Saturday, August 20, 2005


The New Mexico Supreme Court has reviewed its position on one aspect of double jeopardy. The Court had previously ruled that double jeopardy did not necessarily bar a prosecution in District Court for a felony, after the accused had pleaded guilty to an included petty misdemeanor in a Court of limited jurisdiction (municipal, metropolitan, magistrate). Our Court looked at the issue again, and split three to two, but upheld the previous rulings. Justice Patricio M. Serna wrote the opinion, and Chief Justice Richard C. Bosson and Justice Petra Jimenez Maes concurred. The Court’s rule is referred to as the “jurisdictional exception.” The case is State v. Rodriguez, 2005-NMSC-019 (June 28, 2005). Two Justices disagreed on this point.

A different rule, according to Justice Serna, would “ . . . allow defendants to abuse the multi-level judicial system which exists in New Mexico and in other jurisdictions.” The Court pointed out that under a different rule, a defendant could plead guilty to all misdemeanor charges arising from a criminal act in magistrate court and never be in jeopardy of a felony prosecution involving similar evidence in the district court.

In Justice Serna’s words, “[R]eason and logic do not support a rule where one guilty of a crime of homicide by vehicle may escape a possible sentence of three years imprisonment by the expedient of pleading guilty to a charge of DWI or reckless driving where the penalty may be as low as a $25.00 fine and five days in jail.” This Rodriguez case did not involve DWI, nor reckless driving, but the words of the Justice apply too often in New Mexico.

Recently a young man pleaded guilty in Northern New Mexico to traffic offenses, including being on the wrong side of the highway. He was fined $125.00, no jail time. His vehicle, across the line, hit a motorcycle and killed one person and severely injured another. Steve Fox wrote an excellent article about it in a column in the Albuquerque Tribune a few days ago. He states that there were witnesses who claimed the offender was racing with another vehicle at the time of the accident.

When two drivers race on the public highway, and one vehicle is involved in an accident which results in death to another person, both of the drivers of the racing vehicles may be guilty of homicide by vehicle. It is not necessary for both racing vehicles to hit the victim vehicle. Here was a possible case of vehicular homicide against two drivers, though they were juveniles, and the case was handled as a minor traffic offense.

Perhaps this recent homicide case could still be prosecuted as a felony vehicular homicide case (in Children’s Court). This Rodriguez case, with Justice Serna’s opinion, would support such a prosecution, on the basis that the plea to the traffic offenses occurred in a Court of limited jurisdiction, a Court which had no jurisdiction to accept a plea of guilty of the greater offense (vehicular homicide).

The State’s argument would be that because the Judge had no jurisdiction to try the felony charge, nor to accept a plea of guilty to the felony charge, the acceptance of a plea of guilty, and the punishment, of the lesser-included offense of [Steve Fox reports that it was reckless driving], would not bar prosecution of the greater offense, felony vehicular homicide.

Admittedly, this is technical, and it may be that Justice Serna’s ruling would not apply, because the involvement of the District Attorney in this plea in this case was such that he was not surprised at the proceedings. The District Attorney did not simply discover that the offending driver had rushed in and pleaded guilty to a lesser offense in a limited-jurisdiction Court, to avoid felony prosecution. The District Attorney allowed that to happen, after making a decision not to prosecute on the felony charges.

Disclaimer. I am not looking for nor accepting such business. I assume that the family of the deceased motorcyclist, and the crippled victim, have counsel for civil law purposes. They may want to seek a further opinion from the Attorney General on the criminal charges, in view of Justice Serna’s June 28, 2005 opinion. It may be that nothing further can be done; and it may be that the District Attorney (the case was transferred to the District Attorney from Clovis) was right in his assessment that the case was a mere careless driving, at the worst, and thus clearly was not vehicular homicide, which requires reckless driving, or racing on the highway.

Wednesday, August 17, 2005


Governor Bill Richardson has proposed life without parole as a mandatory first offense penalty in certain sex cases. Brutal cases, cases in which the victim is elderly, and cases in which the victim is a child. Criminal sexual penetration equals one strike, you're out. Mandatory. Many have commended the Governor for getting tough.

