Brandenburg: Judges’ ‘broad’ interpretation of court rule led to dismissals

Bernalillo County District Attorney Kari Brandenburg is seeking a letter from the state Supreme Court that explicitly states the case management order’s (CMO) 10-day discovery rule applies only to evidence needed to obtain an indictment – not all evidence that will be needed at trial, as she says the 2nd Judicial District Court has “broadly” interpreted.

Read Brandenburg’s statement in full here.

Brandenburg met with state Supreme Court justices, Chief District Court Judge Nan Nash, District Court Judges Charles Brown and Brett Loveless, the Bernalillo County Sheriff and Albuquerque Police Department chief Tuesday to discuss possible changes to the CMO.

The Supreme Court enacted the rule in February to cut down on the backlog of cases in Bernalillo County, which some argued had led to some accused criminal having to wait months or years for a court date.

It applies only to Bernalillo County and has drawn scrutiny in recent months by Brandenburg, the mayor and APD Chief Gorden Eden, who say the rule has led to the dismissal of several cases that led to other high-profile cases.

Brandenburg’s Thursday statement says her office “has tried to have all discovery ready at the time of arraignment,” and that broad interpretations have led to defense lawyers believing they needed all discovery at arraignment – which has led to judge’s dismissing cases when that was not the case.

“This has included discovery that may not have been relevant or even existed at the time of arraignment, or was in the possession of another State agency (CYFD, OMI, etc.), but not the prosecution. And yet, we were expected to have it all,” Brandenburg wrote. “In the alternative to dismissal, fines have also been imposed by some judges when the State did not turn over full discovery.”

But she says at Tuesday’s meeting, the Supreme Court clarified only evidence needed to obtain an indictment must be presented to the defense.

“Presently, we are working to obtain a letter from the Supreme Court that will clarify what is needed, so our attorneys can present it to the District Court judges, when they order a case dismissed because all discovery is not available,” Brandenburg wrote.

“[T]he CMO is interpreted as broadly as possible,” she continued. “So, if the Supreme Court’s intentions were that it be interpreted narrowly, that is not how it is being applied.”

Brandenburg also pointed to six cases “out of many,” she says, that have been “dismissed by the court for failure to provide evidence that WAS NOT relied upon for indictment/arrest.”

“The requested clarification will be beneficial and prevent the dismissal of cases in the future, and that such directives on how to apply the CMO will be communicated to all District Court judges,” Brandenburg wrote.

JUDGE NAN NASH RESPONDS

KOB spoke with Judge Nash Thursday evening via telephone.

“The 2nd Judicial District Court disagrees with her partial recollection of what was said at that meeting,” Nash said of Brandenburg’s letter. “We do believe that the Supreme Court explained that the district attorney and law enforcement need not to have completed their full investigation…by arraignment. However, what the CMO requires them to turn over is everything they have in their possession…at the time of arraignment.”

Judge Nash also said that a pre-existing rule stipulates prosecutors turn over all evidence in their possession as it comes in within five days of the arraignment.

She also said she hadn’t had time to review the six cases Brandenburg pointed to and said if they were dismissed at arraignment because district attorneys didn’t turn over evidence, they were dismissed without prejudice – meaning the charges could be refiled.

“Hardly any cases have been dismissed with prejudice,” she said. “The court disagrees with any characterization that massive numbers of cases are being dismissed at arraignment for failure of the state to turn over discovery.”

She said she’d be surprised if Brandenburg was correct.

“Would I be surprised if the Supreme Court made a statement and said the DA has it right and the District Court has it wrong? Yes, I would be surprised,” Nash said.

This story was originally published at KOB.com