Here is a way to compromise on the death penalty issue. Keep the death penalty as we know it in New Mexico, but amend it to limit the cases in which it can possibly be imposed. The law requires that the jury find one or more aggravating circumstances before even considering the ultimate penalty. The circumstances appear in New Mexico Statutes Annotated 1978, Section 31-20A-5. They could be amended, as follows:
A. the victim was a peace officer who was acting in the lawful discharge of an official duty when he was murdered; and the murder was committed by the use of an explosive device, poison, or chemical or biological weapon, and resulted in the deaths of five or more persons, including the victim;
B. the murder was committed with intent to kill in the commission of or attempt to commit kidnaping, criminal sexual contact of a minor or criminal sexual penetration; and the victim was over two years of age and under thirteen years of age;
C. the murder was committed with the intent to kill by the defendant while attempting to escape from a penal institution of New Mexico; and the murder was committed by the use of an explosive device, poison, or chemical or biological weapon, and resulted in the deaths of five or more persons, including the victim;
D. while incarcerated in a penal institution in New Mexico, the defendant, with the intent to kill, murdered a person who was at the time incarcerated in or lawfully on the premises of a penal institution in New Mexico. As used in this subsection "penal institution" includes facilities under the jurisdiction of the corrections and criminal rehabilitation department [corrections department] and county and municipal jails; and the murder was committed by the use of an explosive device, poison, or chemical or biological weapon, and resulted in the deaths of five or more persons, including the victim;
E. while incarcerated in a penal institution in New Mexico, the defendant, with the intent to kill, murdered an employee of the corrections and criminal rehabilitation department [corrections department]; and the murder was committed by the use of an explosive device, poison, or chemical or biological weapon, and resulted in the deaths of five or more persons, including the victim;
F. the capital felony was committed for hire; and the murder was committed by the use of an explosive device, poison, or chemical or biological weapon, and resulted in the deaths of five or more persons, including the victim;
G. the capital felony was murder of a witness to a crime or any person likely to become a witness to a crime, for the purpose of preventing report of the crime or testimony in any criminal proceeding, or for retaliation for the victim having testified in any criminal proceeding; and the victim was over two years of age and under thirteen years of age.
The beauty of this proposal is that not many offenders would be executed (if any at all), but the right to execute would be reserved for certain cases. Those would be cases in which the death penalty would be considered just; and in which a mere life sentence with so-called "no possibility of parole" would be considered so inadequate as to undermine our whole criminal justice system in the eyes of most of the general public.
Friday, February 25, 2005
Thursday, February 24, 2005
ACCUSED MURDERERS TAKE FIFTH
Here in Albuquerque this last week we had the Martin Saiz murder case, in which a young male school janitor was accused of bludgeon murder of a young female school counselor. A witness testified to seeing the deceased looking for the janitor for help because the deceased had left her keys in her classroom. Counselor vanishes; room is bloody; but the blood is not readily apparent to the unaided eye. The body of the deceased is found two weeks later.
Circumstantial evidence ties the accused to the site where the body was found; there was deceased’s blood in the trunk of the accused’s car; and blood of the deceased was on clothing of the accused, which clothing was found at the home of the accused. No witness testified as to an alibi. Mr. Saiz, the accused, did not testify at his trial, and he was convicted of first degree murder.
Out in California this week, the defense rested in the murder case of Robert Blake, accused of murder of his wife. It was reported that Blake had said that he and his wife left a restaurant and drove a block or so, that Blake stopped the car and walked back to the restaurant to retrieve something he left there, and returned to the car, and there he saw that his wife had been murdered. Mr. Blake did not testify at his trial.
The Fifth Amendment to the United States Constitution provides, "No person shall . . . be compelled in any criminal case to be a witness against himself; . . . ." This portion of the Fifth Amendment is binding on the States. New Mexico has a like provision.
The United States Supreme Court, during the Warren era, decided Griffin v. California (1965), which can be found in Volume 381 United States Reports, at page 957, and ruled that the Fifth Amendment is violated if the judge or prosecutor says anything to the jury about the fact that the accused declined to testify at the trial. No comment, no inference to be drawn. Note, that was 1965. The new rule bound the States, including New Mexico.
The rule was different before 1965, in state Courts. The silence of the accused could be the subject of reasonable comment and argument. Why not? Common sense. If you are formally accused, and evidence is presented against you, and you are innocent, why would you not want to get up and tell the jury that you are innocent? The rule of the Griffin case does not make sense; it is unreasonable, and it leads to miscarriages of justice.
I do not advocate that people be required to accuse themselves. But when they are formally and properly accused and there are good reasons to justify asking them for their version of events, it is only common sense to infer guilt from a refusal to talk. Do not torture them; do not force them to testify; but why not infer guilt from their silence. In the country song, "The Long Black Veil," the cowboy declined to testify and went to the hangman's noose because his alibi would disclose that he ". . . was in the arms of my best friend's wife." That is a rare circumstance, and such a possibility need not deter us from exercising our common sense. In these instances, silence implies guilt.
Circumstantial evidence ties the accused to the site where the body was found; there was deceased’s blood in the trunk of the accused’s car; and blood of the deceased was on clothing of the accused, which clothing was found at the home of the accused. No witness testified as to an alibi. Mr. Saiz, the accused, did not testify at his trial, and he was convicted of first degree murder.
Out in California this week, the defense rested in the murder case of Robert Blake, accused of murder of his wife. It was reported that Blake had said that he and his wife left a restaurant and drove a block or so, that Blake stopped the car and walked back to the restaurant to retrieve something he left there, and returned to the car, and there he saw that his wife had been murdered. Mr. Blake did not testify at his trial.
The Fifth Amendment to the United States Constitution provides, "No person shall . . . be compelled in any criminal case to be a witness against himself; . . . ." This portion of the Fifth Amendment is binding on the States. New Mexico has a like provision.
The United States Supreme Court, during the Warren era, decided Griffin v. California (1965), which can be found in Volume 381 United States Reports, at page 957, and ruled that the Fifth Amendment is violated if the judge or prosecutor says anything to the jury about the fact that the accused declined to testify at the trial. No comment, no inference to be drawn. Note, that was 1965. The new rule bound the States, including New Mexico.
The rule was different before 1965, in state Courts. The silence of the accused could be the subject of reasonable comment and argument. Why not? Common sense. If you are formally accused, and evidence is presented against you, and you are innocent, why would you not want to get up and tell the jury that you are innocent? The rule of the Griffin case does not make sense; it is unreasonable, and it leads to miscarriages of justice.
I do not advocate that people be required to accuse themselves. But when they are formally and properly accused and there are good reasons to justify asking them for their version of events, it is only common sense to infer guilt from a refusal to talk. Do not torture them; do not force them to testify; but why not infer guilt from their silence. In the country song, "The Long Black Veil," the cowboy declined to testify and went to the hangman's noose because his alibi would disclose that he ". . . was in the arms of my best friend's wife." That is a rare circumstance, and such a possibility need not deter us from exercising our common sense. In these instances, silence implies guilt.
Wednesday, February 23, 2005
MURDER OR MANSLAUGHTER
The trial of Martin Saiz, which ended in a conviction of first degree murder in Albuquerque Monday, is a study in criminal procedure. The jury was allowed to consider second degree murder, and voluntary manslaughter, as well as first degree murder. Voluntary manslaughter is an unlawful killing "upon sufficient provocation." When I saw in the paper that the jury had been instructed on voluntary manslaughter, I was worried. What if the jury finds manslaughter, and on appeal the accused claims that the evidence was sufficient to convict of murder, but that there was no evidence of manslaughter? What would be the result if the appellate court agreed? The lawyers would argue "precedent." They would cite State v. Reed, 39 N.M. 44 (1934) [Volume 39, New Mexico Reports, page 44]. They would also cite Smith v. State, 89 N.M. 770 (1976) [Volume 89, New Mexico Reports, page 770]. "A page of history is worth a volume of logic."
