[Update [1Jun2015]: The Attorney-General has filed papers asking the
New Mexico Supreme Court to take a look at this case. Word should come
down within 60 days or so on whether or not the court will do so. I suspect the decision is more likely to stand than not; but it
remains just plain wrong that this fellow would walk free after doing
about a month and a half of jail time. He killed an infant. Didn't
mean to, apparently, but damned sure did -- and afterward, out of fear and perhaps inebriation, apparently didn't immediately call 911 then told a couple of different stories about how the girl died. The
Court of Appeals sort of had to do what it did; but my heart goes out to the rest of the girl's family. She deserved better.]
Many here are outraged that Robert J. Flores, convicted after his daughter died through his inexcusable neglect, will not be jailed. A Soundoff said his daughter, Kalynne, deserved better.
I agree, and would hope former DA Susana Martinez is apologizing in her heart to Kalynne and will some day do so publicly.
It's not the court's fault: our constitutional guarantee of a speedy trial protects us. Despots can keep someone in jail for years pending trial. Our Founders said no to that practice, and meant it. If you get falsely accused used of some crime, you deserve to be heard in court soon. Not five years later, when the DA and her successor have moved on to other jobs.
Is it shocking that a fellow who killed his infant daughter by leaving her in a hamper so he could go out for beer without having neighbors hear her cries won't be jailed? You betcha!
But the speedy trial laws are no secret.
The appellate court had no real choice. The court examined a well-known set of four factors. This delay was extreme and unjustifiable. The Court of Appeal even gave the State the benefit of one big doubt: it classified as “neutral” sixteen months' delay traceable to the DA's unsuccessful appeal of a pre-trial order. (Details on my blog.)
(You can't blame the current D.A. Trial started within a month of his taking office. ADAs Jacinto Palomino and Roxanne Esquivel got a conviction, and an eighteen-year sentence.)
A closer look reveals additional problems.
Had there been no such delay, the courts might have had to free Flores because of other mistakes or misconduct. Law and Order fans know police must give a suspect Miranda warnings. Flores was allegedly taken into police custody (without probable cause, the police reportedly admitted), not “Mirandized,” and subjected to six hours of custodial interrogation. By then, many suspects would be ready to sign whatever you handed 'em, just to stop the interrogation. (That's particularly true of one who was young and confused, perhaps a bit inebriated, and had just lost his daughter through his own negligence.)
The appeal alleged additional misconduct which the decision doesn't address because the speedy trial issue was sufficient to resolve the appeal. Thus we don't know how those issues would have come out; but appellate specialist Caren Friedman, who helped with the appeal, said “Robert's conviction was obtained through numerous Constitutional violations.” (The Governor's Office hasn't called me back to comment.)
This case seems sadly symbolic of how Martinez ran the office: much “tough on crime” talk, but some sloppy lawyering. Here, part of the delay occurred because the prosecutors said they couldn't prepare for trial in two months. But was this such a complex case it couldn't be tried with two months' preparation? Palomino had only a month.
I wonder now about the decision initially to seek a possible life sentence.
Apparently Robert was a normal young man, who was perhaps too young to be a father and proved it by doing something indefensibly dumb that had horrendous consequences. He was WRONG. His daughter DIED. But did he intend that? Was the clothes hamper obviously life-threatening? If not, what's the right punishment? I don't know, and I don't know all the facts of this case, so I won't speculate. But I doubt it's life imprisonment. (I know that in my youth I did a host of dumb things that could have killed people, including me, but was luckier than I deserved.)
Generally, New Mexico courts are moving away from treating parenting decisions as criminal matters.
Martinez made a lot of noise and unsuccessfully sought a much longer sentence; but her office failed even to get this kid to trial and may well have ignored basic constitutional rights.
If Martinez runs for national office Flores might get famous; but that won't help Kalynne.
-30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 31 May, and will appear today on KRWG's website.]
[You can read the New Mexico Court of Appeals decision for yourself. The court seems almost angry -- at the DA's conduct and perhaps at the pliability of the local courts. I tried to ascertain whether or not Governor Martinez had anything to say to defend herself. Wednesday, a very pleasant young man returned my call and said he would look into it and get me her response, if any, that evening or Thursday. No one called me with any such response. So maybe I did ascertain whether she has anything to say in her defense.]
[It's easy to say the court should have ignored the abuses and stuck the guy in jail for twenty years because a child died. But another factor is what happens throughout this country when DA's can get away with this sort of misconduct. There are abundant examples of kids who never did a damned thing but got picked up and charged, sat in jail, and had a wonderful choice: sit in jail for perhaps years and then probably get convicted in an unfair trial or plea-bargain, pleading to a lighter sentence (years in jail) for a crime you had nothing to do with. DA's shouldn't get to use time as a weapon that way. Defendants -- who are presumed not guilty and sometimes actually are -- have a right to get into the court and fight the charge if they choose to.]
