Pretrial rule change draws criticism, praise

A recent pilot program in the 1st and 2nd District Courts (Santa Fe and Bernalillo) has prosecutors and defense attorneys debating the new changes to pretrial rules; specifically, the change to the defense’s ability to conduct pretrial interviews with law enforcement officers.

The pilot program was launched in late March by the New Mexico Supreme Court as a way to streamline misdemeanors, such as criminal and traffic cases, “to ease the hardship in the justice system from the COVID-19 pandemic,” said a news release from the Administrative Office of the Courts.

“These changes in the judicial process will help efficiently use the resources of police, prosecutors, defense counsel and courts to move cases forward toward a resolution while honoring constitutional rights and protections,” said Justice Briana Zamora in the news release.

However, some of the specific changes were met with backlash from defense attorneys — in particular, a new rule stating that state prosecutors are no longer required to make law enforcement officials available to defense attorneys for pre-trial interviews.

Though the changes have not made their way to Taos yet, both 8th Judicial District Attorney, Marcus Montoya, and Lead Public Defender, Aleks Kostich, had opinions in the matter.

Kostich said he hopes the pilot program doesn’t make its way to the 8th District. “I hope it doesn’t [come here],” he said. Having worked in Bernalillo for 11 years, he said he knows the differences between the districts fairly well.

“I don’t necessarily see it coming to our district, because there are far fewer cases that are filed in

Taos than there are in Bernalillo County or in Santa Fe Magistrate Court,” Kostich said.

Regardless, he said he doesn’t see the new rule change regarding pretrial interviews as a positive change. “One of the bedrock protections that criminal defendants have in New Mexico is this ability, or requirement, essentially, that anybody who is a witness in a case has to give a pretrial statement,” he explained.

He said that pretrial interviews with law enforcement officers, even in misdemeanor DWI cases, are important in deciding whether or not to go to trial, and feels they are also a fundamental right of a defendant. “I’ve seen in action how important it is that the government’s witnesses sit down for a recorded interview. I think that is one of the foremost protections that New Mexico has written into its rules,” he said.

Kostich also noted that things are beginning to get back on track in the 8th District and said he doesn’t see a severe backlog of cases related to COVID. “There are more in-person court hearings [and] there is more ability for us to do our job.”

Meanwhile, Montoya said he supports the program and its efforts to lighten caseloads through the pretrial rule change. “Overall, I applaud the court for their efforts in helping streamline the resolution of cases. Timely resolution is important to everyone. We are just beginning settlement conferences here in the 8th Judicial District and I am hopeful that efficient and reasonable agreements will result,” he said.

“Generally, not too much more information is discovered in law enforcement pretrial interviews than is available on law enforcement videos,” he said, adding that “status conferences prior to a preliminary examination could certainly

prove helpful, however, with the already numerous hearings scheduled, the court and the attorneys may be hard-pressed to make time for additional hearings.”

Montoya noted the district is working with criminal justice partners “to serve victims’ rights, protect defendants’ rights, ensure public safety and promote community well-being.”

One of the changes that has seen support from both sides is a change allowing a third party judge to act as a mediator to help the prosecution and defense reach a settlement in cases prior to trial.

“I think that can be a positive thing, because… you have judges who have a background in criminal law,” said Kostich of the other change. “If parties are at a stalemate, it’s worth maybe trying to explore settlement a little further, with, essentially, a judge acting in the role of the mediator.”

The third change in the pilot program involves conduction traffic violation hearings remotely.

It is unknown if the program will expand beyond the 1st and 2nd districts.