SANTA FE, N.M. – A startling rebuke of a local prosecutor and questions about legal tactics by a hard-charging sheriff are casting a shadow over efforts to prosecute members of an extended family who were arrested at a squalid New Mexico compound where the body of a 3-year-old had been hidden for months.
State politicians expressed alarm after child neglect charges were dismissed against all five defendants from the compound and three were set free with only misdemeanor trespassing charges against them. Allegations of anti-government plotting, jihad and martyrdom at the compound stocked with guns – drawn in part from FBI interviews with children – has done little to persuade judges of any immediate threat to public safety.
None of the suspects has known criminal convictions, while authorities blame the boy’s death on his father, Siraj Ibn Wahhaj, and the father’s partner, Jany Leveille. They remain jailed on more serious child abuse charges that can carry a life sentence.
U.S. Rep. Michelle Lujan Grisham, the Democratic candidate for governor, called the dismissal of neglect charges “inexcusable” and said she was “appalled at the failure to hold these defendants accountable.” Republican gubernatorial hopeful Steve Pearce called for the resignation of local district attorney, who is a Democrat.
Two judges say they had no choice but to dismiss charges and free three defendants after the district attorney’s office missed a 10-day deadline to show probable cause of a crime at a required court hearing, which was never requested.
“I don’t know whether they are overworked, if they don’t have enough people at their office. I don’t see a district attorney here,” Jeff McElroy, chief judge for the state district court, said in a courtroom Wednesday. “It is disturbing to me that the district attorney would put this court in that kind of a situation where we must comply with the rule, and we must dismiss this.”
Taos-based District Attorney Donald Gallegos said Thursday that he intends to refile charges against the three or take the case to a grand jury.
Prosecutors from his office told the judges that they had expected the suspects to be released on house arrest under terms of a pretrial detention order, which would have extended the deadline to 60 days to hold the required court hearing.
Prosecutors are preparing to justify new charges of child abuse resulting in death and conspiracy to commit child abuse against Siraj Ibn Wahhaj and Leveille. The couple pleaded not guilty Wednesday.
Hearings next week will decide whether the couple can be released until trial, with separate procedural questions looming over the case. The more serious charges against the couple initially were filed by the Taos County sheriff – a possible violation of state law, McElroy noted.
“I can’t answer for the prosecution,” Sheriff Jerry Hogrefe wrote in a Facebook post. “Taos County Sheriff’s Office stepped up and put the search warrants and charges together lawfully and correctly without waiting on another agency any longer.”
Prosecutors say the boy, Abdul-ghani Wahhaj, died in December 2017 during a religious ritual aimed at casting out demonic spirits. The exact cause of death has not been determined by forensic specialists.
The boy’s mother initially reported him missing last year from Jonesboro, Georgia, after Siraj Ibn Wahhaj said he was taking the child to a park and didn’t return.
The upgraded charges are tied to an extensive account of the boy’s death in a journal that prosecutors attribute to Leveille.
The sheriff attests in his filing that all five adults at the compound knew that Abdul-ghani had a seizure disorder and took no action to protect him from harm or seek medical services as he died.
But child neglect charges were dismissed against Lucas Morton, his wife, Subhannah Wahhaj (sub-HANA’ wah-HAJ’), and her sister Hujrah Wahhaj (hujh’-RAH wah-HAJ’). The women are Siraj Ibn Wahhaj’s sisters.
Marie Legrand Miller, an attorney for Hujrah Wahhaj, expressed frustration at a lack of evidence and vague allusions to terrorist activities and responsibility in the boy’s death – areas where no charges have been filed.
“My client has not been charged with anything involving Abdul-ghani’s death, and I am fully prepared to vigorously defend her in this matter,” she said.
The other two remain in the area without tracking devices, under release provisions for trespassing charges. The compound was installed on someone else’s property, possibly by mistake.
Legrand Miller said Hujrah is allowed to the leave the state but has stayed as she seeks to visit and regain custody of her 8-year-old daughter.
“She is not hiding from the court,” Legrand Miller said. “I’m trying to keep her safe obviously from anyone who might wish her harm.”
All 11 children taken from the compound are in state custody, and it was unclear whether the released parents have visitation rights, according to Children, Youth and Families Department spokesman Henry Varela. An outside expert will evaluate the well-being of the children, who are not enrolled in school, he said.
Hogrefe said his deputies and the FBI are pouring over written documents and digital evidence.
In recent court filings, the sheriff and prosecutors say they discovered a hand-written document called “Phases of a Terrorist Attack” that was seized from the compound and includes vague instructions for “the one-time terrorist” and mentioned an unnamed place called “the ideal attack site.”
Reviewing those filings Wednesday, Judge McElroy backed a previous order by state Judge Sarah Backus that found allegations of danger to the general community to be vague and unconvincing. Backus said no evidence was provided to back up accusations that the children were malnourished, dehydrated or otherwise physically neglected.
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