Charges dropped in Amalia compound case; three go free from jail

• By John Miller | Taos News
  • Aug 29, 2018 Updated 5 hrs ago

TAOS — State District Court judges in Taos on Wednesday threw out child abuse charges against five people arrested earlier this month at a compound in Northern New Mexico, saying prosecutors failed to meet a critical deadline in the case.

Three of the defendants were released from the Taos County jail following the rulings, authorities confirmed. Two other defendants, who face additional charges in the death of a toddler whose remains were found at the compound, pleaded not guilty to the felony counts Wednesday and remain in custody.

At back-to-back hearings, Judges Emilio Chavez and Jeff McElroy said prosecutors with the 8th Judicial District Attorney’s Office had not scheduled preliminary hearings for the five defendants within 10 days of their incarceration on charges of neglecting 11 children in their care — a requirement under New Mexico Supreme Court rules.

McElroy called prosecutors’ decision to not schedule the hearings on time “a complete failure to follow proper procedure in the case.”

Chavez’s ruling Wednesday morning meant defendants Lucas Allen Morton, 40, Hujrah Wahhaj, 37, and Subhannah Wahhaj, 35, were free to leave jail. The three were each charged with 11 counts of child abuse related to the conditions at their makeshift dwelling near the Colorado border, where they were living with the 11 children, ranging in age from 1 to 15.

The children were taken into state protective custody when law enforcement officers raided the compound Aug. 3. Authorities alleged the children were emaciated and clothed in rags.

Defense attorneys Aleksandar Kostich, Marie Legrand Miller and Megan Mitsunaga all cited New Mexico Supreme Court Rule 5-302, which defines time limits for the state to present evidence showing probable cause for charges against a defendant. Such a hearing must be held within 10 days for defendants booked into jail and must be held within 60 days for those who are released from custody.

The rule was revised in 2016 to state that violations will result in dismissal of the charges without prejudice, meaning they can be refiled.

“Clearly we are far past 10 days,” said Kostich, an attorney for Morton, who was arrested Aug. 3. The deadline for prosecutors to hold a preliminary hearing passed Aug. 22, Kostich said.

Prosecutor John Lovelace argued that under the rule, an extension could be granted for an “exceptional circumstance.”

He thought his office would have 60 days to hold the preliminary hearing, the time frame for a defendant who is not incarcerated, Lovelace said, following a decision Aug. 13 by another District Court judge, Sarah Backus, granting the defendants’ release from jail on bond and GPS monitoring devices.

But none of the five defendants had been released prior to Wednesday’s hearing.

In an attempt to show there was an exceptional circumstance for an extension in the case, Lovelace called on a witness, Walter Vigil, who has a contract with Taos County to provide defendants with court-ordered GPS tracking units. Vigil testified he was unable to make arrangements for tracking the five defendants in the case because they faced housing issues.

Authorities have razed the remote compound where the group was living.

Vigil also said he was concerned the defendants would discuss their cases with each other.

Under cross examination, Kostich said Vigil’s comments were out of place.

Chavez, in his ruling to dismiss the charges, said Lovelace failed to show an exceptional circumstance that would qualify for a hearing extension under the 10-day rule.

“This is one of the most clear rules that we have in our procedure,” the judge said. “… As to extensions,” he added, “I don’t believe there is a retroactive way to request or grant an extension even if I was to find there were exceptional circumstances.”

Judge McElroy quickly arrived at the same decision regarding initial charges filed against the other two defendants, Siraj Ibn Wahhaj, 40, and his wife, Jany Leveille, 35. Like the other three defendants, Wahhaj and Leveille each had been charged with 11 counts of child abuse.

They also face new charges filed last week: conspiracy and child abuse resulting in the death of Siraj Ibn Wahhaj’s 3-year-old son, Abdul-Ghani Wahhaj. Authorities accuse the pair of denying the child his medication for severe seizures and say the boy died during an Islamic prayer ritual Dec. 24.

Siraj Ibn Wahhaj is accused by authorities in Georgia of abducting the boy in early December from his home in an Atlanta suburb, where the boy was living with his mother.

Because the judges dismissed the child neglect charges without prejudice, the District Attorney’s Office in Taos can refile the counts against all five defendants at a later date based on new information or a grand jury indictment.

Later Wednesday, McElroy addressed a motion by state prosecutors to review Backus’ controversial decision to grant the defendants release on bail rather than ordering them held without bond until trial. But McElroy swiftly upheld the previous ruling, saying the attorneys had failed to produce sufficient evidence.

In their motion seeking a review of Backus’ decision, prosecutors cited new evidence suggesting the defendants had been planning to carry out an attack on Grady Memorial Hospital in Atlanta.

Prosecutors have filed a motion seeking pretrial detention of Siraj Ibn Wahhaj and Leveille on the newly filed charges. A hearing on the detention request is scheduled for Tuesday.

A preliminary hearing for the pair on the new charges will be held Friday.

The Associated Press contributed to this report.

This story first appeared in the Taos News, a sister publication of the Santa Fe New Mexican.