WHY CASES GET DISMISSED

By District Attorney Barbara Romo

I’d like to take this opportunity to explain why cases sometimes get dismissed after they have been referred to the DA’s Office. There are several types of dismissals and a variety of reasons why cases get dismissed. We rely heavily on our law enforcement partners to do complete and thorough investigations before submitting cases to our Office for prosecution.

As I have mentioned before, prosecutors are ministers of justice and as District Attorney, I am responsible for protecting the rights of all citizens in my district, whether they are victims or suspects. While law enforcement normally will submit a case that meets the elements required for probable cause, sometimes we need further investigation to make the case strong enough to prove beyond a reasonable doubt, which is our burden before the fact finder. These cases are sometimes dismissed “pending further investigation.” When a prosecutor dismisses a case it is called a nolle prosequi, which reflects the prosecutors’ discretion whether or not to prosecute. These dismissals are always “without prejudice” meaning we can and do re-file charges if and when the additional investigation is complete. On the other hand, sometimes a case will be submitted for prosecution which may meet all the requirements to allow us to prove the case beyond a reasonable doubt, but there is a constitutional violation such as a bad stop or bad search which precludes us ethically and legally from proceeding with prosecution. We try to use these instances as teaching moments to help our law enforcement partners understand and hopefully not make the same mistake again.

Another common reason why cases are dismissed, either by the Court or by the DA is lack of victim and/or witness cooperation. This is frequently the case in domestic violence cases where victims, for a variety of reasons, do not wish to continue with the prosecution of an offender. In other cases, key witnesses who may have given a statement to police during the initial investigation, make themselves unavailable to testify. This could be from fear of retaliation or due to a complicated familial relationship with the offender for example. When this happens, either the prosecutor or the judge will often decide to dismiss the case. If the judge dismisses the case s/he can either dismiss “with prejudice” or “without prejudice”, depending on the circumstances. If the judge dismisses “with prejudice” the prosecutor is legally precluded from refiling the charges—even if the witnesses decide to cooperate after the dismissal. Sometimes we will dismiss a case (Nolle) in magistrate court and present to the Grand Jury to decide whether there is sufficient evidence to proceed to district court. So, a dismissal or Nolle in magistrate court doesn’t necessarily mean the case will not be prosecuted. And, while our victim advocates work closely with victims and witnesses, we also have to keep in mind that forcing someone to testify might do more harm than good and I am always cognizant and wary of the potential of re-traumatizing victims and witnesses.

Finally, first time non-violent offenders are ordinarily given the chance to enter a diversion program, which if completed will result in a dismissal of the charges. This is an incentive to help individuals who have strayed off the legal path become productive citizens without the burden of a criminal record. Our Pre-prosecution Diversion Program assists these offenders by getting them counseling and other resources to help them deal with issues that led them to make the mistakes that got them in trouble with the law. These individuals also give back to the community with donations of clothes, food, school supplies etc. as well as participating in community service. The goal is to reduce crime by turning offenders into productive and engaged members of our community which in turn makes the community a better and safer place to live.

What is a District Attorney and What Does She Do?

By Barbara Romo, 13th Judicial District Attorney of New Mexico

I’ve been frequently asked what a District Attorney does. In New Mexico a District Attorney is a public official elected to represent the state in criminal judicial proceedings in a particular judicial district or county. The 13th Judicial District encompasses three counties, Valencia, Cibola, and Sandoval. As the chief law enforcement officer of the district, it is my responsibility to ensure, to the extent possible, fair, ethical, and consistent decisions with the goal of seeking justice, within the constraints of a legislatively controlled budget and limited resources.

I oversee a staff of approximately 80 employees (attorneys, support staff, administration, and investigators). Much like state and local prosecutors around the country, my prosecutors contend with very high caseloads and comparatively lower salaries than what they would be able to earn in other settings. This makes recruitment, training, and retention an ongoing challenge especially because a good portion of our district is rural.

Prosecutors are tasked with establishing the direction and outcome of all criminal cases, particularly through their charging and plea-bargaining decisions. When someone is accused of committing a crime, it is not the police but the DA who has the sole discretion to decide if criminal charges are filed and the severity of those charges.

Not all criminal charges go to trial, nor should they.

Numerous variables go into this decision and frequently what may seem clear cut to the public based on news reports and general knowledge is not necessarily clear cut for the prosecutor. How we proceed after charges are filed is the most important decision we will make and often there are variables which may be out of our control.

· Is there probable cause?

· Is the police report complete and accurate?

· Do we have the evidence?

· Are the witnesses able and willing to cooperate?

· Would a specialty court or diversion program achieve a better outcome and be a more efficient use of our limited resources? (The 13th Judicial District has the option of Mental Health Court, Drug Court, Juvenile Drug Court, and Pre- Prosecution Diversion. I am also exploring the viability of establishing other specialty courts in the district such as Veteran’s Court).

· If the crime is victim enumerated, how do the victims feel?

