Saturday, February 12, 2005


Please note this correction to my post regarding evidence before grand juries in New Mexico. Someone has called to my attention that Section 31-6-11 of New Mexico Statutes Annotated 1978 was amended to provide that the Rules of Evidence do not apply to grand jury proceedings. I overlooked that amendment and certainly should have discussed it in the post. My error. My recommendation still is that the Legislature memorialize the Supreme Court and ask for an amendment of Evidence Rule 1101, so there will be no conflict between the statute and the rule; and further, that the formal rules of evidence be made inapplicable to preliminary hearings. For the original post, see "previous posts."

Friday, February 11, 2005


Rep. Gail C. Beam has introduced HB 576, which would abolish the death penalty in New Mexico, and would provide for a life sentence without possibility of release or parole. The death penalty system is flawed, and should be changed. But abolition is unwise. Consider this. Has there ever been in history a case which deserved the death penalty? If so, can we be assured that there will never again be such a case? If there has never been a case deserving the death penalty, can we be assured that in the future there will not be one? If you want to narrow the instances in which the death penalty can be imposed, fine. If you want to streamline the procedure so that convicts do not sit on death row for decades, that is good. If you want to require the Courts to give priority to death penalty cases, so we do not have years of appeals, that is good. It is scandalous that it takes years, even decades, for the appeals to be over.

A word about the deterrence argument. For many years, people have argued that the death penalty is no deterrent, by pointing to the variations in the "murder" rate among the States. The statistics relied upon are the FBI reports of non-negligent homicides. These include second degree murder and voluntary manslaughter. [I could be wrong; but I have never seen statistics of first degree murder, as I understand the term.] If the statistics were of murders in the first degree, that is, wilful and deliberate murder, committed intentionally after a thinking over the pros and cons, with a calm and reflective state of mind, then when one said State X has a low murder rate and no death penalty, it would mean something. It would not in itself prove that the death penalty has no deterrent effect, but it would be worthy of more consideration.

In countries South of us, prosecutors and judges are murdered, for the purpose of interfering with the criminal justice system. Here, children are murdered to prevent their testimony. Are these cases worthy of the death penalty? The death penalty cannot be justified except on the basis that it saves innocent lives. Presumably our Creator considers us all equally innocent, so we do not kill the murderer because he is evil, or we hate him, but because his death will result in the saving of innocent lives. What happens when evil people begin to use bombs on the judges and their families, or on the juries and their families, or the police and their families? What happens to the criminal justice system?

This proposed step of abolition is too drastic. Let those who object to the death penalty specify which of the cases covered by present New Mexico law that they would change, so that the penalty for such act would be so-called life without parole and not the possibility of death. The law requires an aggravating circumstance for the death penalty to be imposed. Which of the statutory aggravating circumstances should be repealed? This is a graver and more important affair of life, so let us pause and hesitate to act.

Tuesday, February 08, 2005


Rep. W. Ken Martinez has two bills before the Legislature that deal with DWI. They require the use of an "interlock device" on the motor vehicles of persons convicted of DWI. HB 282. Further, by his HB 565, Rep. Martinez looks to the future and defines "interlock device" to include technologies or techniques which may be in existence or may be developed, to accomplish the same end. The end sought to be accomplished, is a motor vehicle which cannot be started nor driven by an impaired driver.

Rep. Martinez is not proposing that all motor vehicles licensed in New Mexico be fitted with such a device, but that such a device be fitted to the motor vehicle of the convicted DWI defendant. When the technology gets in use and is fully accepted, and it becomes convenient and economical and foolproof, perhaps it can be required on all State vehicles first, then on all motor vehicles licensed in this State. So when you buy that new Ford sedan, it comes with a device that makes it impossible to start or drive by an impaired driver. Such an interlock device will cost a fraction of the air bag, and may save many more lives.

In HB 565, Rep. Martinez seeks to level the playing field among the various companies which make devices to prevent impaired driving. The bill defines "interlock" to include other technologies approved by the Traffic Bureau. This will enable the new technology being developed at Sandia Laboratories to be adapted for the purpose, if the developers so choose. That is an ignition key that requires the operator to lay her forearm on a screen that will detect alcohol in the bloodstream. Pupillometry as a drug and alcohol testing tool may be adapted to the driver’s seat. Essex County, New Jersey, Probation Department has information on that subject. This technique requires a base line, but that should not prevent its use if adapted. Look into the eye holes and your car will start unless you are impaired.

Bracelets are now in use for the ankle which detect alcohol in the blood stream. They can be used to prevent consumption of alcohol, but are not specifically designed to disable the car when an impaired driver is behind the wheel. The technology exists to fit the convict with two wrist-watch size bracelets, and through a computer program determine whether the wearer is operating a motor vehicle. So with present technology we can make a person stay home (electronic bracelet); or make him stop drinking (alcohol bracelet); or prevent him from driving (two bracelets and a computer program); or prevent him from being in a moving vehicle (GPS and bracelet). The interlock device is designed to prevent the offender from driving while impaired. That leaves the offender free to drink, or to drive, but not to do both at the same time. The idea seems best designed to solve the problem, and it concentrates on the vehicle.

The beauty of the approach being taken by Rep. Martinez, with HB 282 and HB 565, is that we are able to take advantage of proven technology to accomplish a great deal toward preventing DWI now; and we are keeping the door open for future technology. Thirty years ago Bill Gates made a computer in Albuquerque. Maybe a young Bill Gates will come up with a technique or device which will require that operators of airplanes, boats, motor vehicles, and other dangerous machinery and equipment be unimpaired. Meanwhile, the interlock legislation has been shown to be worthy of support.

Sunday, February 06, 2005


I am talking about the lottery here. In New Mexico, you and I cannot legally make a social bet on the Super Bowl. We cannot legally raffle jars of preserves at the womens’ club. We cannot legally gamble small, sociable stakes on domino games, such as moon or pitch. We cannot bet on a cockfight, one of our cultural traditions. We cannot legally play sociable, two-bit limit poker. But we can bet the ranch on a State-run numbers racket.

I read that slots had to pay 80%. Some casinos advertise "loose" slots, so I guess that is greater than an 80% payout. Our State of New Mexico numbers racket pays 33%. $150 million comes in from the poor and ignorant and desperate. $50 million goes to the "winners," so they can place their bets another day (like the stock market). $50 million goes to some college students (it is not right to blame them, under the circumstances). And the final $50 million goes to management, or administration. "Gaming" officials. We will not tolerate the name, "gambling." Gives us a bad image.

Speaking of image. Who thought up the idea of taking the State bird, the chaparral (a magnificent bird), and making it into a logo for a numbers game? If that was not designed to appeal to children, I will throw in with them. Have you recently heard the benefits, the advantages, of the New Mexico lottery praised by an eight year old? I have. Have you seen a six year old boy urge his mother to buy one of the colorful scratch tickets at the gas station checkout counter? I have. It is dismaying. The Legislature is in session. Why not get rid of this shameful practice of government involvement in gambling in the State of New Mexico?