April 13, 2020

Public defenders hit speed bumps in protecting inmates from COVID-19

The prosecutor made clear what it would take to keep a woman, twice accused of driving while intoxicated, out of jail.

“It’s a Corona SALE a ‘BOGO’ buy one get one! She only has to do one of everything and it gets credited to the concurrent one,” senior trial prosecutor John Bernitz wrote in an email to the defendant’s attorney. 

Bernitz’s conditions were in response to public defender Earl Rhoads, who had asked why the McKinley County District Attorney’s office waited for more than two months to call for the detention of a woman who was already facing open container and aggravated drinking and driving charges from last year. In October 2019, the woman was accused of drinking and driving when a state police officer said he found her asleep in her running car, outside a gas station in Gallup. The original criminal complaint alleged that the woman admitted to consuming alcohol and parking at the gas station to “recover.” A state magistrate judge released the woman on a $1,500 bond. Then, three months later in January of this year, the Gallup Police Department filed a criminal complaint against the woman alleging she was again found unconscious in her running car, this time in a Wal-Mart parking lot. Given the two charges months apart, Bernitz filed a motion on April 3, arguing the woman’s conditions of release should be revoked. 

Rhoads chastised the prosecutor for waiting almost three months, and about a month into a declared public health emergency for the state, to call for the woman to be detained. Bernitz in response said he was giving Rhoads “something more to work with” and that the defendant could stay out of jail if she pleaded guilty to the first set of charges. 

“You want to put a gun to her head in other word (sic) to get a plea?” Rhoads responded, which led to the prosecutor’s sale comment. 

The case is just one of many that the state’s Law Offices of the Public Defender is combing through in an attempt to release some inmates from jail around the state. The state’s chief public defender said the contentious email exchange is indicative of other cases in McKinley County, but not necessarily of cases in other counties around the state. Sharp words or not, the Law Offices of the Public Defender is taking a piecemeal approach to getting some inmates out of jail in an attempt to limit crowding and the spread of COVID-19 within detention centers. 

Chief Public Defender Bennet Baur said in a number of counties across the state there is “active engagement” between jails, courts, prosecutors and defense attorneys in identifying inmates who do not pose a risk to the public or who have underlying medical conditions that put them at higher risk in contracting COVID-19. 

“There’s emails going back and forth, the jail may give a list, we’ll go over the categories and talk to the district attorneys and we don’t always agree,” Baur said. “These are not categorical groups and they are individual decisions, but they can be made much more quickly when everybody’s working together. This is happening in Albuquerque, this is happening in Santa Fe and Rio Arriba, it’s happening in Las Cruces.”

But, Baur said, it is happening less in McKinley County. 

Not budging

Alec Orenstein, the managing attorney at McKinley County’s public defender office, said the email exchange in the case of the woman who’s facing two different drinking and driving charges was more heated than usual, but that it matches the sentiment from McKinley County prosecutors. 

“That’s a little more flippant than we’re seeing here, but it’s reflective of the positions that our district attorney has taken,” Orenstein said. 

According to Orenstein, the working relationship between him and McKinley County District Attorney Paula Pakkala was copacetic towards the beginning of March when the state saw its first positive COVID-19 cases. Orenstein said he spoke with county jail officials and was able to compile a list of inmates who, because of either age or medical history, were at a higher risk of contracting the disease. On that list, he said, was a 59 year-old man who has a “checkered past with DWIs.” The man was convicted, for the fourth time, of drinking and driving last May. By October the man was released and sent for probation, but was arrested again in February for drinking and driving. The defendant had a hearing scheduled for the middle of March this year, so Orenstein filed a motion to release the man while he awaited a judgment. Prosecutors opposed that motion on the grounds that the man had multiple drinking and driving charges and tested positive for cocaine during a February visit with his probation officer. 

They also argued releasing other inmates would make him safer while detained.

“The Defendant is a disaster waiting to happen because of his alcoholism and constant drunk driving,” the prosecutor for the case wrote in the motion. “If lower risk inmates are released it would reduce Defendant’s exposure to Covid-19.” 

A few days later, Orenstein tried something else. Instead of the man staying in jail, maybe, Orenstein suggested in an email to the DA’s office, the defendant could serve out his sentence on house arrest with an in-home breathalyzer and a wearable GPS tracker. While the prosecutor assigned to the case seemed to be open to a discussion on the matter he said the decision would ultimately be up to Pakkala. But Pakkala made it clear there was no discussion to be had. 

