Here is a way to compromise on the death penalty issue. Keep the death penalty as we know it in New Mexico, but amend it to limit the cases in which it can possibly be imposed. The law requires that the jury find one or more aggravating circumstances before even considering the ultimate penalty. The circumstances appear in New Mexico Statutes Annotated 1978, Section 31-20A-5. They could be amended, as follows:
A. the victim was a peace officer who was acting in the lawful discharge of an official duty when he was murdered; and the murder was committed by the use of an explosive device, poison, or chemical or biological weapon, and resulted in the deaths of five or more persons, including the victim;
B. the murder was committed with intent to kill in the commission of or attempt to commit kidnaping, criminal sexual contact of a minor or criminal sexual penetration; and the victim was over two years of age and under thirteen years of age;
C. the murder was committed with the intent to kill by the defendant while attempting to escape from a penal institution of New Mexico; and the murder was committed by the use of an explosive device, poison, or chemical or biological weapon, and resulted in the deaths of five or more persons, including the victim;
D. while incarcerated in a penal institution in New Mexico, the defendant, with the intent to kill, murdered a person who was at the time incarcerated in or lawfully on the premises of a penal institution in New Mexico. As used in this subsection "penal institution" includes facilities under the jurisdiction of the corrections and criminal rehabilitation department [corrections department] and county and municipal jails; and the murder was committed by the use of an explosive device, poison, or chemical or biological weapon, and resulted in the deaths of five or more persons, including the victim;
E. while incarcerated in a penal institution in New Mexico, the defendant, with the intent to kill, murdered an employee of the corrections and criminal rehabilitation department [corrections department]; and the murder was committed by the use of an explosive device, poison, or chemical or biological weapon, and resulted in the deaths of five or more persons, including the victim;
F. the capital felony was committed for hire; and the murder was committed by the use of an explosive device, poison, or chemical or biological weapon, and resulted in the deaths of five or more persons, including the victim;
G. the capital felony was murder of a witness to a crime or any person likely to become a witness to a crime, for the purpose of preventing report of the crime or testimony in any criminal proceeding, or for retaliation for the victim having testified in any criminal proceeding; and the victim was over two years of age and under thirteen years of age.
The beauty of this proposal is that not many offenders would be executed (if any at all), but the right to execute would be reserved for certain cases. Those would be cases in which the death penalty would be considered just; and in which a mere life sentence with so-called "no possibility of parole" would be considered so inadequate as to undermine our whole criminal justice system in the eyes of most of the general public.
Friday, February 25, 2005
Thursday, February 24, 2005
ACCUSED MURDERERS TAKE FIFTH
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.
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.
Wednesday, February 23, 2005
MURDER OR MANSLAUGHTER
The trial of Martin Saiz, which ended in a conviction of first degree murder in Albuquerque Monday, is a study in criminal procedure. The jury was allowed to consider second degree murder, and voluntary manslaughter, as well as first degree murder. Voluntary manslaughter is an unlawful killing "upon sufficient provocation." When I saw in the paper that the jury had been instructed on voluntary manslaughter, I was worried. What if the jury finds manslaughter, and on appeal the accused claims that the evidence was sufficient to convict of murder, but that there was no evidence of manslaughter? What would be the result if the appellate court agreed? The lawyers would argue "precedent." They would cite State v. Reed, 39 N.M. 44 (1934) [Volume 39, New Mexico Reports, page 44]. They would also cite Smith v. State, 89 N.M. 770 (1976) [Volume 89, New Mexico Reports, page 770]. "A page of history is worth a volume of logic."
In the Reed case, Reed was charged with murder by torture, but the jury was also instructed on second degree murder. The jury convicted of second degree murder. On appeal, the Supreme Court pointed out that the defense was alibi, and that the evidence showed that the killing was torture murder (first degree). The Court reversed the conviction and set the accused free of all charges. At page 51, the Court stated, "Impressed as we are that these appellants [defendant] go unwhipped of justice, it is not for us to vary the Constitution and laws. ..."
In the Smith case, some of the three defendants beat the female victim into unconsciousness with a pipe or fence post, and placed her in the trunk of the car, naked. The three defendants went in the car to an oil well slush pit tank [Lea County}. The three defendants removed the victim from the trunk of the car and threw the victim naked into a tank containing 14 inches of an "oil substance." The co-defendants stood on and sat on the victim to hold her under, and she drowned in oil. It was likely that she would have died from the wounds in any event. Smith stood on the tank ladder and assisted one of the co-defendants out of the tank.
The two co-defendants pleaded guilty to second degree murder. Smith was tried for murder but the jury was also instructed on manslaughter (that is, the jury was given the choice of murder or manslaughter). The jury convicted of manslaughter. Smith appealed, arguing that the evidence was sufficient to support a conviction of murder, but that there was no evidence of [sufficient legal provocation] to justify a conviction of manslaughter.
The prosecution argued that Smith got off too lightly, but that he should not be heard to complain. The Supreme Court ruled that there was sufficient evidence for a conviction of murder, but not manslaughter. The Court reversed the conviction, and set Smith free. One Justice did not participate. The other four were unanimous.
Back to the Saiz case, and 2005. In the Saiz case, the verdict was murder in the first degree, so the issue will not come up as it did in the Reed and Smith cases. So why get into all of this? It is criminal justice seen.
In the Reed case, Reed was charged with murder by torture, but the jury was also instructed on second degree murder. The jury convicted of second degree murder. On appeal, the Supreme Court pointed out that the defense was alibi, and that the evidence showed that the killing was torture murder (first degree). The Court reversed the conviction and set the accused free of all charges. At page 51, the Court stated, "Impressed as we are that these appellants [defendant] go unwhipped of justice, it is not for us to vary the Constitution and laws. ..."
In the Smith case, some of the three defendants beat the female victim into unconsciousness with a pipe or fence post, and placed her in the trunk of the car, naked. The three defendants went in the car to an oil well slush pit tank [Lea County}. The three defendants removed the victim from the trunk of the car and threw the victim naked into a tank containing 14 inches of an "oil substance." The co-defendants stood on and sat on the victim to hold her under, and she drowned in oil. It was likely that she would have died from the wounds in any event. Smith stood on the tank ladder and assisted one of the co-defendants out of the tank.
The two co-defendants pleaded guilty to second degree murder. Smith was tried for murder but the jury was also instructed on manslaughter (that is, the jury was given the choice of murder or manslaughter). The jury convicted of manslaughter. Smith appealed, arguing that the evidence was sufficient to support a conviction of murder, but that there was no evidence of [sufficient legal provocation] to justify a conviction of manslaughter.
The prosecution argued that Smith got off too lightly, but that he should not be heard to complain. The Supreme Court ruled that there was sufficient evidence for a conviction of murder, but not manslaughter. The Court reversed the conviction, and set Smith free. One Justice did not participate. The other four were unanimous.
Back to the Saiz case, and 2005. In the Saiz case, the verdict was murder in the first degree, so the issue will not come up as it did in the Reed and Smith cases. So why get into all of this? It is criminal justice seen.
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