Saturday, August 27, 2005


In the last few days, Governor Bill Richardson has struck blows at crime on the Mexico border and here in Albuquerque. Some of these blows make us uneasy.

Take the proposal to raze the small town in Northern Mexico, across the border from Columbus. Our Governor, the governor of a province of the United States, has suggested that President Vicente Fox of Mexico bulldoze the little town, because the town is a gathering place for Mexicans who are planning to cross into New Mexico illegally, or for bandits who use the town to gather before coming across to steal or transport illegal drugs to supply the habits of willing buyers North of the border.

This is reminiscent of the Albuquerque Police Department initiative of cutting down trees near a Northeast heights apartment complex. The police thought drug pushers would stand behind the trees and make illegal drug sales; and that cutting the trees down would help. Razing the Mexican town is also like the Albuquerque initiative of closing the business of poor boy bars on East Central, on the basis that the police get a lot of calls for assistance at such bars. Why not provide the police protection and the property need not be destroyed, the bars and the trees could remain.

This is also reminiscent of the APD practice of taking workable, useable firearms and blowing them up or melting them down. Whose idea is that? Someone worked to produce those weapons. Why destroy them, unless we are to say that all firearms are to be considered contraband, and should be destroyed because there is no lawful manner in which they may be possessed.

The other blow against crime that leaves us uneasy, is the action of the Governor in sending his crime czar, Robert Schwartz, to Judge James Blackmer's court for a hearing on the Judge's sua sponte motion for reduction of a felony sentence the Judge had imposed in a vehicular homicide case. Mr. Schwartz carried a letter from the Governor, and read it to the Judge, according to a report in the Albuquerque Journal.

Is the Governor going to write letters to Judges now, advising the Judges of the Governor's opinions as to the appropriate sentence in criminal cases? The Mayor is reported to have done the same thing. Is he going to make this a practice? In order to be qualified to make a recommendation on a felony sentence, one has to investigate the case. Do the Governor and Mayor have this kind of time?

Are we wrong to feel some unease over these developments in the war on crime? The Governor could put a stop to the illegal immigration to New Mexico (not through, but to). Tell the State Police to investigate employers who are suspected of violating federal law by hiring illegals. The illegals come here to work, to try to improve their lives and the lives of their families below the border.

Dry up those jobs in New Mexico by assisting in the federal prosecution. It seems like grandstanding to declare an emergency at the border, criticize the United States government, and call for the President of another country to bulldoze one of his hamlets.

Yes, some of us are uneasy. What is next?

Wednesday, August 24, 2005


In the case of John Hyde, suspected of five unlawful homicides, including the killing of two police officers (formal charges of murder have been filed in the deaths of the officers), the District Attorney has announced that the matter will be presented to a grand jury in the next few days. Under the rules of criminal procedure set by our Supreme Court, one who is formally accused, and has made his initial appearance (referred to erroneously, but for lack of a better term, as an “arraignment”) must be released from custody after ten days, unless he has a preliminary hearing, or is indicted by a grand jury, and is held for trial Court (District Court) proceedings.

The Fifth Amendment provision for grand jury is not applicable here, as the Fifth Amendment, in this regard, applies only to federal prosecutions. The Fifth Amendment states, in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, . . . “ Other provisions of the Fifth Amendment, including “. . . nor shall he be compelled in any criminal case to be a witness against himself,. . . “ are applicable in State prosecutions.

The Fourteenth Amendment due process clause lifts some provisions of the Bill of Rights and makes them applicable to the States, as restrictions on State action. This lifting is referred to as “incorporation” of the provision of the Bill of Rights into the Due Process clause of the Fourteenth Amendment, which amendment is applicable to the States (post Civil War). Other provisions of the Bill of Rights, including the right to be free from prosecution for felony except upon action of a grand jury, are not lifted out of the Bill of Rights and applied to State prosecutions. So New Mexico is left on its own, as to how it handles the matter of screening cases for prosecution, to prevent overreaching by the prosecuting attorney.

New Mexico required grand jury action from statehood until 1925. In 1925, borrowing from Oklahoma, New Mexico amended its constitution to permit prosecution for capital and other felonies either by grand jury action (presentment by grand jury, or indictment by grand jury) or after a preliminary examination, or hearing, before a magistrate. The test for prosecution is the same before a grand jury, or before a magistrate: probable cause that an offense was committed, and probable cause that the accused committed the offense.

In Bernalillo County, most felony cases are presented to a grand jury. The prosecutor has stated that she will present the Hyde case to a grand jury. It may be that all of the homicides will be covered by one proposed indictment (charging paper), or there may be separate indictments for separate incidents, for example, a separate indictment for the death of the two officers.

The grand jury will return a “true bill,” or a “no-bill (bill ignoramus)”. If a true bill is returned, the charging paper (indictment) is filed in District Court, and the accused is taken before the District Judge for further proceedings. In the usual case, these will ultimately include an “arraignment,” which is a proceeding in which the accused is called upon to plead guilty or not guilty to the charges before a Judge who has the power to sentence on a guilty plea. All plea bargains are concluded at an arraignment.

In a capital case, the accused may be held without bail. That rule comports with the State and federal constitutions, though they prohibit “excessive bail.” No bail is not excessive bail, in a capital case, in which the “proof is evident or the presumption great.”.