Judges toss five NM com­pound cases

The Taos News - - FRONT PAGE - By John Miller jmiller@taos­news.com The Taos News

State dis­trict court judges in Taos on Wed­nes­day (Aug. 29) threw out child abuse cases filed against five adults ar­rested at a com­pound in North­ern New Mex­ico ear­lier this month, say­ing prose­cu­tors failed to meet a crit­i­cal dead­line.

At back-to-back hear­ings, Judges Emilio Chavez and Jeff McEl­roy both said prose­cu­tors with the 8th Ju­di­cial Dis­trict At­tor­ney’s Of­fice had not sched­uled pre­lim­i­nary hear­ings for the five de­fen­dants within 10 days of their in­car­cer­a­tion, a re­quire­ment un­der New Mex­ico Supreme Court rules.

Chavez’ rul­ing Wed­nes­day morn­ing meant de­fen­dants Lu­cas Allen Mor­ton, Hu­jrah Wah­haj and Sub­han­nah Wah­haj, are free to leave jail. The three were charged with 11 counts of child abuse re­lated to liv­ing con­di­tions at the makeshift dwelling where they lived near the Colorado bor­der.

Eleven chil­dren liv­ing there were taken into pro­tec­tive cus­tody when law en­force­ment raided the com­pound Aug. 3. Law en­force­ment al­leged they were ema­ci­ated and clothed in rags.

De­fense at­tor­neys Alek­san­dar Kos­tich, Marie Le­grand Miller and Me­gan Mit­sunaga all cited New Mex­ico Supreme Court Rule 5-302, which de­fines time frames within which a pre­lim­i­nary ex­am­i­na­tion must be held in or­der for the state to show prob­a­ble cause for charges filed.

The lan­guage in the rule was re­vised in 2016 to state that vi­o­la­tions of the rule are to be re­solved by dis­miss­ing cases filed.

Kos­tich de­liv­ered an open­ing ar­gu­ment that elab­o­rated on the state’s fail­ure to hold a pre­lim­i­nary hear­ing for his client within the ap­pro­pri­ate time frame, re­flect­ing a com­mon ar­gu­ment the other de­fense at­tor­neys would echo through­out the hear­ing.

“It’s clear that Mr. Mor­ton has been held and there has not been a (pre­lim­i­nary hear­ing) that has been con­ducted,” Kos­tich said. “The state has to satisfy the bur­den be­fore the court. The state has to show there was prob­a­ble cause. Clearly we are far past 10 days. The rule makes very clear that the rem­edy is dis­missal without prej­u­dice.”

Kos­tich said Mor­ton had been taken into cus­tody Aug. 3. He said the dead­line for prose­cu­tors to hold a pre­lim­i­nary hear­ing had passed on Aug. 22.

In re­sponse, pros­e­cu­tor John Lovelace, who shared the table op­po­site with Taos County Sher­iff Jerry Ho­grefe in­stead of fel­low pros­e­cu­tor Tim Has­son. Lovelace said ex­cep­tions could be made to the rule in cer­tain cir­cum­stances.

He said that if an “ex­cep­tional cir­cum­stance” could be demon­strated, an ex­ten­sion could be granted to hold the hear­ing. He also thought his of­fice would have 60 days to hold

the pre­lim­i­nary hear­ing, the time frame set forth if a de­fen­dant is not in cus­tody.

Lovelace said he ex­pected the de­fen­dants to be re­leased and the ex­ten­sion un­der the rule to be granted af­ter Taos Dis­trict Court Judge Sarah Backus de­nied the state’s mo­tion to hold the de­fen­dants without bond at a hear­ing Aug. 13.

But none of the five de­fen­dants had been re­leased prior to Wed­nes­day’s hear­ing.

In an at­tempt to cite an ex­cep­tional cir­cum­stance that might grant an ex­ten­sion, Lovelace called on a wit­ness, Wal­ter Vigil, who has a stand­ing con­tract with Taos County to pro­vide de­fen­dants with GPS track­ing units when re­quired upon their re­lease. Vigil tes­ti­fied he was un­able to make ar­range­ments that met his com­pany’s re­quire­ments for track­ing them, cit­ing is­sues with their hous­ing op­tions.

He also said he was con­cerned the de­fen­dants would dis­cuss their cases with each other.

Dur­ing a cross ex­am­i­na­tion, Kos­tich sug­gested Vigil’s com­ments were out of place and that he was un­qual­i­fied to make as­sess­ments re­gard­ing a de­fen­dant’s con­duct upon re­lease.