In the Reed case, Reed was charged with murder by torture, but the jury was also instructed on second degree murder. The jury convicted of second degree murder. On appeal, the Supreme Court pointed out that the defense was alibi, and that the evidence showed that the killing was torture murder (first degree). The Court reversed the conviction and set the accused free of all charges. At page 51, the Court stated, "Impressed as we are that these appellants [defendant] go unwhipped of justice, it is not for us to vary the Constitution and laws. ..."
In the Smith case, some of the three defendants beat the female victim into unconsciousness with a pipe or fence post, and placed her in the trunk of the car, naked. The three defendants went in the car to an oil well slush pit tank [Lea County}. The three defendants removed the victim from the trunk of the car and threw the victim naked into a tank containing 14 inches of an "oil substance." The co-defendants stood on and sat on the victim to hold her under, and she drowned in oil. It was likely that she would have died from the wounds in any event. Smith stood on the tank ladder and assisted one of the co-defendants out of the tank.
The two co-defendants pleaded guilty to second degree murder. Smith was tried for murder but the jury was also instructed on manslaughter (that is, the jury was given the choice of murder or manslaughter). The jury convicted of manslaughter. Smith appealed, arguing that the evidence was sufficient to support a conviction of murder, but that there was no evidence of [sufficient legal provocation] to justify a conviction of manslaughter.
The prosecution argued that Smith got off too lightly, but that he should not be heard to complain. The Supreme Court ruled that there was sufficient evidence for a conviction of murder, but not manslaughter. The Court reversed the conviction, and set Smith free. One Justice did not participate. The other four were unanimous.
Back to the Saiz case, and 2005. In the Saiz case, the verdict was murder in the first degree, so the issue will not come up as it did in the Reed and Smith cases. So why get into all of this? It is criminal justice seen.
In the Reed case, Reed was charged with murder by torture, but the jury was also instructed on second degree murder. The jury convicted of second degree murder. On appeal, the Supreme Court pointed out that the defense was alibi, and that the evidence showed that the killing was torture murder (first degree). The Court reversed the conviction and set the accused free of all charges. At page 51, the Court stated, "Impressed as we are that these appellants [defendant] go unwhipped of justice, it is not for us to vary the Constitution and laws. ..."
In the Smith case, some of the three defendants beat the female victim into unconsciousness with a pipe or fence post, and placed her in the trunk of the car, naked. The three defendants went in the car to an oil well slush pit tank [Lea County}. The three defendants removed the victim from the trunk of the car and threw the victim naked into a tank containing 14 inches of an "oil substance." The co-defendants stood on and sat on the victim to hold her under, and she drowned in oil. It was likely that she would have died from the wounds in any event. Smith stood on the tank ladder and assisted one of the co-defendants out of the tank.
The two co-defendants pleaded guilty to second degree murder. Smith was tried for murder but the jury was also instructed on manslaughter (that is, the jury was given the choice of murder or manslaughter). The jury convicted of manslaughter. Smith appealed, arguing that the evidence was sufficient to support a conviction of murder, but that there was no evidence of [sufficient legal provocation] to justify a conviction of manslaughter.
The prosecution argued that Smith got off too lightly, but that he should not be heard to complain. The Supreme Court ruled that there was sufficient evidence for a conviction of murder, but not manslaughter. The Court reversed the conviction, and set Smith free. One Justice did not participate. The other four were unanimous.
Back to the Saiz case, and 2005. In the Saiz case, the verdict was murder in the first degree, so the issue will not come up as it did in the Reed and Smith cases. So why get into all of this? It is criminal justice seen.
Friday, February 18, 2005
INQUIRY TO JOHN DENDAHL, WITH RESPECT
Columnist John Dendahl, in the Albuquerque Journal, today criticized Senator Jeff Bingaman for Bingaman’s vote against Alberto Gonzales for Attorney General, and another vote. Apparently Senator Bingaman felt that Gonzales was evasive about his part in the Geneva Convention, torture controversy. Would you hire an Attorney General who advocated torture? That question was avoided, because Gonzales said that he is against torture, and has not advocated torture. He is shocked, shocked, by the conduct of renegade soldiers (fortunately only a few) disobeying orders and mistreating prisoners in Iraq. Case closed. Or is it.
What did Alberto Gonzales have to do with the 20-technique interrogation plan approved by Secretary Donald Rumsfeld? What are the 20 approved techniques? Has anyone seen them on the internet? Do they include techniques that some of us might see as torture even though Alberto Gonzales would see them as permissible techniques to be used against suspected terrorists? Do they include techniques that Gonzales and Rumsfeld would approve, but Dendahl would not?
Take water boarding, for example. Repeated near-drowning, to induce panic (a perfectly natural reaction). Is water boarding torture? Does Rumsfeld approve? Does Gonzales approve? Does Dendahl approve? Is it justified (that is, not so bad) by the fact that it is inflicted on some of our people in training to prepare them for such treatment by enemies? If it is torture, has anyone been prosecuted for it, and if not, why not? Ask the same questions about electric shocks to the appendages: is it torture? does Rumsfeld approve? does Gonzales approve? does Dendahl approve? Ask the same question about chaining naked suspect to concrete floor in fetal position in waste for 48 hours: which one approves?
In his column, Mr. Dendahl suggests that in his next reelection race, Senator Bingaman will have to answer for his anti-Gonzales vote. No problem there. New Mexico voters will care about how the United States is viewed by the civilized world, and these New Mexico voters will be embarrassed by the quibble over the definition of torture. They will want to know what are the 20-techniques, and will want to decide for themselves whether they are civilized practices. You can also be sure that the Senator’s opponent will be asked whether he or she has ever seen the 20-technique list, and whether such candidate would authorize the techniques in question. Meanwhile, Mr. Dendahl could do a great public service by seeking to have the 20-technique list made public.
It is conceivable (though not to me as yet) that torture can be justified in some cases, under safeguards, authorized by a general, say, in writing, under guidelines approved by the Secretary of Defense. Some technique may be morally acceptable under certain circumstances and safeguards, and yet be counter-productive. Yet we are now debating morals, not effectiveness. Is there conduct that we find so morally wrong that we forbid our representatives to use it (and forbid our representatives from ordering our soldiers to do it)? Of course. But where do we draw the line?
It is not right to secretly direct our soldiers to use the practice, torture, and then publicly say we do not use torture. Do not ask Attorney General Gonzales whether the Department of Justice, under his administration, allows torture. Ask him whether the Department allows water-boarding; electric shock to appendages; chained naked in fetal position with waste; as means to soften up suspected terrorists for interrogation.
The Geneva conventions forbid interrogation (!) of prisoners of war; but it seems to me we can justify treating terrorist suspects as other than prisoners of war, and other than accused criminals (who would be entitled to counsel, etc.); but we cannot justify treating those suspects as other than human beings. As Woody Allen says, with arms over head in defensive posture, "Human being here!" When we know whether the Department allows certain conduct, we can debate whether we will tolerate it, ratify it. Or do we have the right to know? With respect, Mr. Dendahl, we ask your opinion.
What did Alberto Gonzales have to do with the 20-technique interrogation plan approved by Secretary Donald Rumsfeld? What are the 20 approved techniques? Has anyone seen them on the internet? Do they include techniques that some of us might see as torture even though Alberto Gonzales would see them as permissible techniques to be used against suspected terrorists? Do they include techniques that Gonzales and Rumsfeld would approve, but Dendahl would not?
Take water boarding, for example. Repeated near-drowning, to induce panic (a perfectly natural reaction). Is water boarding torture? Does Rumsfeld approve? Does Gonzales approve? Does Dendahl approve? Is it justified (that is, not so bad) by the fact that it is inflicted on some of our people in training to prepare them for such treatment by enemies? If it is torture, has anyone been prosecuted for it, and if not, why not? Ask the same questions about electric shocks to the appendages: is it torture? does Rumsfeld approve? does Gonzales approve? does Dendahl approve? Ask the same question about chaining naked suspect to concrete floor in fetal position in waste for 48 hours: which one approves?
