Wednesday, July 20, 2005


The story is in the Albuquerque Journal, July 16, 2005. Regarding Magistrate Judge in Rio Arriba County. He accepted a case in which an acquaintance of his was arrested for DWI and put in jail at 8:40 p.m. on a Saturday in July.

That evening, at the request of persons who called the Judge, he set bail at $500, with 10% deposit ($50.00) to be posted, and directed that the accused be released to the accused’s wife. Breath tests indicated that the accused was still under the influence for driving at the time of his release to the wife.

The jailer, who was in charge in the absence of the Sheriff (out on assignment), apparently contacted the Sheriff, who was reluctant to release the accused while the accused was still under the influence (until his blood alcohol went down). In any event, the accused was not released, and it was explained by the Sheriff that no one is released except by the Sheriff or a deputy, and that he was tied up at a function, on duty.

Upon receiving this information, the Judge signed an order of release and drove to the jail (1 ½ hour round trip), and hand-delivered the order of release and got the job done. The Governor is looking into the matter.

Some questions should be answered here, but not by the Judge. The Sheriff should state by what authority his jail took the accused into custody and detained him. The accused should have been presented to a magistrate and the jailer should have an order from the Judge authorizing the detention. Apparently the jailer accepted the prisoner, solely on the authority of the arresting officer. That is the way it is handled in Albuquerque and Bernalillo County, also. Thus every man’s liberty is in the hands of every police officer.

A simple procedure would protect the rights of all. The arresting officer may take the accused to the jail, and then contact a magistrate, by telephone or cell phone, or email, or fax. The Judge could place the officer under oath, listen to the recitation of probable cause, ask questions if necessary, and make a neutral, independent determination of whether there is probable cause. The magistrate Judge could then decide the issue of conditions of release (bail) and issue an order for that purpose.

No need to drive an hour and a half. A permanent record can be made at the time. No one is jailed without the approval of a Judge. Then, if jail is necessary, and later the accused is able to meet his conditions of release (bail, for example), the jailer who is detaining the accused should have the power to release. This should not be the type of facility, that if you go in, you do not come out. And it should not be the kind of facility where the person with the keys to put a person in, does not have the authority to let that person out upon an order of the Court.

In this day of modern communications, and the technology to record proceedings on audio, video, and otherwise, there is no reason for anyone to have to deliver a “wet signature” order from a Judge to any officer. The Sheriff in this case has some explaining to do. If he suspected that the Judge was playing favorites, he should have done his duty as Sheriff and required his deputies and jailer (is not the jailer also a deputy?) to do their respective duties; and later he could complain to the Judicial Standards Commission, the District Attorney, the County Commissioners, and the media.


Der Tommissar said...

A judge's friend call him to get her husband out of jail? So the judge just goes and sets some bail on the fly, gets it paid real quick, then orders the guy released?

That's not a problem? Isn't this a huge conflict of interest? If the guy was under the influence, what should the jailor do, hand him back the keys to his car?

Don't most public drunkeness suspects get promtply thrown into the tank without appearing before a magistrate? Or is the problem here that he went to the county jail without being arraigned instead of being held at the station?

I'm just trying to follow the chain of events here, if anything it seems like there is plenty of explaining to go around.

Jack L. Love said...

Sr. Der Tommissar: Thanks for reading the blog. You are right, there is explaining due from all around. If the accused is impaired, perhaps he should be held until he sobers up, even if someone is willing to take him home. But a Magistrate (Judge) should stand between him and the arresting officer and jailer. That is my view. jack