Yesterday Roxanne wrote about the infusion of out-of-state, often corporate-sourced funds that are pouring into NM in an effort to oust progressive Dems that they view as threats. Today, we pivot only slightly to focus on the issues and follow the money in the Democrat primary for Attorney General.

Before we dive in to Torrez’s criminal justice reform plans, let’s revisit the theme from yesterday’s post, “The Long & Winding Trail of Campaign Funding in NM: We Follow the Money.” As we noted on our election endorsement page, we cited a Searchlight piece that surfaced a disturbing “pay-to-play” procurement process that has been standard operating procedure in the Attorney General’s office for many administrations. From Searchlight’s “Outside Counsel: Out-of-state law firms make big contributions — and get handed big cases“:

Over the past two months, several of the nation’s large law firms have poured money into the campaign coffers of Brian Colón, New Mexico’s state auditor and leading Democratic candidate for attorney general. 

Since 2018, when he was elected state auditor, Colón has received more than $165,000 from out-of-state litigation firms. Of those donations, $124,000 came from just seven firms — or employees and family members affiliated with those firms. 

The donations reflect a practice that is now commonplace: large law firms, usually from out of state, making big donations to campaigns for attorneys general. In New Mexico, many of these same firms have later been offered lucrative contracts to represent the state in litigation and class action lawsuits. 

From Searchlight: “Outside Counsel: Out-of-state law firms make big contributions — and get handed big cases“

Since the Searchlight piece was published, Colón has stated he would make no changes in the litigation process.

To illustrate how the “pay-to play” scheme works, Searchlight cited the recent settlement with Vivint Solar, a Utah-based company accused of fraud and racketeering. 

In 2018, Balderas brought a complaint against Vivint, accusing the company of deceptive marketing that adversely affected thousands of New Mexican homeowners. Though the case ended in a $1.95 million settlement, not one consumer in New Mexico received financial restitution.

And in the end, Balderas agreed to seal all of the documents in the case, impeding the ability of in-state lawyers to seek restitution for dozens of Vivint customers. 

Most of the money from that settlement went to the attorney general’s office for legal fees, while nearly 40 percent went to the outside law firm contracted for the case. That firm was Philadelphia-based Barrack, Rodos and Bacine, which made a $5,000 donation to Balderas’s campaign about six months prior to being contracted for the case….

Under Balderas, the use of outside law firms has gone beyond consumer fraud cases. The AG’s office has contracted them for cases that would usually be considered core functions of the office. The largest of these is Texas v. New Mexico, an interstate water dispute before the U.S. Supreme Court with as much as $1 billion on the line for the state. For that case, Balderas hired Robles, Rael and Anaya, an Albuquerque firm that donated at least $36,000 to Balderas’ campaigns for State Auditor and Attorney General, according to a previous Searchlight investigation.

Marcus Rael, the named partner, is not a water attorney, nor did he have experience before the Supreme Court prior to this case. He is, however, a friend of both Balderas and Colón from their days at UNM Law School.

In a lengthy interview conducted prior to the publication of the Searchlight piece, Torrez told Retake that the pay-to-play practice has been operative since at least the days of Gary King, something validated by Searchlight. In our conversation, Torrez laid out how he would reform the system. He stated that well-organized and well-managed AG offices like those in NY and CA recruit skilled in-state attorneys who compete for highly sought positions. The positions are highly sought because in those offices, AG attorneys get to take important cases. In NM, because our AG too often relies on out-of-state firms who have contributed to the AG’s campaign, under-utilized AG staff attorneys simply leave. As a result, the NM AG’s office suffers from high turnover — good attorneys who are passed over for important cases quickly move on. According to Searchlight, it appears that Torrez is serious about dismantling “pay-to-play.”

“Raúl Torrez, the other Democratic candidate, has not taken any major donations from out-of-state plaintiff’s firms. He has accepted at least $32,200, all from New Mexico-based litigation firms — none of whom currently has a contract within the state.”

From Searchlight: “Outside Counsel: Out-of-state law firms make big contributions — and get handed big cases“

While Torrez pledges to dismantle “pay-to-play,” Colón is reported to have said he sees no problem in need of a fix. You know all those negative and misleading Colón ads playing endlessly on TV? They are likely being paid for by the “pay-to-play” donations that have poured into Colón’s campaign from out of state litigators, who are expecting a return on their investment.

So if you follow the money, the choice for AG seems clear. But there is more…

Torrez: A Plan for Court Reform

Last Friday, Roxanne and I attended a house party featuring Attorney General Candidate Raúl Torrez. It wasn’t your typical candidate house party, as no contributions were sought and Torrez shared the spotlight with Jeffrey Deskovic, JD, MA. Deskovic is an internationally recognized wrongful conviction expert
and the Founder of The Jeffrey Deskovic Foundation for Justice. The Foundation has freed seven wrongfully convicted people and passed three laws aimed at preventing wrongful conviction: video-taping interrogations; witness identification reform; and DNA Database Expansion.

