Funding means DA has to pick his prosecution battles

New 2nd Judicial District Attorney Raúl Torrez’s strategy to combat what he calls “out of control” crime in Bernalillo County by focusing solely on career criminals and the most serious crimes likely isn’t what residents want to hear. But it is realistic given the funding limitations imposed by the state’s dismal finances as well as the ongoing confusion over a two-year-old Supreme Court order aimed as speeding up the district’s justice system.

Torrez, whose office typically handles about 18,000 misdemeanor and criminal cases a year, has said limited funding will force his office to prosecute fewer cases — so his prosecutors will concentrate “on the relatively small percentage of the criminal population that drives a disproportionate amount of crime.” Because those prosecutions stand to have the greatest impact on the overall crime rate, delivering the most bang for the prosecution buck, that seems a sensible — if far from ideal — approach.

Torrez says his prosecutors will prioritize cases by considering how often a suspect has come into contact with police, his/her criminal history, the nature of the case and whether the suspect has a history of being a felon in possession of a firearm — something he says is a major red flag.

What he doesn’t say is that many “less serious” cases will, by necessity, go unprosecuted unless they can be routed to pre-prosecution and diversion programs.

Here’s what he’s up against: Torrez says his office would need $25 million a year to optimize its effectiveness. His predecessor, Kari Brandenburg, submitted a funding request to the Legislature for $18.5 million — $1 million more than the office received in her final year as DA.

Despite spending cuts enacted last fall, Gov. Susana Martinez is recommending Torrez’s office receive no increase for the coming fiscal year, and the House Appropriations and Finance Committee is backing the governor. The Legislative Finance Committee recommended a funding increase of less than 1 percent.

Meanwhile, the county’s homicide rate is the highest it’s been in 20 years, and New Mexico had the third-highest violent crime rate and second-highest property crime rate in the nation in 2015, according to FBI stats.

The DA’s severely overcrowded office is testament to the crime wave, with hundreds of boxes of records going back decades serving as room dividers or stacked along walls. Because there’s not money to digitize those records, Torrez is hoping the county can find storage room in some of its unused buildings. And he says he can’t even afford laptop computers for his prosecutors, let alone the additional 20 and 25 additional prosecutors he needs to keep up with the caseload.

But with the state scrambling to plug a multimillion-dollar hole in the coming fiscal year because of a precipitous drop in oil and gas revenues, there’s no immediate relief in sight and thus the need to pick your prosecution battles.

Compounding the issue is a lack of clarity in the so-called Case Management Order, issued by the state Supreme Court in February 2015 and modified in November 2015. The order set strict deadlines for the exchange of evidence between investigators and prosecutors, and for defendants to be arraigned. The order, which applies only to the 2nd Judicial District, was designed to speed up adjudication of criminal cases, eliminate a backlog of cases and address jail overcrowding.

Under Brandenburg’s watch, about 3,000 criminal cases were dismissed, including 2,500 primarily property crimes and 500 from other divisions, such as violent crime. Instead of trying such cases, Torrez says Brandenburg’s team would often file “nolle prosequi” notices in court and abandon cases so charges could be refiled when more evidence was available. But most of those cases have never been refiled, Torrez says, and when those charges were dismissed, suspects were released from jail and, in some cases, committed additional crimes that also were dismissed.

The good news is Torrez is adamant that “we’re not going to do that anymore. We’re going to file these cases and we’re going to let the court make the decision on whether or not they want to impose these strict deadlines.” Those decisions would be far easier to make if there were some uniformity in interpreting what the deadlines entail — which would happen with some follow-up guidance from the Supreme Court that wrote them.

The dismissal of “less serious” crimes will no doubt be questioned, and understandably so, by victims of those crimes. But unless and until the chronic under-funding of the DA’s Office changes, its prosecutors have to start somewhere.