NEW MEXICO LAW AND SOCIETY

SCAN OR PAT DOWN OPTION OKAY

2010-11-22T12:53:00.000-08:00

Assume that you are not flying, but your daughter and her daughter (your six [6] year old granddaughter) are flying to the East coast. Would you want all passengers, or none, or some, to be subjected to the (scan or intrusive pat down)?

If you say “some,” can you spell out who they would be? If you say “none,” that simplifies the matter, but would you then want your daughter and the granddaughter to take the train instead of the plane?

If you say you do not want your daughter and granddaughter to be subjected to the scan or pat down option, would you extend that privacy protection to the other passengers? If so, you are then saying that no one should be subjected to the option. Let us say no one, except the suspicious ones. What do you have to lose by such a stance?

What you have to lose, is the additional protection (if any) against a terrorist attack that is afforded by the more intrusive search. Is there additional protection? Does the (scan or pat down) discover dangerous items or substances that the former x-ray and back-handed pat down would fail to discover? In other words, is the new procedure more effective than the former procedure in prevention of a terrorist attack?

Can we be sure that terrorists will not use children to carry dangerous items or substances aboard the plane? Religious persuasion? Coercion by threats to the child or family?

REPEAL THE DEATH PENALTY?

2009-03-05T12:59:00.000-08:00

The New Mexico legislature is in session, and due to end March 17th. One controversial bill would repeal the death penalty, even though we have executed only one person since 1960.

The Albuquerque Journal, in a recent editorial, has suggested that the penalty be retained at least for murder of a prison guard. The Journal was impressed by our experience in New Mexico’s prison riot of February, 1980. Twenty-nine prisoners were murdered by prisoners, and no guards were murdered, although the guards were at the mercy of the killers. At that time, the murder of a guard was punishable by death, while the murder of a prisoner was not. The Journal seems to believe that the death penalty needs to be retained as a deterrent to murder in the killing of such guards.

I suggest that we retain the death penalty, at least for one type of crime. That is the abduction, sexual assault and deliberate murder of a female child under thirteen years of age. If there is any deterrent in our admittedly flawed system, perhaps it will save some lives of some female children. The law should also provide for moderate punishment for the abduction and assault, if the female child victim is not killed. The criminal should not face a long prison sentence for conduct short of murder.

A proponent of repeal states that the death penalty is no deterrent, or does not deter. How is this known? The federal government keeps statistics of unlawful homicides, but does not isolate, or separate out, those of wilful, deliberate, first degree murder. There may be studies which tend to show that the death penalty does not deter such murders in the first degree. We invite comments with references to any such studies, and will try to keep an open mind.

OBAMA'S CONVERSION; MCCAIN'S INTERVENTION

2008-06-12T14:49:00.001-07:00

Questions floating in my mind. No offense.

If Barack Obama was saved in the Trinity Church, with Reverend Wright officiating, was not Obama then 26 years old? In what religion did his folks raise him before he was 26? In the Southern Baptist religion, you can be converted (saved) as early as your 7th birthday, as the writer was.

Another question. We remember when isolationism was something the Republicans advocated. Why does John McCain want this country, outside of the United Nations, to have a presence in the Middle East? Why not just get out of the Middle East until the United Nations says go in with us?

SEAN BELL KILLING; OFFICERS ACQUITTED

2008-05-01T10:22:00.000-07:00

The Sean Bell case in New York has been in the news the last few days. In a bench trial (Judge, no jury), which lasted two months, the accused police officers were acquitted of unlawfully killing Mr. Bell, in an incident in which the police fired 50shots. The men who were shot did not fire any shots. Bell was killed. His two companions were wounded.

We have some general comments on the criminal procedure and practice, and we assume the accuracy of the newspaper reports.

In New Mexico, the State has a right to a jury trial, as well as the accused. If that is the case in New York, the question arises, did the District Attorney agree to waive the jury trial? If so, why?

The accused officers did not testify at the trial. The Judge is not allowed to infer guilt because of the silence of the accused. That rule was adopted by the Warren Court in 1965, in the case of Griffin v. California, and it was imposed on the States. This rule (no inference of guilt from silence) is contrary to common sense and fair play; but it is the law, because the Supreme Court has ruled.

In the New York trial, the Judge admitted into evidence the testimony of the accused officers given in front of the grand jury. Did the District Attorney fail to object (to the admission of that grand jury testimony), in the trial of the case to the Judge? Those statements were hearsay, and were objectionable.

If there had been an objection by the State and if the Judge had ruled correctly, those statements of the officers (grand jury testimony) would have been excluded. In such case, the accused might have been forced to take the stand and be subject to cross examination before the Judge who was trying the case.

LAWSUITS FOR SPECIFIC AMOUNTS OF MONEY GIVE LAWYERS A BAD NAME

2007-11-14T10:41:00.000-08:00

You have probably read of the lawsuit in which a man sued his tailor for millions over a lost pair of pants. Other cases appear occasionally in the news in which lawyers seem to vie for publicity by asking for astronomical damages. Such cases give lawyers a bad name and rub off on good lawyers.

Some jurisdictions, including New Mexico, have a rule that prohibits a lawyer from asking (praying)for money damages in a specific amount, and in such jurisdictions the prayer is for damages in an unspecified amount. "In such amount as the trier of fact may find." Or some such language.

Exceptions are allowed if one is pleading a jurisdictional amount ($25,000 to get into this Court, for example.) or if one is pleading a specific liquidated amount, such as the amount specified in a contract.

A young girl in New Mexico was rendered a paraplegic by a drunk driver a few years ago, and her lawyer unwittingly, in violation of the rule, prayed in his complaint for a million dollars in damages. The insurance defense lawyer cited the rule and demanded that the case be dismissed. It was nip and tuck, but the plaintiff's error was excused.

A wise person said "The law is common sense, put in good grammar." Rules can be helpful if not hyper-technical. Few lawyers are dishonest; and few are sharp practioners, is our experience.

MOVE-ON AD WAS BAD

2007-09-21T10:38:00.000-07:00

“Before a single Democrat condemns MoveOn's ad, they should insist that George W. Bush and the Republican Party repudiate the anti-military smears on war heroes that have been the hallmark of Mr. Bush's political career.” This is a statement from Paul Begala, in a post on Huffingon Post today.

We do not think it is necessary for us to insist that President Bush repudiate earlier smears. Those smears were unjustified. Is this Move-On full page ad a smear? If so, it should be condemned, not defended. Not excused by the fact that the Republicans have smeared war heros.

Move-On asked the reader whether the reader thought that General Petreaus was betraying us (in a sense). Posing the thought as a question, Move-On left themselves wiggle room. However, the effect is to suggest that the General is about to betray us. The word should not have been used. Of course it was not intended literally, but that does not excuse its use.

Why hit below the belt? When you are on the high road, why slip or step into the ditch?

SENATOR CRAIG SHOULD TAKE THE ULTIMATE TEST

2007-08-30T13:41:00.000-07:00

People, including some in his own party, are demanding that United States Senator Larry Craig resign his seat in Congress. The reason is that what? He is gay? He is convicted of a petty misdemeanor based on his conduct in an airport restroom? Is that it?

Craig should do what Clinton should have done. He should have said that sex life is a private matter, and get out of people’s drawers! Get out of my underwear! If the people of Idaho want to fire me, that is their right. End of story for the present.

If I am a hypocrite about sex, is that a high crime? No; let my constituents decide my political fate. I will take the ultimate test, which is, how does my peccadillo render me unable to serve my country and people?

WE NEED MORE, NOT FEWER, SURVEILLANCE CAMERAS

2007-08-22T16:58:00.000-07:00

Albuquerque’s Mayor, Martin Chavez, has been criticized by many for his “red light” camera program in the City. Surveillance cameras and radar have been placed at certain intersections controlled by traffic lights. Among the complaints are that the penalties are too high, that due process is lacking because the City treats the cases as civil nuisance cases rather than criminal cases, that enforcement is outsourced to an out-of-state company whose interest is to make money from catching these particular traffic offenders, etc.

Some of these complaints are reasonable, and in time we should all get back to the regular, criminal law model. That will leave the issue of whether we want surveillance cameras, and if so, where and when. That question should be addressed separately. Many right-thinking people are opposed to such electronic surveillance in traffic enforcement as well as surveillance of street corners, sidewalks, and parking lots, and the like.

We have a suggestion for Mayor Chavez. Why not experiment with traffic control surveillance cameras on the two interstates within the City limits? Stop speeding, illegal lane changing, and tailgating immediately. It would not be necessary to cite the offenders, just put their registration on an internet data base and allow the insurance companies to access the information. Also, allow the trial lawyers access, so they may reconstruct accidents and prove bad driving habits. Big trucking companies would soon know which of their drivers were in violation of the law, and past violations would be there to show habitual dangerous driving when that issue came before some Court.

Trucks come into Albuquerque at 65 to 75 miles per hour and travel through at 65 or more. Often they are close up on the rear of careful, law-abiding drivers. Why not catch these dangerous offenders on videotape and radar and expose them to the public through the internet? Is that an unreasonable invasion of privacy by Big Brother? Or is that self defense, and justified?

We are of the view that it is reasonable to use a camera and radar to catch any violation that may be caught by the old-fashioned way of having a motorcycle officer do the detection and enforcement.

MEDICAL SMOKED MARIJUANA LAW ON HOLD BECAUSE OF FEDERALES THREAT

2007-08-16T11:58:00.000-07:00

Gary King, Attorney General of New Mexico, was asked about the new medical marijuana law, enacted in 2007 in New Mexico with the approval of Governor Bill Richardson. The question was asked by an authorized questioner; Gary King did not volunteer. The question was whether State employees who work in the program to provide the medicine to those for whom a doctor has prescribed smoked marijuana to ease the pain of dying in a hospice among the terminally ill, or to tame the nausea so a sick one under cancer treatment can eat and hold it down, and so forth -- whether those State employees are subject to prosecution (as threatened in writing by United States Attorney David Iglesias before his discharge) by the federales under Federal Prohibition. Gary King had no choice; he gave the legal answer: Yes, the federal government may prosecute you.

We have heard nothing from Senator Pete Dominici, Congressman Steve Pearce nor Congresswoman Heather Wilson to indicate any pressure will be brought on the Department of Justice or United States Attorney (now acting, Larry Gomez), or any other of the powers that be, to back off federal prosecuion and threats of prosecution in those cases meeting the strict standards of the State law.

The United States Attorney could find in these cases, a defense of emotional or moral insanity. This defense was recognized in some State jurisdictions. The accused is exonerated if the act (smoking the weed drug) was the result of disease irresistibly impelling him or her to do it, even knowing it was wrong. Secion 428, page 771, Abbott Criminal Trial Practice Fourth Edition, 1939. Quite a stretch, but the Department of Justice could find this defense. Or what about "necessity?" Necessity is a defense to crime in certain instances, even though the accused knows he is breaking the law. Can this defense be stretched to this extent for this purpose?

Grandma, sitting in her rocking chair, dying of incurable, late stage cancer, was prevented by the Clinton administration (the "federales") from using her corn cob pipe to smoke a weed that grows wild in her back yard garden, and that relieves her nausea and other pains. Never mind that her medical doctor prescribed smoked marijuana for Grandma's relief. Never mind that the State in which she lived legalized medical smoked marijuana. President Clinton enforced this aspect of Federal Prohibition. President Bush and Attorney General Gonzales can do better.

In the name of common sense, and humanity, let us stop Federal Prohibition in its tracks in this instance. The people of New Mexico have spoken. Will our representatives in Congress speak up also?

VICK ARRAIGNMENT ON DOG FIGHT CHARGE IS UNNECESSARY

2007-07-27T09:28:00.000-07:00

The news was full of the arraignment of Michael Vick. Celebrity show time, similar to the parade of beautiful people on the red carpet at the Oscars. No substance, however. The federal Court put itself and its personnel through a useless procedure. Lawyers for the government and the accused could have handled the matter by email to the clerk of the Court. They could have told the Court, “Here is a grand jury indictment; a copy has been received and read by the accused; this defense counsel represents the accused; this counsel is satisfied that the accused understands all of his rights; and this accused, for now at least, chooses to put the government to the proof; so we enter a plea of not guilty. As to bail, all of the parties are satisfied with the present conditions of release, a copy of which is in the Court file. Motions may come later, in accordance with the Court’s instructions, rules and schedule.”

At the time of the arrest, the accused is taken to a Magistrate for an initial appearance, advised of his rights, given an opportunity to ask for conditions of release (including bail and ankle bracelet, if any), and the case is dismissed (no probable cause) or held over for action of the grand jury (the grand inquest), for no one may be prosecuted for felony unless on indictment (or in some state Courts, on information, a charging paper signed and filed by the District Attorney). The accused can ask to be allowed to talk to the grand jury, subject to cross examination by the prosecutor, but may choose to “lawyer up,” as Sipowitz and others on NYPD say. No inference is supposed to be drawn from an accused remaining silent.

Money (salaries and fees) could have been saved, to be applied to the criminal justice system in more worthwhile ways. Incidentally, there is no legal difference between the wording of the plea made by O. J. Simpson, and that made by Vick. O. J.’s plea of “absolutely, 100% not guilty.” or words to that effect, should have brought more heat on him and his lawyers than Judge Ito meted out.

It may be said that this post is much ado about little. Actually, it is a lead-in to general, overall discussion of reform of the procedure that we use in the criminal justice system, State and federal. Most cases end in plea agreements. Why waste Court (judges, lawyers, bailiffs, security people) time on this procedure? In New Mexico we have brought prisoners down from Santa Fe (in cases in which they were accused in Albuquerque but held for safekeeping, as very dangerous, in the penitentiary in Santa Fe), for arraignment in Albuquerque. That is a waste.

There is one reason that I can put forth for the ritual of arraignment. It is a show for the public and as such perhaps increases the deterrent effect of the criminal law. You may say that the accused may waive arraignment, but only with consent of the Judge and prosecutor. I propose the email arraignment, and let all public records be on line.

IMPEACHMENT, WITHOUT MALICE

2007-07-25T13:52:00.000-07:00

It is time for impeachment. Up until now, I have felt that the American people can let this administration go, as a bad period, and go forward with some new administration, Republican or Democrat, or Third Party.

The new (renewal of the old) position of the President on torture [our people (CIA) authorized to act as the SS, Gestapo, and KGB] pushes me over the line. The American people are deserving of a better reputation than the President is giving us. We ought not to have to defend our country’s refusal to abide international treaties and moral codes. I am so ashamed of the image of America brought about by this President [Vice President at the helm] that I want to speak up now for impeachment, rather than let the time pass and be put in the silent group.

I am hereby going on record. Without hate, "With malice toward none ....", I favor impeachment of the Vice President and the President and the Attorney General. Now when I face a foreigner, I can say I objected, I am not of the same mind as President George W. Bush, Vice President Cheney, and Attorney General Alberto Gonzales.

Put yourself in the position of those who are delegates to the United Nations. They see what they consider to be a disregard and violation of international law, in the actions of these American leaders. They wonder whether the American people are like their leaders, whether they approve of what their leaders are doing. Perhaps impeachment will offset most of the damage to our country’s image. Perhaps impeachment, not for lying under oath about sexual misconduct and crimes, but for violation of international law, a part of our law, will send the message that we are governed by a rule of law and are not international outlaws.

HEALTH CARE INSURANCE -- AT WHAT COST?

2007-07-09T17:21:00.000-07:00

We hear about “insurance coverage,” and “health care overage,” and then we hear that 46% of New Mexicans do not have coverage. What does that mean? It does not mean that these 46% do not have health care. Some pay cash. Some simply go to the emergency room of a hospital and get care as “emegencies.”

We submit that this picture is much worse than it seems. That is because insurance policies and premiums vary. Some with "coverage" lack health care. What would a full overage policy cost? We do not know. Here is the coverage that we are talking about.

First, no medical examination. Forget about pre-existing conditions. The company must sell the policy to any resident (citizen?), and the wife and children. The policy should cover the cost of vaccinations, etc., to prevent disease. It should cover the cost of routine and other tests, as preventative medical care. For example, a regular MRI (the standing up type if it is best); ex-ray; pap smear; mammogram; colonoscopy; examinations for the skin, eyes, nose, throat, etc.; tests of blood and other body fluids and secretions, etc., including the over 200 blood tests. Every preventative (prophylaxis?) test on a regular basis, dictated by factors other than financial.

During illness, for the duration, with no time limit, all the competent care and treatment available. Same for hospital, and specialists. No more denial of recognized, safe treatment on basis that it is “experimental.” Have you heard of a denial of coverage for cheap procedures? How many cancer patients (now deceased) were denied MRI’s or marrow transplants because they were experimental, or not indicated by history? Universal care is the fair way; all patients are alike. Treat like “Bones” would treat on the Enterprise: to each according to her need.

What would this insurance cost? Does the word “astronomical” come to mind? If we do not know, how can we intelligently discuss the subject of universal health care? Is not that the logical starting place if we plan a change in our health care?

2007-07-07T19:08:00.000-07:00

I am recommending the Same-as-Congress Medical Plan. It is good enough for me. If I can, I will switch from Medicare and Blue Cross, to the SAC Med Plan. The SAC Med Plan should be a one payer system. The payer is the federal taxpayer. We will all be in the same boat.

Body parts do not go to the highest bidder; some are not even for sale. If you are sick enough to need dialysis, that is automatically a federal taxpayer burden. The federal taxpayer pays at least in part for a medical plan for members of Congress. Let us all in the same lifeboat.

You may agree on the principle that all should get medical care, and that all should have equal care, but the socialism factor may stand in your way of supporting a SAC Med Plan. Do not be dissuaded. To each according to her needs is all right, and the right thing to do, in this very important (but limited) area. It is like universal military service to protect the country. All share the burden. Because every baby faces a future of possible service and sacrifice as cannon fodder, every baby has an entitlement, a right to the SAC Medical Plan.

My vote goes for the SAC Medical Plan. I am asking Representative Steve Pearce,
Representative Heather Wilson, Representative Tom Udall, Senator Jeff Bingaman, and
Senator Pete Domenici to vote for SAC Medical Plan.

WILL FEDERAL MARIJUANA LAWS BE ENFORCED

2007-07-05T12:02:00.000-07:00

Now that we again have State laws in New Mexico that permit smoked marijuana for medicinal purposes (by prescription), what do we do about the threat of former U.S. Attorney David Iglesias? Iglesias wrote our legislature, stating that if New Mexico legalized smoked marijuana for terminally ill patients by doctor presciption, he, Iglesias, would prosecute those who tried to carry out that law, for, after all, the federal prohibition scheme was paramount law.

Iglesias has been fired, by Attorney General Alberto Gonzales. Assistant United States Attorney Larry Gomez, a career State and federal prosecutor will probably take his cue from Gonzales and staff. Woe. It has been estimated that 50 million Americans have puffed on the evil weed. It is okay to make them felons, and deprive them of the vote. But little old grandmothers with terminal cancer or other nauseating diseases? Yes, President Clinton stood up for enforcement of the federal law in these circumstances; and President Bush seems to take the same prosecutorial stance. Is it time for Congress to act?

Smoked marijuana is a dangerous gateway drug, I contend. Gateway to tobacco, a great killer and disabler. Bad for you. Not as bad as beer and spirits, I expect, but bad nonetheless. But prescription smoked marijuana for suffering old women? Get a perspective!

A stop gap solution is for Senator Pete Dominici and Congresswoman Heather Wilson to make phone calls to the Acting U. S. Attorney. They could urge him to give this medicinal marijuana law of New Mexico a chance to succeed. If it is abused, get after those abusers. If the medicinal marijuana law is not abused, put the federal drug war resources into fighting heroin, etc.

CORRECTION OF 2005 POST ABOUT REIES LOPEZ TIJERINA PARDON

2007-06-29T15:43:00.000-07:00

This is to correct my June 7, 2005 post regarding the disposition of criminal charges against Reies Lopez Tijerina. Tijerina ws convicted in 1969 of assault with intent to kill Eulogio Salazar, the Deputy, as Salazar was trying to escape the Courthouse through a window in the office of the Sheriff.

Tijerina's conviction was affirmed, and he served six months of the sentence and was then paroled. Later, as Governor Jerry Apodaca left office, he pardoned Tijerina, ending further supervision under the possible ten year sentence and parole.

My error in 2005 was in stating that "Mr. Tijerina never served his term, because he was paroned by Governor Jerry Apodaca." That was inaccurate, and it was unfair to the Governor and to Tijerina. I apologize. In those days of indeterminate sentences, it was not unusual to see a prisoner released to parole after service of six months. The pardon is another matter, but obviously a pardon after the service of the six months is different from a pardon which avoids all service (where I erred).

NOTICE TO FUTURE JURY OF MY OPPOSITION TO DEATH PENALTY IN CASE OF MURDER OF MYSELF OR MINOR CHILDREN

2007-06-13T17:35:00.000-07:00

As an inactive lawyer, I cannot give legal advice, nor prepare legal papers. However, I want to share with you a form which I drafted in 1994. I drafted the form to make a point, thinking that one who opposes the death penalty may want to take this method of making a recommendation to a jury of the future. Reads like this:

NOTICE OF OPPOSITION TO THE DEATH PENALTY. I, of sound mind, do hereby declare that in the event that I am a murder victim, NO MATTER WHAT THE CIRCUMSTANCES, the murderer shall not be sentenced to death by any means. * * *

___________________________________
Prospective Murder Victim

[acknowledgment before notary public]

Such a notice, if duly acknowledged, may be published in the newspaper, or given to the County Clerk, with a request that it be filed for record.

NEW LAW REGARDING DWI (DUI))

2007-06-11T13:30:00.000-07:00

In the recent session, the New Mexico legislature passed, and the Governor signed, SJC/SB 440, which amended Section 66-8-102, New Mexico Statutes.

Here in bold face is how the new law reads:

C. It is unlawful for:
(1) a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person’s blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle; or

The legislation apparently was in response to a recent ruling by the New Mexico Supreme Court to the effect that expert opinion testimony was essential in certain prosecutions of DWI under this subsection of the statute, which makes the blood or breath alcohol concentration the test for guilt or innocence.

If the basis of the prosecution is that the accused was driving with a blood alcohol concentration of .08 [details are in the statute], a lay Judge or jury does not have the training, education or experience to take the results of a test made after the stop and arrest, and work backwards and find the concentration at the time of the driving.

