Saturday, January 21, 2006


Jayann Sepich of Carlsbad has written an Op-Ed piece for the January 15, 2006, Albuquerque Journal. She is advocating “Katie’s Law,” a bill to be introduced by Rep. John Heaton, D-Carlsbad. The bill would require law enforcement officials to take DNA samples from persons who are arrested on felony charges, and the samples would be put in a state database. Katie, Ms. Sepich’s daughter, was raped and murdered in Las Cruces in 2003. It was then that Ms. Sepich learned that DNA samples were not taken routinely.

“Only the guilty would have any reason to fear DNA.”, Sepich stated. She claims that DNA technology can save lives, protect the innocent, and solve crime. In general, she is right. No need here to point out that some expert like Dr. Henry Lee of the OJ trial may muddy up the waters by simply saying, “Something is wrong here.” Ms. Sepich is right, but her stopping place is wrong. She would require New Mexicans to give a DNA sample for a law enforcement database. Fair play would extend that requirement to all of us.

Can we justify making a class of those arrested for felony? No conviction of a crime of violence, nor even a charge of a crime of violence. In a sense, this sampling is punishment, and in a sense it is preventive law enforcement. Assuming that the arrest is lawful, a reasonable and prudent police officer believed that the accused had committed a felony. Seems fair enough such a person should give up the DNA sample.

Would it not be fairer, however, to take the sample from us all? Much more effective; much more even handed. Search us all; not some of us; that is the fair thing to do (for example, at the airport).

Let every resident of New Mexico give up a sample. Meanwhile, let us support “Katie’s Law” as a start.

Friday, January 20, 2006


Governor Richardson could easily have passed up the request to put the issue of medical [read that “smoked”] marijuana before the legislature. After all, the federal government, which is slowly but surely taking over the police power from the states, claims the right to prohibit people from smoking marijuana. The feds claim the right to deny smoked marijuana to people with terminal illnesses, people with intractable pain. They do not arrest the patient; they threaten the license of the doctor. Have you heard any of our congress people discuss this?

The Governor came forward and laid the problem on the table. New Mexico may be spinning its wheels, but the principle is there. No longer will we roll over and say to the DEA, tell us how to practice medicine. If our legislature passes the bill, it may amount to no more than a resolution, and that is all right. We will say to the federal powers that this is a State matter, and get out of the sickroom and restrict your governance to matters that are appropriately federal (national and constitutional).

Tuesday, January 17, 2006


In the federal criminal justice system, we used to have “Blue Ribbon Juries.” The law was changed by Congress forty years ago. Now we select the jury panel by a random method.

Under the Blue Ribbon system, the Judge would appoint “suggestors” in each county of the State. The suggestors were prominent in their communities, and were trusted by the Judge to do a good job of suggesting people who would make upright, honest jurors. From those suggested, a panel, say 24 or 36, would be chosen to try the criminal cases. The defense lawyers tried to find out the details of how the suggestors were chosen, and what methods the suggestors used to choose those whose names were sent forward. The lawyers were unsuccesful; they and their clients remained in the dark.

In October, 1966, forty years ago, Reis Lopez Tijerina and his followers took over the Echo Amphitheatre in northern New Mexico, and held forest rangers against their will. The rangers were taken before a “judge,” Jerry Noll, who claimed to be King of the Indies and the rightful owner (by grant from a Spanish king) of all land West of the Alleghenies. The upshot of it all was that Tijerina and several others were put on trial and convicted in federal Court.

At the time of the trial, in early 1967, the Blue Ribbon Jury system was in use in the United States District Court, but Congress had just passed a law abolishing the practice. The law was not applicable to the Echo Amphitheatre case, but Howard Bratton, United States District Court Judge, ruled that he would use the new system for the case. That was out of an abundance of caution, as they say. Judge Bratton was an outstanding jurist.

The case was tried in Las Cruces, and a jury was selected from the southwest part of the State. A conviction resulted, and Tijerina did federal time. Before he did time, he was on bond while he appealed his federal conviction. It took the court reporter nine months to prepare the appeal transcript. Meanwhile, in June, 1967, Tijerina was involved in the courthouse raid in Tierra Amarilla, in Rio Arriba County.