This proposal sounds tough, but it will require a lot of work to draft such legislation so that it is workable. We do not want this to be simply a feel good, flash in the pan gesture.
The fatal flaw we see is the mandatory nature of the penalty.

When we make a penalty mandatory, we take the discretion away from the Judge and give that discretion to the District Attorney (and in some instances, the law enforcement officers).
If you say that you will require the District Attorney to charge and prosecute cases as first-strike cases, you are being unrealistic. The District Attorney will exercise discretion in charging and prosecuting, and will use the first-strike law for some cases but not all that literally fall within the definition of a first-strike case.

The District Attorney would be derelict and untrue to his or her oath, if he or she used such a straight-jacket, knee jerk approach to the subject; that is, no discretion. Thus, it is a case of discretion is going to be exercised. Do we want a Judge held responsible, or leave it to the District Attorney?

If you take the definition of the proposed first-strike offense, and it included criminal sexual penetration of a female toddler, and there is no doubt that the accused did it, do we disregard all of the other circumstances? Is every such offense deserving of life without parole? Does it matter whether the offender is 18 or 81? Does it matter whether the offender is a grade school dropout, a high school dropout, a PhD, drunk or sober?

Mandatory sentences are by definition arbitrary. That is not necessarily bad, but in some cases it can lead to a gross miscarriage of justice. Consider how long the mandatory sentences for DWI and use of firearm lasted. If they are not a dead letter, they have been plea bargained away or disregarded in many cases, to avoid miscarriages of justice in the eyes of the prosecutor or Judge.

Professor Hayakawa said "Cow one is not cow two." When you define a crime and make the punishment mandatory, you are saying that cows two, three and four, etc., are the same as cow one. Do we not agree that these first-strike cases will be different in some important respects? Even so, you may say, all such offenders deserve life without parole.

We may be able to agree on this: every person who is found to be a pedophile and unlikely to reform should be in prison for life or at least under close supervision for life. The Judge should have the power and be monitored by the voters.

Sunday, August 14, 2005


This week Mayor Martin Chavez announced that video cameras would be installed in some school zones in Albuquerque, to catch speeders. The program will be operated like the red light cameras which are now being used at some controlled intersections. This program is commendable, and Mayor Chavez should get full marks.

The ACLU is challenging the ordinance under which the lights are presently operated. The Courts have been by-passed to a great extent, and that is the ACLU complaint. The City is using a nuisance theory, that is, a motor vehicle going above the speed limit in a school zone is a public nuisance and will be abated. The nuisance is abated by a citation to the registered owner of the vehicle (who under the law is presumed to be driving, although the presumption is rebuttable). These are criminal cases in civil garb, is the argument against the program.

The criminal law is preferable, but it appears we have lost confidence in the criminal law process. Takes too long, is too full of technicalities, and the judiciary is broken, say the critics. BIG CITIZEN can take care of that.

Whether the procedure is criminal or civil, the video cameras are very important for the protection of law-abiding residents. We need more, not fewer, cameras on duty. However, Big Citizen should be allowed access to the pictures, and the results of the computer’s determination as to whose motor vehicle is being used to violate the law. Put the pictures on line for us all to see. In the case of a violation, let us all know and see, including the APD officer who is to review the apparent violation reported by the private company doing the filming. This will be a blow at ticket fixing.

Incidently, why have a private company do the filming and notification of apparent violations? Whether it is paid by the violation, or the picture, there is no long term need to farm this police work out to a private contractor. We understand the need, just to get started, and to get the concept accepted. Later this all should be done by law enforcement officers.

Another point. The video camera catches all violators. Why impose severe punishment? The idea of a $100 penalty for one mile over the limit is arbitrary and unreasonable. Speeding at 10 mph over the limit should be punished more than speeding at one mph over. Same with the red light runners. The camera should catch them all.

Certainty of apprehension and conviction should result in lowered punishment. That is the most efficient and the fairest in a criminal justice system. For example, consider what the fine should be for speeding from Santa Fe to Albuquerque; then consider what the fine should be if we had a camera and caught 100% of the speeders.