Update: Aug. 29 at 6:15 p.m.
State district court judges on Wednesday (Aug. 29) in Taos threw out child abuse cases filed against five adults arrested at a compound in Northern New Mexico earlier this month, saying prosecutors failed to meet a critical deadline.
At back-to-back hearings, Judges Emilio Chavez and Jeff McElroy both said prosecutors with the 8th Judicial District Attorney’s Office had not scheduled preliminary hearings for the five defendants within 10 days of their incarceration, a requirement under New Mexico Supreme Court rules.
Chavez’ ruling Wednesday morning meant defendants Lucas Allen Morton, Hujrah Wahhaj and Subhannah Wahhaj, are free to leave jail. The three were charged with 11 counts of child abuse related to living conditions at the makeshift dwelling where they lived near the Colorado border.
Eleven children living there were taken into protective custody when law enforcement raided the compound Aug. 3. Law enforcement alleged they were emaciated and clothed in rags.
Defense attorneys Aleksandar Kostich, Marie Legrand Miller and Megan Mitsunaga all cited New Mexico Supreme Court Rule 5-302, which defines time frames within which a preliminary examination must be held in order for the state to show probable cause for charges filed.
The language in the rule was revised in 2016 to state that violations of the rule are to be resolved by dismissing cases filed.
Kostich delivered an opening argument that elaborated on the state’s failure to hold a preliminary hearing for his client within the appropriate time frame, reflecting a common argument the other defense attorneys would echo throughout the hearing.
“It’s clear that Mr. Morton has been held and there has not been a [preliminary hearing] that has been conducted,” Kostich said. “The state has to satisfy the burden before the court. The state has to show there was probable cause. Clearly we are far past 10 days. The rule makes very clear that the remedy is dismissal without prejudice.”
Kostich said Morton had been taken into custody on Aug. 3. He said the deadline for prosecutors to hold a preliminary hearing had passed on Aug. 22.
In response, prosecutor John Lovelace – who shared the table opposite with Taos County Sheriff Jerry Hogrefe, instead of fellow prosecutor Tim Hasson – said exceptions could be made to the rule in certain circumstances.
He said that if an “exceptional circumstance” could be demonstrated, an extension could be granted to hold the hearing. He thought his office would have 60 days to hold the preliminary hearing, the timeframe set forth if a defendant is not in custody.
Lovelace said he expected the defendants to be released and the extension under the rule to be granted after Taos District Court Judge Sarah Backus denied the state’s motion to hold the defendant’s without bond at a hearing Aug. 13.
But none of the five defendants had been released prior to Wednesday’s hearing.
In an attempt to cite an exceptional circumstance that might grant an extension, Lovelace called on a witness, Walter Vigil, who has a standing contract with Taos County to provide defendants with GPS tracking units when required upon their release. Vigil testified he was unable to make arrangements that met his company’s requirements for tracking them, citing issues with their housing options.
He also said he was concerned the defendants would discuss their cases with each other.
During a cross examination, Kostich suggested Vigil’s comments were out of place, and that he was unqualified to make assessments regarding a defendant’s conduct upon release.
In his ruling to dismiss the cases, Chavez said that Lovelace had not shown there to be any exceptional circumstance that would qualify for an extension under the 10-day rule.
“This is one of the most clear rules that we have in our procedure,” he said. “All three defendants have been in custody from their first appearance on Aug. 8, 2018. As to extensions, I don’t believe there is a retroactive way to request or grant an extension, even if I was to find there were exceptional circumstances.”
Delivering his decision, Chavez told the court he was aware of the backlash Judge Backus received when she ruled earlier this month to grant bail for all five defendants arrested at the compound near Amalia, but said his duty is to follow the law and rules set forth by the higher court.
He dismissed the cases “without prejudice,” meaning the district attorney’s office may refile charges based on new information or a grand jury indictment at a later date.
Judge McElroy quickly arrived at the same decision regarding cases filed against the other two defendants, Siraj Ibn Wahhaj and Jany Leveille. Like the other three defendants, Wahhaj and Leveille had each been charged with 11 counts of child abuse, but prosecutors had not held a preliminary examination for either of them within 10 days of their incarceration.
McElroy also referred to rule 5-302. He said efforts by Lovelace, who was joined by Hasson a few minutes into the hearing Wednesday afternoon, had not shown evidence of special circumstances that would warrant an exception to the rule.
He called Lovelace and Hasson’s decision to not schedule a preliminary examination for the defendants “a complete failure to follow proper procedure in the case.”
Later, McElroy addressed a motion by the state to review Backus’ decision to grant the defendants bail, but swiftly upheld the prior decision, saying the state had failed to produce sufficient evidence to merit a review of the decision.
In their motions to review Backus’ decision, prosecutors cited new evidence that suggested the five adults had been planning to carry out an attack on Grady Memorial Hospital in Atlanta, Georgia.
Siraj Ibn Wahhaj and Leveille were also arraigned Wednesday afternoon on two new charges filed by the DA last week: child abuse resulting in death and conspiracy related to the death of Abdul-Ghani Wahhaj, a 3-year-old boy who allegedly died during an Islamic prayer ritual on Christmas Eve last year.
The state has filed a motion for pretrial detention for the new charges, which have been set for a hearing on Tuesday (Sept. 4).
A preliminary hearing on the charges has been scheduled for Friday (Sept. 7).
This is a developing story.