Deskovic was passionately motivated to seek justice reform after he was wrongfully convicted of murder and rape, serving 16 years in prison from age 17 before being exonerated.

After a brief introduction from Torrez, Deskovic went into detail describing how, as a shy, awkward teenager, he was unable to stand up for his rights when challenged by two detectives who were hellbent on getting a conviction, despite the total lack of evidence pointing to Deskovic, and considerable evidence suggesting his innocence. He described how, after over six hours of grueling interviewing replete with threats of what would happen to him if he did not confess, and with no parent or attorney there to support or advise him, he finally fell to the floor, exhausted and terrified. He ultimately signed a false confession when promised he would not be charged and would go home. He did go home… 16 years later.

Deskovic described how he spent 16 years in prison as a result and how, when finally exonerated by irrefutable DNA evidence, he left prison without a dime, not even a bus pass, and how his life had essentially been ruined. He described spending his first five years after release from prison living in squalor, unable to secure a job and at constant risk of homelessness while he waited for the state of New York to compensate him for his wrongful conviction. Somehow Deskovic managed to graduate college and law school before founding The Jeffrey Deskovic Foundation for Justice. It was painful to hear his story, not the kind of feel-good discussion typical of campaign house parties. Torrez’s purpose was not to raise funds, but to educate stakeholders.

Once Deskovic finished his talk, Torrez went into detail about how on national and state levels, hundreds of innocent individuals are convicted, often as a result of overzealous detectives or D.A.s who place a higher value on conviction rates, whether or not the person convicted was actually guilty. Torrez described how some investigators start with an assumption of guilt and then seek only evidence that substantiates that presumption, a practice of tunnel vision that will inevitably lead to convicting innocent people. And along the way Torrez noted how in the Deskovic case (and many others), the falsely accused and convicted defendant is not the only victim. As a result of investigators settling on Deskovic as the culprit, they failed to identify the actual offender, who went on to murder another victim before DNA evidence identified him as the actual murderer in the Deskovic case. So not only did Deskovic spend 16+ years in prison for a crime he did not commit, the actual killer remained free to kill again. As you will see from Torrez’s reform agenda, he is deeply committed to establishing a Conviction Integrity Unit in NM to prevent cases like Deskovic’s from occurring or going undetected.

Torrez outlined a few systemic dysfunctions that are prevalent in NM:.

• There is no NM standard for how a street cop is promoted to being an investigator or a homicide investigator, with some departments allowing a street cop to jump to homicide investigator with no experience whatsoever as an investigator.
• There is also no required training in conducting line-ups where witnesses can identify suspects. Torrez described how flawed a witness identification can be and how overzealous investigators can influence the line-up process.

Santa Fe County Sheriff Adan Mendoza was in attendance, was visibly appalled at what he heard, and acknowledged that the practices to which Deskovic was subjected are not uncommon in NM.

Torrez didn’t just point out the system’s flaws and failures, he outlined his plans for criminal justice reform, making a point that he has long been working on implementing reforms. For example, he described how for five years he has sought state funding to create a statewide Conviction Integrity Unit which would review convictions from district attorney’s offices across the state for wrongful convictions, misconduct, or other constitutional issues. Currently, there are no standing organizations to review convictions in New Mexico beyond the very limited NM Innocence and Justice Project.

Both Roxanne and I were convinced that Torrez had an understanding and a deeply felt passion for this reform. We sensed that should Torrez be elected, he will pull from his extensive training and experience from almost two decades as a prosecutor at every level in the system and apply it to fix the flaws in the NM criminal justice system.

Torrez outlined his plan for reform. As Attorney General, he states that he will:

• Eliminate the practice of awarding contracts to out of state law firms who had made large campaign contributions to the AG’s campaign, a practice that is out of control in NM.

Brian Colón sees no problem with the existing AG pay-to-play procurement process; Torrez has pledged to reduce the use of out-of-state counsel, preferring to follow the practice in CA and NY, where AG offices were strengthened, hiring more attorneys on staff, new staff with the qualifications often sought when seeking outside counsel. He will completely eliminate the pay-to-play procurement process that is so prevalent in the current and past AG offices. When outside counsel is needed (and Torrez acknowledges that there are times when outside counsel is needed), he’d have the firm selected by a committee of NM attorneys.

