Who’s on First? A Pretrial Primer

Many will recognize the famous line “Who’s on First?” from the Abbott and Costello comedy routine of the same name.

Beginning this past May, the question is a serious one asked by judges throughout the state.

Effective May 8, rules governing court procedures require a temporary hold of individuals who pick up new criminal charges while on conditions of release pending trial in another case.

These rule changes are the result of evolving pretrial justice reforms that balance public safety and the constitutional rights of accused persons. Under the law, people charged with a crime are presumed innocent until proven guilty and they have a right to remain free while awaiting trial, except in limited instances.

The new rules approved by the Supreme Court apply to felonies and specific misdemeanor charges. These misdemeanors include battery charges, negligent use of a deadly weapon, domestic violence charges, criminal sexual contact, harassment and driving under the influence of intoxicating liquor or drugs, among others.

The process looks like this: Upon filing of new criminal charges against a person, a review takes place to determine if the individual was on conditions of release in a case pending before another court. A temporary hold is placed on the individual if the new arrest was for felony or specific misdemeanors.

In many parts of the state, including Valencia County, support exists from a 24-hour, seven-days a week background investigation unit operated by the state court system. After an individual’s arrest, a judge receives a background report that details criminal history and any pending charges in other courts. The report identifies in red print and highlighted text if the new case triggers a requirement for a “temporary hold” based on the pretrial rules.

If it does, then the judge and staff produce a temporary hold order, directing the local jail to detain this individual pursuant to the new rule. Additionally, this order goes to any other state court identified in the report. Upon notification, the court with authority over the defendant in another pending case is required to take appropriate steps on specified timelines.

Judges in counties without a pretrial services program will not have access to a background report on an arrested person. However, they will follow similar procedures. Judges will review pending cases through the court’s data management system to determine if a person must be held in custody because they were arrested for a new crime while awaiting trial. Notices of a temporary hold will be sent to other courts with pending criminal cases against the individual.

If a defendant has criminal cases pending in multiple courts, then each court receives notice of the temporary hold. The rule specifically reads, “The person shall remain in custody until each judge assigned to any of the person’s pending previous felony cases … considers modification or revocation of the person’s conditions of release.”

Each court with pending cases against a defendant will determine if the individual’s conditions of release are to be modified, unchanged or revoked. Release from custody is the result if the pretrial conditions are modified or unchanged. Staying in jail is the result of revoked conditions of release.

Regardless of the decision, the judge will produce a written order with the court’s decision. Specific to revocation, the order will include written findings justifying revocation.

When individuals are charged with new criminal offenses, but not arrested, other courts will be notified, that a defendant has a new qualifying charge representing a violation of conditions of release. Judges must then consider whether to change the previously imposed pretrial conditions.

While we are still working through the final operating procedures, I can report that these new rules produced predictable results. Individuals throughout the state are having their conditions of release modified or having those conditions revoked entirely.

This innovative approach serves two vital purposes. One, it enables and requires communication between courts with the outcome of defendants being held accountable to the judges setting conditions of release. Two, it promotes public safety by requiring a review of the release conditions of defendants rearrested pending trial. Such a review was previously discretionary.

During these last few months, I have issued temporary detention holds on cases from all over the state of New Mexico. Likewise, other jurisdictions are notifying my court of individuals in violation of conditions of release set by my court.

Optimally, we will not have to issue detention holds if a defendant does not violate any conditions of release. Getting the word out on the consequences is key.

In my court, when someone appears for their first court appearance, whether in-custody or otherwise, I inform defendants of the new law and the ramifications of violating conditions of release.

A workable pretrial service program is reliant on accountability; with these changes, accountability is forefront.

(Magistrate Judge John R. Chavez is the magistrate in Belen. He is a native of Valencia County and is a retired U.S. Army colonel.)