Decision to hold airmen without bond reversed

CLOVIS — Even on an expedited schedule, it will still be more than six months before the trio of Cannon Air Force Base airmen charged with raping a female peer at a Clovis house party in January will face trial. As of this week, however, they won’t have to pass that time in the county jail, following orders from the state’s Court of Appeals.

The new orders reversing the 9th Judicial District Court’s detention orders from last month came in succession on Tuesday and Wednesday; first for Rahman Buchanan, 18, then for Thomas Newton, 24, and finally for Isaiah Edley, 19.

Shortly before the first reversal order on Tuesday, attorneys for the airmen and the state aimed toward October for a five-day trial in which the three defendants will be tried together, each charged with one count of criminal sexual penetration in the second degree, “aided or abetted by another,” according to court records.

They were arrested in Portales on Jan. 27, hours after a female airman told Clovis police they had each sexually assaulted her in the early morning hours of a weekend house party. Part of the delay for trial is the continued wait for forensic analysis results from the state crime lab; another part is witness interviews and other discovery.

In her initial request last month for pre-trial detention on the three, District Attorney Andrea Reeb argued that the alleged crime was violent in nature; moreover, that the state did not have jurisdiction on the base and consequently could not guarantee conditions of release would be met, even as Cannon personnel offered to supervise them while they awaited trial.

The three are each represented by different attorneys, who all succeeded this week in convincing the state’s appeals court to order the reversal of that decision, after some back-and-forth in the past month with the attorney general's office and the district court.

An Albuquerque-based attorney representing Buchanan said she was “thrilled” with the decision, and considered the order significant since it addresses some relatively new challenges for attorneys as they negotiate the state’s recent changes in laws on pre-trial detention.

“Because the no-bond rules and statutes have been in place only recently, it created kind of a new space for attorneys to practice in, one that we didn’t have before,” said Shammara Henderson. “It’s changed recently from bonds to no bonds if (a defendant is) proven to be a danger to the community.”

Chief Deputy District Attorney Brian Stover said those recent laws made it challenging for prosecutors as well, as they “do not give the state clear delineation of what we’re supposed to do.

“A year ago there was no pre-trial detention; there was only conditions of release and the court might set a very high bond for someone who is very dangerous,” he said. “Now the court can hold someone in detention with no bond who is very dangerous, but they haven’t described to us what ‘very dangerous’ is, they haven’t described to us what it means that ‘no conditions of release will protect the public’.”

The appeals court concluded each of the three orders this week by noting that the initial detention orders “impermissibly shifted the burden from the State to Defendant on the basis of his membership in the armed services.”

The judges who authored the order said they understood the state’s jurisdictional concerns but found they had not been sufficiently justified with evidence.

“The district court’s apparent insistence on being able to enforce its conditions of release itself, rather than considering the alternative of relying on the military’s chain of command as well as the potential availability of military police to oversee Defendant, unacceptably places members of the armed services at a disadvantage when compared to members of the general public who are accused of committing a crime,” said the order issued Tuesday for Buchanan.

As for reconsidering the defendants’ conditions of release, attorneys are hopeful to see their clients out within days, maybe a couple of weeks at most.

“He should be released 11 days from today, and we may be able to get him out sooner if the attorney general doesn’t appeal,” Newton’s lawyer Ben Herrmann said Wednesday. “I heard from the other attorneys that the attorney general doesn’t plan to appeal.”

Herrmann said the conditions of release would be standard items such as no contact with the victim or other defendants, no firearms, alcohol or drugs, and to not leave the area. Other particulars, including bond, will be determined by discussion among the attorneys and the local court.

Edley’s attorney Craig Acorn said he believed the Court of Appeals “got it exactly right” with their orders this week.

“You can’t hold airmen to a higher standard of scrutiny and you can’t shift the burden to Defendants to prove why they should be released when liberty is the constitutional presumption,” he wrote in a message to The News.

Edley’s mother Paula Brown said she can’t wait to hug her son, and echoed his attorney’s remarks:

“I’m glad our United States Constitution means something,” she wrote.