Expert testimony on the subject, including absorption rates and elimination rates are essential to find that a driver’s blood alcohol concentration was a certain amount at the time of driving, if the finding is based solely on a test which shows the concentration 15 minutes or more after the driving occurred. The Court ruled, reasonably enough, that if the prosecution proves that the accused was driving, that he had nothing to drink after being stopped from driving, and that the accused has a certain concentration of alcohol say, two hours later, such evidence is not sufficient for a lay fact finder to determine the blood alcohol concentration during the time of driving. The concentration at the time of the test may be due to a rising, or a declining concentration in the bloodstream. A .08 concentration ½ hour, or 1 hour, or 2 or 3 hours after the stop may indicate that the concentration was at least .08 at the time of the stop, but expert testimony, based on the facts, is essential to tell.

The New Mexico prosecutors were concerned with the Court ruling, because they thought that a requirement of an expert witness in many cases would impose an unreasonable burden on the State and clog the already overcrowded Courts. The Legislature came to the rescue.

The solution was to make it a crime to drive after ingesting sufficient alcohol that at some time within three hours after stopping driving, the driver would have a concentration of .08, regardless of whether the concentration was on its way up or down. This is a legislative big step. Conduct which has heretofore been innocent, has become a serious traffic offense. One can get behind the wheel, drive a short distance, drinking spirits, say, and not be under the influence; get stopped, quit drinking and quit driving, and if a test is taken say, 45 minutes later, the results may be .o8 or greater at the time of the test, all the while being under .08 all through the period of driving. One guilty only of open container and drinking while driving, is declared by law to have been DWI.

This new definition of DWI is reminiscent of the old days when the DA had trouble proving rustling of calves, and the Legislature made it an offense to separate a nursing calf from its mother. There is a difference though. In some cases one accused of rustling may have been justified in separating the calf from the mother cow. In the case of this new definition of DWI, can one who drives while or after consuming enough alcohol to obtain a blood alcohol concentration of .08 either during driving or within 3 hours thereafter, say that he did no wrong?

PRESIDENT BUSH’S $15B PLEDGE FOR AIDS RELIEF

2007-05-14T19:54:00.000-07:00

US President Signs 15-billion-dollar Bill for Fighting AIDS
1. US President George W. Bush on Tuesday signed a 15-billion-dollar bill for the global fight against AIDS, saying it is a "moral duty" for the country to extend a helping hand.
5/28/03.

We were surprised and saddened to read an Ellen Goodman column (May 7, 2007), in which it is stated that a third of the prevention money ($100 million) has been spent for abstinence only programs. Goodman goes on to say that abstinence only programs are not effective in prevention of aids. The numbers are shocking, if accurate: $300 million has been put up in the four years since the pledge. That leaves $14 billion plus to be put up by May, 2008.

We would be happy if a reader in a comment would be able to show that more of the $15 billion had been spent. Meanwhile, we will send a copy of this blog to Congress to see.

We hope the President keeps the pledge; and we submit that the remainder of the $15 billion should be given over to the apopropriate UN agency for distribution and oversight. We were proud when the President made that pledge, and warmed to him.

Yes, we have heard of the food for oil scandal, but that was one scandal, and it said more about businessmen who bribe (including Americans) than it said about the UN employees.

PARTIAL BIRTH ABORTION CASES, APRIL 2007

2007-04-22T17:54:00.000-07:00

In 2003, Congress passed a statute outlawing the practice, of a doctor killing a baby before its birth, by a method called partial birth abortion (“PBA”). As we understand it, the American Medical Association favored the legislation; but many respected gynecologists opposed the legislation. No, Congress did not claim the power generally to regulate medicine, but claimed that this statute was necessary and proper to regulate interstate commerce.

Thereafter, opponents of the statute brought lawsuits claiming that the statute violated the United States Constitution, because it did not include an exception to protect the mother’s health. In other words, the challenge was not to whether interstate commerce was involved, nor whether the ban was a reasonable exercise of the power of regulating such commerce, but whether this new ban of the PBA method, this restriction on the method of performing abortions on living babies (yet undelivered), provided a health exception that would meet constitutional muster.

The Court, five to four, ruled that the statute was not unconstitutional on its face (it withstood a facial challenge on this ground). The Court left open the question of whether in some particular case, a woman or doctor may challenge the federal ban because the PBA is necessary to protect the health of this particular mother. In a future case, as applied, the statutory ban may be ruled by a court to be unenforceable. [Can a judicial system which requires years, sometimes decades, to finalize a death warrant, gear up fast enough to protect the mother in such a case? Remember, we are not talking here about saving the unborn; the abortion method permitted by the statute also takes the life of the baby, though by a method similar to drawing and quartering the baby in the womb, and not by the outlawed PBA method.]

If you were a living baby in the womb, undoubtedly you would want to live rather than die. We do not justify the act of abortion in the second and third trimester on the basis that the child would choose suicide, or infanticide, if delivered. Congress has outlawed the PBA method of ending the baby’s life, and the statute has passed constitutional muster, because Congress has left an alternative abortion method which reasonably protects the health of the mother. The alternative method (D & E) may not be as safe for the mother in all cases as the PBA, but it is reasonable to outlaw the PBA in all cases. The rationale, the reasons why, are right there in the majority opinion.

What does the Congress make criminal? The acts of the doctor. It is all right, that is, lawful, to take the life of the unborn child in the womb. Do it by lethal injection and then dismemberment and extraction; or do it by dismemberment and extraction which results in death. Do not, repeat, do not, kill the baby by PBA. In essence, PBA is the intentional killing of the baby, before its birth (thus not infanticide, another crime), but after the baby’s head has left the womb, or in the case of a breach birth, after the body up to the navel has left the womb. Congress spelled out these anatomical landmarks.

These are very serious questions, medical, moral and religious, which do not even arise until we have the tragedy of a case in which a living baby is in the womb in the second or third trimester, and the doctor says the circumstances warrant an abortion and the law does not forbid the abortion.

WHY NOT WATERBOARDING???

2007-03-26T11:58:00.001-07:00

You POLITICIANS, avoid the question. You say,"We do not torture!" We did not ask you if you "torture," which is now a meaningless term. Do you approve WATERBOARDING?
Congresswoman Heather Wilson: do you approve WATERBOARDING?
Congressman Steave Pearce: do you approve WATERBOARDING?
Senator Pete Dominici: do you approve WATERBOARDING?

CONGRESS CAN STOP DWI WITH LEGISLATION

2007-03-22T09:35:00.000-07:00

Here in New Mexico this week a 53 year old man was arrested for the 28th time for DWI. He had been convicted on a dozen of those charges, and could go to prison if convicted on this new arrest.

In a recent session of the legislature, State Representative W. Ken Martinez, of Grants, introduced a bill which would have required an “interlock” on all motor vehicles to be licensed in New Mexico. That bill failed. Martinez said he believed that death from DWI could go the way of polio, if the federal government would pass a law requiring an “interlock” on all motor vehicles. The authority may be found in the commerce clause. “Interlock” could mean any device which is a part of the vehicle is tamper proof, and prevents operation of the vehicle by an impaired driver. A Japanese automaker has recently started making such vehicles with this safety device as an accessory.

Now, to the point of his post. Congress has told us our vehicles must have seat belts, air bags, and other safety features. I cannot start my vehicle when the shift stick is anywhere except in “park.” Why not “interlocks?” Then deaths and injuries and property damage from DWI would be a thing of the past.

Sandia Laboratory scientists have developed an “interlock” in the form of a metal wrist plate which instantaneously detects and measures alcohol in the bloodstream when one lays his wrist on the plate as a prerequisite to the act of keying the ignition. If there is any doubt as to whether inventors will be able to come up with a tamper proof, efficient device, then let the Department of Transportation study the issue and report.

This reform is overdue. The technology is here; the idea is feasible.

LIBBY JURY WONDERED ABOUT REASONABLE DOUBT

2007-03-19T16:19:00.000-07:00

The Libby jury is reported to have asked for a clarification as to the meaning of “reasonable doubt.” The government must prove guilt beyond a reasonable doubt. Not beyond all doubt. Not beyond a shadow of a doubt. Beyond a reasonable doubt. Here is the instruction to be given to the jury by the Judge in criminal cases in New Mexico.

14-5060. Presumption of innocence; reasonable doubt; burden of proof.(fn1)
1. Statute text
The law presumes the defendant to be innocent unless and until you are satisfied beyond a reasonable doubt of his guilt.
The burden is always on the state to prove guilt beyond a reasonable doubt. It is not required that the state prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense - the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life.
USE NOTE
1. This instruction must be given in all cases.
Annotations
Committee commentary. - The language of this instruction was derived from Devitt & Blackmar, Federal Jury Practice and Instructions, Section 11.01 (1970), and State v. Ellison, 19 N.M. 428, 144 P. 10 (1914). See also State v. Rodriguez, 23 N.M. 156, 167 P. 426, 1918A L.R.A. 1016 (1917).
Because of the importance of the presumption of innocence and the need to find guilt beyond a reasonable doubt, this instruction is required in all cases. It repeats some of the explanation given the jury at the outset of the trial in UJI 14-101.
It is generally accepted that the reasonable doubt instruction will cover a multitude of problems. For example, an instruction on the danger of eyewitness testimony is not necessary where the jury is given this instruction and UJI 14-5020, Credibility of witnesses. See State v. Mazurek, 88 N.M. 56, 537 P.2d 51 (Ct. App. 1975).

Now have you got it?

DENTAL CARE FOR POOR NEEDS ATTENTION

2007-03-07T12:19:00.000-08:00

On February 5th, in a radio broadcast on KKOB, Albuquerque, Rush Limbaugh commented on the size of the proposed federal budget. He pointed out that the budget was for 2.9 trillion dollars. Then he said to this effect, “Don’t tell me there is anything [underfunded]!”

In our view his conclusion does not follow merely from the size of the proposed outlays. What are the outlays for? If the budget includes billions for corporation stockholder welfare (corporations do not pocket the money; CEO’s and stockholders do), and too little for Medicaid dental care, then indeed there is something underfunded. Or perhaps Mr. Limbaugh meant to say there is nothing that is unjustifiably underfunded.

We submit that Medicaid dental care is unjustifiably underfunded, or poorly administered. If the program is designed to provide dental care for people who cannot afford to buy dental insurance, and cannot afford to pay for the care, then it falls short. See an excellent article, with pictures, at page E2 in the Albuquerque Journal of December 12, 2006, written by Lean Holt. She says it is difficult in New Mexico to get dentists to take Medicaid patients. Her report centered on one not for profit clinic which opens at 7:00 a.m. but can handle only about 15 to 20 emergency patients a day. As early as 4:30 a.m., people are standing or squatting or sitting on the floor in the hall outside the clinic, suffering from swollen jaws and aching teeth, hoping to be among those who are given care that morning

The neglect of dental care for poor children because of poor pay by Medicaid is discussed in the post dated May 17, 2006.

Perhaps the Medicaid dental program is poorly administered. One solution is to require dentists to take Medicaid patients whether they want to or not. The lawyers have a tradition of serving indigent defendants in criminal cases for inadequate pay or for no pay. That was particularly true before the government started hiring public defenders. The government could hire dentists to serve, or could lower the standards for admission to practice as a dentist, on condition that these new dentists agree to take Medicaid patients for a few years at least.

Why require an undergraduate degree, with years of college, with many hours of electives, for a license to practice dentistry? Do you really care whether your dentist knows English literature, or grammar? A foreign language, say French or German? Really, what knowledge and skill does it take to administer an anesthetic to a suffering patient, and allow the dentist to diagnose and direct the treatment, to be administered by qualified persons other than those who have spent seven years in college?

We admire and respect the licensed dentist. But the system (the trade union aspect of the licensing laws) requires a brain surgeon to lance a boil. The system also requires one to take years of college courses which could be done after the dental school and while the graduate of dental school treats the needy.

The government could also raise the pay to the level at least of Medicare. That would be giving in to the present system, but would a least get the care to where it is needed.

NEW MEXICO HYPOCRITES AND WEED

2007-03-03T15:12:00.000-08:00

What a bunch of hypocrites! Putting down Governor Gary Johnson, and John Dendahl (you ran him out of New Mexico). Using clever remarks such as “snow bunnies“ and “Puff Daddy.”

Oh ye hypocrites! Begone, or put up or shut up! I am not asking you if you have experimented with weed. I am asking you whether the 50 million who have should be in prison. That is the law you have sprouted and supported.

As a criminal lawyer and prosecutor, I have prosecuted seeds and one stick cases and defended 10,000 pounds cases. Where do you stand?

Hide out, congress! Hide out, state legislature of Arizona and New Mexico!

He who knows all observes all.

NURSING HOMES SHOULD BE ON LINE

2007-03-03T07:42:00.000-08:00

Today Congressman Steve Pearce, who represents the Southern district of New Mexico, came to Albuquerque and appeared on the Jim Villaneuci show on KKOB radio. A caller related a complaint about some nursing home, not named, in which patients were neglected, for example, they were left [with untidied diapers]. Congressman Pearce stated that that was a “state issue,” and made no further comment. Later in the show he said that he was up there in Washington to look after the best interests of the people of New Mexico. What? Is it the case that no federal taxpayer money is used to subsidize nursing home care?

Here is a suggestion. If federal taxpayer money is to be allocated to provide hospice care, or personal care, for New Mexico citizens, why not put the program on line? TV cameras monitor the care and the digits are on line (not accessible by general public, but by those with a right to know). How is Grandma in the nursing home? Is her bed clothing changed as needed? Let us get on line and see.

What has Congressman Pearce to offer on this problem, if he acknowledges that he has a responsibility?

RICHARDSON FOR PRESIDENT DESERVES BETTER

2007-02-28T20:07:00.000-08:00

Governor Bill Richardson deserves a fair chance in the Democrat party primary for President. [I do not find the term "Democrat" offensive, even in this sense.]

One albatross is the rooster fighting gambling. Rooster fighters (the non-combatants, like Rush Limbaugh), the ones who say "Let's you and him fight!" Gamblers! Not gaming, gambling! The so-called tradition of cock fighting is based on gambling.

We need to correct our laws to eliminate another possible albatross. Now, while the legislature is in session, we need to overhaul our short gun laws. During territorial days and up until 1963, it was unlawful to carry a firearm, except while traveling. No carrying in villages, towns or cities. Since 1963, carrying a firearm openly has been lawful (with restrictions as to places, age of carrier, etc.). This is not even law of the old West. This is law of the ridiculous!

Why saddle Governor Richardson with this albatross? Now is the time. We have the time, in this session of the legislature. Let us lift this burden from the back of the Governor, and bring New Mexico more into the Union.

STOP THE CRUELTY AND TORTURE OF COCKFIGHTING AS WE KNOW IT

2007-02-12T09:02:00.000-08:00

It makes me ashamed when I hear that fellow New Mexicans (Lea County people, especially!) are gambling by means of tormenting, torturing and cruelly forcing God's creatures to kill each other. This is done for the entertainment of grown people and children. Some sport.

An English judge wrote before 1844, ". . . cock-fighting must be considered a barbarous diversion, which ought not to be encouraged or sanctioned in a court of justice." Another English judge wrote in 1844, " . . . cockfighting . . . is a violation . . . of the plain dictates of humanity, which is at the basis of the common law. . . ." As another English judge put it, ". . . as being barbarous and cruel, leading to disorder and danger, and tending to deaden the feelings of humanity, both in those who participate in it, and those who witness it ...." You say you do not respect the English common law? The lawyers amoung our founding fathers respected it. In any event, were not these English judges right?

In New Mexico, from what we read, the roosters are encouraged to continue fighting even after they are wounded and seriously injured. In an 1863 English case, he Court ruled that one was guilty of causing a cock to be cruelly ill-treated, abused, and tortured where the cock, having suffered a broken thigh, was put back into the ring with the cock it was fighting, whereby it was killed ...."

We believe that the most recent word on the subject of cruelty to roosters comes from the case of State v. Buford, 65 New Mexico Reports , page 51 (Supreme Court of New Mexico 1958). Justice James B. McGhee wrote the opinion, from which Justice Sadler dissented. McGhee wrote, "Thus we reach the conclusion that the type of cruelty to animal statute we are construing was not passed with the intention of prohibiting such sports as cockfighting. ...."

All else aside, how can it possibly be justified to arm the roosters with razor sharp gaffs? If it is the nature of the rooster to fight other roosters, and it is part of someone's culture to watch and enjoy, then why not allow the roosters to fight bare footed, and allow a losing rooster to leave the fight when he wants to toss in the towel? This is torment and torture to helpless creatures and ought to be outlawed, in the name of humanity.

Governor Richardson deserves a run for President without being saddled with this shame and disgrace (legal torture and torment of helpless fowl). It is bad enough to have to face the national voters when you are from a state which allows its citizens to walk down the street with six guns strapped on the hips [from 1842 to 1963, carrying, concealed or unconcealed, was unlawful].

"ARNOLD CARE" FOR ME AND MINE

2007-01-10T11:16:00.000-08:00

Someone has referred to it as “Arnold Care.” What a nice term. What a nice man! I am for Arnold Care! Sure, I could point out problems. Remember the movie in which Hume Cronyn played the CEO of Potts & Company? Cronyn was dictating a letter in response to an irate customer who had written to complain about a defective pot (Potts was in the pots business.) He dictated, “We do not claim that our pots are perfect – (then quizzical, wide-eyed, and somewhat indignant) – whose pots are?”

The basic point is that Governor Schwartzeneggar wants universal health care for the people of California. One tenth of the nation. More people than the entire United States’ population at the time of the Civil War. Reminds me of President Clinton’s greatest hour, when he stood before Congress and challenged Congress to send him a universal health care bill, or the President would veto what was sent to him (holding the pen high to emphasize his sincerity). Reminds me of Captain Kirk instructing Bones, "On the Enterprise, treat all of the crew and passengers the same -- universal health care, to the best of our means [imagined].”

Turning to the Twelfth Amendment, I see “. . . no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” Shall we consider an amendment, after 200 years?

Yes, we may believe that the world is getting better.

NEW MEXICO GOVERNOR GIVES INAUGURAL ADDRESS

2007-01-05T17:06:00.001-08:00

New Mexico's Governor, Bill Richardson, began his second four-year term on Monday, January 1, 2007. In his speech, Governor Richardson set some very important goals. Here are several, dealing with the lives of the children of New Mexico.

Speaking of his first term, the Governor said, "We made health insurance more affordable for small businesses, and guaranteed that every child under five can get quality health care." He explained that [even now] "Too many New Mexico families have their home budget stretched and their opporunities limited, by poor health and no health care."

Looking ahead, he said, "I believe that together, we can make New Mexico a place where every child can get a sound education, grow up safe and healthy, find a good paying job, be near their families and build their dreams. . . . . Because for New Mexico -- the best is yet to come."

These words warm the heart. Now let us put forth a challenge to our sister Western states to match these goals. Yes, we are speaking of entitlements, and that means taxpayer money. Let us face it; first things first.

New Year 2007. "A year of opportunity and a year of decision."

2007-01-01T09:49:00.000-08:00

VICE PRESIDENT CHENEY AND ATTORNEY GENERAL ALBERTO GONZALES

2006-11-20T16:58:00.000-08:00

Vice President Cheney and Attorney General Alberto Gonzales are asking Congress to approve certain proposed legislation. They say the legislation is necessary for the defense of the country. We have questions.

Are these two afraid that something they have already done may subject them to prosecution for war crimes (by Germany, or some other country, or by some international body)? If not, why does this legislation provide retroactive immunity to our agents for war crimes committed during the period September, 2001 to September 2006?

Leave that motivation aside. Address the merits of their proposed legislation which authorizes searchs and seizures with probable cause, but without a warrant. The Fourh Amendment forbids unreasonable searchs and seizures; but it goes further and in effect defines unreasonable. The amendment has two parts. For a search or seizure to be reasonable, first there must be probable cause, and second, except in exigent circumstances, that probable cause must be submitted by the law enforcement officers to a neutral, independent magistrate and a warrant (okay in writing) obtained. There is no reason to believe that the Fourth Amendment procedure would interfere with any legitimate procedure. For example, if there is good reason to monitor all calls from country X, get a warrant, a blanket warrant. You come up with the scenario (need) and I, as a federal judge, will give you a warrant. If you have an emergency, act and then seek approval. What is the problem? No one has said, except to spin the argument so that a "liberal" demand for a warrant is spun to be a liberal demand that the search or seizure be forbidden.

It seems that the Vice President and Attrney General both are of the opinion that the warrant requirement of the Fourh Amendment is inapplicable because this nation is at war and the powers of the President to search and seize are not limited by the Fourth Amendment. Let that be the issue, and let us debate and settle it immediately. Then let us abide the decision or, if we want to, leave the country.

GOVERNMENT SHOULD BE PUBLIC, THAT IS, ON LINE

2006-10-30T08:00:00.000-08:00

Joe Bisquithooks sells the home place, and the deed is recorded. Recording is done by photocopying, and a record is put on a digital database. The clerk in the office of County Clerk (real estate records) can access the information with his computer. Why cannot we BIG CITIZENS do the same?

Yes, I can get in my car and drive down to Fifth and Marquette IN Albuquerque; go into the county office building; go to the sixth floor to the office of the County Clerk; and ask a clerk to look into his computer screen and tell me whether Joe Bisquithooks has signed a deed to the home place. Why is this database NOT ON LINE?

A “public” hearing is taking place in federal Court; it is a motion to suppress evidence in a State corruption prosecution. Yes, I can get in my car and drive down to the federal courthouse on Fourth and Lomas, park in a secure place, walk a block and enter the front door, go through a checkpoint, go to the courtroom, and see the proceedings. Why are these proceedings not put on line with an unobtrusive video camera sending a video stream ON LINE, so that BIG CITIZEN can know better what the government is doing?

All public records and all public proceedings should be on line.

BIG CITIZEN OVERSIGHT NEEDED FOR COMMUNITY CUSTODY PROGRAM

2006-10-26T16:14:00.000-07:00

The Bernalillo County Commission is debating this month over the issue of early release of convicts. It seems that the Community Custody program may be expanded. Convicts are placed in the program as an alternative to jail, and the program calls for intensive monitoring, work release, electronic bracelets, drug testing, etc. The County accepts the program, because at present a transfer from regular jail to the community program (referred to as “early release”) is approved by the sentencing judge.

