The Amalia, New Mexico, search that turned up remains of a small child has led to recriminations against the Taos County Sheriff who led the search and the judge who granted some defendants conditional release prior to their trial.
In both cases, the individuals involved say they based their decisions on the law.
The case, which has spurred national media attention, thrust Taos County Sheriff Jerry Hogrefe into the spotlight. After the cable news channel CNN suggested the still unidentified child might have lived had he acted sooner, Hogrefe walked out of the interview after stating, “It’s not like it’s hard enough to live every day wishing that I could have got there quicker, but you’ve got to get there lawfully.”
Hogrefe told CNN, “Unfortunately, it takes time to build a proper case. Time will tell if we did build a proper case, but I can promise you this: Had we have gone on that property based on a consent from an owner that was not an occupant of that property, we would not have valid right to be there and therefore the fruits of the unlawful tree would have come into play and we would have lost anything we could have possibly been able to criminally charge.”
Hogrefe has since issued a statement noting, “We will keep the public informed as new information becomes available for release.… At this point, our time is best spent on the continuing investigation of the case…. rather than rehashing information that has already been brought forward or responding to allegations by individuals who are unaware of the laws that we must uphold in an investigation. When there is new information that we can disclose, we will do so. In the meantime, we will continue to do our jobs to the best of our ability and work closely with the prosecution team.”
Judge threatened, courthouse locked down
Meanwhile, yesterday — a day after Eighth Judicial District Judge Sarah Backus allowed the pretrial release of five criminal defendants — the Taos County Court Complex was on lockdown.
Taos County Undersheriff Steve Miera announced, “I am closing all access into the Taos County Court Complex due to the unprecedented number of death threats and threats of violence, being received by various court personnel. The threats at this time have not been substantiated, however they are currently being investigated. The Court Complex has been locked down until further notice.”
Backus was widely criticized through Social Media, traditional news media, email and telephone calls for her Aug. 13 decision to release defendants — with conditions.
Two male adults Siraj Wahhaj and Lucan Morton and three females Jany Leveille age 35, Hujrah Wahhaj age 38, and Subhannah Wahhaj age 35 were arrested on charges of abuse and neglect on August 6. Eleven children ages one to 15 were put in protective custody with CYFD.
The adults have been held in the Taos County Adult Detention Center since that time.
Yesterday, Taos County Sheriff Jerry Hogrefe announced one of the detainees, Jany Leveille age 35 originally from Haiti, has been transferred to the custody of the U.S. Citizenship and Immigration Services (USCIS).
The remaining detainees are currently still in custody.
Siraj Wahhaj age 40 is being held on an outstanding warrant from Georgia. The others remain incarcerated pending fulfillment of their conditions of release.
Lucas Morton, 40, Hujrah Wahhaj, 37, and Subhannah Wahhaj, 35, will be placed under house arrest and be required to wear GPS ankle bracelets as their cases are processed. Backus set a $20,000 unsecured appearance bond for each defendant.
According to a Sheriff’s office press release, their release includes the following conditions: they must obtain housing and maintain at least weekly contact with their attorneys. They are also prohibited from leaving the jurisdiction, in addition to other stipulations.
Office of the Courts defends Judge Backus
“Judge Sarah Backus carried out her responsibility on Monday,” Artie Pepin, director of the Administrative Office of the Courts, wrote in a Tuesday press release.
“However, the judge’s responsibility is to fairly and impartially apply the law and make a decision based on the evidence presented to the court. A judge’s responsibility is to follow the law—not popular sentiment that may develop from incomplete or misleading information.”
In the story “Judge threatened following decision to release Amalia defendants, courts issue statement,” the Taos New’s John Miller quoted the following statement by Taos County court spokesperson Barry Massey: “New Mexico judges take an oath to uphold the Constitution and the state’s laws. Eighth Judicial District Court Judge Sarah Backus carried out her responsibility on Monday in ruling on a motion that sought the pretrial detention of defendants charged with child abuse in Taos County.”
Massey reflected Backus’ own statements when she read the decision to the courtroom Monday: “The New Mexico Constitution has guaranteed since statehood that people charged with a crime have a right to be released pretrial, except in limited instances. The state Constitution provides that criminal defendants may be detained in jail pretrial only if prosecutors show by clear and convincing evidence that they are so dangerous that no release conditions will reasonably protect public safety. The judge ruled that prosecutors failed to meet that burden.”
A Constitutional burden
The right to due process dates back to the 14th Century Magna Carta and was incorporated into the US Constitution. The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. Additionally, the Fourth Amendment protects against “unreasonable searches and seizures.”
According to an Administrative Office of the Courts of New Mexico flyer, Key Facts And Law Regarding Pretrial Release And Detention, “Bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”