In 2016 we amended the state
constitution to change long-standing bail rules. Under those rules,
a poor defendant who wasn't a danger to the community or a serious
flight risk could linger in jail because s/he couldn't post bond. A
wealthier defendant, even a dangerous one, could post bond and be out
on the street again. The new rules aimed to change that.
Bailbondsfolk complained that the
change threatened their livelihood – and was unconstitutional. (A
court challenge failed.)
Prosecutors complained that to hold a
dangerous felon required an immediate evidentiary hearing, which
could be hard to manage so quickly and represented significant extra
work without added resources. They also said that judges, by
strictly construing the “clear and convincing evidence”
requirement, were still releasing obviously dangerous people. But
civil liberties proponents reasonably claimed that if judges eased up
too much on the rules of evidence, they'd be holding folks in jail on
hearsay, rumors, or a bad reputation, rather than facts.
Everyone was asking the state supreme
court for clarification.
This week, in two opinions written by
Justice Daniels, the court unanimously held in three cases that a
dangerousness hearing “is not bound by formal rules of evidence but
. . . focuses on judicial assessment of all reliable information . .
. in any format worthy of reasoned consideration. The probative
value of the information, rather than the technical form, is the
proper focus.”
Any reasonable person would decide
(for reasons discussed on my blog, with links to the opinions) that
each defendant was certainly dangerous and two were obvious flight
risks.
Evidence such as videos, text
messages, witness statements, or physical evidence found at the scene
supported detention; but evidentiary rules at trial require live
witnesses to authenticate such evidence, not just a cop reporting
what witnesses said, as would occur in a grand jury setting. The
three defendants neither offered evidence nor articulated denials,
but merely challenged the strength of the state's evidence without
witnesses.
My first reaction was that since the
defendants were obviously dangerous, the judge who released two was
an idiot.
But I've witnessed and read about
police and prosecutorial abuses. I've seen justice take a back seat
to southern cops' distaste for civil rights workers and “uppity”
blacks or get ignored by northern cops who could see only our antiwar
politics. I haven't personally suffered extreme abuses, but I've
been close enough to know that procedural protections for defendants
are in place for damned good reasons.
Justice Daniels wrote that defendants
and prosecutor took “absolutist positions” that live witnesses
were always required to authenticate evidence or were never required.
The Attorney-General, and the court, held that such witnesses
weren't always required but that courts may require them where
there's doubt regarding the evidence.
That sounds reasonable, given limited
funds. I'm not certain it's right. These cases were clearcut, but
these questions are troublesome. Will certain judges, for whom
each word uttered by a police officer is gospel, take shortcuts in
less clearcut cases – violating the rights of people who aren't
guilty? But if we required live witnesses a biased judge might
ignore devastating cross-examination of those witnesses. On the
other hand, if a record is made an appellate court can review that.
I come out with Justice Daniels and
with prosecutors I've talked with; but somewhere inside, a younger me
is shouting an obscenity at the grizzled old guy writing this.
-30-
[The above column appeared this morning, Sunday, 14 January 2017, in the Las Cruces Sun-News and on the newspaper's website and KRWG's website. A spoken version will air during the week on KRWG and on KTAL (101.4 FM).]
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