The jail authorities think so highly of the program that they want to expand it by adding convicts who have been sentenced to jail regardless of whether the convicts have been cleared by the Judge for such community service. The jail authorities want to make the decision as to who gets early release. Judges want to retain control. The proposal has been deferred in the County Commission for several weeks while a compromise is put forth.

This Community Custody program is a useful tool, another arrow in the Judge’s quiver. The Judge should decide, and the public should hold the Judge accountable for errors of judgment. It is like old-fashioned probation; it can be good, or it can be ill-advised.

Here is a suggestion. The Community Custody program should be monitored by Big Citizen. The citizens should have access to on-line programs to monitor the monitors, and thereby be assured that Joe Sixpack is following his directions. Home at certain hours; no booze; some booze; booze at certain hours; work certain hours; show at school at certain times; and the like.

If this supervision were put on-line, the citizens and police would have confidence that violations would be detected and reported (back to the responsible Judge). We favor house arrest; home detention; drug (including alcohol) monitoring; and other restrictions of liberty. They can be used to punish and to rehabilitate, if applied properly, in deserving cases, and if there is a proper follow up with monitoring. However, this is a program which needs close monitoring by BIG CITIZEN.

SHORTAGE OF POLICE IN ALBUQUERQUE

2006-10-24T14:40:00.000-07:00

In the news we see that Albuquerque is short at least 100 police officers. That has been the case for years, and the City is at a loss as to how to recruit enough new officers. We submit that the City should change its recruiting policies, regardless of whether and when the City is up to the desired strength.

First, the idea of paramilitary police should be examined. Some police ought to be paramilitary, just like there should be some other specialty teams. Mental health, SWAT, close-encounter rough and ready teams, of one or more, should be available. But the tedious, boring, hard and dangerous work of patrolling and answering calls, may be handled by officers without special qualifications, and without special physical attributes.

There must be hundreds of honest, capable, intelligent men and women of age 50 and over, who would be willing to work 20 hour weeks, either as a moonlight job, or otherwise. Uniformed, armed, in marked vehicles, these auxiliary officers could perform many of the routine services. They would be excellent as investigators, because of their life experiences.

A radio ad for a local alarm company (all retired police officers) states that it may take up to six (6) hours for the APD to respond to a house alarm (because there are 80,000 home alarms in the City). Auxiliary officers could do it. Do you doubt it? Yes, some training will be necessary. Training and continued education are very important.

Not all officers need go through a boot camp type academy to qualify. Why have those people out at 6 a.m. jogging through the Valley? Why have their hair cut short? Why have drill instructor types yelling at the recruits?

People with physical disabilities can serve. What is the difference between them and small women in excellent physical condition?

We can benefit from opening the force to others than young, physically superior, people with two years of college (or military). These other people, too, can protect and serve.

This is all with due respect to the men and women presently serving. With few exceptions, they do their duty, protect and serve, and deserve our respect and gratitude.

PRESIDENT BUSH SIGNS BILL SETTING FORTH RIGHTS OF DETAINEES AND CIA DURING INTERROGATION

2006-10-17T12:50:00.000-07:00

Today, President George W. Bush signed the "miliary tribunal" bill. We have not read the legislation in its final form, unless it is identical to the version approved by the House of Representatives on September 29th (53 pages). So the answer to the following questions may be set forth in the bill as signed. In any event, the title of the legislation is misleading, because it fails to tell us that the law will provide a retroactive defense for some war crimes committed after September 11, 2001, and now; and it fails to tell us that the law provides for the protection of CIA agents whose interrogation techniques are questioned.

The questions are for Senators John McCain and John Warner; and for Representatives Pearce and Wilson, of New Mexico. The questions are these:

1. Under this legislation, is waterboarding permissible?

2. Same question regarding sleep deprivation?

Answers: [ ] Have no idea; and it does not matter.

[ ] Yes.

[ ] No.

[ ] Essentially, that matter is left to the discretion of
the President; and if he says "Yes," then that is the answer
and if he says "No," that is the answer.

[ ] Other:______________________________________________________.

QUESTIONS ABOUT INTERROGATION OF DETAINEES: TORTURE, OR OTHER WAR CRIMES, OR LAWFUL UNDER NEW HOUSE BILL?

2006-10-11T08:56:00.000-07:00

H.R. 6166 has passed the House of Representatives, and our Representatives Steve Pearce and Heather Wilson voted YES. Tom Udall voted NO. Where are we now?

18 U.S.C 2441. War Crimes. . . . (c) Definition. – As used in ths section the term “war crime” means any conduct – . . . (3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or . . . .

A violation of common Article 3 of the Geneva conventions (which applies when detainees are not prisoners of war), is a “war crime.” 18 U.S.C 1441. Article 3 forbids cruel, inhuman or degrading treatment of a detainee who is in our custody, in the USA or abroad.

A defense to the charge is, that an nterrogation technique was authorized at the time it was used; that the actor in good faith believed the technique to be authorized and lawful; and that a reasonable person would so believe. It is a defense if technique was authorized, and we acted reasonably and in good faith in the belief that the technique was authorized. Section of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1). See next paragraph.

42 U.S.C. 2000dd-1(b), Section 1004. (a) Protection of United States Government Personnel - In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of . . . [use of] specific operational practices, that involve detention and interrogation of [designated] aliens . . . and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such . . . [accused] did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful . . . .

That was the law before H.R. 6166, supported by Congressman Pearce and Congresswoman Wilson. By this Bill, the House seeks to extend a defense to the War Crimes Act, to war crimes which are a violation of commn Article 3 of the Geneva Conventions. See next paragraph.

H. R. 6166, Sec. 8 (b). Protection of Personnel – Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that – . . . (2) is grounded in section 2441(c)(3) of title 18, United States Code; and . . .

So with this background, we respectfully ask Representatives Steve Pearce and Heather Wilson, these questions:

1. (A) At the time you voted for this law, did you believe that water-boarding was authorized as a technique of interrogation? (B) Did you believe that it had ever been authorized? (C) Do you believe that water-boarding is now authorized?

2. (A)-(C). Same questions regarding the technique of sleep deprivation.

3. (A)-(C). Same question regarding hooding and beating about the face and head.

4. (A)-(C). Same question regarding chaining detainee in fetal position on concrete floor in his own waste for 40 hour

5. At the time that you voted for this law, did you intend to make lawful any one or more of those four techniques of interrogation?

6. When you state in H.R. 6166 that the defense of good faith set forth in Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply to war crimes based on a violation of common article 3 of the Geneva conventions that occurred in the past after 9/11/2001, was it your intention to provide a retroactive defense for a war crime based on any of the four interrogation techniques under discussion?

7. Are you in favor of the United States authorizing any one or more of the four interrogation techniques under discussion? If so, which one or ones?

8. Do you believe that the voters in New Mexico are entitled to know whether any of these four techniques of interrogation is lawful? If not, why not?

VERDICT IN VIGIL CRIMINAL TRIAL

2006-10-02T13:13:00.000-07:00

Saturday morning, the jury in the federal prosecution of Robert Vigil returned a verdict. Vigil was acquitted of 23 of the 24 charges. The conviction was on the charge of attempted extortion (hire this woman at a high salary, or you do not get the contract). The 23 acquittals were on various kickback and corruption charges.

Now it is okay to Monday morning quarterback.

First, why so many counts (charges). Looks bad to inexperienced jurors, because the U. S. Attorney let the other accused off with only one count each. Did those who plead guilty to one count (in a plea agreement) get a “sweetheart deal”? Hardly, but an ignorant jury might be mislead. The prosecutor has to file numerous charges (throw a big loop); otherwise, the defense counsel will argue that indeed, the accused may be guilty of some crime, but there is a reasonable doubt that he is guilty of this charge. The prosecutor is not allowed to explain that he throws a big loop because he wants a conviction, and would settle for a plea of guilty to one count, just as he did with the co-defendants or other defendants.

Next, where was the United States Attorney? This was a political trial to many, and perhaps to some of the jury. In any event, it is an important case, not the usual type of charge (drug pushing; or felony in Indian Country; e.g.). The jury likes to see the DA herself or the U.S. Attorney himself in high profile cases. Makes the jury feel that jurors are respected.

Next, did Sam Bregman, defense attorney, get away with an appeal to the sympathy of the jurors (in the closing argument)? Sounds like it, if the newspapers report of the argument is correct and complete. Did the prosecutor object, respond in kind, or let it pass? If he let it pass, was it because he thought the jury would be too intelligent to be swayed by an argument that the accused and his family [look out there; they are sitting there on the front row] would suffer from a conviction. Even intelligent jurors can be swayed by the sympathy argument. That is why juries are told that they are not to allow sympathy, or the consequences of their verdict, to affect their verdict.

Yes, this is Monday morning quarter-backing; and we may be completely off base. We saw none of the trial, due to the relative secrecy of federal criminal trials and appeals. No on-line information here; no television; no radio; no still photographs. Our uninformed opinion is that the prosecution did a good job and that conviction of a charge that carries a possible 20 years is a definite victory for the government.

RANDOM THOUGHTS REGARDING DWI (DUI)

2006-09-14T15:50:00.000-07:00

In the news today, Linda Atkinson, executive director of DWI Resources Center, has unveiled a map showing the location of motor vehicle crashes in which alcohol was a factor. Surprisingly, Louisiana and Central shows up as the most dangerous in this respect; and the South Valley is number five. It would seem that it is safer to drive through Isleta and Bridge than it is to drive through Central and Louisiana, at least after 6:00 p.m. on weekends.

The report prompts these random thoughts on the crime of DWI (DUI).

Nullification has set in. Right here in New Mexico, a Legislator asked the Chief of Police in a Southern town, to ask the arresting officer to not show for a DWI hearing. Right here in Albuquerque, officers fail to show and Judges fail to sanction (they dismiss DWI cases instead of making witnesses shape up).

On the punishment of deprivation of driver’s licence. Historically, the Judges did not punish by restricting the right to drive. The Legislature told the Judges to punish by taking the license and sending it to Santa Fe. In many cases the Judges refused to comply. The Legislature did not trust the Judges, and placed the responsibility of revocation with the Motor Vehicle Department (MVD).

Many Judges then failed to send in the report of conviction, so the MVD was unable to revoke the license. The Legislature then arranged it so the MVD would get involved when an arrest was made for DWI, rather than wait for a trial. Then the defense attorneys raised many technicalities in MVD hearings; and arresting officers often failed to appear at MVD hearings; and the MVD caved in and started letting the accused off because of technicalities and no shows.

Doesn’t this tell us something, after 60 years or so? We have nullification.

The interlock solution.

We catch the offender is one of a thousand offenses he commits. Then we try to take the driver’s license; or the car; or put on an interlock. Why not put on an interlock before the first offense (first offense, not first conviction)? Why not require any brand new motor vehicle to have an interlock (as defined in the statute passed at the instance of W. Ken Martinez, a Legislator from Grants)? Ultimately, all but the antiques would have them.

It is as simple as Congress telling the manufacturers to put in all new vehicles a safety device that prevents an alcohol-impaired driver from starting the vehicle, and prevents the continued driving of a vehicle by one who becomes alcohol-impaired. The key is the key, coupled with the alcohol detecting device developed at Sandia Labs. The scientists and inventors would come up with devices that are foolproof and non-intrusive and non-burdensome to unimpaired drivers. A touch of the key to start the vehicle; a touch (on demand) of the key to keep the vehicle running. Why don’t we do this, and save thousands of lives and hundreds of thousands of serious injuries each year?

A final thought here. Jane Sixpack likes to get drunk; and she needs to drive while sober. Tell her she can get alcohol-impaired, and she can drive her vehicle; but she will not be allowed to do both at the same time. Under our present system, we could use the alcohol bracelet as a preventative and as punishment. The alcohol ankle bracelet detects and reports the blood-alcohol level. Existing, workable technology.

After the arrest, the Judge directs as a condition of release that the accused wear an alcohol ankle bracelet until trial (no more need for a “six-month” rule to speed trials). Defense lawyers who are encouraged by the arbitrary six month rule to manipulate the system and stall the trial, will be requesting speedy trials to close the case if their clients get no booze until trial. Then, in cases of conviction, the Judge can restrict the alcohol intake of the convict: no alcohol in the blood unless the convict is at home; or only during certain hours, and at home; or only to a certain alcohol level, etc.

Put yourself in the shoes of Jane Sixpack, who drives while alcohol-impaired. She is threatened with loss of driver’s license; or she is threatened with forced alcohol abstinence. Is there any doubt as to which punishment she would fear the more?

END PROHIBITION, BUT START SLOWLY; END PROHIBITION OF SMOKED MARIJUANA AS PRESCRIBED MEDICINE

2006-09-10T10:02:00.000-07:00

Stanley Crouch, in his syndicated column in the Albuquerque Journal of April 29, 2006, argues that we should “Declare Victory and End Drug War.” We could even acknowledge defeat and end the drug war. Abuse of recreational drugs (including alcohol) should be against the law; and the law should be so reasonable that it will be enforced, evenly, fairly and with good judgment. The key word here is "abuse."

We now see in the news that Afghanistan produces 90% of the world supply of opium. The USA uses enough cocaine and heroin to support drug lords the world over. We support these people by imposing prohibition. Drug prohibition.

Does it follow from one’s opposition to the war on drugs, prohibition, that one advocates use of recreational drugs? No. We can be against recreational use of drugs, and against prohibition as we know it. In 1956, fifty years ago, the federal government enacted laws to impose mandatory prison terms for simple possession. Draconian measures; full prisons; turf wars; etc. This war is a failure. More than 50 million have used marijuana. That is a federal offense. Even if your State allows it; even if your doctor prescribes it; watch out, as the United States Attorney General and the United States Attorney will prosecute you. They threaten the Legislature of New Mexico to prevent passage of a medical marijuana bill. What have we come to?

Gary Johnson, while Governor of New Mexico, had the courage to advocate an end to prohibition as we know it. This is not a partisan issue. President Clinton at least tried (used) marijuana; and so did President George W. Bush. Is this not common knowledge? How can we imprison for that? How can we ruin lives, for that? How can we support drug lords for that, when people could grow their own marijuana, more easily than making home brew? Let us work on legislation to end this "war," and yet minimize the harm that comes from the abuse of these drugs.

NEW MEXICO APPELLATE COURTS IMPOSE SEVERE RESTRICTIONS ON LAW ENFORCEMENT -- CONCLUDED

2006-08-29T15:20:00.000-07:00

In an earlier post (July 13, 2006) we discussed the exclusionary rule. The rule excludes relevant evidence from criminal trials, if the evidence was obtained in violation of certain provisions of the United States Constitution. Fourth Amendment prohibition of unreasonable searches and seizures, is the clear example.

The exclusionary rule was adopted by the United States Supreme Court, in the Weeks case, in 1914, as a rule to govern federal criminal prosecutions, but not to apply to the States. The States were free to adopt an exclusionary rule or to continue with the common law rule that evidence is not to be excluded from evidence (for example, the murder weapon; or the body of the victim, with dna attached), on the basis that the evidence was obtained in violation of the Fourth Amendment. A violation of the Constitution may be the basis of a civil action; but the evidence may be used in the criminal prosecution. New Mexico did not have an exclusionary rule. State v. Dillon, 34 N.M.366 (1929).

Then, in 1961, in the case of Mapp v. Ohio, the United States Supreme Court imposed the exclusionary rule on the States; and from 1961 on, New Mexico has followed the federal rule. We do now have an exclusionary rule. If the constable blunders, the murderer goes free. If the underpaid deputy makes a good faith misjudgment as to the law (very complex), the incriminating evidence is excluded and the killer goes free. However, in 1993, the New Mexico Supreme Court, instead of merely following the federal rule (which it was required to do), went further, and adopted an exclusionary rule that places additional restrictions on New Mexico law enforcement.

In 1993, our Supreme Court, in State v. Gutierrez, 116 N.M.431 (1993), considered the federal exclusionary rule in a case in which the law enforcement officer in New Mexico had in good faith sought a warrant, and a magistrate had in good faith issued a warrant for a search and seizure. The warrant was defective. Looking first to federal law, our Court saw that the United States Supreme Court had created an exception to the exclusionary rule that it had imposed on federal and State courts. The exception was that if the officer in good faith seeks a warrant, and the magistrate in good faith issues the warrant, the search may proceed; and if evidence is found, it may be used in criminal court, even though as a matter of law the warrant is defective. This exception was adopted in part because it encouraged officers to seek warrants, rather than to act on their own on what they thought was probable cause.

Our Court did not follow that federal precedent, and overruled our 1929 case, and adopted an exclusionary rule that is more stringent (restrictive of the police) than the federal rule. Thus we went from no exclusionary rule (from time immemorial to 1961) to the federal rule, imposed on us by the United States Supreme Court (in 1961), to our expanded exclusionary rule, imposed by our own Supreme Court in 1993. That is called standing the rule of law on its head.

The exclusionary rule is arbitrary; it is capricious; it is so unfair that it gives one a sickening feeling in the stomach. The rule has to be followed as the United States Supreme Court directs; but it need not be expanded by New Mexico. Gross miscarriages of justice will follow; and perjury by law enforcement officers will increase; and officers will be further demoralized.

A serious, unintended result of the exclusionary rule, is that the Courts will narrow the rights to privacy of the general public, in order to avoid having to exclude evidence in difficult cases. For example, can the police read my diary based on permission from my brother? Yes, if you follow the Sirhan case ruling. Hard cases make bad law. Now all of us are subject to having our diaries read if our brother consents.

Can the police look in our seabag for a knife, based on the consent of our landlady? Yes, if you follow the Witherspoon case (knife-murder of eight nurses). Indeed, hard cases make bad law. Either adopt a rule that the brother can consent to your diary being read; and adopt a rule that your landlady can consent to a police search of your seabag; or let this vital evidence go in a hard case.

In a recent case, the Court of Appeals of New Mexico ruled that a Lea County man had a right of privacy in his trash after he set it out in sealed garbage bags in a non-transparent container for pickup by the trash collectors. Our Court found a right of privacy where the United States Supreme Court found none. Our Court then failed to follow a U.S Supreme exception to the exclusionary rule (if officers ask in good faith for warrant, and Magistrate in good faith issues invalid warrant, evidence will not be suppressed). No big deal, only marijuana and crack were suppressed by our Court of Appeals; but what if the garbage had been body parts or the murder firearm?

When, where and how often do you hear any criticism of this aspect of our criminal justice system? We have too few lawyers.

CARS TAKE AND SAVE LIVES

2006-08-19T14:08:00.000-07:00

It may be said that cars take lives and cars save lives. Jim Belshaw, of the Albuquerque Journal, in his column for Sunday, August 13, 2006, points out how highway deaths have dropped in recent years, and attributes that drop largely to safer cars. He cites automotive design changes, especially air bags. He laments that the people who drive the cars are not safer (driving skills or habits not improving as the cars become safer). Seat belts and air bags prevent injuries and death. Who opposes those safety features being imposed by law?

It is time to revisit the idea put forth by W. Ken Martinez, legislator from Grants. He offered a bill that would require all motor vehicles to be outfitted with an interlock as a condition of registration in New Mexico. Many thought his bill went too far, and punished the innocent. They had no problem with an interlock on the automobile of one convicted of driving while under the influence, but opposed a universal interlock.

Martinez is a reasonable man and an attorney. He took what he could get and the result was an interlock for the vehicles of those convicted of DWI. Martinez was well aware that technology moves fast, so he worded the legislation to require an interlock, but defined the term to include future technology which would produce the same or a better result than the Interlock, which we understand is patented. This broad definition of “interlock” gives encouragement to those working on, or who will work on, technology to accomplish the purpose better and at a lower price.

For example, at Sandia Labs they were working on a small metal plate which would detect alcohol content of blood through the skin of the driver. Lay your wrist on the plate, get a safe blood-alcohol reading, and you are able to start your vehicle (or keep it running). It is reasonable to expect that motor vehicles could be outfitted with an effective, tamper-proof device that would make it impossible for a person with a certain blood-alcohol level (or who is otherwise impaired) to start or continue to operate a motor vehicle. Tractors; cranes; 18 wheelers; dump trucks; motorcycles; automobiles; etc.

Our legislature could follow Ken Martinez and take the lead in the nation, say, by requiring all new motor vehicles, starting with 2010 models, to have a factory installed interlock, if they are to be registered in this State. The federal government could also act and make the interlock a safety feature just as the seatbelt. Our Legislature could forego passing the law, and merely pass a resolution urging Congress to require the interlock (interstate commerce).

A child of tender age cannot open pill bottles; why should an impaired person be able to operate a motor vehicle?

MOTION FOR CHANGE OF VENUE

2006-08-12T15:44:00.000-07:00

The Albuquerque Journal for Friday, August 11, 2006, has a story about the scheduled retrial of former State Treasurer Robert Vigil. Defense attorney Sam Bregman has filed a motion seeking a change of venue to another district. The State of New Mexico is one federal judicial district, so a venue change would involve a trial of the case out of New Mexico. The principal basis of the motion is that publicity about the case and the first trial (mistrial for jury disagreement, or "hung jury") has been so extensive, detailed and harmful to the case of the accused, that the Judge cannot find a fair and impartial jury in New Mexico, and that Vigil will be denied his constitutional right to a jury trial.

Questionaires were sent out by the Court to the prospective jurors, and according to the returns, 73% had seen media reports about Vigil's case, more than 33% had formed an opinion about the case, and almost all of the opinions were that Vigil was guilty.

The rule of law is that for a prospective juror to be disqualified as biased or prejudiced by pretrial publicity, she must be unable to set aside what she read or heard about the case, and try the case on the evidence presented in the courtroom. To put it another way, a prospective juror may have heard or read about the case, and may even have formed an opinion as to guilt or innocence, and may even have expressed such an opinion, and still be qualified to sit as a juror. The Judge must determine that such a juror has the ability and honest intention of setting aside that preconceived opinion, and seting aside what she has read and heard about the case, and base her verdict on the law as the Judge tells her the law, and the evidence that she has seen and heard in the courtroom.

In most cases pretrial publicity means little, and does not disqualify the hearer or reader. An important exception is the case of pretrial publicity regarding a confession or other critical evidence which has been suppressed. In such cases the Judge's job is much more difficult. If the Judge knows that the highly prejudicial evidence referred to in pretrial publicity will be admitted into evidence in the government's case, the job of the Judge is less difficult. The prospective jurors are under oath when questioned on this subject ("voir dire"), and in most cases the law assumes that the one questioned speaks the truth when she states that she can and will set aside her biases and prejudices and preconceived opinions.

