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Grand jury getting mixed reactions

August 29, 2015 • Local News

A proposal Roswell Mayor Dennis Kintigh unveiled Thursday to potentially convene a grand jury in Chaves County has quickly drawn interest from citizens and local criminal defense attorneys alike.
One woman called the Daily Record Friday morning to find out where she could sign the petition calling for a grand jury to serve for at least 18 months and hear cases presented by the Fifth Judicial District Attorney’s Office.
Kintigh said those wishing to sign the petition may do so at the main reception area of City Hall at 425 N. Richardson Ave.
“I think it will ease the police officers’ job,” said the caller to the newspaper, who said she lives in northeast Roswell and asked not to be identified. “I think that’s really something that we ought to be trying to do.”
The mayor’s proposal, utilizing an arcane clause in the state Constitution, has drawn mixed reactions from the legal community.
The mayor said a grand jury can compel perhaps reluctant witnesses to testify and could greatly reduce the amount of unnecessary time dozens of police officers routinely spend waiting at the Chaves County Courthouse to testify at preliminary hearings before magistrate judges.
Critics say grand juries favor prosecutors, at the expense of defendants.
Assistant Public Defender Anna Marie Bell said Friday she does not support the empaneling of a grand jury in Chaves County.
“It is an unnecessary and expensive burden on the taxpayers,” Bell said. “We should, instead, push for the creation of additional magistrate court judge positions in Chaves County. Two magistrate court judges is simply not enough to handle the caseload in Chaves County.”
Bell said a grand jury in Chaves County could unevenly tip the scales of justice in favor of prosecutors.
Bell noted Sol Wachtler, former chief judge of the New York Court of Appeals, was famously quoted in the 1987 novel “The Bonfire of the Vanities” that “a grand jury would indict a ham sandwich, if that’s what you wanted.”
“The grand jury process hasn’t improved much since he spoke those words,” Bell said. “Having a grand jury in Chaves County will allow cases to proceed that probably shouldn’t, due to lack of evidence. Our magistrate judges typically find that there is no probable cause in cases that the state doesn’t have enough evidence to proceed, and the court wisely dismisses those cases.
“A grand jury is more likely to give an indictment in a weak case because the process is controlled entirely by the district attorney. That will lead to more cases in district court and a greater backlog of those cases. The weaker the case, the more likely it is to go to trial. There will be more petite jury trials as a result and even more financial burden on the taxpayers.”
Kintigh said he arrived at the initiative in an effort to grease the wheels of justice. Kintigh, a retired FBI agent and former detective for the Chaves County Sheriff’s Office, said the current system of preliminary hearings before magistrate judges often causes 20 to 25 police officers and sheriff deputies to have to wait hours to testify in court.
Kintigh said he drafted the language of the petition, which he was the first to sign Thursday at the Daily Record.
“I, the undersigned, a registered voter of Chaves County, New Mexico, hereby call for the convening of a grand jury in Chaves County as provided under Article II, Section 14 of the New Mexico State Constitution,” states the petition. “Said grand jury shall serve for no less than 18 months and shall determine probable cause for felony cases, compel the production of documents and hear the testimony of witnesses in such cases as may be deemed appropriate by the district attorney for the Fifth Judicial District Court.”
Kintigh explained if the petition obtains the requisite number of signatures, 622, equivalent to 2 percent of Chaves County’s registered voters, the Fifth Judicial District would be required to empanel a grand jury because of the constitutional provision.
Fifth District Attorney Dianna Luce said she supports the initiative.
“I think that based on the number of cases, the volume in our county, that at this time, there is a need,” Luce said Thursday.
Luce has said the Fifth Judicial District Attorney’s office last year had more criminal filings than any of the other 12 judicial districts in the state.
The state Constitution says grand juries must be comprised of at least 12 people, all residing within the county for which a grand jury is convened. Unlike criminal juries, grand juries comprised of 12 people need only eight votes to level a criminal indictment.
Also unlike criminal preliminary hearings, the public may not witness grand jury proceedings, jurors may ask questions of witnesses and hearsay testimony is allowed.
Luce said Chaves County had a grand jury several years ago.
Roswell attorney Doug Jones Witt said he presented cases to the Chaves County grand jury when he was an assistant district attorney in the early 1990s in Chaves, Curry and Roosevelt counties. He said grand juries serve as fact-finding bodies.
“In this case, they’re only deciding whether or not there is probable cause that a crime was committed,” Jones Witt said Friday. “Unlike a district court jury, which is trying to determine whether there is proof beyond a reasonable doubt of someone’s guilt.”