In his column, Mr. Dendahl suggests that in his next reelection race, Senator Bingaman will have to answer for his anti-Gonzales vote. No problem there. New Mexico voters will care about how the United States is viewed by the civilized world, and these New Mexico voters will be embarrassed by the quibble over the definition of torture. They will want to know what are the 20-techniques, and will want to decide for themselves whether they are civilized practices. You can also be sure that the Senator’s opponent will be asked whether he or she has ever seen the 20-technique list, and whether such candidate would authorize the techniques in question. Meanwhile, Mr. Dendahl could do a great public service by seeking to have the 20-technique list made public.
It is conceivable (though not to me as yet) that torture can be justified in some cases, under safeguards, authorized by a general, say, in writing, under guidelines approved by the Secretary of Defense. Some technique may be morally acceptable under certain circumstances and safeguards, and yet be counter-productive. Yet we are now debating morals, not effectiveness. Is there conduct that we find so morally wrong that we forbid our representatives to use it (and forbid our representatives from ordering our soldiers to do it)? Of course. But where do we draw the line?
It is not right to secretly direct our soldiers to use the practice, torture, and then publicly say we do not use torture. Do not ask Attorney General Gonzales whether the Department of Justice, under his administration, allows torture. Ask him whether the Department allows water-boarding; electric shock to appendages; chained naked in fetal position with waste; as means to soften up suspected terrorists for interrogation.
The Geneva conventions forbid interrogation (!) of prisoners of war; but it seems to me we can justify treating terrorist suspects as other than prisoners of war, and other than accused criminals (who would be entitled to counsel, etc.); but we cannot justify treating those suspects as other than human beings. As Woody Allen says, with arms over head in defensive posture, "Human being here!" When we know whether the Department allows certain conduct, we can debate whether we will tolerate it, ratify it. Or do we have the right to know? With respect, Mr. Dendahl, we ask your opinion.
Thursday, February 17, 2005
LETTER TO GOVERNOR RICHARDSON
Governor Richardson, I respectfully ask you to refrain from calling for the resignation of the Socorro judge. He owned up to aggravated DWI and received the usual and customary punishment for a citizen. In addition, he has asked for a leave of absence and has voluntarily entered a treatment facility for a month. John Wertheim, Democratic Party Chairman, also should withhold his demand for a resignation. Unless he is taking the position that every District Judge who is convicted of DWI should leave office. That is arbitrary and unreasonable.
Your request for resignation of the Judge rubs the wrong way, for several reasons. First thing that comes to mind is the Chief of the New Mexico State Police backing the officer who drove you 110 miles an hour down the same corridor (according to a report in the Albuquerque Journal, September, 2003.) Should the Chief step down? Should the officer who drove you step down? Which case of driving endangered more people?
Second, the Judicial Standards Commission is supposed to be an independent body, set up to regulate the judges. You have reportedly removed six of the eleven-member body and appointed your own members (all you had the power over). The terms of the commissioners appointed by the Governor are no longer staggered, for a period of years, to insure appointees from more than one Governor. The terms of the commissioners that the Governor appoints are now at your pleasure. That was declared legal by a 3-2 decision of the Supreme Court, but it is not in accordance with the spirit of the law.
Now, while your appointees take under consideration an issue of a Judge’s career, you publicly call for the Judge to resign (lose his job). You say, resign; but what do the six commissioners (jurors, in effect) who serve at your pleasure on the Judicial Standards Commission think of your demand? Are they intimidated? You removed six jurors of the eleven, appointed six of your choosing who serve at your pleasure (not only in this case), and now you publicly express an opinion about the Judge’s fitness to serve, while the jury is out.
The Socorro judge is an elected official. What happened to the rule that the judicial power shall be vested in the Senate (when sitting as a court of impeachment); and judges of the district court shall be liable to impeachment for crimes, misdemeanors and malfeasance in office [Article IV, Sec. 36, Constitution of New Mexico]?
If you do not want this Judge sitting if he is going to be drinking; then fit him with an ankle bracelet which will detect and report any alcohol in his blood stream. Let him wear that bracelet until he voluntarily retires, or the voters retire him.
Your request for resignation of the Judge rubs the wrong way, for several reasons. First thing that comes to mind is the Chief of the New Mexico State Police backing the officer who drove you 110 miles an hour down the same corridor (according to a report in the Albuquerque Journal, September, 2003.) Should the Chief step down? Should the officer who drove you step down? Which case of driving endangered more people?
Second, the Judicial Standards Commission is supposed to be an independent body, set up to regulate the judges. You have reportedly removed six of the eleven-member body and appointed your own members (all you had the power over). The terms of the commissioners appointed by the Governor are no longer staggered, for a period of years, to insure appointees from more than one Governor. The terms of the commissioners that the Governor appoints are now at your pleasure. That was declared legal by a 3-2 decision of the Supreme Court, but it is not in accordance with the spirit of the law.
Now, while your appointees take under consideration an issue of a Judge’s career, you publicly call for the Judge to resign (lose his job). You say, resign; but what do the six commissioners (jurors, in effect) who serve at your pleasure on the Judicial Standards Commission think of your demand? Are they intimidated? You removed six jurors of the eleven, appointed six of your choosing who serve at your pleasure (not only in this case), and now you publicly express an opinion about the Judge’s fitness to serve, while the jury is out.
The Socorro judge is an elected official. What happened to the rule that the judicial power shall be vested in the Senate (when sitting as a court of impeachment); and judges of the district court shall be liable to impeachment for crimes, misdemeanors and malfeasance in office [Article IV, Sec. 36, Constitution of New Mexico]?
If you do not want this Judge sitting if he is going to be drinking; then fit him with an ankle bracelet which will detect and report any alcohol in his blood stream. Let him wear that bracelet until he voluntarily retires, or the voters retire him.
Tuesday, February 15, 2005
DRACONIAN PUNISHMENT FOR JUDGE DWI?
It is hard for me to understand the strength of feeling of so many members of the public, in the case of Judges accused of DWI. Take the case of the Socorro District Judge. They want the Judge prosecuted, and as punishment, even before conviction, they want the Judge suspended. As punishment, they want the Judge removed from the bench, and some even want the Judge to lose his retirement benefits.
I do not know the Judge personally; but he must be qualified, as he is an attorney, was cleared by the Governor and the electorate; and will have to continue to be cleared by the electorate. [That is every six years, which is two too long.] Let the people of that judicial district decide whether the Judge should remain. Meanwhile, he should be prosecuted just like any other citizen, and if found guilty punished appropriately. What is not appropriate is removal from office, nor loss of a retirement benefit worth perhaps several hundred thousand dollars to himself and survivor. Those are truly Draconian measures.
The public outcry resulted in our local presiding District Court Judge’s resignation and many call for him to lose his retirement benefits. Why? Why should the punishment for cocaine possession and DWI be loss of judicial position of 25 years and loss of a retirement benefit worth hundreds of thousands to yourself and your family? Let the voters decide, at the next retention election. Same with Ms. Shirley Baca, PRC. What a clamor for her resignation for possession of a small amount of marijuana and the pipe. Which hypocrite wants to throw the first stone? Why not let her be prosecuted for the weed offense, be punished, and go about her business to face the voters next election?
In the case of Judges, it is especially important that the accused, even if convicted, not be run out of office. Judges are important, and they are essential in a limited government system.
We have the means at hand to keep the Judge from drinking, if that is the appropriate punishment, or preventive measure. Put an ankle bracelet on him which reads his blood alcohol level through his skin. These devices are in use and have been proven workable and tamper proof. Or put an interlock device on all of his motor vehicles, if the goal is to prevent drinking and driving.
