A judge is coming under fire after allowing five adults to remain free on bail as they await trial for allegedly keeping 11 starving children in a filthy New Mexico compound, surrounded by weapons.
The decision, which has sparked community backlash and threats against the judge, comes two years after New Mexico voters overwhelmingly approved a constitutional amendment that revamped the state’s bail laws and raised the legal threshold for detaining suspects before trial.
In this case, authorities have described the three women and two men as Muslim extremists who allegedly prepared the children to conduct school shootings. They argued that if the defendants were released from custody, there would be “a substantial likelihood” they could commit new crimes, court documents said.
But after four hours of testimony in a Taos County courtroom, state District Judge Sarah Backus on Monday said prosecutors did not provide enough evidence to show the suspects were a threat to the community, which would justify keeping them behind bars.
“The state alleges that there was a big plan afoot, but the state hasn’t shown to my satisfaction, by clear and convincing evidence, what that plan was,” Backus said, echoing the legal standard dictated by the amendment.
Backus allowed the suspects to be released pending trial under several conditions, including that each post a $20,000 bond, avoid alcohol consumption, not possess a weapon, wear a GPS tracker, stay in the county and maintain weekly contact with their attorneys.
The decision prompted outrage, with the courthouse evacuated Tuesday after the judge got more than 200 phone calls and emails criticizing the move, some of which contained threats, said spokesman Barry Massey of the New Mexico Courts. Some callers threatened to slit her throat or slam her head, while others called her “an Islamic terrorist sympathizer” or “disgusting garbage human,” he said. Massey originally told CNN the judge received more than 200 threats, but later clarified.
The courthouse is due to reopen Wednesday.
New state law sets a high bar
Under New Mexico’s new bail rules, pretrial detentions are determined by evidence of risk — not ability to pay — according to state judicial branch officials.
“In the past, judges had no authority to deny release to dangerous defendants who could buy a bond or make an installment payment deal with a bail bondsman,” their fact sheet about the constitutional amendment states.
“The New Mexico Constitution now allows district judges to deny pretrial release to dangerous defendants, requiring that pretrial release and detention decisions be based on evidence of individual risk of danger or flight, not on how much an arrestee can pay to get out of jail,” it states.
Meantime, arrestees who are “neither a danger nor a flight risk may not be jailed pending trial … solely for lack of money to buy their way out,” the fact sheet states.
Prosecutors seeking pretrial detention of a defendant must request it in district court and provide “clear and convincing evidence” that no release conditions will reasonably protect the safety of the community, the constitutional amendment requires. In this case, the judge said prosecutors did not hit that bar.
The amendment, state judicial officials said, aims to highlight that a suspect is innocent until proven guilty at a trial, bail is not pretrial punishment and suspects are entitled to equal protection, whether rich or poor.
Judge defends against criticism
Prosecutors have argued the accused adults trained children in the use of firearms at the rural compound and should remain in custody pending trial. In addition, a missing Georgia boy died during a religious ritual intended to cast out demonic spirits from his body, and his remains were kept on the compound, according to prosecutors.
But an attorney for one suspect said they were following religious rituals that might be viewed differently if they were white Christians rather than black Muslims.
Backus’ office defended her decision Tuesday, saying it’s her responsibility to “fairly and impartially apply the law and make a decision based on the evidence presented in court, not a popular sentiment.”
But Gov. Susana Martinez, a Republican who appointed Backus to the bench, described the bail decision as a result of “liberal pretrial release rules put in place by the New Mexico Supreme Court.”
“It’s time to put a stop to the revolving door in our justice system and keep dangerous criminals in jail where they belong,” Martinez said on her official Facebook page.
Legal analyst John Day told CNN affiliate KOAT that in pretrial detention motions, the burden of proof falls on prosecutors.
“Judges are not supposed to be swayed by public opinion,” he said, “they’re supposed to follow the law.”
Defendant Siraj Wahhaj and his relatives — sisters Hujrah Wahhaj and Subhannah Wahhaj, his partner Jany Leveille, and brother-in-law Lucas Morten — each face 11 counts of child abuse. They have pleaded not guilty.
Leveille is no longer at the facility, and is in the custody of immigration officials, the Taos County sheriff said. The other four suspects had not posted bail by early Wednesday, according to the Taos County Adult Detention Center.