FIGHT DWI WITH ONE FOR THE ROAD

In the fight against DWI, we should be willing to consider ideas that appear absurd at first blush. Take this idea, for example. We have laws that prevent consumption of alcoholic beverages in a motor vehicle, and we make "open container" a fringe crime, because of the difficulty of proof that one is drinking rather than sitting there waiting until she gets home to finish the beer or glass. Should we consider making an exception, for chauffeured vehicles, such as limousines, taxicabs, and chartered buses?


We encourage party goers to take a cab to and from, or at least from (when overimbibed). We encourage Joe Sixpack to call a friend, or get a cab, when he has had too many; "go back tomorrow and get your car." Obviously, that is a hard sell; Joe wants another beer, and he does not want to disturb his friend, and he does not want to leave his car out here in the parking lot of this bar. If the cab had an extra driver, the driver could chauffeur Joe Sixpack home in Joe's car, get picked up at the destination, and Joe would be home safe, and his car would be safe. Maybe Joe cannot afford the cab and the extra driver. In that case, to encourage Joe to take the cab, perhaps we should allow him to buy a six pack or take a couple of his other drinks, for the road, and allow consumption during the cab ride on the way home.

When Jane Sixpack and her friends decide to go nightclubbing, they would be more likely to hire a limousine, or hire a chauffeur, if they were allowed to take drinks from home (after starting there), and they knew that on the way home they could have one for the road.

No, this is not a pretty picture; it is an ugly picture. But go to the bars sometime and sit there and have a beer or two and look around you. You will see people drinking to excess, that is, drinking more than they should if they are going to drive. That is reality. We are dealing here with the guy who has stopped by the bar and had too many. Do not expect the bartender to cut someone off before they become impaired. It cannot be done by observation alone, without knowledge of the weight of the drinker and a count of the drinks imbibed, and the bartender is not sufficiently motivated.

By closing the drive by windows, we have encouraged Joe Sixpack to stop in for a few cold ones before going home to supper. It was a long hot day on the construction job, or in the office. If Joe bought a six pack and started home (30 minute drive) he could have two beers on the way without becoming impaired. You say, do not trust him to do that; do not allow him to conveniently get the six pack. But you say it is all right for him to stop by the bar for "one or two" cold ones? Perhaps it would be better to close the bars between 4 p.m. and 7 p.m., and open the drive by windows.

How serious do we want to get about DWI? Not serious enough to even discuss eliminating the happy hour. One small step could be to say it is okay to drink in chauffered vehicles. Bringing the cost of taxicabs and limousines down to a reasonable amount is another task.

FIGHT DWI WITH TECHNOLOGY

In the daily paper today we see where Aidan Quinn, movie star, paid a $500 fine and lost his driving rights [they are not privileges, in a government of delegated powers, with a constitution, such as ours] for 90 days. He waited 18 months, then pleaded guilty without personally appearing. In the same paper, not on F-6 where Quinn's ordeal appeared, but on A-1, we see the ordeal of Judge Thomas Fitch. He pleaded guilty immediately, served a two-day mandatory sentence, lost driving rights, then took 30 days in rehabilitation, and now faces resignation or removal from office.

The criminal justice system is not perfect, but it is a good one; and it can be improved. One thing, sentences should be subject to review, for too much leniency, and for too harsh, or draconian, knee-jerk, or frivolous punishment. In Judge's school in Reno, Nevada, a few years back, the instructor conducted an experiment. Handed out a news item of a crime; and a presentence report from probation, and said the range of punishment is 0 years to 16 years. The Judges (they were all already on the bench) used a secret ballot. The answers given as a fair punishment were from outright probation (zero years) to 16 years.

Here is a partial answer to the problem, in DWI cases. Use the technology we have at present, and that which will come with new developments. In the case of DWI, we have the technology to prevent drinking (prevent ingestion of alcohol); or to limit the alcohol in the bloodstream (hence on the watery substance of the brain); and to limit the ingestion, or limit the amount, at certain times of the day, or to certain locations, or away from certain locations (aversion).

