RATON, N.M. (KRQE) – Lorraine Garcia put it as bluntly as she could: “If he were out? I’m scared.”
Standing in the front yard of her home in this northern New Mexico town, the same spot where her son, Kevin, was shot, Garcia said her son’s alleged killer shouldn’t have the chance to get out of jail until a jury decides his fate at trial in November.
But 21-year-old Anthony Garcia, who is not related to Kevin and Lorraine, does have that chance.
The accused murderer’s bond stands at $50,000 property, cash or surety, which means that a $5,000 check and a court-approved place to live would free him.
The New Mexico Constitution suggests that, with very limited exceptions, that’s the way it ought to be.
In this case, it was not always so.
In fact, Anthony Garcia’s time in the criminal justice system started with no bail at all. A judge then set his bail at a half-million dollars as the amount he would have to post to get out of jail.
Anthony Garcia’s criminal defense attorney asked Judge John Paternoster to lower the bail to $5,000. Notes of the court proceeding obtained by KRQE News 13, show Paternoster openly grappling with the request before he settled on on $50,000. On his mind were a recent state Supreme Court decision and the constitutional purpose of bail.
The case of Anthony Garcia, and the discomfort it brings to Lorraine Garcia, is a prime example of the confused, conflicted world of pretrial release and how hard it can be to understand, especially for the families of victims of violent crime. It is a world that also is bedeviling judges around the state.
Kevin Garcia was killed on November 22, 2014, just a few weeks short of his 24th birthday.
The night before he was shot, Lorraine Garcia said Anthony Garcia’s girlfriend drove by to talk to Kevin. Sensing that it wasn’t smart for her son to be talking to another guy’s girlfriend, she said she chased the girl off.
The next morning, Garcia said Kevin was out running errands when he began to get text messages and phone calls from Anthony Garcia. He was angry at her son, Lorraine Garcia said, and Kevin called her to let her know Anthony Garcia seemed to be out for revenge. He told Kevin, according to Lorraine, that he planned to “disrespect her.”
Lorraine Garcia was not sure exactly what that meant, but she knew it wasn’t anything good.
“I was on the sidewalk right there,” Garcia said from her front step, “and I looked down to the park and I saw a white car.”
Keeping one eye on her 3-year-old granddaughter, who was on the couch, Garcia said she heard the car screech to a stop.
Kevin and several other family members and friends were in the front yard.
“I looked out of the screen door and I heard arguing,” she said, “And I saw the gun. And that’s when I told him, ‘Kevin, he has a gun!’
“Everybody just stood still. And he started firing at Kevin.”
Bullets from the 9mm handgun hit the wall of her home and tore through the front door. Three of them hit Kevin.
Garcia said her youngest son, Michael, ran inside to take care of his brother, who insisted that he was going to be OK. Kevin took two bullets in the leg and one in the side of his abdomen. She called 911.
“And they kept telling me that it was OK, just so I didn’t worry,” she said, tearing up as she recalled the scene. “And I couldn’t hold him. Because they kept telling me he was OK and I was on the phone.”
Kevin was losing blood. Within a few minutes he was on his way to the hospital. Raton is more than 100 miles from any city that would have the blood and the medical expertise to help him. He died on the operating table in the emergency room, waiting for a blood transfusion or an air ambulance flight that never came.
Conditions of Release
Anthony Garcia, 21, was arrested the day of the shooting.
Four months later, Anthony Garcia’s attorney, Ray Floersheim, pointed out that Garcia couldn’t afford his bond.
In a court motion, Floersheim cited the state’s rules of criminal procedure, which require judges to make releasing a suspect until trial a priority. The point of a bond, the attorney argued, was not to punish a person charged with a crime but to ensure that he showed up to court when necessary.
Floersheim asked for an unsecured bond of $5,000. Anthony Garcia would only have to promise to show up in court. If he didn’t, he’d have to pay the money.
Judge Paternoster, didn’t go that far. But he did lower Garcia’s bond to $50,000 property, cash or surety. If Garcia could post 10 percent of the bond, $5,000, and secure a promise to pay the full amount from a bail bondsman, he’d be free until the trial.
Lorraine Garcia reacted as many family members of victims do. She was scared and shocked that the man she said killed her son could be out of jail as he waited for his day in court.
“I feel like what he’s done to me and my sons and my granddaughters. I don’t feel like he has any right to any rights,” Garcia said.