Jones Witt said the grand jury system allows prosecutors to present marginal cases, which may be lacking in evidence, to satisfy victims upset about allegations.
“Well, the way the DA presents it to a grand jury, we call it flushing a case, they can kind of present a half-hearted picture to the grand jury and the grand jury can not indict,” he said. “And that happens sometimes. In fact, because the district attorney has so much control over the way the case is presented in front of the grand jury, there is a way to present the case in such a way that the grand jury doesn’t indict.”
Jones Witt said whether probable cause is determined by a grand jury system or at a preliminary hearing before a magistrate judge, the outcomes are often the same.
“I consider the two to be about the same in terms of where you ultimately end up, which is in district court,” he said. “My sense is (grand juries) indict much more than they don’t. That’s not unlike what’s going on in our magistrate court preliminary hearing system.”
Jones Witt said grand jury and preliminary hearing systems both have their pros and cons.
“The obvious, I think, downside to having a grand jury system is that defense counsel does not get to cross-examine the witnesses at the grand jury presentation,” he said. “The grand jury system is the province of the prosecutor in the state of New Mexico. We don’t have any ability to really influence that much. Our clients, the target of the grand jury investigation can show up and can give a statement to the grand jury, but we can’t call witnesses of our own. We can’t cross-examine the state’s witnesses. Some people argue that the grand jury system is an unfair tool that’s used by the prosecutors.
“There’s an old saying out there that you can indict a ham sandwich, meaning that a grand jury can indict you for anything. It’s a closed proceeding. It’s a private proceeding. The prosecution presents it. There’s no scrutiny really at that level. It’s only as good as the prosecutor wants to make it.
Jones Witt said suspects cannot be compelled to testify at a grand jury.
“But if you are the target of a grand jury, what happens is the state sends out a target notice,” he said. “You’re notified in advance of the fact that the grand jury is going to convene. The target notice lets you know what the allegation is. And you have the right to appear and give a statement to the grand jury. That’s your right to appear. You don’t have to. And if you don’t, that can’t be used against you, but you have the right to appear.
“I’ve defended a lot of grand jury cases. It’s very unusual that my clients would show up and testify in front of a grand jury. That’s not very common.”
Overall, Jones Witt said he is indifferent about the mayor’s initiative to empanel a grand jury.
“I don’t think it will make a huge difference,” he said. “This is a complicated calculus here. First of all, there’s no shortage of crime in Chaves County. That’s a fact. The numbers are up. If we looked at the case filings, both in magistrate court and in district court, I think there are more cases every year.
“There are some complaints about a grand jury system, obviously. The main one being that it’s just unfair and you can indict anybody for anything.”
Kintigh said the judicial vacancy that exists after the recent death of Chaves County Magistrate Judge John Halvorson also contributes to the need for a grand jury in Chaves County.
Jones Witt agreed on that point.
“I understand Mayor Kintigh’s petition to try and get a grand jury started because one judge can’t do it all,” Jones Witt said. “The reality of magistrate court right now is that we have one local magistrate trying to handle that entire caseload. He’s doing a great job, but he’s not super human. We can’t expect Judge (K.C.) Rogers to work 24/7 around the clock. And when you only have one magistrate, scheduling is going to become a nightmare.”
Jones Witt said Kintigh is acutely aware of court inefficiencies.
“The one thing you know about people like Mayor Kintigh is that he’s spent his life in law enforcement,” Jones Witt said. “He knows a lot about the way the system works and its inefficiencies. I think his insight in that department is invaluable. A grand jury system will ease some of this burden that’s been placed on the magistrate courts. You have more case filings. I think K.C. Rogers is doing a great job handling it all, but you’ve got to help him. It will certainly help here in magistrate court. That’s for sure.”
Jones Witt also agreed with Kintigh that grand juries can shield sexual assault victims because the proceedings are conducted privately.
“When I was a district attorney, a lot of the cases that we took to grand jury involved child victims,” Jones Witt said. “They don’t have to testify in front of the defendant. The target of the grand jury cannot be inside the room when the other witnesses testify.”
Which cases would go before a grand jury in Chaves County and which cases would go through preliminary hearings would be entirely up to the district attorney’s office.
“That would be their call,” Jones Witt said. “That would be at their discretion.”
Staff Writer Jeff Tucker may be contacted at 575-622-7710, ext. 303, or at reporter01@rdrnews.com.

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