Tijerina was convicted of assault with intent to kill Eulogio Salazar, a deputy Sheriff, who was shot through the face while trying to escape the courthouse through an open window in the office of the Sheriff. Tijerina was sentenced to not less than two nor more than ten years by [State]District Judge Garnett Burks [Sr.] but Tijerina was pardoned by Governor Jerry Apodaca before Tijerina served any of his sentence. If he had served time, he would have been entitled to credit for a short time that he was in jail on the raid charges and before he was released on bail.

Now to the question. Why not return to the Blue Ribbon system? Why do we trust such important matters as life or death, or long prison sentences, to the type of juries we get today? As a practical matter, many well qualified persons are excused from jury service, or are excluded by peremptory challenges by lawyers who are looking not simply for a fair jury, but for a biased jury. We have allowed the system to be twisted to the extent that those accused of crime who can afford it are helped by professionals who study the biases of prospective jurors, and advise the lawyers how best to obfuscate and mislead the jury panel and the jury.

This is not to rail against our criminal justice system, but to encourage reform. We may be able to do better, and it is time for discussion of possible ways to do better. We owe it to the victims of crime, and to the persons accused and found guilty. The more likely the criminal is apprehended, promptly tried and punished if found guilty, the less his punishment needs to be.


Sixteen year old Cody Posey is on trial for murder, accused of killing his father, stepmother and stepsister with a firearm. Posey was fourteen when the incident occurred, on a southern New Mexico ranch owned by Sam Donaldson.

Last week the Judge ruled that the boy’s confession would be admitted into evidence. Defense attorney Gary Mitchell had argued that use of the confession would violate Posey’s constitutional rights under the case of Miranda v. Arizona (1966). The case requires that the accused be advised of certain “rights,” principally the right to counsel, and that the accused “waive” the right to counsel. The Judge said that happened here; and that because Posey “waived” his right to remain silent, and waived his right to counsel [same thing, as a lawyer would have told him to keep his mouth shut], the confession could be used. Otherwise the confession would have been excluded from the State’s case.

The Miranda case not only encourages fraud, it requires fraud to be committed by our law enforcement officers. Fraud in the sense of omission of critically material information. The police “advise” the accused, such as this boy when the boy was fourteen. “You have a right to an attorney while you are being questioned.” That is grossly misleading. There is no such thing as an attorney during questioning. If the accused indicates in any way that he wants an attorney, all questioning must cease. Questioning may resume if and when an attorney is hired or appointed and the attorney agrees to let her client talk to the police.

Fraud in the sense that the police omit to tell the accused fourteen year old that if he refuses to talk, if he “lawyers up,” that refusal cannot be used against the accused. Fraud in the sense that it is not in the best interests of a guilty accused, ever, to talk to the police without advice from an attorney.

The police take candy from the babies [ignorant, fearful, remorseful, stupid, emotionally disturbed], and the hardened criminal, the mafiosa and drug kingpin lawyer up. Yes, those babies are often cold blooded killers, but do we really want to have rules which favor the intelligent, remorseless, fearless killers?

The Miranda case is ill-advised and results in uneven justice. The Miranda case, and Griffin v. California (1965), give a one-two punch that results in our use of interrogation to punish the little man while we release the hardened killer and rapist.

The Miranda case allows the accused or lawyer to stop all interrogation; and the Griffin case says no inference may be drawn from the silence of the accused. Where is the common sense, the fairness, in such rules? From time immemorial before 1966, confessions were admitted into evidence if they were voluntary [no violence nor coercion nor threats of the like].

The Warren Court in 1966 decided that the police could not be trusted to tell the truth as to whether the confession was voluntary. So the Court laid down an absurd and unworkable waiver rule, but then said we will accept the word of the police as to whether the accused "waived" his rights to remain silent and get a lawyer's advice to keep mouth shut. This is an invitation to perjury, and is meaningless or ridiculous. This is said with all due respect to the Court.

Can you say that you are satisfied that Posey, at age fourteen, made a “knowing and intelligent” waiver of his rights to silence and advice of an attorney to remain silent? The rules laid down in the Miranda case and the Griffin case should be reexamined by the Supreme Court [now that we have two new hard liners]; or the rules should be reexamined by Congress and a constitutional amendment offered to in effect reverse these two cases. Forty years of impaired justice is enough.