MY LITTLE GIRL IS SICK; HELP.

2006-07-31T09:30:00.000-07:00

Joe Sixpack showed up at the firestation, dressed in work clothes, walking, carrying a bundle, a little girl in her pajamas, barefoot and bareheaded. Joe seemed distraught, and the FIREPERSON could smell Budweiser. The FIREPERSON, being a professional person, and non-judgmental, immediately recognized that this was a serious problem. The Bud was secondary. What was wrong with the girl? How can I help and how can our FIREDEPARTMENT help? We have emergency people, med-techs. We are authorized to help this girl, and we are authorized to practice medicine in order to do so. Emergency medicine. We will help her; we will save her life!

Socialized medicine has reared its ugly head. Tell us how expensive it is; tell us how inefficient the Canadian or English system is; tell us how wrong it is to take money from the affluent and give it out to the non-working poor. Why do these people act like they are entitled? Why don't they buy insurance, provide for themselves and their children?

If this is one of those expensive cancer cases, why doesn't Joe Sixpack get a quart fruit jar, put his girl's picture on it, place it next to the STATE OF NEW MEXICO lottery ticket dispenser in the gas stations and grocery stores, and beg for charity so that he can pay the doctors and save his child's life.

What would Captain Kirk say? What would Bones say? What would Christopher Reeve say? What will Guliani, Frist, McCain and Gingrich say? What will Hillary say?

The State and federal governments tax us and give, yes give, millions and billions to business and agriculture and other special interest groups to subsidize such groups. $200 million a year in tax breaks to Intel; $100 million to subsidize Eclipse. Why not first things first?

SPECIAL PROSECUTORS EMASCULATED

2006-07-29T17:51:00.000-07:00

A few years ago, an investigation was commenced in connection with the New Mexico Highway Department. Some questions were raised about transactions that occurred in Bernalillo County. District Attorney Robert Schwartz said he had a conflict, and asked the Attorney General to act. Attorney General Tom Udall had a conflict and issued a request for proposals (bids) for a special prosecutor to handle the investigation. The "low bidder" got the contract at $85.00 per hour. Things proceeded according to law, a grand jury was convened in Santa Fe County, and another in Bernalillo County. Witnesses were called. Indictments were imminent.

Officers of corporations were in jeopardy. The companies hired lawyers for the likely accused, and also hired lawyers for key employees (who were eye witnesses). A stone wall succeeded in delaying, but not thwarting the investigation.

Defense counsel for the officers then rooted out the illegal investigation and stripped the low-bidding ("crazy things going on")so-called special prosecutor. The defense counsel filed a motion with Bernalillo County District Judge Woodrow "Woody" Smith, seeking an order shutting down the Bernalillo County grand jury investigation (and preventing any indictments). The defense counsel claimed that the special prosecutor had no authority, because the Attorney General gave the special prosecutor too much authority. The Attorney General authorized the special prosecutor the authority to investigate and seek indictments and prosecute.

Judge Smith ruled that the defense counsel were right. The Attorney General gave too much authority to the special prosecutor; the Attorney General, who had a conflict that prevented him from handling the investigation, is required by law to retain authority to investigate and prosecute, and cannot delegate that authority to any private lawyer, however qualified.

The Supreme Court of New Mexico affirmed, with no published opinion.

In spite of his conflict, District Attorney Robert Schwartz announced for the newspapers that he had gone back and reviewed the evidence and that there was no basis for any criminal charges. He did not talk to the investigator for the special prosecution team, nor to the special prosecutor, nor did he review any transcript of the many days of grand jury proceedings in Bernalillo nor Santa Fe counties.

Not to worry. This ruling and outcome was unprecedented and is unlikely to be repeated. Mission accomplished. Disclaimer. We were the low-bidder. Over the 50 odd years since we got into criminal law in New Mexico, we have seen many instances of pure justice. This highway department investigation case was not justice; it was injustice. Figure for yourself.

"INVISIBLE IN WAR; INVINCIBLE IN PEACE"

2006-07-28T12:20:00.000-07:00

Someone has said, "There is no fury like that of a non-combatant." And it was said of a veteran of the Civil War who spoke out like a war-hawk when international problems came along between 1865 and 1885, that the veteran was "invisible in war and invincible in peace." The basis or grain of truth was that the veteran, an officer for the Union at the beginning of the war, was captured early and paroled on the promise that he would not again take up arms against the South.

When we hear reports from some of the media commentators about violence breaking out in some part of the world, we often think of the Civil War officer, and the reference to the fury of non-combatants. We are presently listening to Rush Limbaugh discuss the violence in Gaza, Israel and Lebanon. Limbaugh is full of fury and follows the position of the administration that the international community should let Israel and Hamas and Hezbollah fight awhile. He also defends Israel from charges that the killing of U.N. observers "[the attack] appears to have been intentional." Kofi Anan's charge. We are not sure whether the deaths of the U.N. people are supposed to be considered "collateral damage." If so, is it possible that Anan is correct? If the blow to the compound was intentional, that in itself may not make it wrong under the circumstances. Let the U.N. investigate.

It is hard for us to understand why we send our Secretary of State overseas to discuss the conflict and to suggest a way to resolve it. Why has this small war not been brought before the general body of the United Nations? Why has no one insisted (or have they?) that representatives of the civilized nations of the world meet at the U.N. and let all blow off steam? It may very well be that Israel is entirely in the right in this matter. If so, and if the world community wrongfully votes against Israel, we have a veto.

It is ironic that Iran sends arms to Hezbollah; Syria sends arms to the terrorists; and the USA sends arms (ordered earlier)to Israel. If a Martian dropped in, would her or she think that Israel is a puppet of the USA? Hezbollah and Lebanon have failed to comply with a U.N. directive. How many U.N. directives is Israel violating with impunity? The policy of the administration in the USA is undermining the power of the United Nations. Shame on us.

UNITED STATES SHOULD RESPECT INTERNATIONAL LAW

2006-07-15T11:28:00.000-07:00

This weekend we have reports of conflict in the Middle East, involving Israel. President Bush has asked for the attackers (Hezbollah?)to lay down their arms.

Where is JOHN BOLTON? He should be asking that the United Nations to get involved now, at least in debate. Our President should ask that this crisis (relatively small?) should be submitted to the international community for discussion, at the very least.

Israel has refused to comply with UN orders for decades. The US has prevented sanctions against Israel. That may have been right; or wrong.

This is a new deal. It is like the guy who was assassinated in Europe in 1914. Do we go to war and kill tens of millions? Or why not go immediately to the UNITED NATIONS. The result may be bad; but the policy is right.

NEW MEXICO APPELLATE COURTS IMPOSE SERIOUS RESTRICTIONS ON LAW ENFORCEMENT

2006-07-13T17:23:00.000-07:00

In 1914, the United States Supreme Court imposed the exclusionary rule on federal law enforcement. The case was Weeks v. United States. The Court ruled that evidence obtained in violation of the United States Constitution is to be excluded from evidence. "The constable blunders and the murderer goes free." The ruling did not apply to the States, and the States were free to have an exclusionary rule or not.

That rule was in effect from 1914 until 1961. At that time, in Mapp v. Ohio (1961), the United States Supreme Court ruled that evidence obtained in violation of the federal constitution (Fourth Amendment, principally), must be excluded in State criminal trials as well as federal criminal trials. The ruling was unrealistic, unreasonable, and in many instances has led to gross miscarriages of justice. The Deputy Sheriff of some rural county may make a good faith mistake in the law of search and seizure (a body of law that is extremely complex), and a killer goes free.

An immediate result of the Mapp case was that law enforcement officers were tempted to lie (not to convict the innocent, but to preserve clear evidence of guilt). For example, in the years immediately following 1961, the States had a raft of so-called "dropsy cases." Those were cases in which the officers testified that the accused "dropped" the evidence, that is, abandoned the evidence; hence there was no search at all; and of course, no illegal search.

We prosecuted and defended felony cases in New Mexico before and after 1961; and we are satisfied that perjury among law enforcement officers was rampant (with regard to compliance with federal constitutional requirements). These were officers who would never consider perjury with respect to guilt or innocence. These were disillusioned officers, whose morale had been shattered by what they considered to be a grossly erroneous excess of power by the Earl Warren Court. The New Mexico Courts had to follow suit, as the federal constitution (as interpreted) is supreme.

New Mexico did not have an exclusionary rule in 1914, when the federal exlusionary rule was adopted by the Supreme Court; nor did New Mexico adopt an exclusionary rule for State criminal trials, until forced to by the Mapp case in 1961. After the Mapp case in 1961, in New Mexico we could and did follow the federal rule and we went no further in excluding evidence on constitutional grounds. That was until the 1990's.

To be concluded.

DOUBLE JEOPARDY NOT AN ISSUE

2006-06-29T08:15:00.000-07:00

In New Mexico we have two recent instances which would seem to involve
double jeopardy questions. In both instances, there is no such problem.

First, there are the indictments in State court of witnesses in the federal
prosecution of Robert Vigil, the former State Treasurer. Those witnesses
were prosecuted in federal court, plead guilty, and bargained for leniency
by giving testimony against Vigil. The witnesses gave their testimony and
the Vigil prosecution resulted in a mistrial for jury disagreement. It was
reported that one juror held out, on the basis that Vigil had been “set up.”
No doubt he had been set up; the question submitted to the jury was
whether Vigil was guilty as charged. A lot of wasted time and judicial
resources, because the federal government (as New Mexico) unnecessarily
requires a unanimous verdict from its twelve-person juries.

Back to jeopardy. Can the State prosecute the federal witnesses for
crimes which essentially are the same as those for which the federal
government has or will sentence these same defendants? The answer is
yes, because the United States Supreme Court has ruled that the United
States and the State of New Mexico are two separate sovereigns.
Jeopardy in one is not jeopardy in the other; hence no double jeopardy.

Second, we see in the newspapers this week that a number of sex
offenders have been sentenced without having added to the sentence of
imprisonment, a long period of parole or probation. The long period of
supervision after release from prison, is a mandatory provision of the
legislature. Some judges imposed sentence without following the statute.
Now the State will seek to have the prisoners resentenced. The result will
be that the new sentence will imposed conditions of confinement or
supervision that were not included in the original sentence. This is
forbidden, as a general rule (double punishment). Once a sentence has
been imposed, it can be reduced, but not increased, without offending the
constitutional provision against double jeopardy.

However, if the Judge has imposed an illegal sentence, she may
resentence, to a legal sentence, even though the new sentence exceeds in
severity the old sentence. “The law is common sense, put in good
grammar.”

MIRANDA v. ARIZONA -- 40 YEARS OLD AND BAD LAW

2006-06-11T15:53:00.000-07:00

On June 13, 1966, the Supreme Court of the United States handed down the decision of Miranda v. Arizona, 384 U.S 436 (1966). A week later, the Supreme Court decided in Johnson v. New Jersey, 384 U.S. 719 (1966), ruled that the Miranda case was not to be applied to cases in which the trial had already occurred.

Forty years ago today, the Supreme Court changed the rules relating to interrogation of persons accused of felony. The applicable rule, from the birth of the nation, had been that an admission or confession which was voluntary (no promises; no threats or coercion)was admissible in the criminal trial. Now the rule became much more restrictive. Interrogation of an accused in custody would be lawful (the evidence admissible) only if the accused (no matter his education nor knowledge of law)is given certain advice: the Miranda warning. You have the right to remain silent; anything you say may be used against you; you have the right to a lawyer to advise you and to be present with you during questioning; if you cannot afford a lawyer, one will be appointed for you; if you give up your right to a lawyer and agree to answer questions, you have the right to stop answering the questions at any time. Words to that effect (thousands of cases wrestled with the issue of whether the right words were used by the police).

If the accused "knowingly and intelligently" gave up, or waived, his right to an attorney, and confessed, we may use the confession to convict and impose the death penalty. This test, this rule, is worthy of ridicule. The rule is ridiculous. With all due respect for the Court. Before the Miranda case, only the ignorant, the fearful, the remorseful, the mentally impaired confessed. After the Miranda case, it is only the very remorseful, fearful, ignorant, etc. who confess. We have a rule that penalizes the weak and favors the hardened and strong criminal.

Even if the Miranda case had been decided correctly (it overruled a number of its own cases), it was ill-advised to make it applicable to cases that were awaiting trial. Many cases had been properly investigated under the old rule, with no misconduct by the police, and confessions obtained. Those confessions were now inadmissible, and there was no way to go back and do the interrogation over, with the Miranda warnings. These accused persons had lawyers now, and lawyers do not allow guilty clients to talk to the police.

In the Albuquerque office, the District Attorney had three murder cases pending trial in which the police had a confession, and the cases were too weak to prosecute without the confession. The result was that those three cases were dismissed. Justice was denied because the Supreme Court changed the rule and made it apply to cases where the confession had already been obtained. In June, 1966, there were approximately 285,000 people in Bernalillo County. One miscarriage of justice in case of murder, for every 100 thousand population. The population of the United States was approximately 180 million. That makes 1,800 miscarried murder cases. How can such a result be justified? How can such a rule be justified?

SUGGESTIONS FOR UNITED STATES DISTRICT COURTS -- CRIMINAL PROCEDURE OVERHAUL DUE

2006-05-27T10:27:00.000-07:00

The trial Courts in the federal system are called United States District Courts. Here are some suggestions for change in the procedure of such Courts.

First, open up the Court to TV and radio. These Courts are way behind, and the result is they conduct their proceedings in relative secrecy. Do not say cameras and audio are disruptive; modern technology can cure that. No doubt such broadcasts affect some lawyers, Judges, jurors, witnesses, and others. But is that bad, or good? We believe that such broadcasts will educate the public so fast that the grandstanding will end. There is grandstanding, obfuscation, misleading and chicanery at present (without TV and radio). We think the situation will get better, not worse. Make the camera fuzzy on witness and jury faces if necessary.

If you were a defense lawyer and you wanted to pull the wool over the eyes of the jury, would you try it with a jury which had watched real live Court television?
More likely, you, as a lawyer, would conduct yourself as you do in a non-jury (bench) trial. Trial lawyers have at least two styles: one for the jury; another for the Judge in a bench trial. Ask your lawyer friend if that is so; and then ask why.

Second, why require unanimity for a verdict? Would not 9-3, or 10-2, or even 11-1 do better? Consider this case recently in which our former State Treasurer won a great victory against the United States government (his lawyer's assessment). The case ended in a mistrial, because of jury disagreement. It is reported that the jury was 11-1 for conviction of one or more charges. One juror reported that the jury, faced with twenty something counts, or charges, and faced with a holdout, decided to consider first three of the strongest counts. Spinsters later said that the lone holdout was not out of line, because the others wanted convictions on only two or three charges. We imagine the eleven would have been satisfied with one guilty verdict and leave the remaining charges for another jury.

Would it take a constitutional amendment to allow less than a unanimous verdict in a federal criminal case? Overrule some precedent, or amend the constitution; the times call for it. This has nothing to do with the "War on Terror," but with the "War on Crime." In these days, it is too easy to buy or intimidate one juror.

PUT DENTAL CARE IN SCHOOLS

2006-05-17T06:33:00.000-07:00

Albuquerque Public School District is proposing a 351 million bond issue for a new high school. We have a suggestion. Have the architect build in a nurse's station and a dental technician's station, state of the art.

Prophylaxis and feasible on-site care for the school children, paid as part of the science program. No more worry about what dentist to send the poor to [Medicaid is too stingy and full of red tape (!!??)].

We can all feel good. Who would begrudge a first grader or (especially) a ninth grader getting a tooth cleaning, instruction in proper dental care and personal hygiene, check ups regularly for cavities, minor filling work, etc.? If this be socialism, so be it. Raw recruits in the miilitary get the same; and all of our children are bound by law to do such military duty when needed. The duty to serve is the consideration for minimal heath care (dental here) in advance, when most needed. This makes sense, because we need healthy young people to do the fighting.

Take the crime of mayhem. The King had the right to the services of every man as a fighting man. Cut off a limb of a vicltim, and you have committed mayhem, because the male victim can no longer fight for the King when needed. Same with putting out an eye, or knocking out some teeth. Deprive a King's subject of the ability to fight and you commit mayhem.

This is conservatism. The principle is ancient, mellowed in the crucible of time.

OPEN THE DEBATE ON HEALTH CARE, IMMIGRATION AND PRIVACY RIGHTS

2006-05-16T09:01:00.000-07:00

We believe it is possible to have a civil, rational dialogue, even debate, on three major issues. They are healthcare, immigration and privacy rights.

Healthcare [not health insurance, but care]. Perhaps we could start off with the basics. In health care, we need to ask the question whether the taxpayers should pay, under a compulsory plan such as Medicare. More basic, is whether the government should get involved in the provision of any medical care. And another basic is whether, if the government does get involved, does it use the funds paid by affluent taxpayers, to pay for the health care of the poor. President’s Clinton's finest [but lost] hour was when he held up his pen and told Congress to send him a health care bill that was universal. He said "this pen" will veto any bill which is not universal!

Socialized medicine? Any person who served in the military lived under it. Are there some things that are not for sale? Dialysis? Vital organs? Priority of heart transplants? A right to languish in dignity in your old age?

Immigration. What if we negotiated a treaty with Mexico. It would go something like this. United States entrepreneurs would be allowed to open shop in Mexico, with their investments guaranteed by the USA from being stolen by the people or the Mexican government. These shops (farms, factories, nursing homes, etc.) could hire only those 11 million illegal immigrants now in the USA. Promoters could be benefactors or exploiters, but would use the formerly illegal labor, as a condition of the guarantees of the USA and tolerance of Vicente Fox.

Or consider another variation on the handling of illegal immigrants. Punish them by rewarding the next 11 million. As the next 11 million come in legally over the years, give them a fast track to citizenship. No need for a stick for the illegals; use a carrot for those who are and were law abiding.

Privacy rights are relative. The government has the delegated power (right) to invade our privacy under certain conditions. Can't be "unreasonable." The question that should be debated, if any, is whether there ought to be a warrant requirement, as well as a probable cause ("reasonableness") requirement. The President and Vice President argue that the probable cause, or reasonableness, requirement is all that is required by law, including the Constitution, under these wartime circumstances. They may be right, and even if they are right, is that the way we want our Fourth Amendment interpreted?

Can we say that the rule for criminal cases, that generally requires probable cause and a warrant, is unworkable in the fight against terrorism? On May 7th Sean Hannity said words to the effect, "I don't know any conservative who opposes [our listening in on Al Quaida]." Nor does any liberal, as far as I know. The question is whether the executive should generally have to get a warrant when the rights of our citizens are invaded.

Let us sit down together and discuss these matters; or stand up and debate them in a civil manner. Some ideas which seem outlandish at first glance can stir thought and thus be helpful with discussion, however brief. President Nixon said we should stop yelling at each other, so that we can hear each other.

SUGGESTION TO CRIME PAGE EDITORS

2006-04-28T10:19:00.000-07:00

Here, with due respect, is a suggestion to crime page editors.

When a person is formally accused of a crime, certainly if the accusation is in the form of a criminal complaint or indictment, the reporter should try to interview the accused, to get his side of the story. Do not interview the lawyer who has been hired by the accused, unless an effort has been made, and thwarted, to interview the accused.

Then the story should recite that the accused, who, for example, was implicated in criminal activity by the sworn public testimony of a witness, not only "denied wrongdoing," but answered specific allegations. The questions and answers should be in such form that they could be repeated in any Court proceedings that might follow.

If the accused declined to answer questions, the story should say so; and then the attorney may be quoted. However, when the attorney states words to the effect that his client is innocent, or has done nothing wrong, the reporter should ask follow-up questions such as "How is this known?" or "How do you know?" or "Do you speak from personal knowledge, and if not, from whom did you get your information, etc.?" The answers should be in the story.

The result would be that one formally accused would not be able to simply remain quiet and avoid an adverse inference of guilt (which the public may reasonably and fairly draw from the silence). Further, mouthpiece lawyers would be deterred. Our definition of mouthpiece lawyers is those lawyers who publicly mouth that their clients are innocent, when the lawyers have no personal knowledge that such is so, and the lawyers also know they do not intend to allow their clients to answer legitimate questions. You want examples? F. Lee Bailey and Alan Dershowitz both made public statements that their client, O. J. Simpson, was innocent of the butchering of Simpson's ex-wife. How did those lawyers know? Were they placing their own reputations and character in the balance, to affect public opinion? That is not permissible in the practice of criminal law.

Here in Albuquerque in recent days, a convicted former State Treasurer swore under oath that he had received $100,000 or more from a prominent stockbroker, in return for giving business to the broker. This testimony was reported, and it was reported immediately following, that an attorney for the broker has denied that testimony. No mention in the story that anyone asked the broker about the allegation.

We have no business trying to tell the news media how to do the job. However, we respectfully suggest that the procedure outlined here would be fair, legitimate, and would benefit the public and improve the image of lawyers (we are especially sensitive here).

TOO FEW LAWYERS

2006-04-23T17:25:00.000-07:00

In 1950, at UNM School of Law, they had a Professor who taught two required courses: constitutional law, and legal writing. If you could not pass those courses, it was the highway. The students had a nickname for the Prof. It was “The Hatchet.”
The Professor announced one day in class that it was his job to prevent the incompetent from getting out of law school and taking a shot at the bar exam.
Neither of his courses was necessary for a student to become a competent lawyer, not even for the niche of constitutional law, nor legal writing.

Prior to 1934, a person could become a lawyer in New Mexico by studying for the bar, through apprenticeship or “reading” law, then passing the bar exam required by the Supreme Court of New Mexico. In 1934, the legislature enacted a law that required a person to graduate from a law school before that person could take the bar exam, and further required that the law school must be one approved by the American Bar Association. New Mexico was the first state in the nation to pass such a law. This gave the ABA the power to limit the practice of law in New Mexico. At that time, New Mexico had no law school at all; and it did not get one until 1947.

In 1956, the New Mexico Supreme Court ruled, in Henington v. Bar Commissioners, that the requirement enacted by the legislature in 1934, was constitutional. The challenge, among others, was that the statute unlawfully delegated legislative authority of the State to a private group of individuals (a national bar association). The Court did not discuss this one, the most important challenge, but nevertheless upheld the statute.

