What happens when winning a detention hearing results in more pre-trial detention for your client? This came to light recently in Molynda Brewer’s case, and it became an issue for this blog when the ACLU appealed her detention to the New Mexico Court of Appeals. In October, following an altercation with an EMT that led to felony charges, the state filed a motion for preventive detention, under Rule 5-409, citing her lengthy record of violent charges, and asking that bail be denied and that she be detained for the safety of the community. Many of these prior charges had either been dismissed by prior plea agreement or reduced to misdemeanors, a fact that the presiding judge may have taken into consideration when he denied the state’s motion.
So far, so good, right? From the prosecutor’s perspective, Ms. Brewer presented a real threat to the community; her long history of violent charges strongly suggested that if released, she would go out and do the same. Having been on that side of the table, I’ve made this exact argument on multiple occasions. And, rightly, it lost. Past, though predictive, is not prologue, and a pattern of conduct is not strong enough evidence to merit her detention.
It was at this point that everything went pear-shaped. Having ordered her release, the judge set conditions therein. These are standard, and they provide an incentive for the accused to appear at court proceedings and to avoid further criminal charges by not contacting witnesses or victims. In this case, one of the conditions set was house arrest; Ms. Brewer was mandated to be at her home from 5 p.m.to 9 a.m. In relation to this, she was required to pay for and use a GPS monitor. She was then transported back to the county, presumably to be fit for the GPS monitor and pay the initial costs. Ms. Brewer was indigent, and her housing situation was sketchy at best. (Although her booking sheet noted a Silver City address as her residence, the original criminal complaint described her as homeless, and this was reiterated in her brief to the Court of Appeals) Consequently, she remained in the county jail until January, unable to meet the monetary conditions of her release.
The case ultimately has a happy ending for Ms. Brewer; shortly after the ACLU filed the appeal, the district court held another hearing and modified her conditions of release; she is now out of jail. What this case brings to light though, is the difficulty in setting conditions of release that serve their legitimate purposes without punishing the indigent. That was, after all, the objective in eradicating money bail. Sadly, I have no answers to this, apart from continuing to challenge the gaps in the law. That the lawyer’s answer is “we must litigate” sounds, and probably is, self-serving. However, my interest in my livelihood aside, “eternal vigilance is the price of liberty.” Food for thought.