Require the Judge to recuse himself in criminal cases involving DWI. Let justice be done. Surely what he did, if he is guilty, was very dangerous, to himself and to hundreds of innocent people on the highways between Socorro and Santa Fe. Same deal with the thousand and more accused of DWI whose cases were dismissed in the Albuquerque area last year without trial on the merits. I do not intend to minimize the seriousness of the scourge of DWI. But let us not take out our frustrations with the criminal justice system by doing another injustice.
I do not know the Judge personally; but he must be qualified, as he is an attorney, was cleared by the Governor and the electorate; and will have to continue to be cleared by the electorate. [That is every six years, which is two too long.] Let the people of that judicial district decide whether the Judge should remain. Meanwhile, he should be prosecuted just like any other citizen, and if found guilty punished appropriately. What is not appropriate is removal from office, nor loss of a retirement benefit worth perhaps several hundred thousand dollars to himself and survivor. Those are truly Draconian measures.
The public outcry resulted in our local presiding District Court Judge’s resignation and many call for him to lose his retirement benefits. Why? Why should the punishment for cocaine possession and DWI be loss of judicial position of 25 years and loss of a retirement benefit worth hundreds of thousands to yourself and your family? Let the voters decide, at the next retention election. Same with Ms. Shirley Baca, PRC. What a clamor for her resignation for possession of a small amount of marijuana and the pipe. Which hypocrite wants to throw the first stone? Why not let her be prosecuted for the weed offense, be punished, and go about her business to face the voters next election?
In the case of Judges, it is especially important that the accused, even if convicted, not be run out of office. Judges are important, and they are essential in a limited government system.
We have the means at hand to keep the Judge from drinking, if that is the appropriate punishment, or preventive measure. Put an ankle bracelet on him which reads his blood alcohol level through his skin. These devices are in use and have been proven workable and tamper proof. Or put an interlock device on all of his motor vehicles, if the goal is to prevent drinking and driving.
Require the Judge to recuse himself in criminal cases involving DWI. Let justice be done. Surely what he did, if he is guilty, was very dangerous, to himself and to hundreds of innocent people on the highways between Socorro and Santa Fe. Same deal with the thousand and more accused of DWI whose cases were dismissed in the Albuquerque area last year without trial on the merits. I do not intend to minimize the seriousness of the scourge of DWI. But let us not take out our frustrations with the criminal justice system by doing another injustice.
Saturday, February 12, 2005
NOTE THIS CORRECTION PLEASE
Please note this correction to my post regarding evidence before grand juries in New Mexico. Someone has called to my attention that Section 31-6-11 of New Mexico Statutes Annotated 1978 was amended to provide that the Rules of Evidence do not apply to grand jury proceedings. I overlooked that amendment and certainly should have discussed it in the post. My error. My recommendation still is that the Legislature memorialize the Supreme Court and ask for an amendment of Evidence Rule 1101, so there will be no conflict between the statute and the rule; and further, that the formal rules of evidence be made inapplicable to preliminary hearings. For the original post, see "previous posts."
Friday, February 11, 2005
ABOLISHING DEATH PENALTY NOT WISE
Rep. Gail C. Beam has introduced HB 576, which would abolish the death penalty in New Mexico, and would provide for a life sentence without possibility of release or parole. The death penalty system is flawed, and should be changed. But abolition is unwise. Consider this. Has there ever been in history a case which deserved the death penalty? If so, can we be assured that there will never again be such a case? If there has never been a case deserving the death penalty, can we be assured that in the future there will not be one? If you want to narrow the instances in which the death penalty can be imposed, fine. If you want to streamline the procedure so that convicts do not sit on death row for decades, that is good. If you want to require the Courts to give priority to death penalty cases, so we do not have years of appeals, that is good. It is scandalous that it takes years, even decades, for the appeals to be over.
A word about the deterrence argument. For many years, people have argued that the death penalty is no deterrent, by pointing to the variations in the "murder" rate among the States. The statistics relied upon are the FBI reports of non-negligent homicides. These include second degree murder and voluntary manslaughter. [I could be wrong; but I have never seen statistics of first degree murder, as I understand the term.] If the statistics were of murders in the first degree, that is, wilful and deliberate murder, committed intentionally after a thinking over the pros and cons, with a calm and reflective state of mind, then when one said State X has a low murder rate and no death penalty, it would mean something. It would not in itself prove that the death penalty has no deterrent effect, but it would be worthy of more consideration.
In countries South of us, prosecutors and judges are murdered, for the purpose of interfering with the criminal justice system. Here, children are murdered to prevent their testimony. Are these cases worthy of the death penalty? The death penalty cannot be justified except on the basis that it saves innocent lives. Presumably our Creator considers us all equally innocent, so we do not kill the murderer because he is evil, or we hate him, but because his death will result in the saving of innocent lives. What happens when evil people begin to use bombs on the judges and their families, or on the juries and their families, or the police and their families? What happens to the criminal justice system?
This proposed step of abolition is too drastic. Let those who object to the death penalty specify which of the cases covered by present New Mexico law that they would change, so that the penalty for such act would be so-called life without parole and not the possibility of death. The law requires an aggravating circumstance for the death penalty to be imposed. Which of the statutory aggravating circumstances should be repealed? This is a graver and more important affair of life, so let us pause and hesitate to act.
A word about the deterrence argument. For many years, people have argued that the death penalty is no deterrent, by pointing to the variations in the "murder" rate among the States. The statistics relied upon are the FBI reports of non-negligent homicides. These include second degree murder and voluntary manslaughter. [I could be wrong; but I have never seen statistics of first degree murder, as I understand the term.] If the statistics were of murders in the first degree, that is, wilful and deliberate murder, committed intentionally after a thinking over the pros and cons, with a calm and reflective state of mind, then when one said State X has a low murder rate and no death penalty, it would mean something. It would not in itself prove that the death penalty has no deterrent effect, but it would be worthy of more consideration.
In countries South of us, prosecutors and judges are murdered, for the purpose of interfering with the criminal justice system. Here, children are murdered to prevent their testimony. Are these cases worthy of the death penalty? The death penalty cannot be justified except on the basis that it saves innocent lives. Presumably our Creator considers us all equally innocent, so we do not kill the murderer because he is evil, or we hate him, but because his death will result in the saving of innocent lives. What happens when evil people begin to use bombs on the judges and their families, or on the juries and their families, or the police and their families? What happens to the criminal justice system?
This proposed step of abolition is too drastic. Let those who object to the death penalty specify which of the cases covered by present New Mexico law that they would change, so that the penalty for such act would be so-called life without parole and not the possibility of death. The law requires an aggravating circumstance for the death penalty to be imposed. Which of the statutory aggravating circumstances should be repealed? This is a graver and more important affair of life, so let us pause and hesitate to act.
Tuesday, February 08, 2005
LEGISLATOR STRIKES DWI BLOW
Rep. W. Ken Martinez has two bills before the Legislature that deal with DWI. They require the use of an "interlock device" on the motor vehicles of persons convicted of DWI. HB 282. Further, by his HB 565, Rep. Martinez looks to the future and defines "interlock device" to include technologies or techniques which may be in existence or may be developed, to accomplish the same end. The end sought to be accomplished, is a motor vehicle which cannot be started nor driven by an impaired driver.
Rep. Martinez is not proposing that all motor vehicles licensed in New Mexico be fitted with such a device, but that such a device be fitted to the motor vehicle of the convicted DWI defendant. When the technology gets in use and is fully accepted, and it becomes convenient and economical and foolproof, perhaps it can be required on all State vehicles first, then on all motor vehicles licensed in this State. So when you buy that new Ford sedan, it comes with a device that makes it impossible to start or drive by an impaired driver. Such an interlock device will cost a fraction of the air bag, and may save many more lives.
