If you watched the local news last night, especially Channel 4 (KOBTV), you would see that the Schultz/Brandenburg media manipulation is at it again. It was reported that approximately 1/3 of the DWI cases brought to Metropolitan Court are dismissed because the "prosecution was unable to proceed". If you have had any experience with Metropolitan Court, you would know this more than likely means the officers were not able to attend court. Kari Brandenburg stated she did not want to point the finger at just one person, but the lack of support for APD officers speaks differently.
For the most part, DWI cases being dismissed is NOT the police officer's fault. For those who are unaware, here is a quick breakdown of the logistics with officers and court cases. At the most, officers are given seven days notice of court hearings. There are actually times when officers get only one day notice to appear in court. In essence, this means that although officers have days off, they really do not have any days off. This can make it very difficult for officers to plan for doctor's appointments, daycare, personal time, etc.
Instead of being sympathetic to the needs of the police officers, Chief Schultz has (as so typical of the Chief), made it into a blame game with the officers on the receiving end. Memos threatening officers with absolute discipline have been circulating and the discipline seems to be escalating. For example, if an officer calls in sick, some employees are being forced to provide doctor's notes, proof of the sickness, and proof of calling in to the APD Court Liaison Office. How many people go to the doctor every single time they (or their child) is sick? In fact, if an officer is going to miss court, that officer must provide a thirty day notice to APD Court Liaison advising their absence. Again, an officer's scheduled day off is not really a day off, they are at the mercy of the department and the District Attorney.
Day shift Officers are faced to log out at court and are not available to take calls for service. On those instances where the officers are stuck on a call, they must call into court and then later prove they were in fact on a call. Swing shift and graveyard officers usually are at court when their shift is just beginning or just ending. Not only is personal time comprised, so is their sleep time. For example, you can have an officer work from 10:00 p.m. to 8:00 a.m., proceed to court at 8:30 a.m., then they may have court in the morning, afternoon, etc. So the officer may leave court at 3:00 p.m., or even later in the instance of a trial. The officer gets home at 4:00 p.m. or 5:00 p.m., only to go to work a few hours later. For typical case of "when I say jump, you better jump".
Let us not forget the aspect that defense attorneys know the loopholes and many attorneys continue their criminal cases over and over knowing that the one time the officer does not appear, they will more than likely receive a dismissal. As stated in the kobtv.com story, Retired Sergeant Paul Heh, had once attended court 23 separate times for one single DWI case. According to Paul Heh, he has no idea what the outcome of the case was because he never received notice for his 24th appearance.
It would seem like Kari Brandenburg and Chief Schultz are so conceited, they can not admit that the system is severely broken and the fault does not lie within the officers, but lies with the Chief of Police as well as the District Attorney's office. It would have been so nice if either one of them took the responsibility or admitted that the Officers are the ones placed with the burden and are not to blame. , but then again we dont live on Fantasy Island do we?
For the KOB story, click here.
Showing posts with label Metropolitan Court. Show all posts
Showing posts with label Metropolitan Court. Show all posts
Apr 7, 2009
Dismissed
Dismissed... A word that's being heard all too frequently in down at Metro Court these days. DWI cases being dismissed not because the accused is innocent or guilty for that matter, but because the evidence is shall we say unreliable.
APD uses devices commonly known as breath-a-lizers to determine whether drivers who have been arrested for DWI are actually intoxicated. Of course, drivers have the right to decline taking the test but the penalty for doing so is the loss of one's driver's license for a period of a year.
Each APD substation has one of these breath-a-lizers or Intoxilizer 8000s. Like all technology used for law enforcement, these electronic devices are required to be certified yearly. In the case of the Northeast Heights Substation, the Intoxilizer 8000's certification expired September 30th, 2008. Of course, the expiration was not noticed until December 2008. The person who's responsible for making sure that the substation's Intoxilizer remains continuously certified is Wayne Dechano.
When arresting officers go to court one of the things that they must testify to is the certification of the device used to gather the evidence against the accused. The problem is that in every case that involved the Northeast Sub's Intoxilizer officers couldn't truthfully testify that the device was certified. Our Eyes tell us that despite the certification problem, officers were instructed to testify that the "machine is certified."