· What do our state laws support, ethically and constitutionally?

While every District Attorney has essentially the same responsibilities, each District Attorney can have varying philosophical approaches to the position. I am committed to the communities in which we work. Community engagement is a priority for me, a priority I have extended to my staff – encouraging participation through service throughout the community with time off given to do so.

I am also committed to working collaboratively with law enforcement and other related agencies throughout the district. My staff and I meet regularly with law enforcement leaders, members of the court, and victim service organizations such as Haven House, Valencia County Shelter Services and Roberta’s Place, SANE and CYFD through Multi-disciplinary Task Force Meetings, the Community Coordinated Response Team, and others to discuss and address issues and staff cases, to achieve the best possible outcomes. Through my membership in local Rotary Clubs, the Chamber of Commerce and participation in community events throughout the district, my staff and I hear concerns and ideas from community members. My ongoing commitment to the community is to be of value to the community not just an entity that puts bad guys in jail.

District Attorneys also work with the legislature reviewing proposed laws. The New Mexico State Legislature meets for 60 days in odd numbered years and 30-day sessions in even number years. As certain laws are proposed, District Attorneys across the state track certain bills that may affect our work to determine potential collateral impact. We analyze the bills, then send our analysis of them back to the legislative committee for consideration and on occasion incorporation. In some cases, we will take a position as a group in support or in opposition to a proposed law.

My main objective is to do everything within my power to create safety in the community. At the same time, I am committed to supporting programs in the community and within my jurisdiction which support rehabilitation and assistance for those who made mistakes and are committed to becoming productive citizens of their communities.

Pre-Prosecution Diversion: “The Program showed me that I can be good.”

By Nina Salazar Pre-Prosecution Diversion Program Specialist

The 13th Judicial District Attorney’s Office Administers a Pre-Prosecution Diversion Program (PPD) designed to help first time non-violent offenders stay out of the prison system, make right on their mistakes, and preserve their futures by keeping their records free of felony convictions.

Pre-Prosecution diversion programs identify defendants who are not likely to commit additional offenses and allow them to avoid being formally charged with a criminal offense. A diversion program also allows the conservation of community and criminal justice resources while allowing a person who is unlikely to reoffend to avoid having a formal criminal record.

The 13th Judicial District Attorney’s office has PPD clients in all three counties in our district. While there is a basic criterion required for acceptance into the program, our program customizes the contractual agreement between the defendant and the program to best serve the individual and achieve the best outcome. The time that a defendant is in the program varies from six to 24 months and focuses on personal accountability and achievement. Defendants (“Clients”) who have never graduated from high school must complete their GED or HISET, clients who have addiction issues are required at a minimum to be in outpatient treatment and counseling, everyone is required to give back to the community and either be in school or working full time or some combination of the two.

For some people, the Pre-Prosecution Diversion Program is about statutes and numbers. However, it is the philosophy of the 13th District Attorney’s Office that the program is about people with a belief that an individual who makes a mistake need not be defined by that mistake for the rest of their lives. Every person who enters our program requires something different to get through, contribute and graduate from the program.

B.V. was charged with possession of a controlled substance. She was addicted to prescription drugs when she entered the program. The first thing was to help her get into a treatment program. B.V. was already attending school full-time. She completed her schooling, with a degree in plumbing. However, she had a tough time getting a professional plumbing agency to give her a chance. In my role as the PPD Administrator, I called the Union of Plumbers and they were able to help her get a job at Intel, where she is now completing her plumbing apprenticeship to become a licensed plumber.

L.P. was homeless and arrested for Possession of Controlled Substance. He was in our program for a year, but his contract was extended an extra three months so that he could complete his counseling. It took time and encouragement for him to understand and believe that he could change and be successful. While in the program L.P. got treatment for addiction, secured a job, and is no longer living on streets. He also worked hard to fix his relationship with his children.

One young woman M.S. arrived in the program with a history of petty misdemeanors and a drug problem. At her first meeting M.S. was clearly beaten down. She had lost custody of her child and felt hopeless. It was obvious she was still using. But she had a glint in her eye that indicated she may succeed. Originally scheduled for a year in the program, her contract was extended to 18 months. There were times when it felt as if I was pulling her through the program. The first order of business was to get her into a Suboxone program and help her into a stable living situation to begin to piece her life back together. She thrived with specific assignments like getting a current driver’s license. There were successes and failures along the way, but step by step the balance shifted toward more successes than failures. And with each success M.S. became more confident in herself. She obtained a job, went back to school to become a cosmetologist all while staying in treatment and off heroin. Eventually she also regained custody of her daughter.

When the time came to complete the program, she did not want to graduate because she was afraid, she would lose everything she had gained. She did not trust herself to continue to make good decisions. We wrote down every good decision she had made in the prior 18 months, and then she wrote down every good thing that had come of her decisions. When asked what the most important thing was to come out of the program for her, she looked down at her list, then looked up and said, “I learned I can be good.”