In HB 565, Rep. Martinez seeks to level the playing field among the various companies which make devices to prevent impaired driving. The bill defines "interlock" to include other technologies approved by the Traffic Bureau. This will enable the new technology being developed at Sandia Laboratories to be adapted for the purpose, if the developers so choose. That is an ignition key that requires the operator to lay her forearm on a screen that will detect alcohol in the bloodstream. Pupillometry as a drug and alcohol testing tool may be adapted to the driver’s seat. Essex County, New Jersey, Probation Department has information on that subject. This technique requires a base line, but that should not prevent its use if adapted. Look into the eye holes and your car will start unless you are impaired.
Bracelets are now in use for the ankle which detect alcohol in the blood stream. They can be used to prevent consumption of alcohol, but are not specifically designed to disable the car when an impaired driver is behind the wheel. The technology exists to fit the convict with two wrist-watch size bracelets, and through a computer program determine whether the wearer is operating a motor vehicle. So with present technology we can make a person stay home (electronic bracelet); or make him stop drinking (alcohol bracelet); or prevent him from driving (two bracelets and a computer program); or prevent him from being in a moving vehicle (GPS and bracelet). The interlock device is designed to prevent the offender from driving while impaired. That leaves the offender free to drink, or to drive, but not to do both at the same time. The idea seems best designed to solve the problem, and it concentrates on the vehicle.
The beauty of the approach being taken by Rep. Martinez, with HB 282 and HB 565, is that we are able to take advantage of proven technology to accomplish a great deal toward preventing DWI now; and we are keeping the door open for future technology. Thirty years ago Bill Gates made a computer in Albuquerque. Maybe a young Bill Gates will come up with a technique or device which will require that operators of airplanes, boats, motor vehicles, and other dangerous machinery and equipment be unimpaired. Meanwhile, the interlock legislation has been shown to be worthy of support.
Rep. Martinez is not proposing that all motor vehicles licensed in New Mexico be fitted with such a device, but that such a device be fitted to the motor vehicle of the convicted DWI defendant. When the technology gets in use and is fully accepted, and it becomes convenient and economical and foolproof, perhaps it can be required on all State vehicles first, then on all motor vehicles licensed in this State. So when you buy that new Ford sedan, it comes with a device that makes it impossible to start or drive by an impaired driver. Such an interlock device will cost a fraction of the air bag, and may save many more lives.
In HB 565, Rep. Martinez seeks to level the playing field among the various companies which make devices to prevent impaired driving. The bill defines "interlock" to include other technologies approved by the Traffic Bureau. This will enable the new technology being developed at Sandia Laboratories to be adapted for the purpose, if the developers so choose. That is an ignition key that requires the operator to lay her forearm on a screen that will detect alcohol in the bloodstream. Pupillometry as a drug and alcohol testing tool may be adapted to the driver’s seat. Essex County, New Jersey, Probation Department has information on that subject. This technique requires a base line, but that should not prevent its use if adapted. Look into the eye holes and your car will start unless you are impaired.
Bracelets are now in use for the ankle which detect alcohol in the blood stream. They can be used to prevent consumption of alcohol, but are not specifically designed to disable the car when an impaired driver is behind the wheel. The technology exists to fit the convict with two wrist-watch size bracelets, and through a computer program determine whether the wearer is operating a motor vehicle. So with present technology we can make a person stay home (electronic bracelet); or make him stop drinking (alcohol bracelet); or prevent him from driving (two bracelets and a computer program); or prevent him from being in a moving vehicle (GPS and bracelet). The interlock device is designed to prevent the offender from driving while impaired. That leaves the offender free to drink, or to drive, but not to do both at the same time. The idea seems best designed to solve the problem, and it concentrates on the vehicle.
The beauty of the approach being taken by Rep. Martinez, with HB 282 and HB 565, is that we are able to take advantage of proven technology to accomplish a great deal toward preventing DWI now; and we are keeping the door open for future technology. Thirty years ago Bill Gates made a computer in Albuquerque. Maybe a young Bill Gates will come up with a technique or device which will require that operators of airplanes, boats, motor vehicles, and other dangerous machinery and equipment be unimpaired. Meanwhile, the interlock legislation has been shown to be worthy of support.
Sunday, February 06, 2005
NEW MEXICO'S SHAME AND DISGRACE
I am talking about the lottery here. In New Mexico, you and I cannot legally make a social bet on the Super Bowl. We cannot legally raffle jars of preserves at the womens’ club. We cannot legally gamble small, sociable stakes on domino games, such as moon or pitch. We cannot bet on a cockfight, one of our cultural traditions. We cannot legally play sociable, two-bit limit poker. But we can bet the ranch on a State-run numbers racket.
I read that slots had to pay 80%. Some casinos advertise "loose" slots, so I guess that is greater than an 80% payout. Our State of New Mexico numbers racket pays 33%. $150 million comes in from the poor and ignorant and desperate. $50 million goes to the "winners," so they can place their bets another day (like the stock market). $50 million goes to some college students (it is not right to blame them, under the circumstances). And the final $50 million goes to management, or administration. "Gaming" officials. We will not tolerate the name, "gambling." Gives us a bad image.
Speaking of image. Who thought up the idea of taking the State bird, the chaparral (a magnificent bird), and making it into a logo for a numbers game? If that was not designed to appeal to children, I will throw in with them. Have you recently heard the benefits, the advantages, of the New Mexico lottery praised by an eight year old? I have. Have you seen a six year old boy urge his mother to buy one of the colorful scratch tickets at the gas station checkout counter? I have. It is dismaying. The Legislature is in session. Why not get rid of this shameful practice of government involvement in gambling in the State of New Mexico?
I read that slots had to pay 80%. Some casinos advertise "loose" slots, so I guess that is greater than an 80% payout. Our State of New Mexico numbers racket pays 33%. $150 million comes in from the poor and ignorant and desperate. $50 million goes to the "winners," so they can place their bets another day (like the stock market). $50 million goes to some college students (it is not right to blame them, under the circumstances). And the final $50 million goes to management, or administration. "Gaming" officials. We will not tolerate the name, "gambling." Gives us a bad image.
Speaking of image. Who thought up the idea of taking the State bird, the chaparral (a magnificent bird), and making it into a logo for a numbers game? If that was not designed to appeal to children, I will throw in with them. Have you recently heard the benefits, the advantages, of the New Mexico lottery praised by an eight year old? I have. Have you seen a six year old boy urge his mother to buy one of the colorful scratch tickets at the gas station checkout counter? I have. It is dismaying. The Legislature is in session. Why not get rid of this shameful practice of government involvement in gambling in the State of New Mexico?
Thursday, February 03, 2005
WE CAN TAKE A REFORM OF SOCIAL SECURITY
President Bush has said that those of us 55 years of age and older will not be affected; our Social Security program will remain the same. That is good news.
How about the Social Security program for the workers under age 55? Should we give them "ownership, choice and personal responsibility," by letting them cut their payroll (Social Security) taxes and invest the money in private, personal retirement accounts? Those who opt to put the 4% (4/7ths of their payroll taxes) into a private investment account would presumably take a 4/7ths reduction in their social insurance coverage under Social Security. Sounds all right.
If the boomer becomes disabled, his ["he" means "he" or "she"] Social Security check would be 3/7ths of what it would otherwise be; same with survivor’s benefits for the minor children of the boomer, and for the widow, if the boomer gets killed. When the boomer reaches 62 or 65 and retires, the retirement benefits would be 3/7ths of what they would otherwise be. The Medicare benefits would be 3/7ths of what they otherwise would be. That would be fair to all. If the boomer and his dependents can get by with 3/7ths, all would be okay.
Proponents say there will be no problem. They say the boomer will make up the 4/7ths cut in their social insurance coverage under Social Security, by the retirement account that they will build up through the investment of the taxes not paid as taxes. The employer contribution (another 4/7ths) would be added in for the boomer. The boomers earned it.
A basic question is whether we want the government to force the boomers to buy Social Security insurance. Many of us are worried that some boomers may cut their payroll taxes to Social Security, and make bad investments and end up on the public dole in their interminable old age, or when they are disabled; or that the boomer will make bad investments and die early and leave the widow and minor children on the public dole.