We were aware at that time that three of the five justices sitting on the Supreme Court had not graduated from an ABA approved law school; and two of the five had never graduated from any law school. They were competent; just as many of the Founders, and many in Lincoln’s time (including himself), without having gone to law school.

What is our point? It is this. The only legitimate reason for requiring competence in lawyers, is to protect the public. Apprenticeship is the best preparation for the practice of law. Apprenticeship should be allowed.

That is not the major point, however. The practice should be broken down into parts, so that one who is competent to practice one part, may do so, without also having to be skilled in other parts. The podiatrist is qualified (and permitted by law) to cut the carbuncle off the foot. The septic tank installer is qualified (and permitted by law) to install a septic tank (even though not legally qualified to practice all “plumbing”).

One who is qualified to practice in magistrate court, or other Courts of limited jurisdiction, should be allowed to do so even though she is not qualified to practice in a Court of general jurisdiction (such as District Court), or the appellate Court. If this were permitted, the public could be protected from the incompetent, and at a lower charge for the services. That is the case, unless, as is implicit in our present scheme of things, no one can be qualified to handle small Court matters unless qualified to handle the more complex matters (as in the higher Courts). Do you have to be a brain surgeon, in order to be qualified to lance a boil?

Thus, we say that we have too few lawyers.

RELATIVELY MILD CRUELTY TO ANIMALS

2006-04-20T08:34:00.000-07:00

Today is Thursday, so we received the Albuquerque Journal and the East Mountain Telegraph (Thursdays only). Two of the stories saddened us even though they described events that were supposed to be happy ones. The two stories were one, the high school boy who was roping a calf; and the second, the grownups who were catching and releasing the trout at Tingley Beach.

It is relatively mild cruelty, but cruelty, nonetheless, to rope, throw and tie a calf. As long as 65 years ago, we high school boys helped out with the roundup and branding in Eastern New Mexico. No roping was allowed, because the ranchers did not want their stock injured. Today, high school boys are allowed to chase the calves with a horse, rope the calves, jerk the calves to the ground, or up-end the calves by wrestling them to the ground, and tying three legs of the calf together.

That is not like cock-fighting as we know it (forget the illegal "gaming"), where the cocks are instigated to fight one another, with razor-sharp gaffs attached to their spurs by their human owners. Nor is it like bull-fighting, nor dog fighting, nor bear-baiting. Yet is cruelty to the calves, sentient creatures of the Lord.

The fishing is somewhat different. The fish gets let go, if caught from the "Catch and Release Pool." Some sport. This teaches a bad lesson to the kids. If we catch a fish, kill it instantly and mercifully, and eat it, or give it to someone who will eat it. On a moral scale, that is better than catch and release.

No, this is not a case, yet, where we need the legislature. (Though the City should remove the regulation that requires release of the fish at certain ponds.) Just think about it, and discuss it, and see if this is what we should encourage in our kids.

"UNPUBLISHED" APPELLATE COURT OPINIONS

2006-04-13T12:20:00.000-07:00

We have just reread a post by Joel Jacobson, Esq. on the subject of unpublished appellate court opinions in federal courts. See his weblog, "www.judgingcrimes.com".
His post, as usual, is well-written and informative.

The justification for "unpublished" opinions is that nothing new or novel is involved in the appeal; no need for the Court to write out its reasons for ruling, as the correct ruling is obvious, a slam dunk. There are cases in which the rule is abused, and opinions are declared "not to be published, nor cited as precedent," for no good reason. Some cases (appellate decisions and opinions) are embarrassing and need to be swept under the rug.

It happens in the appellate court in New Mexico, too. Good examples are cases in which the criminal (including murderers) are freed because the District Attorney makes a clerical mistake, fails to apply for an extension of the "six-month rule." Or the Clerk makes a clerical error in the Court records If the public knew how many criminals were freed on technicalities, they would cry, "Outrage!"
(The six-month rule, which is not required by the federal or State Constitutions, is a rule adopted by the Supreme Court of New Mexico, and may be repealed by a majority of that Court).

The Tenth Circuit Court of Appeals has ruled, in an unpublished opinion, that a citizen could not sue a municipality for alleged destruction of audio-taped evidence. Was the case important? Yes. Was it a case of first impression? Yes. Did the Court explain its ruling, so others could be guided by it? No.

The New Mexico Court of Appeals (with tacit approval of the Supreme Court of New Mexico, ruled in an unpublished opinion that an armed robber should go free under the six-month rule. The Clerk of the District Court had made a note that the accused was "arrested" when he was booked into jail. The Court of Appeals ruled that the "arrest" occurred at the hospital 90 days earlier (accused had broken his leg while escaping after the robbery). The defense attorney had asked for a continuance, and specifically assured the trial Court that there was time for the postponement without violation of the six-month rule.

On appeal from the ruling of the trial Court that the six-month rule was never intended to require a release of an accused under such circumstances, the Court of Appeals issued an opinion releasing the accused free of all charges; and the appeals Court specified that the opinion was not to be published nor cited as precedent. The result was that the news media also did not discuss the case; so the Supreme Court was not embarrassed by the six-month rule.

The rule that allows "unpublished" opinions results in unwarranted secrecy. It is ill-advised, and contrary to good government. The rule should be abolished by the Court which adopted it, the Supreme Court of New Mexico. The impetus could be brought by the legislature; but it has no power to adopt any legislation which would be repugnant to the New Mexico Supreme Court's rules. In this respect the New Mexico Supreme Court has more power in such matters than the Supreme Court of the United States(which can be overruled by the Congress in regard to rules).

ASTORGA ARRESTED IN MEXICO; EXPELLED TO USA

2006-04-04T15:58:00.000-07:00

The news this week is that Michael Astorga was arrested in Mexico. He is suspected of murder of a Deputy Sheriff officer near Albuquerque. The news reminded us of the case of Jose Franco Padilla. State v. Padilla, 66 New Mexico 289 (1958).

Padilla was wanted for rape murder of a female child nine years old. The abduction and killing happened near Roswell, New Mexico. Padilla fled to Mexico, and was arrested by Mexican authorities 600 miles south of the border. The Mexican authorities transported Padilla by automobile to Juarez and turned him over to the Roswell authorities at the border at El Paso, Texas; from there he was brought to Roswell. He confessed to abduction, child rape and murder of the little girl, and claimed he was influenced by marijuana and alcohol.

During his confession, Padilla said he traveled 600 miles without urinating, even though the Mexican authorities invited him several times to get out of the car and walk out to relieve himself. He said he feared that he would be shot for attempted escape.

This Astorga case, in which the accused is facing capital murder charges of murder of a police officer [the officer stopped a vehicle and was killed by gunshot], brought some strong opinions on the afternoon KKOB radio show (Jim Villaneucci). Many were concerned that Mexico would not agree to th extradition of Astorga, unless the United States guaranteed that the death penalty would not be sought.

Some suggestions the radio listeners put forth: 1) when we apply for extradition, we should lie about our intentions, that is, conceal the possibility that we will seek a death penalty -- several tricky means worthy of mouthpieces were suggested; 2) let us send a hit person to kill him; and 3) let us bring him back on a guarantee of no death penalty, and let the “prison justice” take care of the problem [let him be killed in prison by a verdict of the other prisoners, his peers].

Obvious objections to those three proposals are that the first is a proposal that the State of New Mexico commit a fraud; the second is that the State of New Mexico should stoop to murder in its war on crime; and the third is that while Astorga may be convicted of killing a gang memember in November, he will also be convicted of killing a law enforcement officer. What are the rules of the “prison justice” system? Will Astorga escape punishment for the gang killing because he is a member of another gang? Is his mistake in killing a gang member offset by the fact that he killed a deputy?

Why all this turmoil? Is it because we have seen that there have been only two people executed in the last 45 years, and we are fed up with death row delays, reprieves, appeals, technicalities, and commutations? Governor Toney Anaya said during his race for Governor that he was opposed to the death penalty, and that no convict would die on his watch. What he did not say was that he had no intention to commute the sentences of all five persons on death row. Therefore, a commutation of death penalty sentences did not constitute a breach of a pre-election pledge. As he left office, Governor Anaya commuted to life imprisonment, the death sentences of all five death-row prisoners. At that point many of us mentally threw up our hands.

Here is another question. If the death penalty does not deter, why have a law that provides for the death penalty for the murder of a police officer and not Joe Sixpack?

A final question. If the accused is not tried within six months, will the case be dismissed under the “six month rule” adopted by the Supreme Court of New Mexico [as a legislative matter]? Will a clerical mistake in the office of the District Attorney or the office of the Clerk of the District Court, which does no real harm to anyone, result in release [mandated by the Supreme Court under its legislative powers, without regard to the discretion of the trial Judge) of the accused, free of all charges? Unfortunately, that is our “six month rule.”

The rule is not required by the Constitution of the United States; nor by the Constitution of New Mexico; nor by any rule or law except the rule adopted and continued by the majority of the persons now serving on the Supreme Court. The federal rule requires a trial within 70 days; but leaves it to the Judge as to the sanction for a violation. The New Mexico Supreme Court dictates in advance that a clerical error shall set a murderer free, regardless of the circumstances, and regardless of what the trial Judge may think. Why do we tolerate this?

TOO LITTLE GOVERNMENT REGULATION

2006-03-19T08:06:00.000-08:00

In a few instances we can prove that the government engages in too little regulation. Take truth in advertising. Why do we even have such a phrase, such a concept? It is because a small minority of business persons, greedy and crooked, like to cheat the ordinary consumer.

Fortunately, the words “free” and “sale” and “savings” are now meaningless. They have been used by crooks so long that people no longer trust them, so they have to a great extent become harmless.

How many clever phrases have been used by the car dealers? Are they inspired, or instigated, by the manufacturers, or are the makers merely complicit in the schemes? Take the “factory invoice” and “factory rebate” and the “manufacturer’s suggested retail price.” What do those terms mean? Is it a case of the factory and local dealer making a pretense of giving a good deal, better than the usual market price? What else? How is this different from marking up the price immediately before a “sale?”

When a merchant has a product to sell, she can sell for cash, or on credit. If she sells on credit, she has a risk, and needs interest on her money. If she says “0%” interest, she is jacking up the price. How can it be otherwise? Is this honesty in business?

On KKOB, on the Rush Limbaugh program, we hear repeatedly an advertisement for wood flooring. Bellowood, or Belleauwood, or a sound-a-like. The pitch is that the company offers a “50 year warranty.” Somewhere else in the pitch (smaller print) we hear that the warranty is for “50 years so long as you live there.” With the fine print, it is a warranty for 50 years or as long as the buyer lives in the room that is floored, whichever is sooner. People move residences every four or five years on average. Go figure.

Where are the regulators? The enforcers? No doubt the honest businesspersons would be happy to be rid of the unfair competition of the crooks.

Think of it this way. You work and pile up credits (US dollars). When the merchant sells you a service or product by use of fraud, she is stealing your work. Instead of "Buyer beware!" the law should speak out, "Crooked business persons beware!"

DENTAL CARE FOR THE KIDS

2006-03-09T10:32:00.000-08:00

In the Albuquerque Journal of March 9, 2006, is a sad story by Leann Holt, Staff Writer. It has to do with dental care in New Mexico for children. She writes about decay, just the simple problem of tooth decay. However, she points out that the disease is serious, as it causes missed school days and can lead to mal-nutrition, school failure and low self-esteem.

Statistics from the story: 40% of New Mexico’s children suffer from tooth decay; only 6% of Medicaid-eligible children in New Mexico get dental care (third lowest in the nation); and only one-third of New Mexico’s dentists are willing to take patients based on Medicaid payments. One school nurse is quoted as saying that it is not unusual to see “crater-sized cavities” and children in pain, with no dentist to send them to.

The story features Small Smiles Dentistry, a clinic which is part of a chain, (one on the West Side, and now one at Central and San Pedro). One dentist there said it is not unusual to see children who have cavities in 18 out of 20 teeth.

Medicaid pays only about 66% of what other insurance companies pay. Red tape may be a problem, and undoubtedly is, but there is red tape in dealing with HMO’s and insurance claims people too. So is it money?

Where are out priorities? We pass laws to impose taxes to provide up front money for promoters, tax breaks (subsidies) for billion dollar corporations with highly paid officers and other executives, and for landscaping of highways and maintenance of golf courses, and so on. “First things first!”

Two suggestions to help remedy this problem. First, Medicare (federal taxpayer money) should cover all dental care, including prophylaxis, at least for the children. Such dental care should be provided for all children (no means test to be applied) in the schools.

Second (and here we rely on free enterprise as a solution), we should change the law to encourage more qualified people to offer the services. One change we might try is to allow people into dental school if and when they are ready for dental school; and defer the bachelor degree requirement until after the dental school graduate begins practice. As part of their continuing professional education, these dentists could take the undergraduate courses, so that within a few years they will have the same formal education as those who completed a bachelor’s before getting into dental school.

Give these people an incentive, such as this waiver (deferral) of the undergraduate degree requirement for license; and in return, require these dentists to accept Medicaid child patients for a number of years.

These Medicaid dentists would not be as formally educated as the dentists with undergraduate degrees: no English literature; no foreign languages, nor dead languages; no psychology, philosophy, economics, nor electives. But these dentists will catch up later, on their own time, while they are making a living and also performing a public service.

How can we be proud of our State; our space station; our airplane industry; our Intel, with its $32 billion off the tax roll; our multimillion dollar stadiums [sic]; our lottery which takes from the poor and gives to college students; and so on; when we fail to provide our children with dental care? We do not have to go from the present system to socialism; that is, from monopoly to socialism. How about let us go from monopoly to free enterprise? Educational requirements for a license are necessary to prevent the incompetent from practicing quackery; but unnecessary educational requirements are in restraint of trade, and immoral.

PRESIDENT BUSH CORRECT ON OUTSOURCING

2006-03-04T09:10:00.000-08:00

This week President Bush, who has just visited India, expressed the opinion that America should not be afraid of outsourcing tech jobs to India. We agree with him, as outsourcing is simply one aspect of free trade.

Here is one area in which outsourcing would be good. Medical care. Recently we read of an American, stooped with a back injury, and in need of two operations (estimated at $100,000 total). He flew to India and got the two operations for a total of $10,000. He praised the medical care providers and was glad he outsourced. My doctor friend expressed concern about the operations and aftercare. He was right, as the patient is not really qualified to determine whether the operation (“procedure”) was a success, or was a bargain. It was affordable.

One objection to outsourcing medical services, is the problem of screening out the incompetent practitioner and the outright quack. That could be resolved by international licensing, with malpractice insurance or financial security required, and with an international court to handle the claims. This could be an administrative procedure, similar to workers compensation laws, and we could even eliminate the jury trial lawyers in such cases, if that would sugar coat the pill.

We envision a promoter medical care provider putting an MRI, and a CAT scan, and a regular Xray machine, all on-line, and running 24-7. The machines send the pictures to India, where they are read by qualified people under a system in which the patient is guaranteed compensation for malpractice. Recently there was a news article that said that cancer in the brain often goes undiagnosed; and that some could be diagnosed with an MRI. This is only one example of how to improve health care and make it more available. Free trade.

Yes, free trade in the USA would be the logical place to start, but the trade-union, protectionist element of the American Medical Association makes reform in this country a slow, tough process.

UNITED ARAB EMIRATES ARE HIRED. TO DO WHAT??

2006-02-25T11:52:00.000-08:00

If you have read this far, I expect you to say the question (in the title) is frivolous. However, can you really say, from the reports in the news, just what it is that the British company does with respect to six or so of our ports; and which will now be done by the UAE government company ("company")? Proponents and the administration clear up one aspect immediately: security at the ports is in the hands of the United States Coast Guard.

So. What does the comany do? Who do they contract with? What are they obligated to do under the contract? Is it a big contract -- six billion or so? Surely the company does not acquire a real estate interest, by purchase or lease, in the land and water surrounding and making up the port. What do they do?

My interest is heightened by the lineup of people who are publicly debating whether the USA should approve the [assignment of the contract to UAE]: Rush Limbaugh, Jimmy Carter, John McCain, Pete Domenici, are among those FOR; Sean Hannity, Bill Richardson, Heather Wilson, are among those AGAINST (or hold awhile).

The proponents tell us that the company is not there to handle security, only to "operate" the port. They seem to say that we have no right to question a contract such as this [such as what, exactly?] if we are planning to take into consideration the fact that the company is foreign, and is the UAE. If we do take such facts into consideration, we are unreasonably fearful or biased against Arabs.
I am not sorry; I can't accept that.

Here is a place for Senator Pete Domenici (well respected and admired, with a world of experience) to educate us. Tell us what is involved here. Forget about how fearful we are, and give us the benefit of the doubt as to whether we are racial or ethnic profilers in an improper sense.

CODY POSEY SENTENCE FOR MURDER DICTATED BY ARBITRARY LAW

2006-02-23T07:39:00.000-08:00

In less than an hour, the Judge will sentence Cody Posey for killing Posey’s father, stepmother and stepsister. He was convicted of first degree murder in the killing of the sister, a teenager.

The Judge held a sentencing hearing this week, and yesterday announced that this morning, at nine o’clock, he would impose sentence. The Judge’s discretion is limited by New Mexico law. The Judge must decide whether to sentence Posey as a child (the crime was committed when Posey was 14), or as an adult. The jury in New Mexico does not impose sentence, and is not supposed to even know what the possible sentences are.

If the Judge decides to sentence Posey as a child, the maximum sentence would be incarceration in a juvenile facility until Posey is age twenty-one, that is, five more years. If the Judge decides to sentence Posey as an adult, the Judge must impose a sentence which would mean at least thirty years without parole.

Mandatory sentences, whether mandatory in the sense of a limit on the amount of time, or mandatory as to the amount of time, or mandatory as to the minimum, are all arbitrary. Not necessarily unjust, but arbitrary. It is possible that the sentence set by the legislature will be the right sentence in some cases. However, there is no justification for a law that tells a Judge that he must sentence to a juvenile facility for five years, or to an adult facility for at least thirty years, with no in-between.

Our whole sentencing system should be reexamined. The power we give our District Judges (judges of courts of general jurisdiction) is awesome, too much. Yet we do greater injustice when we try to set the penalties by legislated mandatory sentences.

JUSTICE DEPARTMENT THREATENS OLD, SICK AND DYING NEW MEXICANS WHO TAKE PRESCRIPTION SMOKED MARIJUANA

2006-02-20T18:11:00.000-08:00

I doubt that David C. Iglesias, United States Attorney for the District of New Mexico was eager to write a threatening letter to the Legislature this 30-day session. According to the paper, Iglesias wrote that he would prosecute any effort by New Mexicans to use prescription smoked marijuana to treat nausea and other symptoms of terminal illnesses or illnesses in which the patient suffers intractable pain. In effect Iglesias said he would make a federal case out of it if Grandma, dying of cancer and in unbearable pain, chose to use smoked marijuana (with a doctor’s prescription).

Mr. Iglesias undoubtedly got his instructions from the Department of Justice, as that is the way the federal system works. The U. S. Attorney does not have the discretion that state prosecutors have; the Justice department has a great deal of control. Thus, the Justice department, which as a matter of course fails to prosecute those who possess marijuana in New Mexico (except in large amounts), came alive when it looked like the people of New Mexico might choose to cut some slack in the state prohibition laws.

Yes, it is a federal crime to smoke a joint, even if your doctor prescribes the smoke rather than opiates or other drugs. But if 60 million Americans have tried the smoke, as it has been reported, that is 20% of the population. Two Presidents that we know of did the dastardly act. If New Mexicans are keeping up in the smoking of marijuana, that means about 350,000 New Mexicans have tried the stuff (not me).

Where has the office of the United States Attorney been? Why take their frustration out on the old, sick, dying folks? Why be frustrated at all?

This is federalism at work for us. The federal government has prohibition; and the State has prohibition. They are two sovereigns, so both governments can prosecute for the same offense (no double jeopardy, because two sovereigns). The federals sit on their hands and let the State taxpayers provide the officers to enforce the marijuana prohibition, except in big cases.

The State of New Mexico should repeal its prohibition laws, with respect to smoked marijuana by doctor’s prescription for intractable pain or nausea; and tell the federal government that if the United States Attorney makes good on the threat to prosecute doctors or patients, then New Mexico will tender all of its marijuana cases to the federals in the future.

Meanwhile, a word to the legislators in the House of Representatives who killed or worked against the medical marijuana legislation. Next election, there are going to be posts at this site in an effort to let the public know what part you played. Those posts will not be at some higher ups’ direction; nor will they be paid for in any way. No hard feelings; no offense.

IS CONGRESS A MERE ADVISOR IN THIS WAR?

2006-02-12T11:16:00.001-08:00

Our Attorney General, Alberto Gonzales, thinks that certain provisions of the Geneva Conventions (no interrogation of prisoners of war) are quaint. The implication is that those provisions do not apply to the USA today in the circumstances of the global effort to combat terrorists. Indeed, Gonzales follows up by giving the President an opinion that in this war on terror, we may take into custody our suspected opponents, declare that they are “terrorists,” or “enemy combatants”, and the detainees may be held and treated as the Commander in Chief directs. If any act of Congress purports to limit that power of the executive, the statute may be ignored because it is an unlawful effort to limit the Chief in his conduct of the war.

A detainee is taken into custody by the Armed Forces of the United States. Does the detainee get taken before a neutral, independent magistrate, for a hearing to determine whether there are reasonable grounds to believe that he is a terrorist? No. Does he get the protection of a grand jury or other investigating authority, to review the showing of probable cause? No. No bail (that is okay, because this is a capital offense). No written charges, nor any opportunity to question his wardens as to when, where, why, what. No chance to prove innocence at a trial, because no trial. Forget the burden of proof.

A detainee may be interrogated (that is okay, why not; and if he does not answer we may reasonably infer that he has something to hide). To induce the detainee to give up valuable information about the terrorists and their plans, we may use interrogation techniques which our President and Attorney General and Secretary of Defense approve. Never mind that most Americans would not approve; it is enough that they do not know what the techniques are or have been led to believe that “those” techniques have been discontinued. Never debated in Congress!

WHEN DO WE DEBATE TORTURE?

2006-02-01T08:42:00.000-08:00

"No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." Article 17, 1949 Geneva Convention. Http://www.iacenter.org/geneva.

