Saturday, January 29, 2005


CRIMINAL JUSTICE REFORM. Should the Legislature pass a memorial requesting that the Supreme Court make a change in the Rules of Evidence?

Rule 11-1101 D (2) of the Rules of Evidence (a rule of the Supreme Court of New Mexico) provides that the formal rules of evidence do not apply in certain cases. If the words "preliminary hearings and grand jury proceedings" were added, the formal rules of evidence in criminal cases would not apply in cases heard before the grand jury, and they would not apply in cases heard by preliminary hearing before a magistrate. The law of privilege (for example, priest and penitent, or lawyer and client) would still apply; but hearsay would not be prohibited.

For example, in a car theft case, in which a Cadillac was stolen in Long Beach, California, and recovered in Albuquerque in the possession of the accused, it would not be necessary for the District Attorney to bring the witness (car’s owner) from Long Beach for a grand jury hearing or for a preliminary hearing before a magistrate in Albuquerque. An affidavit from the owner could be used, or the investigating officer could testify under oath as to the report and details from the alleged victim.

Why should the accused be entitled to force the California car owner to come to New Mexico to testify at this stage of the proceedings? The right to confront the witnesses will apply, but at trial. There is no constitutional requirement that the witnesses testify in person at grand jury or preliminary hearing proceedings. If the accused claims that he had permission to take the car, then that is a different matter, and the District Attorney would not have to, but might want to bring the alleged victim to testify in person, and that could be done. But if there is no claim that the car was not stolen, then why should the victim witness be required to come to New Mexico to testify that her car was stolen?

If the case were being prosecuted in federal Court, the formal rules of evidence would not apply to the grand jury proceedings, nor to the preliminary hearing. The federal rules of criminal procedure allow hearsay in grand jury and preliminary hearings. They have for more than 30 years, at least.

This rule change can be made by the Supreme Court of New Mexico, without the necessity of a hearing. Should the Legislature pass a memorial requesting such a rule change?

Thursday, January 27, 2005


Item. Albuquerque, NM. January 27, 2005. A twenty-eight year old man was convicted of vehicular homicide in the death of 14 year old boy bicyclist. The accused admitted DWI, but argued that negligence of the child was the sole significant cause of the accident and death. Supreme Court approved jury instructions say ". . . if you find that the negligence of a person other than the defendant was the only significant cause of death, then the defendant is not guilty . . . " Uniform Jury Instructions, Criminal, 14-252. The jury undoubtedly found that the negligence of the boy bicyclist was a significant cause of the accident, but under the instructions of District Judge James Blackmer, the jury was allowed to find guilt if the DWI conduct of the accused was also a "significant cause" of the accident.

Item. Los Lunas, NM. July 11, 1993. The headline read, "Ruling in Fatal Crash Case May Force Plea Bargain." Albuquerque Journal. It was the case of Roger Bishop, accused of vehicular homicide in the death of three Albuquerque residents. Three passengers in a van, returning to Albuquerque from the opera in Santa Fe, were killed. The accused claimed that the driver of the van was negligent, and obtained a ruling from District Judge Martin Pearl to the effect that for the accused to be found guilty, the unlawful conduct of the accused must be the sole cause of the accident and deaths. The Judge’s instruction, announced before trial after arguments by the prosecutor and defense lawyer, caused the District Attorney to commence work on a plea agreement. The Judge's proposed instruction stated, "In the event you find the victim or another person contributed to the death or great bodily harm, you must find for the defendant."
Item. Santa Fe, NM, January 2, 1970. The Court of Appeals today ruled that an Albuquerque man was wrongfully convicted of involuntary manslaughter in the death of a 14 year old boy bicyclist in Albuquerque. The Court ruled that the prosecutor had proved that the accused had killed the 14 year old boy bicyclist, but that the prosecutor had failed to prove the name of the child. The Court pointed out that the indictment alleged that the defendant killed a boy named [naming him], but that in the trial the prosecutor failed to ask the police officers and pathologist what the name of the deceased boy was. The Court of Appeals ruled that such a failure of proof, that is, a lack of evidence, required that the conviction not only be reversed, but that the accused be set free and was not to be tried again for the same offense. State v. Vallo, 81 N.M. 148 (1970). [Note, the reported case does not state that the boy was a bicyclist; that is the writer's recollection from news reports at the time.]

You may ask why this 1993 case and this 1970 case are dredged up and reviewed. The writer has never had any interest in any one of these three cases, other than a general interest in criminal justice. These are cases of "criminal justice seen."

Sunday, January 23, 2005


This need not be a partisan issue. The President, Secretary of Defense, and Attorney General nominee, have all said that "torture" is illegal and immoral and unAmerican, and that we will not engage in torture. Let us not look back at Guantanamo or Abu Grhaib; nor argue how far up the chain of command the responsibility went or should go. That leads to arguments and further polarization. Let us go forward, with definitions of approved interrogation techniques and specification of the circumstances that will justify the tehniques, and the procedures to protect against abuse of the process.

Let us agree to go forward with a rule of law that we are willing to follow, that most Americans will approve, and that we may, if we choose, recommend to the rest of the civilized world through the United Nations. Let us amend the Geneva accords relating to prisoners of war, if need be, or let us state (or affirm) that they do not apply to terrorists and enact a rule of law for the United States to deal with the problem.

Because we are all against "torture," perhaps we should not try to define torture (impermissible) but define permissible interrogation techniques. We could follow the principle we use in the United States, that is, we restrict the action (interrogation techniques) to use by qualified enforcement officers; we require such officers to have probable cause; we require the probable cause to be presented to a neutral, independent magistrate; and if the warrant is issued, the warrant sets forth what the officer may do. Let any JAG officer make the sworn application, on oath, setting forth the reliable hearsay that warrants the action. Let a general ranking officer, at least, be the magistrate and issue the order, the warrant. Let the warrant set forth exactly what may be done to get this suspect to reveal information he or she is believed to have and to which we are entitled. Let it be done by email to avoid delay in exigent cases.

Frankly, we are not talking about the Miranda rule (June 13, 1966); nor are we talking about the rule that says involuntary confessions (those obtained by mental or physical coercion or threats of such coercion, or promises of leniency) are inadmissible in American courts of criminal law. We are talking about what coercion will be permitted to get these terrorists to talk. Let Congress debate this in open session. Let us consider techniques that Congresspersons may advocate. We may consider authorizing the near-drowning (water-board) technique; the chain-him-in-a-fetal-position-in-waste for 48 hours technique; the forced en masse masturbation technique; the "light stick" or broom stick insertion technique; and the electrical shock to the appendages technique.

We certainly should consider the twenty-plus techniques signed off on by Secretary Rumsfeld,
as a great deal of expertise and thought went into them. Consider also the three techniques withdrawn from the Secretary's list after the digital pictures showed up. The point is that nothing is off limits to consider and reject or accept, and the rule of law which we adopt will give Americans a standard which we may all be willing to accept. If the rest of the civilized world goes along, fine. No global test here, however.