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Late last year, the New Mexico Supreme Court threw a monkey wrench in the state's well-oiled drug war juggernaut when it ruled that seizing a defendant's property and obtaining a separate criminal conviction constituted double jeopardy under the state constitution.

Although the US Supreme Court has upheld similar cases at the federal level, the various states may offer constitutional protections greater than those found in the US Constitution. The Fourteenth Amendment's "due process" clause demands that states meet constitutional requirements, but it says nothing about states exceeding those requirements.

While the New Mexico ruling's legal impact will thus be limited to that state, its political impact could be more widespread as various states grapple with asset forfeiture reform.

This month, the trial of an Albuquerque man on drug dealing charges could provide the first courtroom test of that ruling, the Albuquerque Tribune reported.

In State v. Nunez, a divided state Supreme Court ordered that civil forfeiture and criminal proceedings must take place in a "single bifurcated proceeding" to avoid punishing someone twice for the same crime.

Prosecutors, judges and defense attorneys have been left scratching their heads as they attempt to deal with the ruling. The state Supreme Court provided no guidelines for implementing its ruling. Instead, the justices left the details to be worked out in the District Courts.

Michael Anthony Romero will go on trial August 21st on cocaine trafficking and conspiracy charges. The city of Albuquerque cleared the way for this first combined civil/criminal proceeding when it asked a judge to set aside a civil judgment seizing $16,460 and a cell phone police took from Romero during his January 1999 arrest.

The city was forced to act after attorneys in the Romero case and one other asked judges to dismiss criminal charges against their clients on the grounds they had already been punished by the property seizure.

Among the questions left unanswered by the state Supreme Court which will presumably be addressed in the Romero case:

• Will both criminal and civil rules apply in a bifurcated proceeding and will there be a different burden of proof for both?
• What role will the jury play? Will it hear both sides separately, or will it decide only the criminal case while the judge rules on civil forfeiture?
• How will public defenders, who are barred by state law from representing clients in civil proceedings, act in these bifurcated proceedings?

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