As I understand it, it is the policy of our administration to follow the Geneva Convention in cases of prisoners of war. We have defined the captives at Guantanamo and some at Abu Ghraib, as other than prisoners of war (and of course, as other than accused criminals, who would be entitled to even more rights than prisoners of war). The name is not important (unlawful combatants; terrorists; insurgents; detainees) ("A soft word turneth away wrath.").

Let us assume that they are international terrorist criminals. The administration says that they will be treated "consistent" with the Geneva Convention. What does that mean? Does it mean that they will be treated as though the Geneva Convention applied to them? Sounds that way, but we know that is not the case.

The bottom line question is this. Are there accused persons who are captives of United States troops whom we are willing to torture? If so, under what circumstances, by whom, and with what safeguards, if any? And are we going to be allowed to vote on this policy?

Another issue is who is to do the technique. If it indeed is torture as defined by the International Red Cross, or some other international body, such as the United Nations, then do we want our military personnel to do the job? I think not. They are hired to be soldiers and we owe it to them to keep them from having to do that kind of job. Secretary Rumsfeld apparently draws a distinction between torture by our people directly, and torture by some underworld country at our request. Is that right?

The time for joking about the "hazing" is over. I admire Al Gore for asking the question, "How dare they?"; but to adopt his view assumes the question. The question is, is our policy one that we want to maintain? What is our policy?

We could begin without the list of our techniques. We could simply take up various interrogation methods and see if we want to use them. Take the matter of water-boarding. The South Vietnamese in 1964 were treating suspected Viet Cong prisoners to a near-drowning technique: hose down throat, funnel in hose, water poured in funnel until captive thinks he is going to drown; revive, question, then repeat. American "advisors" stood by, supposedly not participating. As I understand it, we now take the captives and dunk them, either on a board or by hand, dunk them repeatedly, causing the captive to think he is about to drown. Question; then repeat. Is this "faux drowning" technique permissible, or is a version of it permissible?

You do not have to decide whether it is torture, just decide whether you want to permit it (or in the case of soldiers, order the soldiers to execute the procedure). Then make that decision publicly, allowing us to vote on it in an open society; then the world will know and we will know what kind of people we are, and what we will do collectively in the name of national security.

It is not enough to say that one or more of us privately, to protect our family, would use torture or worse if the circumstances were right. We are speaking of a national policy, one which we would surely recommend for all other nations of the world.

Is not this issue more important and pressing, than the question of terrorist wiretapping? Should the President dragnet our communications system to find evidence of terrorism, and if so should he submit to Court oversight of the process? Those are important questions, quite apart from whether the President has the power under our constitution to do it the way he has chosen. But are such questions as important as whether we want to order, approve, or condone water-boarding (and other interrogation techniques), and if so under what circumstances, by whom, with what oversight and with what accountability, if any?

GUN COLLECTORS LOSE OUT

2006-01-28T08:11:00.000-08:00

Here we are on the mesa outside of Albuquerque. We are going to blow up some guns. Yes, we have a compressor in town and this week we have squeezed hundreds of guns into scrap metal. But with all of the gun confiscations of late, we are behind, and need to blow up a lot of guns. These are guns which we are legally obligated to return to the ones from whom we took them [inmost instances], but those people are too ignorant or frightened to make a claim. We could bring an action to permit the police to sell the guns at auction, one at a time or en masse, as we do wallets, briefcases, tools, etc., that we have seized. Then why are we blowing up these guns or squeezing them into metal paperweights?

Chief Schultz said blow them up. The Chief is answerable to Mayor Martin Chavez, you say. Well, Mayor Chavez is in charge, but it appears that he approves of the blow up.

This action does not make sense. Hundreds of thousands of handguns are imported, and domestic manufacturers make more. If the gun is workable, it is the product of someone's labor. If it is not contrababnd, such as heroin, why crush the firearm into a paperweight? Why blow it up?

This is like that deal where the police used a chain saw to cut down the trees near an apartment complex, because dope pushers might stand behind a tree to make a sale.

Bottom line. Let us say that someone unlawfully carries (say into a bar) in Albuquerque. The offender is arrested, the firearm is taken for evidence, or even if it is forfeited, what then? Do we punish that firearm by crushing it or blowing it up? Does that make sense? What explains this, in a State where any adult, trained or not, experienced or not, has the absolute right to strap a six-gun on exposed, and walk down the street [yes, certain places excepted]?

Bottom line. New police officer, get ready for the real world. You may be ordered to cut down a bunch of trees next to an apartment complex [to keep drug pushers from hiding behind the trees]. You may be ordered to close that bar, because the police have received too many calls about illegal activity. What, do you suggest that the Chief put more resources out there where the crooks are? That is not how we operate.

So you would like to get some overtime? You have heard that some officers, just as you, same badge, same uniform, same car, earn (?) $30,000 to $40,000 overtime each year? Your turn will come. It is called “Chief’s Overtime.” When the public, such as “BigTime Subdivision” gets fed up with all of the crime in the neighborhood, they talk to the powers in the police department and decide to hire off-duty officers, at time and a half, with the same uniform, same badge, same gun, same car, to do what the police are obligated already to do.

Welcome to the Albuquerque Police Department, the thin blue line. This is said sincerely. You can make a difference. It does not have to be the way it has been. The people will be with you when you ask why? The people want to have a “thin blue line,” and the people admire and respect your service. Do not be disheartened. Leadership is needed. Maybe the Mayor should appoint a Police Commissioner, and see if she can bring the police administration (brass) in line.

CLEAN BILL OF HEALTH LAW

2006-01-26T11:20:00.000-08:00

Here is a suggestion for the powers that be in New Mexico government. Prioritize. Let us put something ahead of the grandiose schemes to invest the public money [taken by taxes]in this enterprise or that. Why take my money from me in the form of taxes and use it to "invest" in any "enterprise"?

Eclipse may get off the ground, with the taxpayers’ help. Why not issue bonds [not backed by New Mexico taxpayers] and see who will buy Eclipse bonds? Spaceport may get off the earth with taxpayers’help. Why not issue bonds for the spaceport [not backed by NM taxpayers]and the sky is the limit! Why not have Intel issue bonds and raise the money it needs, rather than grant it a tax relief of over $200 million per year for decades [keep in mind that $10 million is the annual operating cost of the train to the taxpayers]. Meanwhile, how about addressing ourselves to a more mundane but more important problem.

According to Sen. Tim Jennings of Roswell, we should have a law that imposes a tax to be used by the New Mexico government under Governor Bill Richardson, to pay for screening for breast cancer for low income women. His wife has been diagnosed with cancer after an MRI and we approach this subject with due respect for the feelings of his family and loved ones.

But now this has been put in the newspaper. So we have a right to comment. Why are not all New Mexicans entitled as a matter of right, to preventative, diagnostic medical tests? What is so magical about an MRI? Is it a good diagnostic tool? Do we want to use it, if it gives us bad news? Jennings as much as says that the mamogram, which his wife took every quarter, was not as useful as the MRI. Incidentally, why take a mammogram every quarter, when the doctors say every year or two or five (are the doctors counting the beans?)

Why not use the MRI machine and test everybody, for everything wrong? Every quarter or every month. If you answer anything except “money,” please say what. Money. The greatest nation on earth, in history, cannot provide [by confiscatory taxes] the money to check its citizens to see if they are invaded by the germ enemy (cancer). In years past the military provided examinations for certain diseases, and who complained that it was socialized medicine?

Part of the problem is cost. We hire a brain surgeon to lance a boil. That is not accurate, we give in to the trade union element of the American Medical Association which controls, and says if you New Mexicans want a boil lanced, you must hire a brain surgeon.

Hey. Let’s talk about a spaceport. A train.

DNA SAMPLING EXTENDED BY KATIE’S LAW

2006-01-21T12:14:00.000-08:00

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.

MEDICAL MARIJUANA ON AGENDA; GOVERNOR RICHARDSON DESERVES FULL MARKS

2006-01-20T11:59:00.000-08:00

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).

SHOULD WE RETURN TO “BLUE RIBBON” JURIES?

2006-01-17T12:59:00.000-08:00

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.

POSEY YOUTH ON TRIAL FOR MURDERS

2006-01-17T11:39:00.000-08:00

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.

CONSTABLE BLUNDERS AND MURDERER IS PARDONED

2005-12-29T09:58:00.000-08:00

The title to this post is a paraphrase of (Justice Cardozo’s?) statement in opposition to the exclusionary rule. The federal exclusionary rule, a Court rule not required by the Constitution of the United States, was devised in 1914 in Weeks v. United States. The purpose was to give teeth to the Fourth Amendment prohibition of unreasonable searches and seizures. The Court felt that the only way to give meaning to the prohibition of the unconstitutional activities of the law enforcement officers, was to suppress the evidence obtained, that is to exclude the evidence in any trial of criminal charges against the person whose rights were violated.

We lived with the exclusionary rule in the federal criminal justice system and still do. Each state was allowed to decide whether there should be such a rule for state criminal law trials. New Mexico was one which rejected the idea of an exclusionary rule. Thus, from 1914 to 1961, in New Mexico, if the police violated constitutional rights to privacy, by committing a search and seizure in violation of the Fourth Amendment, the evidence would be excluded (suppressed) in any federal criminal trial, but could be used in a New Mexico criminal trial.

In 1961, that was changed. The United States Supreme Court, in Mapp v. Ohio (1961), ruled that evidence obtained in violation of the Fourth Amendment must be suppressed, excluded, from trials in state criminal cases as well as federal criminal cases. The exclusionary rule is not restricted to wilful, intentional violations of the Fourth Amendment. A constable (read that, any law enforcement officer) may through ignorance of law or clerical error violate the warrant requirement of the Fourth Amendment, or misjudge her powers to search or seize without a warrant. The constable blunders and the murderer goes free. If the evidence is essential to a conviction, then it is true that the constable blunders and the murderer is pardoned. No need for the Governor to act on an application for a pardon or commutation. The constable, or part-time deputy in Jal or Aztec, Yeso or Claunch, has that power.

Next post: How the Supreme Court of New Mexico overruled its precedents and extended the exclusionary rule even beyond that required by the United States Supreme Court. The irony of all of this is that we have a government that is willing to order its agents (CIA or soldiers) to engage in cruel, inhuman or degrading interrogation of captives (a violation of international law), with no warrant requirement, that is, no Court intercession; but we are so insistent on observance of constitutional directives in our domestic criminal procedure that we go overboard and release (pardon) the guilty, including murderers, on hyper-technicalities.

EXECUTION OF STANLEY WILLIAMS

2005-12-13T09:35:00.000-08:00

The execution of Stanley (Tookie) Williams last night was flawed in respect to timing. He was sentenced to death for murder 25 years ago, for a killing that occurred in 1979. A final indignity was the difficulty, or failure, to find a blood vessel for the needle for 15 minutes after Williams was strapped in a modified dentist chair.

With due respect to the United States Supreme Court: you are responsible for the quarter of a century delay in justice. How can you justify such criminal justice procedure? Why is this not “cruel and inhuman” in itself?

Executioners, how about stepping up, shooting Williams with a tranquilizer dart, and then start the procedure? Or offer him a tranquilizer pill if he wants to sit up and look at the audience and spend a few more minutes before the needle is injected; or skip the needle if he wants to do it by some cocktail. The idea is to end his life, not torture him.

Governor Tony Anaya is in the news today. We like and respect Governor Anaya, but he was wrong, and deserves no respect, by and for the way he handled the death penalty during his term. When he ran for Governor, he was forthright in saying he opposed the death penalty, but he misled us when he said that there would be no executions on his watch. The misleading was his omission of an intention to commute every death sentence in New Mexico while he had the power.

Governor Anaya commuted the death sentences of all on death row in New Mexico just before he left office (1984?). There were four or five. He said he would commute the death sentence of a child rape murderer, if the death sentence were imposed in December, but the Judge said I am in control of my calendar, and the sentencing hearing will be in January. That murderer was the first one executed since 1960, and the only to date, to die by lethal injection.

Makes us think of the “Red Light Bandit,” Caryl Chessman, who pretended to be a police officer (red light shining on top of car) and raped in California. One of the women he raped became insane. The jury said death. Twelve years later (yes, 12), Chessman went to the gas chamber. Later, the United States Supreme Court ruled that no one can be executed for any crime against a person except murder.

Perhaps we should give up on the death penalty. Nullification has set in. The juries are reluctant, the Courts are reluctant, the United States Supreme Court is woefully incompetent in this field. Congress is paralyzed, but the blame really lies with the Supreme Court, which affords a review (properly so) of the State’s procedures; but which then clouds and obscures and delays and drags its feet and the feet of the numerous federal Judges, until a quarter of a century goes by between the time that Cain slays Abel and Cain pays the price.

Most of the death penalty cases are not worthy death penalty cases, that is part of the problem. The idea that you take a life, you forfeit your life, sounds good in the Bible, but it does not work. People will not enforce that rule. They should not enforce that rule. The death penalty should be reserved for extraordinary cases, those in which the people, if all sat on a jury, would rise up and say, “Outrage! Kill him!”

Socrates had a jury of 500. Majority rules. After conviction, the jury, in a sentencing proceeding, imposed the punishment, choosing between two: the convict suggested one; the prosecutor suggested another (a glass of hemlock). We could at least have a jury of 1200, by use of video and on-line technology. The idea of leaving life or death decisions to a group of twelve persons who are called for jury duty and have no acceptable excuse (or who want to serve), is unreasonable in the 21st Century. How about a 12 person jury in Texas, handing out sentences of 900 years (murder) and 15 years (Candy Barr, stripper, for one pound of marijuana)?

Question: is it time for a complete review and overhaul of our criminal justice system, including the question of where the police power should reside? For example, in California and about a dozen other States, a doctor can prescribe, and a patient, especially the terminally ill, can take, smoked marijuana as medicine. Yet, the federal government has laws on the books that make the doctor and patient federal criminals. Is this not worthy of attention?

TAXING POWER ABUSED; ARE LIBERALS OR CONSERVATIVES TO BLAME?

2005-12-06T07:21:00.000-08:00

The taxing power is being abused, if you accept our analysis. We believe the taxing power should be limited, and used to raise money for government purposes. Taxes should be fairly imposed, and should be separated from government policy.

For example. Some people would like to own (keep and bear) submachine guns. Tommy guns are preferable, or some other authomatic of more recent vintage. Each to his own. For some reason, good or bad, the government wants to prevent the people from keeping and bearing Tommy Guns. Some in Congress want to take away my right (if it is a constitutional right, they cannot do it, but that is not the issue here).

First question. Those in power in the government (Congress) who want to take away my right to keep and bear a Tommy Gun; are they liberal or conservative? If Congress had been given the police power (in the Constitution), that would enable Congress to forthrightly say the people are to be left alone in the right to keep and bear a Tommy Gun, or to say, the people ought not to, and will not be allowed to, keep and bear a Tommy Gun.

Right there, we would look at Congress, see those who are trying to take away the right to keep and bear the Tommy Gun; and see those who are for staying out of the matter and allowing those who want the gun to keep and bear it. Then we could clearly identify the liberal and the conservative, and vote accordingly.

Complication. The Constitution, which is the social contract we signed, grants certain powers, and some necessarily implied powers, to the United States government; but not the police power. That is reserved to the States, or to the people. So how does Congress manage to outlaw the Tommy Gun? If the Congress wants to take that step, they must hang their hat on the power to regulate interstate commerce, or the power to tax; and in either case, that is an abuse of power.

So Congress imposes a confiscatory tax on Tommy Guns, and in effect usurps the police power, and takes away our right to keep and bear the Tommy Gun. Was that a conservative, or a liberal measure by which they took away that right? If Congress had the police power and took away our Tommy Guns, would that be conservative or liberal?

Some may favor the police power being used to take away people's rights to keep and bear the Tommy Gun. Are they liberal or conservative? But when you favor using the taxing power to accomplish that goal, what are you?

A law was recently passed, to forgive millions in taxes each year (is not this a subsidy?) to induce some promoters to open up businesses in New Mexico. Loans to businesses, with taxpayer money, are subsidies, are they not? Are these practices conservative, or liberal?

Let us pass a law, impose a tax, and raise money and give it to Graham Wellington, a promoter, who wants to open a business in New Mexico (a corporation, or LLC, or limited liability partnership, so Wellington does not risk his own assets). All those in favor, say Aye. Are you liberal? Are you conservative? Are you a Democrat, tax and spend? Or are you a Republican, small, limited government person?

PRESIDENT BUSH IS RIGHT: ABSTINENCE, ONE PARTNER; OR CONDUM

2005-12-01T15:39:00.000-08:00

President George W. Bush, even though his programs are influenced by his religious beliefs [he is wrong to impose his Christian beliefs on others] has a good formula to prevent or help cure AIDS in Africa. It is ABC, abstinence, faithfulness, and condums.

Too bad KKOB radio has two people on who trivialize the problem, on AIDS day. This is a disease. Villaneucci and (I am sorry to say) Richard Eads have trivilized the problem. That is not too bad, because as Jim says, this is a talk show and is for entertainment. But it goes beyond that. He and Richard are saying things that are dangerous to the public.

Jim Villaneucci refers to the two [not the most likely, but the "two"] ways to get AIDS, as [anal sex] and [sex with persons who do drugs with needles]. To our dismay, Richard Eads parrots, "It's preventable!" What did Richard mean? Was he saying, as Jim seemed to be saying, that you can prevent AIDS and keep yourself from getting AIDS, if you do not engage in anal sex or sex with addicts who do drugs with needles?

This is outrageous. KKOB, Villaneucci and Richard Eads should do a series to apologize for their ignorance (best case).

When a caller referred to children in Africa with AIDS, Jim said he felt sorry for the little children, but the money was being wasted! What money? Is he referring to the money used for medicine for the disease? He blithely refers to the 15 billion that USA put up. Wait. It was a pledge of 15 billion over 5 years, which is 3 billion a year. Is that a couple of months of the war in Iraq?

We hereby call on KKOB to apologize for this shallow program, whether entertainment or not, which lets us down in our fight against a terrible disease. When one caller asked about sex with a woman not the wife, Jim started talking about "protection." He also said he was checked for HIV every time he had a physical. What kind of message is he sending? Where is Richard Eads on this? Is it wrong to call this OUTRAGEOUS?

The impression the hosts left from this AIDS program was that one need not worry about AIDS if one did not engage on the receiving end in anal sex, and avoided sex with people who use needles for drug addictions. No emphasis, no reference, to practices to protect oneself otherwise, except the generalization, "protection." And get a blood test every time that you get a physical. Is this comment unfair? Perhaps so.

MAYOR SHOULD BE COMMENDED FOR VIDEO SURVEILLANCE

2005-12-01T10:25:00.000-08:00

In the title to this blog, we use the term “video surveillance,” as that is a forthright description of what we are talking about. You may call it “Big Brother.” Sugar coating video surveillance by calling it “red light cameras,” may make it more acceptable in the short run. But we may want to step up and say that video surveillance by the police, in a public place, is an acceptable practice in law enforcement; and in such case, we should discard the euphemisms.

Mayor Martin Chavez is a leader in this form of law enforcement, and he should be commended. We ought to encourage him and the police to use video surveillance for deterrence of speeders, red light runners, stop sign runners, drivers who change lanes illegally, impaired drivers, tailgaters, and other dangerous drivers. No one has a right to drive dangerously in a motor vehicle on the public roadways.

This is a limited government, a government of delegated powers, so it is not accurate to say that driving of a motor vehicle is a privilege. It is a right. However, it may be regulated, or limited, for the protection of public health and safety. So we are back to the point: no one has a right to drive dangerously in a motor vehicle on the public roadways. We have laws against it, the laws are within the law-making power of the Legislature (and City legislature), and the laws should be enforced. These are generalities with which most citizens would agree. Here, now, is where we part company.

How and when and in what circumstances, do we enforce the law against speeding? Today, if the law is enforced, it is hit and miss. If the speeder causes an accident, the speeding may come to the attention of the police. If a police person is in a vehicle on the highway, the speeder may be detected, with or without radar. If a police person is in a crow’s nest atop a machine used to lift workers into the air for tree trimming, telephone line repair, and the like, the speeder may be detected. Apprehension is another matter. Prosecution is another matter. Apprehension entails danger to the police person who makes the physical stop, and to other people on the roadway. Prosecution requires time and effort, appearance of witnesses, etc. Video makes conviction more certain and deters trial demands in cases where there is no honest defense.

Once the speeder is detected and apprehended, and prosecuted (commencing with summons), the question arises, what is the appropriate punishment? One dollar, ten dollars, or one hundred dollars fine, for each mile over the posted speed limit? People would balk at the idea that one mile over the limit should draw a $300 fine, would they not? But isn’t that someone’s suggestion for a fine for school zone speeding? They say a drunk driver drives drunk 1,200 times for each time she is caught. How many times does a speeder speed for each time she is caught? Is it not obvious that certainty of detection and prosecution will be adequate deterrence, without draconian fines? If you take off for Santa Fe from Albuquerque, unless you are in dire circumstances, you will not speed if you are certain to be detected and prosecuted, even if the fine is relatively modest.

We as the majority have a right to punish speeders; but we have an obligation to catch as many guilty as we reasonably can, so that the ones who are caught and prosecuted do not have to pay for the crimes of the many. For each crime, someone pays a fine; but it is not always the one who commits the crime. In these days of modern technology in law enforcement, it is not right to make A pay for her crime and for the crime of B, if we can easily make each pay for her own offense.

The use of video surveillance of our roadways will enable our police to detect and prosecute traffic offenders. The placement of such cameras in many different locations, on and about the roadways, will make our streets and highways safer for all. We drive from North 14 down South to Interstate 40, and often see two Sheriff’s vehicles sitting beside the highway, watching for traffic offenders. If we had a half dozen video surveillance cameras on Highway 14 North, would not that accomplish the job?

How should we handle the prosecution, after we have detected the dangerous driver, and if we do not immediately apprehend him? Now, in Albuquerque, the matter is handled as a civil infraction, nuisance-type offense, and the citation goes out from Arizona to the address of the registered owner. Some objected to that, because the registered owner is automatically suspected of being the driver when the vehicle runs a red light, for example. That is a hyper-technical defense which ought to be rejected.