I suppose the government intends to keep control of the private investment accounts, and to require that such money be invested on Wall Street. Could not allow investment in real estate investment trusts, for example, or private corporations, limited liability companies or partnerships or small businesses. This government restriction cuts down on choice and personal responsibility, but there is still ownership. Proponents say that the nest egg can be passed on to heirs in the event that it is not all used up by date of death. True; but we could accomplish that by adding an ordinary life insurance component to the present Social Security.
Solve the worry that the boomer will blow the 4/7ths and come back for a hand out from the taxpayers, and more of us will throw in with you. So all the boomers have to do (or I suppose the government intends to do this for the boomers, whether the boomers like it or not) is to find a policy or plan of social insurance that provides disability insurance; survivor’s insurance for minor children; survivor’s insurance for the widow; an annuity for retirement; Medicare from age 65 until death; and provides a substantial lump sum to be inherited by the heirs upon the death of the boomer. This proposed policy should pay benefits that make up the difference between what Social Security as we know it would pay; and the amount that Social Security minus 4/7ths of the payroll taxes, would pay. And this proposed policy must be sure to pay off; it must be guaranteed 100% sure to be there and in place when needed.
A good starting place is to look for a policy that provides this coverage and is 100% sure. See what it costs. Maybe the personal savings accounts are a good deal for the boomers. We older people are out of the picture now, and we were either overreached by President Roosevelt or not; that cannot be changed. We do have a right, however, to express an opinion and vote as to whether our children and grandchildren should run the risk of having to provide a dole for well meaning boomers who make bad investments or simply blown their 4/7ths.
We should also remember that it is only those who make $80,000 per year or less who are prevented from investing a portion of their Social Security payroll taxes in personal investment accounts. Those who make over $80,000 per year pay no Social Security taxes on the overage. They are free to invest all the overage they can save from the cost of living (and progressive income taxes), and they are not limited to investing it in Wall Street. They can make real estate investments, or invest in closely held private business entities.
If the boomer makes $1 million a year, why is he so concerned about the 4/7ths of the Social Security payroll taxes on his first $80 thousand? If the boomer is in the bracket that makes less than $80,000 per year, he should pause and hesitate to act before dropping an insurance policy which provides all of the coverage that Social Security does, at the premium now required.
How about the Social Security program for the workers under age 55? Should we give them "ownership, choice and personal responsibility," by letting them cut their payroll (Social Security) taxes and invest the money in private, personal retirement accounts? Those who opt to put the 4% (4/7ths of their payroll taxes) into a private investment account would presumably take a 4/7ths reduction in their social insurance coverage under Social Security. Sounds all right.
If the boomer becomes disabled, his ["he" means "he" or "she"] Social Security check would be 3/7ths of what it would otherwise be; same with survivor’s benefits for the minor children of the boomer, and for the widow, if the boomer gets killed. When the boomer reaches 62 or 65 and retires, the retirement benefits would be 3/7ths of what they would otherwise be. The Medicare benefits would be 3/7ths of what they otherwise would be. That would be fair to all. If the boomer and his dependents can get by with 3/7ths, all would be okay.
Proponents say there will be no problem. They say the boomer will make up the 4/7ths cut in their social insurance coverage under Social Security, by the retirement account that they will build up through the investment of the taxes not paid as taxes. The employer contribution (another 4/7ths) would be added in for the boomer. The boomers earned it.
A basic question is whether we want the government to force the boomers to buy Social Security insurance. Many of us are worried that some boomers may cut their payroll taxes to Social Security, and make bad investments and end up on the public dole in their interminable old age, or when they are disabled; or that the boomer will make bad investments and die early and leave the widow and minor children on the public dole.
I suppose the government intends to keep control of the private investment accounts, and to require that such money be invested on Wall Street. Could not allow investment in real estate investment trusts, for example, or private corporations, limited liability companies or partnerships or small businesses. This government restriction cuts down on choice and personal responsibility, but there is still ownership. Proponents say that the nest egg can be passed on to heirs in the event that it is not all used up by date of death. True; but we could accomplish that by adding an ordinary life insurance component to the present Social Security.
Solve the worry that the boomer will blow the 4/7ths and come back for a hand out from the taxpayers, and more of us will throw in with you. So all the boomers have to do (or I suppose the government intends to do this for the boomers, whether the boomers like it or not) is to find a policy or plan of social insurance that provides disability insurance; survivor’s insurance for minor children; survivor’s insurance for the widow; an annuity for retirement; Medicare from age 65 until death; and provides a substantial lump sum to be inherited by the heirs upon the death of the boomer. This proposed policy should pay benefits that make up the difference between what Social Security as we know it would pay; and the amount that Social Security minus 4/7ths of the payroll taxes, would pay. And this proposed policy must be sure to pay off; it must be guaranteed 100% sure to be there and in place when needed.
A good starting place is to look for a policy that provides this coverage and is 100% sure. See what it costs. Maybe the personal savings accounts are a good deal for the boomers. We older people are out of the picture now, and we were either overreached by President Roosevelt or not; that cannot be changed. We do have a right, however, to express an opinion and vote as to whether our children and grandchildren should run the risk of having to provide a dole for well meaning boomers who make bad investments or simply blown their 4/7ths.
We should also remember that it is only those who make $80,000 per year or less who are prevented from investing a portion of their Social Security payroll taxes in personal investment accounts. Those who make over $80,000 per year pay no Social Security taxes on the overage. They are free to invest all the overage they can save from the cost of living (and progressive income taxes), and they are not limited to investing it in Wall Street. They can make real estate investments, or invest in closely held private business entities.
If the boomer makes $1 million a year, why is he so concerned about the 4/7ths of the Social Security payroll taxes on his first $80 thousand? If the boomer is in the bracket that makes less than $80,000 per year, he should pause and hesitate to act before dropping an insurance policy which provides all of the coverage that Social Security does, at the premium now required.
Tuesday, February 01, 2005
SHOULD CRIMINAL PROCEDURE SIX-MONTH RULE BE AMENDED?
The six-month rule states that felony criminal cases in New Mexico must go to trial within six months. If a felony case does not go to trial within six months, the rule requires that the Judge dismiss the case and release the accused, free of such charges, forever. Persons accused of murder have been set free on this technicality. The archives of the Albuquerque Journal report many cases where charges of murder, vehicular homicide, and other felonies were required to be dismissed, and the accused set free, never to be tried again, because of the six-month rule. Search the archives under "six month rule."
An accused has a constitutional right to a speedy trial. We are not talking about that. The constitutional speedy trial rule requires a trial within a reasonable time, and is a necessary safeguard. A case is not dismissed under the constitutional speedy trial rule unless the accused demands a trial, and the accused is prejudiced by the delay in trial.
The six-month rule is a so-called "speedy trial" rule, but it is not required by the State or federal constitution. Under this rule, the accused may be out on bail, may be avoiding trial, may not want a trial, may be delaying the trial in every way he can, and yet he must be set free, never to be tried, if the trial does not occur within six months.
Extensions of the rule may be allowed, but an application must be made by the prosecutor. The most egregious miscarriages of justice have occurred when the prosecutor intends to apply for an extension, but forgets to, and the six-month rule runs out and the accused goes free. A simple solution is for the rule to be changed to provide that if the rule is violated, the Judge may dismiss the case but is not required to; the Judge may impose some other sanction if that is warranted. At present the case must be dismissed "with prejudice," so that it may never be tried and the accused goes free, regardless of the strength of the evidence. How do we explain such a dismissal, without trial, and release of the accused without further charges, to the family of the victims? We are talking here about gross miscarriages of justice; not many, that is true; but too many. Not one should occur.
The federal rule of criminal procedure allows the Judge to dismiss the case without prejudice, allowing the prosecutor to re-file the case. The New Mexico rule can be changed to follow the federal rule. This would take action by the Supreme Court of New Mexico, but would not require any action by the Legislature. The Legislature may want to pass a memorial asking the Supreme Court to amend the six-month rule.