• Create a statewide Conviction Integrity Unit to prevent the wrongful convictions of innocent New Mexicans.
• As Chair of the Law Enforcement Training Academy, he will push to include training for all certified law enforcement officers and prosecutors for:
  • Implicit bias training;
  • Identifying red flags in eyewitness identifications, confessions, or unreliable jailhouse informant testimony;
  • Best-practices for body cams, dash cams, and recording custodial interviews and interrogations (Deskovic’s interrogation and subsequent confession were not recorded);
• Torrez’s reform plan involves utilization of innovative data-focused approaches to criminal justice that will result in better evidence and reduce the likelihood for wrongful arrests and convictions.
• For example, he will utilize data analytics to identify racial bias in charging and implement a race-blind charging system within the Attorney General’s Office and as a best practice statewide.
• Weeding out Bad Cops: Similar to what he has done as Bernalillo County District Attorney, Torrez will make publicly available a database of police officers and deputies with records of misconduct and whose credibility is in question so that prosecutors and defense counsels are aware and officers who have records of misconduct are not able to transfer from department to department.
• Restorative Justice: As Bernalillo County DA, Torrez has long demonstrated a commitment to restorative justice and as AG he is pledged to advocate for and implement restorative justice programs across New Mexico.
• Increase victim and family support, with assistance filing for restraining orders and claims with the NM Crime Victim Reparations Commission, similar to the Victim Resource Center and Victim Service Alliance implemented in the Bernco District Attorney’s office which he leads.
• Implement more community and victim’s-based crime reduction programs, like the community justice panels and community-based programming providing essential services, support, and aid to a neighborhood with high crime through the Community Based Crime Reduction Program at the District Attorney’s Office.
• Create an independent Commission on Prosecutorial Misconduct to review and investigate claims of prosecutorial misconduct.
• Support reentry of exonerees, including providing compensation, counseling, housing services, and job support, all services that were unavailable to Deskovic.

Finally he would advocate for legislation that would:

• Support and prioritize the funding and use of diversion programs like the pre-prosecution diversion program, to provide treatment, rehabilitation, training, and resources to individuals suffering from mental health and substance abuse disorders.
• Provide individuals an avenue to seek independent, forensic DNA testing.
• Provide funding for direct, wrap-around treatment and services for children and adolescents who have been traumatized by adverse childhood experiences (ACEs) to break the cycle of crime, in partnership with healthcare providers, schools, and the Child, Youth, and Families Department.

This isn’t just campaign rhetoric. As District Attorney it has been Torrez’s priority to emphasize treatment and diversion programs for low-level offenders that include restitution to victims. To that end, Torrez reduced every barrier to the Pre-Prosecution Diversion (PPD) program for offenders, including eliminating:

• any fees for the program or for testing,
• any requirement to admit fault, and
• physical barriers like providing bus passes and computer and phone access to meet with providers.

And removing these barriers and prioritizing diversion has worked; under Torrez’s administration, offers to enter PPD have increased by over 200%. PPD provides the offenders with guided rehabilitation and access to treatment, support services for employment and housing, and works with the offenders to begin paying restitution to victims and the community. Torrez pursues guided diversion and rehabilitation because he believes in its efficacy and it is the right thing to do.

This week, a series of articles on the Attorney General race have been published by Pete Dinelli. One in particular was based on a deeply flawed report published by Legislative Finance Committee. The report’s use of data, particularly in its analysis of conviction rates, misrepresents how the system works and disregards what the data actually is intended to convey.

Torrez sent me an 18-page rebuttal of the LFC study, upon which much of Dinelli’s piece relies. His rebuttal is an exquisite articulation of the flaws in the NM Court system that also offers suggestions to reform that system. It describes how a range of court and legislative decisions have hamstrung D.A.s throughout the state, and even more constrained the Bernalillo County D.A.’s office.

I highly recommend reviewing this document (see below), as the AG race is very important and, sadly, is marred by charges and counter-charges and negative ads that make it hard to tease out the truth. If you review this report, you will see two things very clearly:

1. Torrez’s deep understanding of how criminal justice and court systems work or fail to work; and
2. His sincere commitment to not only protect public safety, but to fix the criminal justice and court systems that impede the achievement of justice and public safety.

One last comment: if you read the rebuttal below, you will better understand why direct experience in the criminal justice system and more particularly experience in the role of prosecutor is germane in choosing an AG. Only someone with that experience could have written such a thoughtful analysis of how and where the court system needs reform. Dinelli makes a point of how the AG only rarely is directly involved in criminal prosecutions and therefore assertions that Colón lacks prosecutorial experience are not germane. But all you have to do is read Torrez’s rebuttal of the LFC study to understand how critically important prosecutorial experience is to serving as AG and reforming the existing system. If you review Brian Colón’s campaign website you will find platitudes like, “I am running to protect NM families.” You will not find detailed plans. If you review Raúl Torrez’s rebuttal below you will see a candidate with ideas, plans, and a passionate commitment to justice.

And, unlike Colón, Torrez will not condone the pay-to-play racket that has poured well over $150K into Colón’s campaign coffers.

Retake tends to include “actions,” with many of our posts and today is no different. We need to counter Colón’s misleading, out-of-state litigator-funded ads and mailers. So please share this post with a dozen or so friends, particularly friends who have e-lists for indivisible groups and/or wards or precincts. Ask them to circulate the post via e-blasts and social media. We need an AG who has New Mexicans’ best interests in mind, not just in choreographed TV ads, but when serving as Attorney General.

In solidarity & hope,

Paul & Roxanne

Categories: Criminal Justice & Public Safety

Tags: 2020 Election, Brian Colon, Featured, NM Attorney General, NM State Legislature, Raul Torrez, read more