And while the bond requires Anthony Garcia to stay away from witnesses, even stay away from the community, she doesn’t think that would happen.
“I don’t think he’s in his right mind to even think of doing what he’s supposed to. I think he would do the opposite,” she said. “He has nothing to lose, so I think he would probably come after me.”
Prosecutors have asked the judge to reconsider Garcia’s bond.
State of New Mexico v. Walter Ernest Brown
Three weeks before Kevin Garcia’s murder, the New Mexico Supreme Court handed down an opinion that still ripples throughout the criminal justice system and likely will for some time.
State v. Brown deals with pretrial release; specifically, the way bail can act as punishment when it’s set too high.
Excessive bail is de facto punishment, the opinion says. It skips past the question of guilt or innocence and gets right to sentencing. The opinion’s first sentence says it borders on being unconstitutional:
“The Bill of Rights of the New Mexico Constitution guarantees that “[a]ll persons . . . before conviction” are entitled to be released from custody pending trial without being required to post excessive bail…”
In State v. Brown, the court overturned a $250,000 cash or surety bond for accused killer Walter Brown (the words “bail” and “bond” are often used interchangeably in the criminal justice context.) Brown couldn’t afford the $25,000 to pay a bail bondsman who would put up the full amount, let alone the quarter-million dollars to pay his bail outright. For two years, he sat in jail awaiting trial.
Twice, Brown challenged the amount of his bail, arguing that he could meet other requirements of pretrial release such as electronic monitoring, living with his family and holding down a job. The only thing keeping him in jail, he argued through his attorney, was his income.
Eventually, the Supreme Court ruled that the District Court judge had based bail solely on the severity of the crime. Brown was ordered released in April 2014, and his case was dismissed altogether later that year.
In the months since the Supreme Court issued its opinion in November 2014, the criminal justice system has been coming to grips with what it means.
Albuquerque District Court Judge Nan Nash spoke to KRQE News 13 last month about the Brown decision. She did not comment on the Garcia case or any other specific case.
“Bond has become, or had become, the default release instrument,” Nash said.
Brown reset that, the judge explained, and reminded the court to consider release as a default.
“We start with that presumption. Then what we look at is what are the other factors that the judge needs to consider in terms of pretrial release,” Nash said.
Prior criminal history, ties to the community, those sorts of concerns can be weighed, but as the Brown decision pointed out:
“The rules require that a defendant be released from custody on the least restrictive conditions necessary to reasonably assure both the defendant’s appearance in court and the safety of the community.”
Courts across the state have various assessment tools to help determine a defendant’s risk of committing another crime — or of not showing up to court — while out on bond.
But judges aren’t issued a crystal ball along with their black robe and gavel.
“Even with the best tools in the world,” Nash said, “there are going to be some folks who are released and reoffend.”
Motion to Reconsider
Anthony Garcia is still in jail and still innocent in the eyes of the law.
Along with the monetary requirements for his pretrial release, there are other conditions. He has to find a place to live outside the community of Raton. Right now, the best option seems to be relatives in the Albuquerque area. He also has to have a risk assessment.
A psychologist with Tri-County Community Services in Taos interviewed Garcia in April at the Colfax County Detention Center. But the doctor determined it was “impossible” to accurately assess Garcia’s mental health needs.
Garcia seemed to be telling the doctor what he wanted to hear, but “two points of grave caution” arose during the assessment.
Another inmate volunteered that Garcia had been referring to a list of witnesses expected to testify in his case as “my hit list,” the doctor’s evaluation said. While the doctor couldn’t confirm the claim, it concerned him.
The second point of concern involved a jailhouse beating. Garcia was suspected of participating in it.
Surveillance cameras didn’t catch just who beat the other inmate, but deputies say footage shows Anthony Garcia among those who forced their way into the inmate’s cell.
A felony charge related to the beating has been tossed out. Garcia faces a misdemeanor aggravated battery charge.
Judge Paternoster has not made a decision on the district attorney’s motion to reconsider Garcia’s conditions of release. A recent hearing on the matter was canceled and has not been rescheduled. Paternoster is set to retire July 17 and the review of Garcia’s bond may be up to Paternoster’s replacement.
Court records show Paternoster contemplating the rules of criminal procedure mentioned in the Brown decision as the judge attempted to balance personal freedom with public safety, a clear example of just how difficult it can be to set bail in New Mexico.