If a motor vehicle is operated, on the roadway, it may be presumed in the law, to be operated by its registered owner. The presumption is rebuttable, but in the absence of a sworn denial by the registered owner, the presumption should be adequate for conviction of a crime, including DWI and vehicular homicide. These examples may arise after an accident and when the police arrive there is no driver around, or there are several persons around and none acknowledges driving the offender vehicle.

Finally, it might not be necessary to cite an offending driver, even for a civil infraction. The police could install the cameras, put the results on line, and invite the insurance companies to the database. We could use the Arizona firm, for instance, but not pay by the infraction cited, but by the day or month.

Imagine that your driving habits are going on line, for your insurance company to see or review; for some trial lawyer to see or review in case of an accident even months later, etc. Would this prospect get your attention? All of us would be able to look online and see and review infractions of the law in video. We could eliminate favoritism, ticket fixing, and the like. Big Citizens keeping a watch on the offenders, and on the law enforcement authorities.

PRESIDENT BUSH AND VP CHENEY GETTING BAD RAP

2005-11-18T16:51:00.000-08:00

This torture, no torture debate needs some direction. Too bad the listener cannot ask questions. Right now we have the Senate saying 90-9, “[No] cruel, inhuman or degrading [treatment of prisoners]”. Vice President Cheney is saying, let us exempt agents of the CIA when the acts are done on foreign soil. President Bush is saying, “We do not torture.” Some critics are saying that the President and Vice President are contradicting each other.

What the critics say does not necessarily follow. Even if the President and Vice President were talking about the same conduct, they may be consistent. It may be that we do not torture, as that term is defined by Alberto Gonzales, the Attorney General. Or it may be that some of us have tortured, as Gonzales defines the term, but that we have quit and have been prosecuted. Then the President’s assurances would be accurate.

It may be that Vice President Cheney is talking about “torture” as that term is used by the President (and the Attorney General), in which case Cheney may be asking Congress to exempt the CIA on foreign soil, from prosecution for torture. If such is the case, there is an inconsistency between what the President is saying and what the Vice President is asking. However, if the Vice President is seeking an exemption from prosecution merely for cruel, inhuman or degrading treatment of suspected terrorists, there would be no inconsistency. Merely exempt the CIA from prosecution for treatment of terrorists in a cruel, inhuman or degrading manner on foreign soil. We can still say we do not torture.

One problem, as Defense Secretary Rumsfeld points out, is that other countries in the civilized world may contend that a violation of the convention against cruel, inhuman or degrading treatment, is indeed “torture,” or may constitute “torture,” even though the treatment does not amount to “torture” under the latest revision of the definition by Attorney General Gonzales.

What is more likely than not, is that the President and Vice President and the Attorney General, are all on the same page, and that literally there is no inconsistency between the remarks of Bush and Cheney. President Bush says we do not torture, and that can reasonably be taken to mean that we do not torture as that term has been defined by Alberto Gonzales. Vice President Cheney says in effect, we do use cruel, inhuman or degrading treatment of suspected terrorists; but we do it by the CIA and on foreign soil. Let us continue, as we need to do it for our defense. It would seem that there is no inconsistency, and that the critics are wrong to say so.

It is another matter if the critics want to step up and say that Gonzales was wrong on his definition, that any reasonable person knows that he was wrong, that the President knows that he was wrong, and that the President is not being forthcoming when he says, “We do not torture.” The critics would then be accusing the President of trying to mislead us regarding our policy in the treatment of alleged terrorists. The critics could also say that the watered down torture treatment of “cruel, inhuman or degrading treatment” is something we do not want to tolerate, not even by the CIA on foreign soil. Then we would have the issues defined and could have an intelligent debate, without name calling.

As we understand it, we have treaties (specifically, “Geneva Conventions”) by which we agree, (1) we will not torture prisoners of war; and (2) we will not treat any prisoner in a “cruel, inhuman or degrading” manner. It is important to keep those two prohibitions separate in our minds, as the debate progresses.

Let us not confuse the issue by simply saying, “We do not torture.” Do we use the techniques of sleep deprivation, the near-drowning, the electric prod, the foreign object inserted, the chaining to concrete floor in fetal position in waste? We did do so at Abu Grab [sic], did we not? That is, did not some rogue, out of control United States military people at a low level of command, at that prison, on some isolated night shift, perform some of these techniques? Let us be specific when we say we do not torture. It would seem that the electric prod, for example, or the near-drowning, which would cause discomfort; or the sleep deprivation technique, or the chain to floor in waste technique, which might induce temporary psychosis, would not be torture under the Alberto Gonzales definition. Would they not be “cruel, inhuman or degrading” treatment?

What if the Senate had defeated by 90-9, this new legislative “thou shalt not?” Would we say then that the techniques described are moral under the circumstances? Since the Senate passed this new “thou shalt not,” should we now say that the techniques are immoral under the circumstances? Should we ask for an exception for the CIA on foreign soil (does it matter whether it is by Sgt. England in a military lockup in the mainland USA, or a nameless CIA in a secret prison in foreign territory)?

How about under the “ticking dirty bomb” scenario, would the techniques described be moral under those circumstances? Would torture as defined by Attorney General Gonzales be justified under the “ticking dirty bomb” scenario? Would it require an amendment of some Geneva convention, a treaty which we have signed and ratified?

Would it be best if we came on forthrightly and advocated an amendment, to allow “torture straight up” in certain cases, and let someone (who?) decide the cases? If the application for the warrant were signed by the Secretary of Defense, and approved by the Supreme Court, would a warrant authorizing straight-up torture be justifiable? If our treaties do not allow it, that would be another problem, but assuming that we could get around the treaties, would we want it?

Can we rationally discuss these matters, even debate these policies? We need not identify our political persuasion (though you must see that the writer is a liberal). We could start by identifying the issues. First, all seem to agree that we should not torture (even if they do not agree as to whether we have been torturing). Fine; no torture. Next, let us define our term. What do we mean by torture? We are familiar with some of the interrogation techniques that are criticized. It would help if we would take these techniques, one at a time, and examine and explain them, and then decide whether they are “torture” as we use the term.

Once we define torture (think of it as a small circle), then we can proceed to define the term “cruel, inhuman or degrading,” which is a large circle which includes the torture. We do not suppose that very many Americans object to interrogation by any technique which is not cruel, inhuman or degrading.

To get here, to allow interrogation at all, we have to agree that these detainees are not prisoners of war, otherwise the Geneva conventions would apply. As we understand it, the Geneva prisoner of war convention bars interrogation, period. That is what Alberto Gonzales thought was "quaint" in todays war on terror. (Some misunderstood him, we believe, and thought he was saying that the Geneva conventions were "quaint."

LET’S PASS A LAW, IMPOSE A TAX, AND USE THE MONEY FOR THIS DEAL

2005-11-15T15:47:00.000-08:00

Graham Wellington is the CEO of an LLC, and he is giving the New Mexico taxpayers an opportunity to invest in Wellington’s company. The company is a start-up type of company, with an idea that looks very promising. Wellington is the Chief Executive. The LLC is WELLINGTON ENTERPRISES, a limited liability company, formed as such to protect Wellington and his partners from being personally liable for the debts of the company.

The question is whether we New Mexico taxpayers should pass a law to impose a tax to raise the money and allow one of our employees or elected officials to invest with Wellington.

Joe Sixpack, who is a taxpayer, has asked us to explain how this works. He said he read that there are Albuquerque based companies which act as brokers between the State treasury people and enterprises such as that of WELLINGTON. Taxpayer money is involved. Taxpayers are required to pay taxes to raise money for the State to lend or give to enterprises such as that of WELLINGTON and other new, start-up companies. A middleman is also involved, making a living brokering between the State treasury and the promoters, such as Wellington. The idea is that we, the taxpayers, should invest in new companies, to create jobs, etc., and we will all be better off in the long run. We could keep those taxes and make our own investments, but the government of New Mexico believes it is better that the government handle the matter.

Joe Sixpack wanted to know how this got started, and why? He wonders why WELLINGTON ENTERPRISES does not simply borrow the start-up money from investors in general. Sell stock, or bonds and raise the money. When the project becomes profitable, all get paid back. If not all goes well, then the investors lose, but they stood to gain. But what if no one will invest with WELLINGTON? The company will never get off the ground. That is true. However, is it right to force the taxpayers to pay for this venture? Is this trip necessary?

The government cannot guarantee that all the children can get enough to eat, nor get a doctor when needed. The government should prioritize and take care of first things first. Two square meals, a roof over the head, and a doctor when sick. For all Americans. No pseudo entitlement, with a waiting list. If there is a waiting list, there is no entitlement for all.

When the government provides food, shelter and a doctor, that is socialism. No doubt about it. But it is just a small amount of socialism, like an inoculation. Over and above these necessities of life, which the taxpayers should provide under the social compact, there are material goals aplenty to keep us all working and producing. That is the beauty of rugged free enterprise, material reward to the diligent, the producers. Free enterprise brings out the best in us, whether it be movie star talent, ball playing talent, lawyering talent, CEO talent, or any other talent useful in a lawful occupation. That is why the estate tax is wrong; it penalizes production. Excessive taxation does the same.

We can have rugged free enterprise, consistent with cradle to the grave security. For example, body parts are not for sale. A human heart will not be transplanted to the high bidder. Blood donors who donate blood for medical care are not paid. This taste of socialism is familiar to those who have served in the military: socialized medicine; food, shelter, clothing.

Senator Robert Dole had the right idea. In 1996 he said give them a safety net, but not a hammock. Well and good. However, a safety floor is what we need, rather than a net. A safety floor (food, shelter, medical care) is an entitlement of all Americans who stay in this country after coming of age. This is a social compact which started in 1787. “We the People of the United States, in Order to . . . promote the general Welfare, . . . do ordain and establish this Constitution for the United States of America.” As each of us comes of age and remains in this country, we agree to abide by the social compact.

We agree to go to prison for smoking marijuana to relieve ourselves of unbearable pain; we agree to go to prison for crimes and misdemeanors which we commit; we agree to pay taxes, including those imposed on us to lend or give to some start up company which the powers that be decide deserves a hand up from the taxpayers. We agree that some people (those who form corporations) can make millions per year.

We agree to some of these corporations receiving subsidies from us, the taxpayers. We agree that we and our children and grandchildren will serve in the military to fight the wars that our government chooses to fight. We the People do our part. We are entitled – not some of us; not most of us; all of us. An entitlement delayed is an entitlement denied; so no waiting lists.

JUSTICE DEPARTMENT MISSES POINT; PROSECUTORS SHOULD BE CAREFUL

2005-11-04T12:07:00.000-08:00

Here in New Mexico, in announcing the indictments against Robert Vigil, our elected State Treasurer, United States Attorney David Iglesias, made some reference to the Treasurer using the treasury like an ATM machine. The accused, now resigned, is represented by Sam Bregman, an Albuquerque attorney who also has been trying his case in the media (tit for tat, fair response, etc., do not apply if either lawyer is wrong).

Bregman filed a motion asking for some relief because of the U.S. Attorney’s public statement about the ATM machine; and in the motion pointed out that the prosecutor has left the impression that there was a direct theft of cash from the State treasury. Bregman, the defense lawyer, invited the attention of the federal Judge to the fact that the charges were kickbacks, not placing the hand in the till to take money. In so doing, Bregman was claiming that the public remarks of the U.S. Attorney were argumentative, went beyond the mere recitation of the facts alleged in the indictment, and tended to taint the jury pool. He was also claiming that an allegation of stealing the public money directly, was worse than an allegation of taking kickbacks or bribes or extorting bribes.

In the response reportedly made by the office of the U.S. Attorney, it was argued that the metaphor of the accused’s conduct was accurate. Big deal. The metaphor (or simile) probably was accurate, in a broad sense, because when the accused authorized payment of taxpayer money, knowing he, the accused, would get some of that money back to himself through kickback, bribe, or extortion, that is like using the State treasury like an ATM machine. So is the U.S. Attorney cleared? There remains the matter of using a metaphor at all.

The use of the metaphor is argument, and places the integrity and personal beliefs of the U.S. Attorney into the balance against the accused. This tends to taint the jury pool. This is wrong, even if it does not taint the jury pool. And it is all under the guise of a permissible, simple public announcement of an investigation and the resulting indictment (things the public is entitled to know). The U.S. Attorney has every right to characterize the accused’s conduct as use of the State treasury like a personal ATM. But the place and time were wrong. This should be a part of the argument in the trial, after all the evidence is in.

Special Prosecutor Pat Fitzgerald made a similar mistake when he publicly announced the indictment of Scooter Libby. Fitzgerald used a baseball analogy. First, he referred to a pitcher (unknown) who winds up and throws a fastball and “. . . hit the batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that . . . .” And later he stated, “And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure out what happened and somebody blocked their view.”

Fitzgerald spoke of how important the investigation [and case] are to all of us, and that it shows the world thus and so; and the investigation is important because we need the intelligence [that the CIA is able to get with volunteer agents who expect and need protection]. (Washington Post website.)

In a sense, there is probably no harm done. The jury pool may not be tainted by such tactics. The public has heard so many lawyers, including prosecutors, try their cases in the media, that the public may very well take such tactics as mere lawyer talk. Like F. Lee Bailey and Alan Dershowitz saying (as if they knew) that O. J. Simpson was innocent of butchering his ex-wife. Like the car dealers claiming that they have a “sale” going on, where one can “save” thousands of dollars; and that the manufacturers are going to throw in a “rebate,” and you can do it all on credit with “0%” interest. Does the public really fall for those claims? Perhaps the public is smart enough to disregard all of these pretrial histrionics in criminal cases.

HOME ALONE; BUT OUT OF BEER

2005-10-30T07:07:00.000-08:00

Here I am, home alone. Watching the game on TV. I am feeling good! Problem is, I am out of beer. Nothing in house. I want to keep drinking, because I am feeling good, watching the game, not hurting anybody, minding my own business. Baloney and cheese and white sliced bread in the ice box, so all is okay, but no beer. If I get in the pickup and try to go to a drive in window, there are no such windows. So I should park and walk in to the gas station, 7-11, or Walgreens, and buy myself a 12 pack. I am not Joe Sixpack.

But I know that if I get in the pickup and start driving down the street, I may hit a child, or crash into a minivan with a mom and children. It is 11:00 a.m., and some are going about their business, not expecting an impaired driver on the streets.

I heard that one blogger said we need home delivery. That is a good idea. I could call and have a case of Coors brought to my door. There are those who oppose that idea, and have got the law fixed so it is illegal for anyone to provide that service (except of course UPS is allowed to deliver wine to the better people). If I could buy my beer like a domino pizza, I would do it. The law says no. No one speaks up for home delivery of booze, except that one blogger.

Perhaps I will just go to sleep and not get in my pickup and endanger those kids on the street. If I go out on the street in my pickup, I hope someone calls DWI RESOURCE CENTER. They can bring an open mind and good judgment to this problem.

HARRIET MIERS KNOWS ALL THE CONSTITUTIONAL LAW NEEDED

2005-10-25T14:54:00.000-07:00

From what we see in the papers, Harriet Miers is qualified to be on the Supreme Court. She obviously is not the most qualified person, but since when is that a reason to reject a nominee. Some Democrats plan to oppose her because they fear she would vote to overrule or limit the rule of Roe v. Wade. This is not a case where we are picking a representative to vote on whether the law ought to guarantee that a pregnant woman has an absolute right to end her pregnancy by abortion in the first trimester. We are picking someone to be a judge. If we believe she would be a good judge, we have nothing to fear, because a good judge will not let her own personal views interfere with her obligation to follow the law without fear or favor.

It has been said by many that she is not qualified because she is not well versed in federal constitutional law. That is not a big problem. She has not argued 39 cases in the Supreme Court, as Chief Justice John Roberts had. But how important is that? How much did John Roberts, lawyer, learn after the first or second appearance he made in the United States Supreme Court? What did he learn about? Sure, he learned some of the idiosyncrasies of the individual justices (from listening to them in oral arguments which were held in relative secrecy, no live audio nor video). Perhaps Roberts was there when Chief Justice Rehnquist in open Court reprimanded the lawyer who, while arguing his case, made the mistake of addressing the Chief as “Judge,” instead of “Mr. Chief Justice.”

What do you learn in oral argument before a Court where the justices interrupt the lawyers and talk down to them and otherwise treat them with disrespect? You learn what you are up against, and that is all. It is like talking to an audience; you learn what the audience is like and you try to please without being obsequious. Whatever constitutional law, or other law, you learn, you learn in reading the law and doing the brief. I doubt that the justices often ask questions and make comments to the arguing lawyers, in order to learn. I believe the questions that the justices ask (in the United States Supreme Court oral arguments) are often for the purpose of expounding the preconceived opinions of the one asking the questions.

A good example is that (it is reported) the new Chief Justice, at his first oral argument, interrupted the arguing lawyer during the lawyer’s first sentence, with a question which began with words to the effect,”But doesn’t that do thus and so, etc.?” What does that say about the Chief Justice? Would Harriet Miers have done that?

The Justices do not read all of the petitions for hearings; there are thousands each year. They do not even claim to read the one-paragraph summaries contained in the petitions. They delegate this task to clerks or committees of clerks. They may tell their clerk to keep on the lookout for a case which will allow the Court to take up such and such an issue. We do not learn about this, because of the secrecy of the proceedings of this branch of the government. How would we feel if a general jurisdiction trial judge (say District Court, in New Mexico; or Superior Court, in California; or Supreme Court, in New York) were to tell her clerk, “Be on the lookout for a case that we can get assigned to hear, and that raises the issue of thus and so?” How would we feel if we were a party on one side or the other of a case involving just that issue?

If Harriet Miers is a good lawyer, with decades of experience as a lawyer, and especially if her experience has been varied, then she is qualified to be on the Supreme Court. She no more needs a cram course in constitutional law (read that federal constitutional law) than she needs one in the law of crimes, or the tax code, or the United States Code, or any of the other numerous fields of law that come before the Supreme Court. A good course in statutory construction would be helpful. A good course in American history would help. Latin would be a relative waste of time. A good grounding in law school, and experience, are enough.

It is not necessary that she have been a judge; there is always the first time when a lawyer becomes a judge. If you insist on a judge, at least insist on a trial Court judge.

If Harriet Miers is an honest person and a fair-minded person, and if she has the professional qualifications, then let her have the job. Let President Bush have his choice if we can be satisfied that Ms. Miers is honest and fair-minded, and experienced as a lawyer for decades. How would Chief Justice Roberts have done if given a job as a federal prosecutor, or a State public defender, or second chair in the defense of a medical malpractice case? Probably, very well; but that is because he is bright, not because he argued almost 40 cases before the Supreme Court.

The Supreme Court requires you to file an application to have your case heard; and if you are lucky enough to get a hearing, you will spend many days on the research and several days writing and editing your brief for the Court. You will then get 45 minutes to orally argue; big deal. So Chief Justice Roberts stood in the Supreme Court for 30 hours over the time of his career. I do not minimize that; I respect his abilities and reputation. But the lawyers who make oral argument before the Supreme Court seem to me to be like a specialty team (say kick-off) in football. We want industry, patience, good will, courtesy, integrity; and considerable experience as a lawyer in a wide variety of jobs.

If you personally had a very important case, one that affected your life or the lives of your family, would you want it tried to Judge Roberts, or to Judge Miers (sitting as a solo trial judge)?

ALBUQUERQUE BUSINESSES TO PAY EXTRA FOR POLICE PROTECTION

2005-10-22T21:38:00.000-07:00

This week it was reported in the Albuquerque Journal that the City has entered into an agreement with owners of seventeen (17) convenience stores. The City found that there is a considerable amount of crime in and about these stores, and the police are too often called out to those locations to respond to crimes in progress or to take reports of crime. These are only a fraction of the total convenience stores in Albuquerque, and someone is quoted as saying that these stores are in bad neighborhoods. What is a “bad neighborhood,” except one in which there is an inordinate amount of crime?

Apparently the City plans to treat these stores differently from “crack houses” and East Central or South Broadway bars, locations which also generate an unusual number of calls for the police. Those bars will be bulldozed, or the owners bought out and the lots turned to uses that are approved by the City. Trees near apartment houses have been cut down by the City, because drug dealers may hide behind the trees and do drug deals.

We may wonder why the police do not simply put more officers in these areas, if there is more crime there that needs attention. Under the agreement, in order to avoid what they consider to be onerous regulation by the City, the store owners will take action to provide greater security for these premises. They will hire security. That is, in addition to utilizing the police protection that is now afforded, the store owners will hire further security officers at the owners’ expense. Thus business people who are operating legitimate businesses are being penalized because crime occurs in their stores or on their store premises. If crime is there, the police ought to be there. Instead of making sure the police are there, to protect and serve, the City sees an opportunity to sell protection.

The store owners have a choice: hire private security guards, or hire APD police to work for the store owners and provide police protection. These APD officers would be off-duty officers of the APD, but they would work for the store owners (for time and a half). They would look, and presumably act, like police officers on duty. They would drive the same cars, wear the same uniforms, carry the same gun and equipment and badge. A citizen would not be able to tell that these officers were not regular police officers, doing their duty protecting and serving. These are officers on “Chief’s Overtime.”

The store owners have a choice. They can hire these officers, or hire private security people. But they must hire one or the other. Which do you think the store owner is going to choose? Which would you choose? There is at least an appearance of impropriety here. It appears that the City is selling protection; or is allowing its off-duty officers to sell protection and mislead the public as to who is their employer. When I see an AKAL security officer, I believe that the officer is working for AKAL and the store owner who hired that security. When I see an APD officer, in uniform and official car and badge, I do not know who that officer is working for.

In the Thirties, protection was sold in the big cities, and the numbers racket was available. Today, protection is sold (although it is by commissioned officers, with the sanction of the City); and the State, yes, the State of New Mexico, runs the numbers game.

DEMEANING THE FEDERAL COURT

2005-10-15T12:05:00.000-07:00

The case of United States v. Vigil is on trial – in the newspapers. It is rare that federal cases in New Mexico are tried in the newspapers. It is unseemly. The United States Attorney struck the first low blow, if the papers are right. He held a press conference and summed up by alleging that the State Treasurer, Mr. Vigil, was using the treasury as a personal ATM machine.

Sam Bregman, defense attorney, responded with the usual denial of guilt, but went one further. Instead of following the Reardon Rules, and restricting his statement to the approved rubric, “My client asserts his innocence.”, Bregman states that he, Bregman, knows that Vigil is innocent. In this, he went way over the line, unless he is an eye witness, in which case he should drop out as lawyer.

