“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In July 2018 the en banc majority of the Tenth Circuit, including Trump-nominated Judge Allison H. Eid and Joel M. Carson III, denied full court rehearing of a claim that individuals were kept in jail for long periods without arraignment, in violation of state law and their due process rights. This was despite the fact that four judges, including Chief Judge and Bush appointee Tim Tymkovich, voted to grant rehearing.

In Mariano Moya, Lonnie Petry v. Robert Garcia, Mariano Moya and Lonnie Petry were arrested, but then kept in a county jail without arraignment for long past the 15 day limit set by New Mexico law. Moya was kept in jail for over two months before being arraigned and Petry stayed in jail for over 30 days. Both filed suit in federal court for deprivation of due process for being detained beyond the state limit. Included as defendants were the county sheriff, the warden of the correctional facility, the former warden and the Santa Fe County Board of Commissioners. The district court dismissed the complaint, and a panel of the Tenth Circuit affirmed by a 2-1 vote.

Judge Carolyn B. McHugh strongly dissented. Although she agreed that the New Mexico sheriffs and wardens could not force New Mexico courts to schedule arraignments and bail hearings on a timely basis, she explained that the solution is not to have those arrested wait for months in jail before affording them access to the justice system. She pointed out that once they were finally arraigned, both Moya and Perry were released on bail “immediately.” She would have allowed the suit to proceed against the county, especially since Moya and Perry contended that what happened to them was “symptomatic” of a practice that affected “dozens, if not hundreds” of others who had been detained in jail by the county. But as a result of the votes of the Tenth Circuit majority, including Eid and Carson, these claims were never fully litigated.