DRUG TRIAL MAY TEST 1999 RULING

Late last year, the New Mexico Supreme Court issued a controversial ruling
citing double jeopardy that left judges, prosecutors and defense attorneys
scratching their heads over how to carry it out.

This month, the trial of a man accused in Albuquerque of drug dealing could
be the first courtroom test of that ruling.

The high court, in a 3-2 decision in the case of State vs. Nunez, found that
seizing a drug defendant's property and getting a separate criminal
conviction were double jeopardy under New Mexico's Constitution.

It ordered that criminal charges and civil forfeitures be dealt with in a
"single bifurcated proceeding" as a way of satisfying constitutional
requirements and not punishing someone twice for the same crime.

The justices, however, left the procedures and some complex legal questions
to be worked out at the District Court level.

Judges, prosecutors and defense attorneys throughout the state have been
discussing how to deal with the ruling.

The Aug. 21 trial of Michael Anthony Romero on charges of drug dealing may
be the first combined criminal/civil proceeding under the Nunez ruling to
reach a New Mexico courtroom, according to some prosecutors and public
defenders.

The way was cleared recently when civil judgments awarding the city of
Albuquerque money from the Romero case were set aside at the city's own
request.

State District Judge Robert Thompson on Thursday set aside the forfeiture of
$16,460 and a cellular phone seized by Albuquerque narcotics detectives when
Romero was arrested in January 1999.

Romero, 24, is scheduled to go to trial on two counts of aggravated battery
on a peace officer, trafficking cocaine and conspiracy to commit
trafficking.

Prosecutors have asked Chief District Judge W. John Brennan to consolidate
both the criminal and civil actions in a single proceeding as ordered by the
high court in December.

In a separate case earlier this year, Thompson set aside a judgment awarding
the city $311 seized from another man accused of drug dealing, Pedro Tellez,
under Albuquerque's drug-forfeiture ordinance. And state District Judge
James Blackmer ruled that both the forfeiture and the criminal charges
against Tellez could go ahead in a "single bifurcated proceeding."

But the case against Tellez is on hold while the Public Defender's Office
argues before the state Court of Appeals that Tellez's constitutional
protection against double jeopardy has been violated.

In both recent cases, defense attorneys had asked that criminal charges be
tossed because their clients had already been punished by the property
seizures.

And in both cases, Assistant City Attorney Stanley Harada took what he
called the "unusual step" of trying to undo the city's earlier courtroom
victories.

Since the Nunez ruling, no one in the criminal justice system -- judges,
prosecutors or defense attorneys -- has had a clear idea of how the "single
bifurcated proceeding" would actually work.

Among the questions being raised:

* Should both civil and criminal rules apply in a "bifurcated" proceeding
and should there be a different burden of proof for each?

* Would a jury hear the criminal and civil sides separately or would the
jury decide only the criminal case and the judge rule on the forfeiture in a
separate nonjury trial?

* What about the fact that public defenders are barred by state law from
defending clients in civil proceedings?

* Could the forfeiture be handled by the judge as part of the punishment
phase of the trial if the defendant is convicted?

But whether the solution can be that simple hasn't been tested legally.

Meanwhile, Brennan said that he expected Romero to go to trial as scheduled
- -- unless the case is resolved through a plea agreement, which has happened
in several combined criminal-civil actions recently.

And while Brennan acknowledged that the new kind of proceeding ordered by
the Supreme Court raises some thorny procedural issues, he said he is
confident those problems can be resolved.