You might note the use of the present tense. Currently, the Intoxilizer 8000 at the Northeast Sub is certified. However, it wasn't certified between October 1, 2008 and December 2008 for anyone arrested for DWI and taken to the Northeast Sub for testing.
It's bad enough that APD screwed up and continued using a device that wasn't certified and it wouldn't be the first time that someone made a mistake. However, once the error was found officers were not only instructed to bend the truth a bit by testifying to the device's current status, but they attempted to sell it to the rank and file by "certifying" the unit on the word of the very person who failed to make sure the Intoxilizer 8000 was properly certified in the first place.
The photo to the right is of the note placed on the Intoxilizer to "certify" the unity despite the fact that it hadn't been properly certified. Look, we understand the impulse to well... cover your... you know. And the unit itself may have been working just as well on October 1st as it was on September 30th. But the simple fact is the unit's court accepted certification only lasts a year and APD has the same obligation to abide by the rules as everyone else does - arguably even more. Now, cases that could have been won - perhaps should have been won - are being dismissed.
This didn't have to happen. Officers could have used another Intoxilizer. It would have been inconvenient, but the results wouldn't have been open to challenge and the cases subject to dismissal when presented in court. Not surprisingly, APD couldn't keep this snafu under wraps and officers are refusing to bend the truth when testifying and judges are responding by dismissing the cases brought before them.
APD uses devices commonly known as breath-a-lizers to determine whether drivers who have been arrested for DWI are actually intoxicated. Of course, drivers have the right to decline taking the test but the penalty for doing so is the loss of one's driver's license for a period of a year.
Each APD substation has one of these breath-a-lizers or Intoxilizer 8000s. Like all technology used for law enforcement, these electronic devices are required to be certified yearly. In the case of the Northeast Heights Substation, the Intoxilizer 8000's certification expired September 30th, 2008. Of course, the expiration was not noticed until December 2008. The person who's responsible for making sure that the substation's Intoxilizer remains continuously certified is Wayne Dechano.
When arresting officers go to court one of the things that they must testify to is the certification of the device used to gather the evidence against the accused. The problem is that in every case that involved the Northeast Sub's Intoxilizer officers couldn't truthfully testify that the device was certified. Our Eyes tell us that despite the certification problem, officers were instructed to testify that the "machine is certified."
You might note the use of the present tense. Currently, the Intoxilizer 8000 at the Northeast Sub is certified. However, it wasn't certified between October 1, 2008 and December 2008 for anyone arrested for DWI and taken to the Northeast Sub for testing.
It's bad enough that APD screwed up and continued using a device that wasn't certified and it wouldn't be the first time that someone made a mistake. However, once the error was found officers were not only instructed to bend the truth a bit by testifying to the device's current status, but they attempted to sell it to the rank and file by "certifying" the unit on the word of the very person who failed to make sure the Intoxilizer 8000 was properly certified in the first place.The photo to the right is of the note placed on the Intoxilizer to "certify" the unity despite the fact that it hadn't been properly certified. Look, we understand the impulse to well... cover your... you know. And the unit itself may have been working just as well on October 1st as it was on September 30th. But the simple fact is the unit's court accepted certification only lasts a year and APD has the same obligation to abide by the rules as everyone else does - arguably even more. Now, cases that could have been won - perhaps should have been won - are being dismissed.
This didn't have to happen. Officers could have used another Intoxilizer. It would have been inconvenient, but the results wouldn't have been open to challenge and the cases subject to dismissal when presented in court. Not surprisingly, APD couldn't keep this snafu under wraps and officers are refusing to bend the truth when testifying and judges are responding by dismissing the cases brought before them.
Mar 7, 2008
Judgement Rally
Center for Family Justice to Rally for Judge J. Wayne Griego Indictment
Metropolitan Court Judge J. Wayne Griego was recently brought before the Judicial Standards Commission for fixing tickets for court staff and family (read our take here). This is the second time that the Judge has played fast and loose with the law and we don't believe he's qualified to continue in his capacity as a Metro Court Judge.
