrial or reversal, and they deliberately do it, anyway — in those rare cases, no new trial is allowed.

Barring retrial is a sanction to the unruly prosecutor and a warning to other prosecutors to deter future misconduct. If the prosecutors don’t even try to be fair, they don’t get a second bite at the apple. The only thing “new” in Hildreth’s case was that the Supreme Court held this well-established rule about prosecutors applies to judges, as well.

Third: Jacobsen’s column suggests Hildreth will never be punished. But, even though Hildreth’s trial blatantly violated his constitutional rights, he spent almost three years in prison and two years on parole as he fought to overturn his conviction. By the time the Supreme Court decided his case, Hildreth had served his time. He will never get back those years of his life. Any discussion of injustice in this case should include the injustice inflicted on Hildreth himself.