[Finally, for those interested in the nature of the actual delays but not so interested as to read the Court of Appeals decision, I summarize below the basic reasons for delays and how the Court of Appeals viewed those:
5/2008 to 1/2009 was classified as administrative delay that weighed against the State. (The first trial was set for June 3, 2008; May 22, State filed motion to delay six months, up to and including Jan 2, 2009 because prosecutor had another jury trial during the period.)
1/2009 – 3/2009 was “attributable to and weighed against the State. (Court rescheduled to February, State filed motion to extend six-months, S.Ct granted ext to May 2 2009. Defendant made certain motions a month before trial, but did not move to continue; three weeks later the State successfully moved for an extension of time to respond to the motions. The trial court granted the extension, necessitating trial continuance. The Court of Appeals said the three motions were filed “well within the time allocated by rule for the State to respond.” The State's cited reason was need for more time to research and respond.)
4/2009 – 7/2009 weighed against State. (State moved on June 18, a month before trial but 3 days before hearing on suppression motion, to exclude D's expert, whose testimony was expected to be offered at suppression hearing. Trial court ran out of time to respond, necessitated new trial continuance.)
Mid-July to late November 2009 was weighted neutrally. (Defendant moved for change of venue, which the court initially denied then granted, and this was weighed neutrally because the change-of-venue motion was meritorious.).
Dec. 2009 to Sept. 2010 was a six-month negligent delay against the State. (On Dec 18 State petitioned to extend trial to July 2 (8 months after venue change) stating re-set would require special arrangements with Court in Bernalillo County. This ten-month delay was judged significant, particularly in context, and the Court of Appeal noted that the prosecutor hadn't done much to start making those arrangements.)
Then on Feb 16 2011 State moved to continue April 6 2011 setting because prosecutor assigned to the case appointed to the judiciary. (Note that the new prosecutor would have had almost two months to prepare, more than the single month ultimately available to the folks who actually tried the case and won it.) The trial court denied motion to continue, but then granted a defense motion to exclude evidence that the reason Flores had left his daughter alone was to buy beer. The State appealed. This caused a further 16-month delay, which was weighed neutrally by the Court of Appeals even though the appellate court upheld the trial court's decision that the evidence more prejudicial than probative and should be excluded.
July 2012 – January 2013 further administrative delays that were weighed against the State.
The cumulative delays were so long that although Defendant's counsel argued prejudice, the Court of Appeals held that it didn't have to find actual prejudice because the three other factors weighted too heavily against the State.]
Many here are outraged that Robert J. Flores, convicted after his daughter died through his inexcusable neglect, will not be jailed. A Soundoff said his daughter, Kalynne, deserved better.
I agree, and would hope former DA Susana Martinez is apologizing in her heart to Kalynne and will some day do so publicly.
It's not the court's fault: our constitutional guarantee of a speedy trial protects us. Despots can keep someone in jail for years pending trial. Our Founders said no to that practice, and meant it. If you get falsely accused used of some crime, you deserve to be heard in court soon. Not five years later, when the DA and her successor have moved on to other jobs.
Is it shocking that a fellow who killed his infant daughter by leaving her in a hamper so he could go out for beer without having neighbors hear her cries won't be jailed? You betcha!
But the speedy trial laws are no secret.
The appellate court had no real choice. The court examined a well-known set of four factors. This delay was extreme and unjustifiable. The Court of Appeal even gave the State the benefit of one big doubt: it classified as “neutral” sixteen months' delay traceable to the DA's unsuccessful appeal of a pre-trial order. (Details on my blog.)
(You can't blame the current D.A. Trial started within a month of his taking office. ADAs Jacinto Palomino and Roxanne Esquivel got a conviction, and an eighteen-year sentence.)
A closer look reveals additional problems.
Had there been no such delay, the courts might have had to free Flores because of other mistakes or misconduct. Law and Order fans know police must give a suspect Miranda warnings. Flores was allegedly taken into police custody (without probable cause, the police reportedly admitted), not “Mirandized,” and subjected to six hours of custodial interrogation. By then, many suspects would be ready to sign whatever you handed 'em, just to stop the interrogation. (That's particularly true of one who was young and confused, perhaps a bit inebriated, and had just lost his daughter through his own negligence.)
The appeal alleged additional misconduct which the decision doesn't address because the speedy trial issue was sufficient to resolve the appeal. Thus we don't know how those issues would have come out; but appellate specialist Caren Friedman, who helped with the appeal, said “Robert's conviction was obtained through numerous Constitutional violations.” (The Governor's Office hasn't called me back to comment.)
This case seems sadly symbolic of how Martinez ran the office: much “tough on crime” talk, but some sloppy lawyering. Here, part of the delay occurred because the prosecutors said they couldn't prepare for trial in two months. But was this such a complex case it couldn't be tried with two months' preparation? Palomino had only a month.
I wonder now about the decision initially to seek a possible life sentence.
Apparently Robert was a normal young man, who was perhaps too young to be a father and proved it by doing something indefensibly dumb that had horrendous consequences. He was WRONG. His daughter DIED. But did he intend that? Was the clothes hamper obviously life-threatening? If not, what's the right punishment? I don't know, and I don't know all the facts of this case, so I won't speculate. But I doubt it's life imprisonment. (I know that in my youth I did a host of dumb things that could have killed people, including me, but was luckier than I deserved.)