The Center for Family Justice (find their website here) agrees with our position and has decided to do something about it. They're holding a three day rally (Tuesday, March 11th, Wednesday March 12th, and Thursday, March 13th) calling for a grand jury investigation into Griego's ticket fixing activities and collecting signatures for a petition to force a grand jury to be empanelled. CFJ President Leslie Cumiford explained their reason for pursing a grand jury investigation in an email we received yesterday.
Metropolitan Court Judge J. Wayne Griego was recently brought before the Judicial Standards Commission for fixing tickets for court staff and family (read our take here). This is the second time that the Judge has played fast and loose with the law and we don't believe he's qualified to continue in his capacity as a Metro Court Judge.
The Center for Family Justice (find their website here) agrees with our position and has decided to do something about it. They're holding a three day rally (Tuesday, March 11th, Wednesday March 12th, and Thursday, March 13th) calling for a grand jury investigation into Griego's ticket fixing activities and collecting signatures for a petition to force a grand jury to be empanelled. CFJ President Leslie Cumiford explained their reason for pursing a grand jury investigation in an email we received yesterday.
Griego[], as a judge, has a charge and a duty to the People of NM and he has utterly failed in this duty. Additionally, he has violated the law and acted in a conspiratorial manner from his official judicial offices.If you have a problem with Judge Griego's continued disregard for the law and his position, the center asks that you drop by the Metro Courthouse Tuesday, Wednesday, or Thursday, between the hours of 9:00 am and 3:00 pm. There'll be a petition available for you to sign and a sign for you to carry if you have a few moments to take part in a little protest activity.
The Constitution of the State of New Mexico allows the People, by petition, to convene a grand jury to consider indictment of an offiical for criminal behavior. In the absence of any real oversight in this state over misdeeds of the judiciary, it is time for the People to lawfully take this matter into their own hands and convene a grand jury regarding Griegos' actions. We do so under the New Mexico Constitution, Article II, Section 14 which states in part: "A grand jury shall be convened upon order of a judge of a court empowered to try and determine cases of capital, felonious or infamous crimes at such times as to him shall be deemed necessary, or a grand jury shall be ordered to convene by such judge upon the filing of a petition there[of] signed by not less than the greater of two hundred registered voters or two percent of the registered voters of the county, or a grand jury may be convened in any additional manner as may be prescribed by law."-Leslie Cumiford, President Center for Family Justice
Mar 4, 2008
Manifest Necessity
"Manifest necessity" - it sounds like some political philosophy or foreign policy. Unfortunately, it was the actual reason given by Judge Benjamin Chavez for the recent dismissal of a DWI case being heard in his courtroom.
The facts of the case are fairly simple. According to police reports, Alicia A. Cleary was arrested May 9, 2007 for Aggravated DWI (3rd or Subsequent), Leaving the Scene of an Accident, and Careless Driving. She had been observed hitting a pole on Academy and APD issued an attempt to locate bulletin on a Corvette last seen headed East on Academy with debris hanging from the vehicle.
Not too long after the advisory the Corvette was observed turning West on Osuna Rd from Eubank. APD officer Locke followed the Corvette to an apartment complex just West of Osuna where he initiated a traffic stop. At the time there was a male driving the vehicle who exhibited signs of intoxication. He told the officer that Cleary had been driving and had hit a pole on Academy - an assertion that was confirmed by Ms. Cleary.
A DWI officer was called and a DWI investigation ensued whereby Ms. Cleary was administered a field sobriety test which according to police records, she failed. Ms. Cleary later refused to take a breathalyzer test but was arrested on the strength of the failed field sobriety test.
Ms. Cleary wisely obtained defense council (which by the way we recommend). You see this wasn't Ms. Cleary's first rodeo, at the time she had 2 prior DWI convictions and 4 prior arrests. The attorney chosen to represent Ms. Cleary was David Crum.
So far, there really isn't anything particularly remarkable about this case. We've got a defendant with 2 priors grinding her way through the system that lands her in court February 28, 2008.
Our Eyes tell us that the case proceeded normally right up until the prosecution rested. At that time Defense Attorney Crum objected to the state not calling any witnesses from the car - which by the way they don't have to do. The state is only required to call witnesses for their case. They are also required to turn over any and all evidence in the state's possession to the defense.
The defense has the ability to call any witnesses including any passengers that may have been in the vehicle at the time of the alleged DWI. Therefore it is not incumbent upon the prosecution to call witnesses for the defense.