In his rul­ing to dis­miss the cases, Chavez said that Lovelace had not shown there to be any ex­cep­tional cir­cum­stance that would qual­ify for an ex­ten­sion un­der the

10-day rule.

“This is one of the most clear rules that we have in our pro­ce­dure,” he said. “All three de­fen­dants have been in cus­tody from their first ap­pear­ance on Aug. 8, 2018. As to ex­ten­sions, I don’t be­lieve there is a retroac­tive way to re­quest or grant an ex­ten­sion even if I was to find there were ex­cep­tional cir­cum­stances.”

Chavez told the court he was aware of the back­lash Judge Backus re­ceived when she ruled ear­lier this month to grant bail for all five de­fen­dants ar­rested at the com­pound near Amalia, but said his duty is to fol­low the law and rules set forth by the higher court.

He dis­missed the cases “without prej­u­dice,” mean­ing the dis­trict at­tor­ney’s of­fice may re­file charges based on new in­for­ma­tion or a grand jury in­dict­ment at a later date.

Judge McEl­roy quickly ar­rived at the same de­ci­sion re­gard­ing cases filed against the other two de­fen­dants, Si­raj Ibn Wah­haj and Jany Leveille.

Like the other three de­fen­dants, Wah­haj and Leveille had each been charged with

11 counts of child abuse, but prose­cu­tors had not held a pre­lim­i­nary hear­ing for ei­ther of them within 10 days of their in­car­cer­a­tion.

McEl­roy also re­ferred to rule 5-302. He said ef­forts by Lovelace, who was joined by Has­son a few min­utes into the hear­ing Wed­nes­day af­ter­noon, had not shown ev­i­dence of spe­cial cir­cum­stances that would war­rant an ex­cep­tion to the rule.

He called Lovelace and Has­son’s de­ci­sion to not sched­ule a timely pre­lim­i­nary ex­am­i­na­tion for the de­fen­dants “a com­plete fail­ure to fol­low proper pro­ce­dure in the case.”

Later, McEl­roy ad­dressed a mo­tion by the state to re­view Backus’ de­ci­sion to grant the de­fen­dants bail, but swiftly up­held the prior de­ci­sion, say­ing the state had failed to pro­duce suf­fi­cient ev­i­dence to merit a re­view of the de­ci­sion.

Prose­cu­tors had cited new ev­i­dence that sug­gested the five adults had been plan­ning to carry out an at­tack on Grady Memo­rial Hospi­tal in At­lanta, Ge­or­gia.

Wah­haj and Leveille were also ar­raigned Wed­nes­day af­ter­noon on two new charges filed by the DA last week: child abuse re­sult­ing in death and con­spir­acy re­lated to the death of Wah­haj’s son, Ab­dul-Ghani Wah­haj, a 3-year-old boy who al­legedly died dur­ing an Is­lamic prayer rit­ual on Christ­mas Eve last year.

The state has filed a mo­tion for pre­trial de­ten­tion for the new charges, which have been set for a hear­ing on Tues­day (Sept. 4).

A pre­lim­i­nary hear­ing on the charges has been sched­uled for Fri­day (Sept. 7).

‘This is one of the most clear rules that we have in our pro­ce­dure.’

– Taos Dis­trict Court Judge Emilio Chavez

The dis­trict at­tor­ney’s of­fice may re­file charges based on new in­for­ma­tion or a grand jury in­dict­ment at a later date.

Jesse Moya

Jany Leveille talks with her at­tor­ney and Si­raj Ibn Wah­haj af­ter charges of child abuse were dropped against the two on Wed­nes­day (Au­gust 29). The cou­ple face ad­di­tional charges in­clud­ing child abuse re­sult­ing in death, a first de­gree felony.

Jesse Moya

Child abuse cases were dropped Wed­nes­day (Aug. 29) against Lu­cas Mor­ton and the other four adults ar­rested in early Au­gust at a com­pound near Amalia.

Jesse Moya

Sub­han­nah Wah­haj awaits a judge’s de­ci­sion Wed­nes­day (Au­gust 29). Wah­haj and four other adults ar­rested from the Cos­tilla Mead­ows com­pound were cleared of child abuse charges but two, Jany Leveille and Si­raj Ibn Wah­haj, still face charges of child abuse re­sult­ing in death.

Jesse Moya

Hu­jrah J. Wah­haj is greeted by her at­tor­ney upon en­ter­ing the court­room Wed­nes­day (Au­gust 29) where charges of child abuse against her and four other adults in the Cos­tilla Mead­ows com­pound ar­rest were dropped.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.