Generally, New Mexico courts are moving away from treating parenting decisions as criminal matters.
Martinez made a lot of noise and unsuccessfully sought a much longer sentence; but her office failed even to get this kid to trial and may well have ignored basic constitutional rights.
If Martinez runs for national office Flores might get famous; but that won't help Kalynne.
-30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 31 May, and will appear today on KRWG's website.]
[You can read the New Mexico Court of Appeals decision for yourself. The court seems almost angry -- at the DA's conduct and perhaps at the pliability of the local courts. I tried to ascertain whether or not Governor Martinez had anything to say to defend herself. Wednesday, a very pleasant young man returned my call and said he would look into it and get me her response, if any, that evening or Thursday. No one called me with any such response. So maybe I did ascertain whether she has anything to say in her defense.]
[It's easy to say the court should have ignored the abuses and stuck the guy in jail for twenty years because a child died. But another factor is what happens throughout this country when DA's can get away with this sort of misconduct. There are abundant examples of kids who never did a damned thing but got picked up and charged, sat in jail, and had a wonderful choice: sit in jail for perhaps years and then probably get convicted in an unfair trial or plea-bargain, pleading to a lighter sentence (years in jail) for a crime you had nothing to do with. DA's shouldn't get to use time as a weapon that way. Defendants -- who are presumed not guilty and sometimes actually are -- have a right to get into the court and fight the charge if they choose to.]
[Finally, for those interested in the nature of the actual delays but not so interested as to read the Court of Appeals decision, I summarize below the basic reasons for delays and how the Court of Appeals viewed those:
Many appellate
decisions outline the system reviewing courts in New Mexico use to
appraise a delay. Factors include length of delay, reasons for
different portions of the delay, complexity of the case, and
prejudice to defendant. The court analyzes whether portions of the
delay were prosecutor's fault, defendant's fault, or no one's fault.
A delay of 12
months in a “simple” case and 18 months in a “complex case”
is “presumptively prejudicial.” The greater the delay, the more
presumptively prejudicial it is. Here, the courts accepted, over
Defendant's objection, the prosecutor's (the State's) argument that
this was a complex case.
Breaking down the
length delay, the Court of Appeals held:
12/2007 to May 2008
was negligent and weighed against State. (“The
record shows no activity initiated by the State to prosecute this
case other than a request to review Defendant's conditions of release
because he was seen at a local basketball game.” Defendant did not
file initial witness list until May 21, 2008 – and only after four
letters from Defendant's counsel requesting disclosure so he could
interview witnesses. 5/2008 to 1/2009 was classified as administrative delay that weighed against the State. (The first trial was set for June 3, 2008; May 22, State filed motion to delay six months, up to and including Jan 2, 2009 because prosecutor had another jury trial during the period.)
1/2009 – 3/2009 was “attributable to and weighed against the State. (Court rescheduled to February, State filed motion to extend six-months, S.Ct granted ext to May 2 2009. Defendant made certain motions a month before trial, but did not move to continue; three weeks later the State successfully moved for an extension of time to respond to the motions. The trial court granted the extension, necessitating trial continuance. The Court of Appeals said the three motions were filed “well within the time allocated by rule for the State to respond.” The State's cited reason was need for more time to research and respond.)
4/2009 – 7/2009 weighed against State. (State moved on June 18, a month before trial but 3 days before hearing on suppression motion, to exclude D's expert, whose testimony was expected to be offered at suppression hearing. Trial court ran out of time to respond, necessitated new trial continuance.)
Mid-July to late November 2009 was weighted neutrally. (Defendant moved for change of venue, which the court initially denied then granted, and this was weighed neutrally because the change-of-venue motion was meritorious.).
Dec. 2009 to Sept. 2010 was a six-month negligent delay against the State. (On Dec 18 State petitioned to extend trial to July 2 (8 months after venue change) stating re-set would require special arrangements with Court in Bernalillo County. This ten-month delay was judged significant, particularly in context, and the Court of Appeal noted that the prosecutor hadn't done much to start making those arrangements.)
Then on Feb 16 2011 State moved to continue April 6 2011 setting because prosecutor assigned to the case appointed to the judiciary. (Note that the new prosecutor would have had almost two months to prepare, more than the single month ultimately available to the folks who actually tried the case and won it.) The trial court denied motion to continue, but then granted a defense motion to exclude evidence that the reason Flores had left his daughter alone was to buy beer. The State appealed. This caused a further 16-month delay, which was weighed neutrally by the Court of Appeals even though the appellate court upheld the trial court's decision that the evidence more prejudicial than probative and should be excluded.
July 2012 – January 2013 further administrative delays that were weighed against the State.
The cumulative delays were so long that although Defendant's counsel argued prejudice, the Court of Appeals held that it didn't have to find actual prejudice because the three other factors weighted too heavily against the State.]
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