Thursday, August 11, 2005


This week it was reported that two of the Michael Jackson jurors have written books about their service. They claim that they were convinced beyond a reasonable doubt that Jackson was guilty, but they finally gave in to the majority and voted “Not Guilty.”

In Allen v. United States (1896), the Supreme Court of the United States approved a trial Judge’s instruction to the jury which was designed to prevent a mistrial by jury disagreement. The “Allen” charge, also referred to as a “dynamite charge,” and as a "shotgun" charge,has been used in some form in the federal and state courts in criminal cases as a last resort to try to avoid a “hung jury.”

The instruction tells the jury members of their right to hold out if they are not convinced, but the instruction reminds the jurors of their duty to listen to and consider the opinions of the other jurors. Paraphrased, the instruction is:

"In a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusions of his fellows, yet you should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other.

"It is your duty to decide the case if you can conscientiously do so. You should listen, with a disposition to be convinced, to each other’s arguments. If much the larger number are for conviction, a dissenting juror should consider whether his doubt is a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself.

"If, upon the other hand, the majority is for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority."
Volume 164, United States Reports, page 492.

This type of instruction is truly dynamite when it is given to a criminal case jury which has deliberated for a long period and is divided, say, 10 to two, or 11 to one. The Supreme Court of New Mexico does not allow this instruction to be given, nor any type of “dynamite” charge to be given, during jury deliberations. Our Court requires a modified version of the instruction to be given in every case, but at the beginning of the arguments, following the evidence. Of course a written copy of the instructions goes with the jury for use during deliberations. The New Mexico instruction is as follows:

"Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agrees. Your verdict must be unanimous.

"It is your duty to consult with one another and try to reach an agreement. However, you are not required to give up your individual judgment. Each of you must decide the case for yourself, but you must do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own view and change your opinion if you are convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the purpose of reaching a verdict.

"You are judges - judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case." Uniform Jury Instructions - Criminal, Section 14-6008.

In its Use Note, the Court directs: “This instruction must be given in every case. After the jury has retired for deliberation neither this instruction nor any 'shotgun' instruction shall be given." The commentary of the State Bar committee which proposes instructions, points out that the federal rule and the standards of the American Bar Association are in accord with this approach by our Supreme Court.

Sunday, August 07, 2005


Two sessions ago in the New Mexico legislature, W. Ken Martinez, legislator from Grants, proposed an Interlock on all motor vehicles registered in New Mexico. The proposal was rejected. This last session, Mr. Martinez proposed an Interlock on all motor vehicles used by first-time DWI convicts. That measure passed. To his credit, Mr. Martinez made sure that the "Interlock" could include any technology which would accomplish the purpose (preventing an impaired driver from operating the vehicle).

Sandia Base scientists were working on a device that required the proposed driver to lay her wrist on a plate, in order to use the ignition key and start the vehicle. The plate would record the blood-alcohol content in the brain (by calculation) and the key would not work for a person with a certain BA level. Good idea, and there must be many more devices out there which would accomplish the purpose. Expand the idea to preventing operation of the motor vehicle by any impaired (by drugs; fatigue; alcohol; etc.) driver.

Next step, and better on a national level. No new motor vehicle to be registered in the United States unless it has an "Interlock." Is not such a device as important as air bags, if not as important as seat belts? Why should a manufacturer be allowed to sell a huge truck or truck and trailer for tens of thousands of dollars, without including an "Interlock," which would add perhaps a few hundred dollars to the price? Why should an owner be allowed to operate such a huge vehicle on our highways with an impaired driver?

Same issue with those who want to go 75 miles per hour in an SUV or pickup truck. Why should they be allowed to put the vehicle on the highway without this safeguard: cannot be operated by an impaired driver? We go to great lengths to keep unqualified drivers off the road, with drivers' licenses. Then we purport to revoke the license (punish a convict for DWI) as a law enforcement measure. Perhaps we are on the wrong track. If it is within our ability and means, why not a safety feature such as this?

The device could check the driver periodically, and disable (carefully) the vehicle until it could be operated by an unimpaired driver. A true "field" sobriety test. Except that it also stops operation by drivers who are fatigued, impaired by drugs, too sleepy for safety, or otherwise unable to operate heavy machinery at high speeds with safety for others (think semi on your tail on the freeway).

New Mexico was not ready two years ago when W. Ken Martinez came forward with the proposal. He was right, but only a little ahead of his time. With his expanded definition of "Interlock," which invites and promotes innovations by the best minds and vehicle engineers, he is now right on time.

Mr. Martinez should try again, with the aid of Governor Bill Richardson, in this special session. The requirement could be limited in New Mexico to new vehicles registered in New Mexico. If you can buy a new car, can you not afford this safeguard? That will encourage innovations and new technologies for the purpose. Part of the expense when the device is used as a punishment, is the monitoring. That would not be necessary with some technology, or at least would not need to be as intensive as necessary with punishment.

Getting the national government into the act may be the best answer now, as we would expand the options from a modification of the ignition system on all motor vehicles registered in New Mexico, to factory installed "Interlocks" which would go into the new vehicles along with air bags, seat belts, and turn signals, mechanisms that prevent the starting of the engine while the vehicle is in gear, devices that tell us when a door is open, etc. If the federals will not do it now, New Mexico can lead the way. Grants from the federal government could be expected.

At first blush one would think that an operator who wanted more freedom would simply disable the device. That would be an unpopular crime, looked on with disfavor by most of the jurors, sort of like hitting a toddler in the face with the fist. Not like buying a radar detector (looked on with disfavor by many).