Perhaps Mr. Bregman has been influenced by lawyers such as Alan Dershowitz and F. Lee Bailey, who violated the rules of lawyering by expressing their personal opinions as to the guilt or innocence of a client, O. J. Simpson. But what motivates David C. Iglesias, U.S. Attorney, to try his case in the newspapers? Is it politics? He is certainly painting the Democratic party as a bunch of thieves and our elected Democrat watchdog officials as incompetent or corrupt. He has experienced assistants. Is he consulting them, have they become “yes-men,” or is he out there on his own? Does he have political ambitions?

Do you question whether Iglesias is trying his case in the newspapers? Why file (so it becomes public) detailed affidavits and so-called exhibits to “motions?” Do you question whether Bregman is following suit? Then point out another such exhibition. This mess degrades the federal Court criminal justice system.

In part, we blame the federal Courts, from the Supreme Court down. They operate in relative secrecy. No audio; no video. What a pity, because the federal Court in New Mexico would, if televised and put on line, raise all of the judiciary and justice system in the eyes of the citizens.

What a waste, to not have been able to see the hearing yesterday, regarding the conditions of release of the accused, Vigil, on live television, audio, and on-line. Senior U.S. District Court Judge James A. Parker, on-line, would do a great deal to restore, or bolster, the confidence of the people in the justice system.

IT IS TIME FOR OPENNESS IN SUPREME COURT PROCEEDINGS

2005-10-04T13:34:00.000-07:00

John Roberts has taken his seat as Chief Justice of the United States, or Chief Justice of the Supreme Court of the United States, as we prefer to say. We are life-long Franklin Roosevelt Democrats. We believe Senator Jeff Bingaman did the right thing by voting for Justice Roberts, and we wish the Chief Justice well. We wish the Court well.

There is something we would like to see, however, and now is the time. We would like to see more openness in the Court. We would like to have live audo and video, going onto the internet, of all arguments, and other "public" proceedings. We are not asking to be in on the conferences, nor the arguments among the Justices themselves, or their clerks, and certainly not their deliberations.

We want the television camera to go unobtrusively into the courtroom during public proceedings. Why not? The camera goes almost everywhere in government (our founding fathers excluded the public from the Senate galleries at the beginning). The Senate, the House, the OJ trial, State funerals, etc.

Why not telecast the arguments, for example, in cases of such great public interest and importance? As this is written (updated)Chief Justice Roberts is presiding at a "public" hearing on an assisted suicide case from Oregon. It is not right for the Court to prohibit live and on-line video of the arguments. It is an outrage that the Court prohibits live audio of the arguments.

Would the camera be a distraction? Why? Would the lawyers ham it up? I doubt it. Is the Chief Justice unable to control counsel in this courtroom? I believe the Justices and the lawyers would be on their best behavior, paying attention. The world would know what a wonderful system of government we have, and how fair-minded our Courts are.

We blame the news media for not insisting years ago that these proceedings be televised. But now, with a change in administration of the Court, now is the time. Justice Roberts seems like a reasonable man. Ask him. Let us take a straw vote. Let Congress speak out. Our Supreme Court conducts its public proceedings in relative secrecy. Let the sunshine in.

LET THE SUN SHINE IN TO OUR GOVERNMENT

2005-09-28T07:47:00.000-07:00

The County Clerk of Bernalillo County maintains records of real estate transactions: deeds, mortgages, liens, etc. She has these on a database in her office downtown. If Joe Sixpack wants to look at these records (they are public records), he can go down to the building at 5th and Marquette and go up to the Sixth floor and ask a clerk to look into the computer. Older records are there (prior to 1995?) on microfilm. Parking? It is to work at.

Why is this? These are our records, public records. Why are they not on line? Why cannot Jane Sixpack access these public records from her own computer in her own home, or at the public library?

Same deal with the contracts that the City, County and State enter into with middlemen of all sorts. Why cannot we see these contracts on line? For example, how much is the attorney going to take for his fee of the $100 million bond issue the County authorized? Is it a reasonable amount? Is it based on work done, hourly rate? Or is it a percentage? If it is a percentage, then why? Will the attorney get $125,000? That is more than we pay the Chief Justice for a whole year’s work. How many hours will be put into this work? What rate per hour?

If that gated community in the Northeast Heights hires some off-duty police officers and pays them time and a half to patrol the neighborhood, in government, marked police cars, in uniform with badge and gun, what is this all about? The answer is in the contract, a writing, which could be put on line but is not. Why not? If the Chief wants to let his officers be hired by private individuals to police for those special ones, and call the plan “Chief’s Overtime,” then let him put the contracts on line. Sunshine could cure a lot of our problems, and make right a lot of our wrongs.

Let technology help us become Big Citizens.

CHARITABLE GIVING COMMENDABLE BUT RESULTS IN NEGLECT OF RESPONSIBILITY

2005-09-23T12:54:00.000-07:00

During this time of devastation and tragedy in the Gulf Coast, due to Katrina, and now Rita, we are all being asked to contribute to the Red Cross, Salvation Army, Habitat for Humanity, and others. That is admirable, that we will do so. However, this giving results in a neglect of responsibility. The responsibility is that of the government [taxpayers] under the social contract. The more that is given by private parties, the less the government has to pay out. The government is not taking full responsibility.

Which government? Historicallly, it should be the taxpayers of the settlement, the place where each in need, was born. Where when you have to go there, they have to take you in. Now, in the 21st century, it should be the taxpayers of the federal government, due to modern means of travel and free access to each community of the nation.

Professor William Bennett apparently does not object to payments of federal taxpayer funds for these purposes; but he says all federal taxpayer assistance should be "funneled" through charities. If you need a meal, go to a faith based institution and beg. If you need a cancer operation for your baby, put a fruit jar out near the cash register of the neighborhood filling station.

As a part of the social contract (my new-born grandson is subject to the draft as cannon fodder for another Vietnam or Irag), the children, at least, ought to be able to rely on the federal government for an entitlement, yes, entitlement: two square meals, a doctor when sick, preventative medicine and dental care, a roof over the head, and first class education.

The Joy Junction mayordomo says he will not open his books, and that he is exempt from any government regulation imposing such a requirement. That is gall, for sure. I heard him say this on KKOB morning show when Larry Ahrens was still there. What does he do that the federal government should not take over, if worthy? Same with the American Red Cross; why should there be an "American Red Cross?" They do some good, but it is the responsibility of the federal taxpayers.

Is there a qualified needy person out there? Like a homeless, penniless quadriplegic? Yes. Who, if anyone, owes that person a life with dignity and the necessaries? Every taxpayer of the federal government of the United States; or else the social contract set forth in and by the Constition is a dead letter due to the greed of modern citizens.

PLEDGE OF ALLEGIANCE

2005-09-21T08:42:00.000-07:00

The schools ask the children to stand up and pledge allegiance. Sort of a daily loyalty oath. We are not talking about naturalization, and that oath requirement. Children citizens are asked to stand and pledge.

The Supreme Court as early as 1943 ruled that it was unconstitutional, a violation of the First and Fourteenth Amendments, to require a civic pledge of those public school children whose religion forbad all pledges. Board of Education v. Barnette, 319 U.S. 624 (1943).

Thereafter, until 1952, the school authorities would ask the class to stand and pledge, and some would be allowed to remain sitting.

Then in 1952, Congress added the words, “under God,” to the pledge, somewhat modifying the word, "indivisible". Now the question became, is it enough that the child may decline to take the pledge, does that right to dissent by remaining sitting, or silent, avoid the idea that the government [compulsory school] is establishing a religion.

I was old enough to take the pledge when I was seven. I knew, from the knee of my Southern Baptist mother, that I was required to decide on a very big question. Did I want to say that I accept Jesus as a savior, and my savior, and that I believed that if I did so and walked down the aisle of the church in public ceremony and accepted baptism by immersion [none else would do] then I would have eternal life? Or did I want to fail to believe, accept, and be baptized, and risk that if I died before being saved, I would be sent to Hell, to eternal fire and damnation? The way the Baptist preachers described Hell in those days was graphic. I chose the right way.

I did as my mother wanted, and her desires, regardless of whether they were logical, or efficacious for me, were the desires of my mother and my compliance made her feel good and gave her comfort. So I am glad I was converted as a Baptist. Under that religion, no matter whether I sinned, or erred, afterward, I was converted, saved, and would land in heaven, and that has to be a great comfort to a mother.

How about simply returning to the old pledge, the one used during the Great Depression and during World War II. "One nation, indivisible, with liberty and justice for all." We do not have to say that we are rejecting religion, or taking the Lord out of the schools. We can say that we are returning to the basic civics values that the senior citizens were taught in grade school.

LESSON OF TRAGEDY AT NEW ORLEANS

2005-09-10T15:37:00.000-07:00

This post is not about blame in connection with the tragedy at New Orleans. Let us look forward and work to prepare for future catastrophes. There are dams all over the country. There are nuclear plants, chemical plants, and other sites that could be turned into a catastrophe if modern technology were applied by terrorists.

Locally, we have Cochiti Dam. We also have something, which most of us are vaguely aware of, but do not know and understand, here at Sandia Base and Kirtland Air Force Base and in the Manzanos. We have an obviously vulnerable Big I.

Whether these devastations occur by act of God, by negligence of our own people, or by intentional acts of suicidal terrorists, we need to be prepared. The people are ready; they are compassionate, generous, and with some few exceptions are honest and willing to help each other. Do we have plans? Is there a plan for what to do if Cochiti Dam lets go? When we say plan, we must mean plan and arrangements to implement the plan. Group I does this; Group II does this; other groups are ready, in reserve, and able to act; and through an ever widening circle of groups, we contain and help.

The first question is, does government have a role in these matters, preventing catastrophes and helping when there are catastrophes? Most would say, of course, obviously, the question is ridiculous. But then why do we praise all of the individual contributions, from unaffected communities, to the American Red Cross, the Salvation Army, and Habitats for Humanity [is this not a token, feel-good, help organization, using and abusing the name of our best living president, Jimmy Carter]?

The next question is, should the people pitch in and contribute money or foodstuffs, or other supplies? Of course, among themselves, the victims. But why should people in New York and Alaska and New Mexico contribute money for the relief of deserving victims of a catastrophe in Louisiana? Is not this a matter that should be handled by the government? This is a government matter, or it is a matter to be handled by individuals, voluntarily, through private charitable work. We could leave this out of the government sector, but we do not recommend that.

We, the people, want to help at these times. That is good, but our help should be to fill in the nooks and crannies. The government [taxpayers, the parties to the social contract] should carry the burden in general.

Next question. If we agree that the government should take this responsibility, which government? City, state, or federal? Historically, the settlement (local village where you were born) had the responsibility. That is the origin of the rule that when you have to go there, they have to take you in. Later, alms houses were the responsibility of the counties. Then the states; and now, why not the United States? The paupers can travel from state to state, and when the pauper [for example, a quadriplegic who is broke] ends up in Santa Fe, who should pony up? The United States is the right answer.

We believe that it is the government, the federal government, with the resources of the federal taxpayers, that should be prepared to prevent, if possible, and to help, rescue, alleviate and work to minimize the effects of the catastrophe.

GOVERNOR'S BLOWS AT CRIME MAKE US UNEASY

2005-08-27T10:02:00.000-07:00

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?

FIFTH AMENDMENT GRAND JURY PROVISION NOT APPLICABLE IN HYDE CASE

2005-08-24T09:50:00.000-07:00

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.”.

DOUBLE JEOPARDY DOES NOT PROTECT OFFENDER FROM FURTHER PROSECUTION IN SOME CASES

2005-08-20T20:25:00.000-07:00

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.

GOVERNOR PROPOSES ONE STRIKE POLICY IN SOME SEX CASES

2005-08-17T15:01:00.000-07:00

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.

BIG BROTHER CAMERAS CATCH SCHOOL SPEEDERS

2005-08-14T11:06:00.000-07:00

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.

JURORS ACQUIT JACKSON THEN COMPLAIN OF JURY PRESSURE

2005-08-11T16:51:00.000-07:00

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.

DWI CAN BE PREVENTED; BEST ON A NATIONAL LEVEL

2005-08-07T09:20:00.000-07:00

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).

REVENUE BONDS FOR SUBSIDY TO NEW MATTRESS FACTORY

2005-08-06T11:31:00.000-07:00

In the Albuquerque Journal today there is a story about a proposed Bernalillo County ordinance which would authorize the issuance of $100 million in industrial revenue bonds for a new factory on the West side. If the bonds are approved and issued and sold, the County will be obligated to pay $125,000 to an attorney for services in handling the bond issue. See post of May 16, 2005, which sets out the contract the Commissioners made with the attorney, agreeing to pay $1.25 per thousand for IRB bonds. The lawyer fee contacted for is substantial, when you consider that it is $125,000 for ?? hours of work, and you consider that we taxpayers pay the Chief Justice of the Supreme Court of the State of New Mexico, $106,000 per year.

This $100 million IRB is said to be the largest in Bernalillo County history. It is relatively picayune, considering the $16 billion IRB issue recently approved in Sandoval County (voted for unanimously by the Sandoval County commissioners).
This raises the question of whether the Legislature has done a wise thing in delegating to County Commissions, and City Commissions, the power to enter into these attorney contracts and approve IRB's (in effect subsidize new or existing companies for the purpose of encouraging business).

Are these commissions qualified? Are they in danger of special interest influence? When they allow IRB's to be issued, a tax exemption results which affects the tax base for school districts, and the State. The Intel deal, now $26 billion, means $26 billion off the tax rolls, meaning the tax base is reduced $8 billion plus. In Bernalillo County, the deal is the equivalent of taking 100 houses worth $330,000 each off the tax roll.

PRISON ASSAULT CAN BE REDUCED

2005-08-04T11:32:00.000-07:00

In the news this week we hear of the study done of sexual assault in prisons in the United States. The Congress passed the Prison Rape Elimination Act of 2003, and asked for studies and reports. This week a report was issued, and can be seen at the website ncic.org, or by searching Prison Rape Report on Google.

No details there about the numbers or places where these acts occur. The report seems to countenance the killing of the attacker; or the prevention of an attack by creating a reputation for toughness. One suggestion as to how to appear tough, is to just go to the yard and pick a big guy and do him serious bodily harm, sending him to the hospital.

We have modern technology; why not use it? We could put a live video camera, with pictures on-line accessible by persons designated by the individual inmates (for example, my brother could access the site). Perhaps the site should also be available to a reputable prisoner rights group. The camera could be so situated in the institution that once a day each inmate would appear before the camera and state his number. He would have the opportunity to claim abuse, and in any event his folks would know he is still alive and what his face looks like.

Also, video cameras could be placed throughout the institution, to make it impossible for an assault to occur in secret. The video feed should go on the internet, accessible at least to reputable prisoner rights advocates or monitors, on a regular basis, and available in segments to the public in case of an alleged crime.

Electronic bracelets as small as a wrist watch would enable the Warden to monitor where each inmate is, and how close he is to another, etc. This could be recorded for future reference, in case of an assault. And the information could be used to keep predators by themselves.

Pupillometry could be used to keep the inmates off dope. The inmate takes 30 seconds to look into the eyepieces and the machine spits out a report as to whether the inmate is under the influence of a variety of drugs.

This technology is available. The need is there. We owe it to our inmates to provide a safe place for their rehabilitation, or simple detention for purposes of punishment or deterrence. Robert Schwartz, former District Attorney and now the Governor's criminal law adviser, once said, "It is my job to get them into the penitentiary, not to fluff up their pillows!" Mr. Schwartz was right. But it is our job, as citizens, to insist that prisoners are kept in a safe, clean environment.

PRIVATE PATROL CARS LOOK LIKE POLICE CARS; CHIEF DEPLORES POSSIBLE CONFUSION

2005-07-21T19:04:00.000-07:00

The banner headline of the Albuquerque Journal Monday the 18th reads “THINK YOU SEE A POLICE CAR? CHECK AGAIN.” There on the front page are pictures of a “Police” car, and a “Patrol” car. They definitely look alike, so Chief Ray Schultz is justified in ordering the private security company to change the looks of its cars.

Chief Schultz is quoted as saying that the vehicles “. . . can easily confuse the public.” He said that “The public needs to be assured that they are actually dealing with the Albuquerque Police Department when they see one of our officers. There shouldn’t be any confusion if they are dealing with a security guard or a police officer.”

This story raises the question of whether the Albuquerque Police Department officers should be allowed to hire out to private citizens, or neighborhood associations, to provide security service in Albuquerque, in the officers’ regular uniforms, with the regular badges, guns, equipment, and in APD cars. That is the time and a half program called “Chief’s Overtime.” See post in archives for March 7 2005.

No doubt it is a different matter. It is one thing to confuse a private security guard with the police. It is another to deal with a policeman off duty, appearing to be a policeman on duty. However, the latter situation leaves one feeling somewhat uncomfortable.

Assume that a neighborhood has been troubled by criminals driving around, stealing, writing graffiti, selling marijuana and cocaine, and the like. Community policing just does not seem to be getting the job done. The neighborhood association, or a few neighbors (all private citizens) then hire police officers, through Chief’s Overtime, to spend off-duty time patroling the area; and now the neighborhood is safe because officers who are dressed as usual, carry the guns as usual, and drive the police vehicles as usual, are patrolling the streets. Does that make you uncomfortable, as a resident or taxpayer?

Are the police underpaid? Probably so, although one has to consider all of the benefits, including the type of retirement and health care plan, in order to make that determination. In any event, the police should be paid very well, as they are essential to our safety. Most are honest, hard-working, fair-minded, compassionate people, proud to serve. Pay them a decent salary. However, the Chief should reconsider this matter of Chief’s Overtime (which was here long before he became Chief). Maybe this should be taken up with the candidates for City office.

SHERIFF SHOULD EXPLAIN NON-ACTION; JUDGE HAD TO DRIVE TO JAIL TO GET ORDER HONORED

2005-07-20T15:25:00.000-07:00

The story is in the Albuquerque Journal, July 16, 2005. Regarding Magistrate Judge in Rio Arriba County. He accepted a case in which an acquaintance of his was arrested for DWI and put in jail at 8:40 p.m. on a Saturday in July.

That evening, at the request of persons who called the Judge, he set bail at $500, with 10% deposit ($50.00) to be posted, and directed that the accused be released to the accused’s wife. Breath tests indicated that the accused was still under the influence for driving at the time of his release to the wife.

The jailer, who was in charge in the absence of the Sheriff (out on assignment), apparently contacted the Sheriff, who was reluctant to release the accused while the accused was still under the influence (until his blood alcohol went down). In any event, the accused was not released, and it was explained by the Sheriff that no one is released except by the Sheriff or a deputy, and that he was tied up at a function, on duty.

Upon receiving this information, the Judge signed an order of release and drove to the jail (1 ½ hour round trip), and hand-delivered the order of release and got the job done. The Governor is looking into the matter.

Some questions should be answered here, but not by the Judge. The Sheriff should state by what authority his jail took the accused into custody and detained him. The accused should have been presented to a magistrate and the jailer should have an order from the Judge authorizing the detention. Apparently the jailer accepted the prisoner, solely on the authority of the arresting officer. That is the way it is handled in Albuquerque and Bernalillo County, also. Thus every man’s liberty is in the hands of every police officer.

A simple procedure would protect the rights of all. The arresting officer may take the accused to the jail, and then contact a magistrate, by telephone or cell phone, or email, or fax. The Judge could place the officer under oath, listen to the recitation of probable cause, ask questions if necessary, and make a neutral, independent determination of whether there is probable cause. The magistrate Judge could then decide the issue of conditions of release (bail) and issue an order for that purpose.

No need to drive an hour and a half. A permanent record can be made at the time. No one is jailed without the approval of a Judge. Then, if jail is necessary, and later the accused is able to meet his conditions of release (bail, for example), the jailer who is detaining the accused should have the power to release. This should not be the type of facility, that if you go in, you do not come out. And it should not be the kind of facility where the person with the keys to put a person in, does not have the authority to let that person out upon an order of the Court.

In this day of modern communications, and the technology to record proceedings on audio, video, and otherwise, there is no reason for anyone to have to deliver a “wet signature” order from a Judge to any officer. The Sheriff in this case has some explaining to do. If he suspected that the Judge was playing favorites, he should have done his duty as Sheriff and required his deputies and jailer (is not the jailer also a deputy?) to do their respective duties; and later he could complain to the Judicial Standards Commission, the District Attorney, the County Commissioners, and the media.

OFFICERS CLEARED IN SHOOTINGS; PROCEEDINGS TOOK 18 MONTHS

2005-07-19T15:59:00.000-07:00

An Albuquerque Journal story, July 15, 2005, reported that Albuquerque Police Department officers were cleared in two shootings. The shootings occurred in November, 2003.

The APD Oversight Commission ruled that APD officers were justified in the two fatal shootings. The Commission upheld findings of the Independent Review Officer and the Chief of Police.

One case was a domestic dispute. Two officers went to assist a woman to remove her things from an apartment. They found 20-year old Aaron Dominguez, with whom the woman had been feuding. Dominguez brandished a shotgun at the officers and shouted, “Shoot me, shoot me! You’re going to have to shoot me!” Officers shot him six times. This was found to be a justifiable homicide.

In another incident, two officers stopped a man from beating another with a bat in circumstances in which the victim was in danger of death and the offender was clearly the aggressor. The officers shouted, “Stop! Police!” The offender hit the victim again. One of the officers shot the offender twice in the back, killing him. The other officer did not fire. This case was ruled a justifiable homicide.

We are not quarreling with the findings of the Chief and I.R.O., with which the Commission concurred. But why not an inquest in such cases? Why not start the inquest testimony forthwith, that is, without unnecessary delay? At least before the funeral. Why 20 months?

The final chapter was in a public meeting of the Oversight Commission. An inquest, broadcast by video on line, would have been more open. Are there witnesses who may want or need privacy? That can be arranged if reasonably necessary, and the testimony still be had.

It is said that this “verdict” by the Oversight Commission (an approval of a determination by the Chief of Police and the Independent Review Officer) inspires confidence of the police in the Commission. What about the confidence of the public? Why not open up the proceedings, call the witnesses, and get the matter over with (except perhaps for forensic tests) within 36 hours? The New Mexico statutes already provide that the Medical Examiner may conduct an inquest, and take testimony. New Mexico Statutes Annotated, Section 24-11-7.