An accused has a constitutional right to a speedy trial. We are not talking about that. The constitutional speedy trial rule requires a trial within a reasonable time, and is a necessary safeguard. A case is not dismissed under the constitutional speedy trial rule unless the accused demands a trial, and the accused is prejudiced by the delay in trial.
The six-month rule is a so-called "speedy trial" rule, but it is not required by the State or federal constitution. Under this rule, the accused may be out on bail, may be avoiding trial, may not want a trial, may be delaying the trial in every way he can, and yet he must be set free, never to be tried, if the trial does not occur within six months.
Extensions of the rule may be allowed, but an application must be made by the prosecutor. The most egregious miscarriages of justice have occurred when the prosecutor intends to apply for an extension, but forgets to, and the six-month rule runs out and the accused goes free. A simple solution is for the rule to be changed to provide that if the rule is violated, the Judge may dismiss the case but is not required to; the Judge may impose some other sanction if that is warranted. At present the case must be dismissed "with prejudice," so that it may never be tried and the accused goes free, regardless of the strength of the evidence. How do we explain such a dismissal, without trial, and release of the accused without further charges, to the family of the victims? We are talking here about gross miscarriages of justice; not many, that is true; but too many. Not one should occur.
The federal rule of criminal procedure allows the Judge to dismiss the case without prejudice, allowing the prosecutor to re-file the case. The New Mexico rule can be changed to follow the federal rule. This would take action by the Supreme Court of New Mexico, but would not require any action by the Legislature. The Legislature may want to pass a memorial asking the Supreme Court to amend the six-month rule.
Saturday, January 29, 2005
GRAND JURY AND RULES OF EVIDENCE
CRIMINAL JUSTICE REFORM. Should the Legislature pass a memorial requesting that the Supreme Court make a change in the Rules of Evidence?
Rule 11-1101 D (2) of the Rules of Evidence (a rule of the Supreme Court of New Mexico) provides that the formal rules of evidence do not apply in certain cases. If the words "preliminary hearings and grand jury proceedings" were added, the formal rules of evidence in criminal cases would not apply in cases heard before the grand jury, and they would not apply in cases heard by preliminary hearing before a magistrate. The law of privilege (for example, priest and penitent, or lawyer and client) would still apply; but hearsay would not be prohibited.
For example, in a car theft case, in which a Cadillac was stolen in Long Beach, California, and recovered in Albuquerque in the possession of the accused, it would not be necessary for the District Attorney to bring the witness (car’s owner) from Long Beach for a grand jury hearing or for a preliminary hearing before a magistrate in Albuquerque. An affidavit from the owner could be used, or the investigating officer could testify under oath as to the report and details from the alleged victim.
Why should the accused be entitled to force the California car owner to come to New Mexico to testify at this stage of the proceedings? The right to confront the witnesses will apply, but at trial. There is no constitutional requirement that the witnesses testify in person at grand jury or preliminary hearing proceedings. If the accused claims that he had permission to take the car, then that is a different matter, and the District Attorney would not have to, but might want to bring the alleged victim to testify in person, and that could be done. But if there is no claim that the car was not stolen, then why should the victim witness be required to come to New Mexico to testify that her car was stolen?
If the case were being prosecuted in federal Court, the formal rules of evidence would not apply to the grand jury proceedings, nor to the preliminary hearing. The federal rules of criminal procedure allow hearsay in grand jury and preliminary hearings. They have for more than 30 years, at least.
This rule change can be made by the Supreme Court of New Mexico, without the necessity of a hearing. Should the Legislature pass a memorial requesting such a rule change?
Rule 11-1101 D (2) of the Rules of Evidence (a rule of the Supreme Court of New Mexico) provides that the formal rules of evidence do not apply in certain cases. If the words "preliminary hearings and grand jury proceedings" were added, the formal rules of evidence in criminal cases would not apply in cases heard before the grand jury, and they would not apply in cases heard by preliminary hearing before a magistrate. The law of privilege (for example, priest and penitent, or lawyer and client) would still apply; but hearsay would not be prohibited.
For example, in a car theft case, in which a Cadillac was stolen in Long Beach, California, and recovered in Albuquerque in the possession of the accused, it would not be necessary for the District Attorney to bring the witness (car’s owner) from Long Beach for a grand jury hearing or for a preliminary hearing before a magistrate in Albuquerque. An affidavit from the owner could be used, or the investigating officer could testify under oath as to the report and details from the alleged victim.
Why should the accused be entitled to force the California car owner to come to New Mexico to testify at this stage of the proceedings? The right to confront the witnesses will apply, but at trial. There is no constitutional requirement that the witnesses testify in person at grand jury or preliminary hearing proceedings. If the accused claims that he had permission to take the car, then that is a different matter, and the District Attorney would not have to, but might want to bring the alleged victim to testify in person, and that could be done. But if there is no claim that the car was not stolen, then why should the victim witness be required to come to New Mexico to testify that her car was stolen?
If the case were being prosecuted in federal Court, the formal rules of evidence would not apply to the grand jury proceedings, nor to the preliminary hearing. The federal rules of criminal procedure allow hearsay in grand jury and preliminary hearings. They have for more than 30 years, at least.
This rule change can be made by the Supreme Court of New Mexico, without the necessity of a hearing. Should the Legislature pass a memorial requesting such a rule change?
Thursday, January 27, 2005
CRIMINAL JUSTICE SCENE
CRIMINAL JUSTICE SCENE
Item. Albuquerque, NM. January 27, 2005. A twenty-eight year old man was convicted of vehicular homicide in the death of 14 year old boy bicyclist. The accused admitted DWI, but argued that negligence of the child was the sole significant cause of the accident and death. Supreme Court approved jury instructions say ". . . if you find that the negligence of a person other than the defendant was the only significant cause of death, then the defendant is not guilty . . . " Uniform Jury Instructions, Criminal, 14-252. The jury undoubtedly found that the negligence of the boy bicyclist was a significant cause of the accident, but under the instructions of District Judge James Blackmer, the jury was allowed to find guilt if the DWI conduct of the accused was also a "significant cause" of the accident.
Item. Los Lunas, NM. July 11, 1993. The headline read, "Ruling in Fatal Crash Case May Force Plea Bargain." Albuquerque Journal. It was the case of Roger Bishop, accused of vehicular homicide in the death of three Albuquerque residents. Three passengers in a van, returning to Albuquerque from the opera in Santa Fe, were killed. The accused claimed that the driver of the van was negligent, and obtained a ruling from District Judge Martin Pearl to the effect that for the accused to be found guilty, the unlawful conduct of the accused must be the sole cause of the accident and deaths. The Judge’s instruction, announced before trial after arguments by the prosecutor and defense lawyer, caused the District Attorney to commence work on a plea agreement. The Judge's proposed instruction stated, "In the event you find the victim or another person contributed to the death or great bodily harm, you must find for the defendant."
Item. Santa Fe, NM, January 2, 1970. The Court of Appeals today ruled that an Albuquerque man was wrongfully convicted of involuntary manslaughter in the death of a 14 year old boy bicyclist in Albuquerque. The Court ruled that the prosecutor had proved that the accused had killed the 14 year old boy bicyclist, but that the prosecutor had failed to prove the name of the child. The Court pointed out that the indictment alleged that the defendant killed a boy named [naming him], but that in the trial the prosecutor failed to ask the police officers and pathologist what the name of the deceased boy was. The Court of Appeals ruled that such a failure of proof, that is, a lack of evidence, required that the conviction not only be reversed, but that the accused be set free and was not to be tried again for the same offense. State v. Vallo, 81 N.M. 148 (1970). [Note, the reported case does not state that the boy was a bicyclist; that is the writer's recollection from news reports at the time.]
You may ask why this 1993 case and this 1970 case are dredged up and reviewed. The writer has never had any interest in any one of these three cases, other than a general interest in criminal justice. These are cases of "criminal justice seen."
