Long Pretrial Detention and a Denied Request to Change Lawyers

Attorney Answer

The hardest thing to hear is this: nothing you send out on his behalf will move his case. Motions have to come from him or from his lawyer, filed in his case. Videos sent to outside "legal people" do not enter the record and do not reach the judge.

His right to counsel comes from N.M. Const. art. II, § 14, which guarantees an accused the right to appear and defend by counsel. That provision is the hook, but it does not supply the standard a trial court applies when it denies a motion to substitute appointed counsel — that standard comes from case law. In practice, courts rarely replace appointed counsel on a serious case simply because the defendant is unhappy. What moves a judge is a documented, complete breakdown in communication, put in front of the court in a written motion filed by him.

On the detention itself, State ex rel. Torrez v. Whitaker, 2018-NMSC-005, 410 P.3d 201, addresses what happens at a pretrial detention hearing under New Mexico's constitutional scheme. The Supreme Court held that the State must prove the need for detention by clear and convincing evidence, and that the defendant has the right to counsel, to testify, and to cross-examine witnesses who appear — but also that due process does not require the State to present live witnesses, and that it may proceed by proffer, documents and court records. That last part cuts against him: he cannot force the prosecution to bring live witnesses to a detention hearing. Note carefully what Torrez does not address. It says nothing about how long pretrial detention may last, nothing about speedy trial, nothing about substituting counsel, and nothing about defects in arrest paperwork.

On the paperwork: the absence of an arrest warrant is often not a defect at all, because an arrest can be lawful without one. And an undated or irregular charging document is generally not by itself a ground for dismissal unless it caused real prejudice. Those points are worth raising with counsel; they are not, on their own, a way out.

What you can do

1. Have him request his full case file from his attorney in writing, and have him keep a copy of the request. 2. Have him write a dated log of every attempt to reach counsel and every meeting, however brief. That log is the evidence a substitution request needs. 3. Have him send a written letter to the supervising or district defender describing the breakdown, before asking the court again. 4. If he asks the court again, it should be a written motion filed in his case describing the specific failures — not requests made from the podium at a hearing. 5. Ask counsel directly, in writing, whether a motion to reconsider conditions of release has been filed and whether a speedy trial motion has been evaluated. Get the answer in writing. 6. Check the docket yourself at the district court clerk's office to see what has actually been filed. It is public, and it is the fastest way to see whether anything is happening. 7. Do not send jail videos to strangers. Jail communications are recorded and monitored, and statements about the facts of a murder case can end up in the prosecution's hands.