Thursday, February 24, 2005


Here in Albuquerque this last week we had the Martin Saiz murder case, in which a young male school janitor was accused of bludgeon murder of a young female school counselor. A witness testified to seeing the deceased looking for the janitor for help because the deceased had left her keys in her classroom. Counselor vanishes; room is bloody; but the blood is not readily apparent to the unaided eye. The body of the deceased is found two weeks later.

Circumstantial evidence ties the accused to the site where the body was found; there was deceased’s blood in the trunk of the accused’s car; and blood of the deceased was on clothing of the accused, which clothing was found at the home of the accused. No witness testified as to an alibi. Mr. Saiz, the accused, did not testify at his trial, and he was convicted of first degree murder.

Out in California this week, the defense rested in the murder case of Robert Blake, accused of murder of his wife. It was reported that Blake had said that he and his wife left a restaurant and drove a block or so, that Blake stopped the car and walked back to the restaurant to retrieve something he left there, and returned to the car, and there he saw that his wife had been murdered. Mr. Blake did not testify at his trial.

The Fifth Amendment to the United States Constitution provides, "No person shall . . . be compelled in any criminal case to be a witness against himself; . . . ." This portion of the Fifth Amendment is binding on the States. New Mexico has a like provision.

The United States Supreme Court, during the Warren era, decided Griffin v. California (1965), which can be found in Volume 381 United States Reports, at page 957, and ruled that the Fifth Amendment is violated if the judge or prosecutor says anything to the jury about the fact that the accused declined to testify at the trial. No comment, no inference to be drawn. Note, that was 1965. The new rule bound the States, including New Mexico.

The rule was different before 1965, in state Courts. The silence of the accused could be the subject of reasonable comment and argument. Why not? Common sense. If you are formally accused, and evidence is presented against you, and you are innocent, why would you not want to get up and tell the jury that you are innocent? The rule of the Griffin case does not make sense; it is unreasonable, and it leads to miscarriages of justice.

I do not advocate that people be required to accuse themselves. But when they are formally and properly accused and there are good reasons to justify asking them for their version of events, it is only common sense to infer guilt from a refusal to talk. Do not torture them; do not force them to testify; but why not infer guilt from their silence. In the country song, "The Long Black Veil," the cowboy declined to testify and went to the hangman's noose because his alibi would disclose that he ". . . was in the arms of my best friend's wife." That is a rare circumstance, and such a possibility need not deter us from exercising our common sense. In these instances, silence implies guilt.

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