In a March 18 email, two days after the state filed their opposition to releasing the inmate, Pakkala said she would not agree to let anyone out of jail. 

“We are not agreeing to anyone being let out of jail for any reason,” Pakkala said. “File a motion, we will oppose and have a hearing before the Judge. No EXCEPTIONS SORRY.”

The next day, in a follow-up email, Pakkala said she instructed the assigned prosecutor to oppose the release of the inmate. 

“The DA’s office is not going to sign any proposed orders,” she wrote. “I don’t care who agrees to letting him go. THIS IS MY FINAL WORD.  FILE YOUR MOTION AND SET IT FOR A HEARING. IF A JUDGE WANTS TO LET HIM OUT THAT (sic) THE CHOICE OF THE JUDGE.”

“Let’s talk about this at our meeting today at 3,” Orenstein replied. “I think you’re making a big mistake.”

But Pakkala did not let up. 

“Alec, In all due respect, I am simply not going to agree to this. File your Motion, we will respond and let the judge decide. I REAPEAT (sic) I AM NOT AGREEING TO LETTING ANY INMATE OUT OF CUSTODY,” Pakkala replied. “IT IS NOT UP FOR DISCUSSION.”

On March 25 a state district court judge revoked the defendant’s probation and ordered him back to jail until September. But because of the COVID-19 outbreak, the judge agreed to let the defendant serve at least the first 30 days on house arrest.

Last month, in an email, Pakkala told NM Political Report that she would continue to let judges decide who should be released from the county detention center. 

“That is my continued position,” she said. “I am not without compassion for the inmates, but I have to look at the safety concerns for all of McKinley County.”

Pakkala did not respond to a follow-up email from NM Political Report last week, inquiring about further motions filed by LOPD. 

Orenstein said the pushback from Pakkala was unexpected.

“I was very surprised because I thought we were on our way to working together on this,” he said. 

But true to her word, Pakkala’s office continued to push back on the release of inmates.

‘None of them warrant a death sentence’

Gov. Michelle Lujan Grisham last week issued an executive order to release some inmates from state detention centers, but she does not have jurisdiction to release inmates from county jails. That leaves it up to local prosecutors, defense attorneys and judges to work out who should be released and under what conditions. Sandoval County filed a petition last month to release a large number of inmates in its county detention center. But the county attorney decided to withdraw her request after prosecutors and defense attorneys worked together to identify and release inmates who are at high risk for contracting COVID-19. 

But Baur and Orenstein said things are not going as smoothly in McKinley County.

The LOPD provided NM Political Report with a handful of other cases where Pakkala’s office denied the release of inmates based on public safety concerns. 

In one case, a woman who, according to court transcripts, has Hepatitis C and was awaiting trial for a robbery charge, failed to show up to a hearing last fall. She was originally released into a substance abuse facility after her initial arrest for burglary last year. Orenstein acquiesced that his client was not reliable for court appearances, but that her health condition put her in a high risk category. 

“[The defendant] is accused of a serious crime. She has trouble complying with pretrial conditions. She does not always show up to court when she is supposed to,” Orenstein wrote. “None of them warrant a death sentence.”

In response, the prosecutor on the case argued the woman not only missed a hearing, but that she might be better off in jail. 

“Besides having a horrible appearance record, there is no indication that the defendant if released will practice self-isolation to protect herself from the virus, even if released she still has a 20% chance of contracting the virus, and spreading it to family members and friends who may include elderly persons,” the prosecutor wrote. “The best place for the Defendant to insure her presence to resolve this matter is at the jail.”

Baur said his staff attorneys have shifted much of their focus from preparing for trials to filing motions to getting at-risk inmates out of jail and that, for the most part, many district attorneys are collaborating with defense attorneys to get that done. But, he said, McKinley and a few other counties are putting up roadblocks. He added that many inmates are in jail because of probation violations or failure to appear in court. 

“It’s for things that they failed to do, rather than things that they did,” Baur said. 

If the concern is defendants not showing up to court, Baur said, absconders will eventually answer to a judge. 

“If your only concern is, ‘Are we going to be able to get them at some point?’ and the balance to that is that they could either infect someone or be infected by someone, then you really have to decide that those are people who we’ll get to later,” Baur said. “And we will get to them later.”