You'd think that there would be a short discussion of the motion, it would be denied and the trial would proceed normally. In this case, you'd be wrong. According to court documents, Judge Benjamin Chavez declared a mistrial for "manifest necessity."
We're still trying to figure out what the heck that's supposed to mean, but there might be a clue in the fact that it appears that attorney David Crum is a financial supporter of Judge Chavez's campaign for District Court Judge.
It seems that Chavez (the one in a robe, not the one from on high), has decided to set his sights on District Court. Our Eyes tell us that David Crum has been a supporter of the judge in the past and was all set to host a fundraiser for Chavez that very night.
If true, Judge Chavez's necessity has become manifest with a questionable decision involving a habitual offender for an attorney who's supporting him financially. At best the decision creates an appearance of impropriety. At worst, he could be guilty of misconduct. After all, there's very little difference between fellow Metro Court Judge J. Wayne Griego fixing tickets for family and friends and Judge Chavez apparently having an alternate and personal consideration when issuing a mistrial.
We understand that MADD was in the room and that they were well... not happy. We'll see if anything comes of this but if true, we certainly wouldn't want to see Chavez continue in Metro Court much less District Court.
The facts of the case are fairly simple. According to police reports, Alicia A. Cleary was arrested May 9, 2007 for Aggravated DWI (3rd or Subsequent), Leaving the Scene of an Accident, and Careless Driving. She had been observed hitting a pole on Academy and APD issued an attempt to locate bulletin on a Corvette last seen headed East on Academy with debris hanging from the vehicle.
Not too long after the advisory the Corvette was observed turning West on Osuna Rd from Eubank. APD officer Locke followed the Corvette to an apartment complex just West of Osuna where he initiated a traffic stop. At the time there was a male driving the vehicle who exhibited signs of intoxication. He told the officer that Cleary had been driving and had hit a pole on Academy - an assertion that was confirmed by Ms. Cleary.
A DWI officer was called and a DWI investigation ensued whereby Ms. Cleary was administered a field sobriety test which according to police records, she failed. Ms. Cleary later refused to take a breathalyzer test but was arrested on the strength of the failed field sobriety test.
Ms. Cleary wisely obtained defense council (which by the way we recommend). You see this wasn't Ms. Cleary's first rodeo, at the time she had 2 prior DWI convictions and 4 prior arrests. The attorney chosen to represent Ms. Cleary was David Crum.
So far, there really isn't anything particularly remarkable about this case. We've got a defendant with 2 priors grinding her way through the system that lands her in court February 28, 2008.
Our Eyes tell us that the case proceeded normally right up until the prosecution rested. At that time Defense Attorney Crum objected to the state not calling any witnesses from the car - which by the way they don't have to do. The state is only required to call witnesses for their case. They are also required to turn over any and all evidence in the state's possession to the defense.
The defense has the ability to call any witnesses including any passengers that may have been in the vehicle at the time of the alleged DWI. Therefore it is not incumbent upon the prosecution to call witnesses for the defense.
You'd think that there would be a short discussion of the motion, it would be denied and the trial would proceed normally. In this case, you'd be wrong. According to court documents, Judge Benjamin Chavez declared a mistrial for "manifest necessity."
We're still trying to figure out what the heck that's supposed to mean, but there might be a clue in the fact that it appears that attorney David Crum is a financial supporter of Judge Chavez's campaign for District Court Judge.
It seems that Chavez (the one in a robe, not the one from on high), has decided to set his sights on District Court. Our Eyes tell us that David Crum has been a supporter of the judge in the past and was all set to host a fundraiser for Chavez that very night.
If true, Judge Chavez's necessity has become manifest with a questionable decision involving a habitual offender for an attorney who's supporting him financially. At best the decision creates an appearance of impropriety. At worst, he could be guilty of misconduct. After all, there's very little difference between fellow Metro Court Judge J. Wayne Griego fixing tickets for family and friends and Judge Chavez apparently having an alternate and personal consideration when issuing a mistrial.
We understand that MADD was in the room and that they were well... not happy. We'll see if anything comes of this but if true, we certainly wouldn't want to see Chavez continue in Metro Court much less District Court.
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