Item. Albuquerque, NM. January 27, 2005. A twenty-eight year old man was convicted of vehicular homicide in the death of 14 year old boy bicyclist. The accused admitted DWI, but argued that negligence of the child was the sole significant cause of the accident and death. Supreme Court approved jury instructions say ". . . if you find that the negligence of a person other than the defendant was the only significant cause of death, then the defendant is not guilty . . . " Uniform Jury Instructions, Criminal, 14-252. The jury undoubtedly found that the negligence of the boy bicyclist was a significant cause of the accident, but under the instructions of District Judge James Blackmer, the jury was allowed to find guilt if the DWI conduct of the accused was also a "significant cause" of the accident.
Item. Los Lunas, NM. July 11, 1993. The headline read, "Ruling in Fatal Crash Case May Force Plea Bargain." Albuquerque Journal. It was the case of Roger Bishop, accused of vehicular homicide in the death of three Albuquerque residents. Three passengers in a van, returning to Albuquerque from the opera in Santa Fe, were killed. The accused claimed that the driver of the van was negligent, and obtained a ruling from District Judge Martin Pearl to the effect that for the accused to be found guilty, the unlawful conduct of the accused must be the sole cause of the accident and deaths. The Judge’s instruction, announced before trial after arguments by the prosecutor and defense lawyer, caused the District Attorney to commence work on a plea agreement. The Judge's proposed instruction stated, "In the event you find the victim or another person contributed to the death or great bodily harm, you must find for the defendant."
Item. Santa Fe, NM, January 2, 1970. The Court of Appeals today ruled that an Albuquerque man was wrongfully convicted of involuntary manslaughter in the death of a 14 year old boy bicyclist in Albuquerque. The Court ruled that the prosecutor had proved that the accused had killed the 14 year old boy bicyclist, but that the prosecutor had failed to prove the name of the child. The Court pointed out that the indictment alleged that the defendant killed a boy named [naming him], but that in the trial the prosecutor failed to ask the police officers and pathologist what the name of the deceased boy was. The Court of Appeals ruled that such a failure of proof, that is, a lack of evidence, required that the conviction not only be reversed, but that the accused be set free and was not to be tried again for the same offense. State v. Vallo, 81 N.M. 148 (1970). [Note, the reported case does not state that the boy was a bicyclist; that is the writer's recollection from news reports at the time.]
You may ask why this 1993 case and this 1970 case are dredged up and reviewed. The writer has never had any interest in any one of these three cases, other than a general interest in criminal justice. These are cases of "criminal justice seen."
Sunday, January 23, 2005
WHY NOT RUMSFELD INTERROGATION TECHNIQUES?
This need not be a partisan issue. The President, Secretary of Defense, and Attorney General nominee, have all said that "torture" is illegal and immoral and unAmerican, and that we will not engage in torture. Let us not look back at Guantanamo or Abu Grhaib; nor argue how far up the chain of command the responsibility went or should go. That leads to arguments and further polarization. Let us go forward, with definitions of approved interrogation techniques and specification of the circumstances that will justify the tehniques, and the procedures to protect against abuse of the process.
Let us agree to go forward with a rule of law that we are willing to follow, that most Americans will approve, and that we may, if we choose, recommend to the rest of the civilized world through the United Nations. Let us amend the Geneva accords relating to prisoners of war, if need be, or let us state (or affirm) that they do not apply to terrorists and enact a rule of law for the United States to deal with the problem.
Because we are all against "torture," perhaps we should not try to define torture (impermissible) but define permissible interrogation techniques. We could follow the principle we use in the United States, that is, we restrict the action (interrogation techniques) to use by qualified enforcement officers; we require such officers to have probable cause; we require the probable cause to be presented to a neutral, independent magistrate; and if the warrant is issued, the warrant sets forth what the officer may do. Let any JAG officer make the sworn application, on oath, setting forth the reliable hearsay that warrants the action. Let a general ranking officer, at least, be the magistrate and issue the order, the warrant. Let the warrant set forth exactly what may be done to get this suspect to reveal information he or she is believed to have and to which we are entitled. Let it be done by email to avoid delay in exigent cases.
Frankly, we are not talking about the Miranda rule (June 13, 1966); nor are we talking about the rule that says involuntary confessions (those obtained by mental or physical coercion or threats of such coercion, or promises of leniency) are inadmissible in American courts of criminal law. We are talking about what coercion will be permitted to get these terrorists to talk. Let Congress debate this in open session. Let us consider techniques that Congresspersons may advocate. We may consider authorizing the near-drowning (water-board) technique; the chain-him-in-a-fetal-position-in-waste for 48 hours technique; the forced en masse masturbation technique; the "light stick" or broom stick insertion technique; and the electrical shock to the appendages technique.
We certainly should consider the twenty-plus techniques signed off on by Secretary Rumsfeld,
as a great deal of expertise and thought went into them. Consider also the three techniques withdrawn from the Secretary's list after the digital pictures showed up. The point is that nothing is off limits to consider and reject or accept, and the rule of law which we adopt will give Americans a standard which we may all be willing to accept. If the rest of the civilized world goes along, fine. No global test here, however.
Let us agree to go forward with a rule of law that we are willing to follow, that most Americans will approve, and that we may, if we choose, recommend to the rest of the civilized world through the United Nations. Let us amend the Geneva accords relating to prisoners of war, if need be, or let us state (or affirm) that they do not apply to terrorists and enact a rule of law for the United States to deal with the problem.
Because we are all against "torture," perhaps we should not try to define torture (impermissible) but define permissible interrogation techniques. We could follow the principle we use in the United States, that is, we restrict the action (interrogation techniques) to use by qualified enforcement officers; we require such officers to have probable cause; we require the probable cause to be presented to a neutral, independent magistrate; and if the warrant is issued, the warrant sets forth what the officer may do. Let any JAG officer make the sworn application, on oath, setting forth the reliable hearsay that warrants the action. Let a general ranking officer, at least, be the magistrate and issue the order, the warrant. Let the warrant set forth exactly what may be done to get this suspect to reveal information he or she is believed to have and to which we are entitled. Let it be done by email to avoid delay in exigent cases.
Frankly, we are not talking about the Miranda rule (June 13, 1966); nor are we talking about the rule that says involuntary confessions (those obtained by mental or physical coercion or threats of such coercion, or promises of leniency) are inadmissible in American courts of criminal law. We are talking about what coercion will be permitted to get these terrorists to talk. Let Congress debate this in open session. Let us consider techniques that Congresspersons may advocate. We may consider authorizing the near-drowning (water-board) technique; the chain-him-in-a-fetal-position-in-waste for 48 hours technique; the forced en masse masturbation technique; the "light stick" or broom stick insertion technique; and the electrical shock to the appendages technique.
We certainly should consider the twenty-plus techniques signed off on by Secretary Rumsfeld,
as a great deal of expertise and thought went into them. Consider also the three techniques withdrawn from the Secretary's list after the digital pictures showed up. The point is that nothing is off limits to consider and reject or accept, and the rule of law which we adopt will give Americans a standard which we may all be willing to accept. If the rest of the civilized world goes along, fine. No global test here, however.
Friday, January 21, 2005
"UNIVERSE" CAN PROMOTE PEACE
Perhaps we should promote the idea of "Universe," a new language, a universal second language of 100 words to start. The United States Ambassador to the United Nations could make the proposal. We would have no motive except to promote world peace. The United Nations could assign its best scientists and linguists, and create a 100-word language that is easy to speak and is easy to write (digits?) on the World Wide Web. "Reverse Babel" is the idea. Giving all nations of the Earth a share of a universal language, setting aside nationalism and other divisions, and promoting tolerance and understanding, and ultimately, peace. Only 100 words to start, and for a generation to come, because the language will grow by itself if it is successful, and we want to encourage adults to learn it now. With the 100-word "Universe," travellers could go from country to country, or onto the web, learning and communicating, without being self-conscious.
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