For example, by the ankle bracelet we can monitor the blood alcohol content, and allow drunkenness at home but prevent it at the workplace. With present technology, we can render machinery (automobiles, tractors, trucks, forklifts, cranes) inoperable by an impaired operator. Fifty years ago, without modern technology, the railroads figured out how to determine whether the train was being operated by an unconscious engineer.

Very important, however, is that the citizens be allowed to monitor the police and Courts and corrections and probation officers, through the internet. When Jane Sixpack is sentenced to abstinence, her bracelet reports in digits to the police, probation officer, Courts, and to the citizens. Modern technology would be more acceptable to the public if the citizens could monitor the monitors.

Instead of getting a driver out of a car and having her walk a chalk line in a dangerous location, we can hand her an IPod-type device for an immediate, accurate, recorded, monitored, impairment test, as a screening device. Fail that, and you get an invitation to a breath test; refuse that and you get detained for presentation of the evidence by wireless to the neutral, detached magistrate, and in a proper case, to an involuntary blood test. The screening tests and Court proceedings by wireless can and should be monitored by the citizens, through the internet.

Let the Judge decide the punishment for DWI. Should this convict be sentenced to abstinence (no alcohol) for a period of time? Abstinence except for when she is home (the alarm rings if the blood-alcohol is up and the convict is out of the house). Why punish the car with forfeiture, or a boot? The driver is the one who is at fault; limit or eliminate her alcohol intake, for a reasonable time. Limiting driving rights is wrong (economically costly) if there is an effective alternative, and there is. Let the Judge decide the punishment or corrective action, not the prosecutor (through charging decisions and plea bargaining); not the Legislature or City Council (through mandatory punishment schemes); not the police (through unbridled discretion conferred by the Legislature or the City Council).

Our purpose is to prevent DWI. The present DWI Lottery takes the people who are DWI each day (hundreds? thousands?), and puts their names in a hat and draws out 20 for arrest. Our justice system tosses 40%, or eight, by way of some technicality such as the officer did not appear; that leaves a dozen. We must come down hard on that dozen, to deter the thousands. For every crime, someone does time; but it is not always the one who commits the crime.

This lottery is not right. We should apprehend and convict more of the guilty, and the punishment will be more evenly spread over all of those who commit the offense. That is the fair thing to do; it is possible through technology [see post DRIVE DWI, LOSE CAR TO CITY]; and it will turn out to be the most effective, in that it will restore the confidence of the citizens in the administration of this important part of the justice system.

DRIVE DWI, LOSE CAR TO CITY

Today in the Albuquerque Journal we see that the City of Albuquerque intends to give its police the power to take the automobiles of persons arrested for DWI first offense. There are alternatives which may be used, the boot for 30 days, etc. Due process is covered by provision for an administrative hearing after the fact.

The administrative and police authority conferred by the City is based on a lack of trust in the judiciary. It seems that the City has lost confidence that DWI cases filed as criminal cases in Metropolitan Court will result in justice being done in this class of traffic offenses. Is there another explanation for immediate loss of use of an automobile, based upon an accusation of a police officer, without probable cause (if not guilt) being determined by a neutral, independent magistrate?

The City could consider establishing its own Municipal Court, and run the traffic offenses through that Court, or run the DWI cases through that Court. Have the City Council appoint the Municipal Judge, and have the Judge subject to a retention election every two years. There was a time when a person accused of DWI got a jury trial (six-person); now the City wants to eliminate the trial altogether, and replace it with an administrative hearing (or peremptory action by a police officer). What is the reason for this trend? It is especially disturbing in the criminal law, because it indicates that the government has lost confidence in its own criminal justice system. Mandatory sentences are commonplace; why? Because the legislatures have lost confidence in the judiciary to do the right thing. The legislatures (including the City Council) believe that they, or the prosecutor, can be trusted to enforce the law, but the judiciary cannot.

The principal problem with the law relating to DWI is nullification. We have been so frustrated that we increase the penalties (or make them mandatory, which in fact is an increase if it is carried out); and the result is a reluctance on the part of those charged with arrest, prosecution, conviction of guilty, and reasonable punishment of guilty convicts, to do their jobs. Nullification.

One answer is to increase the liklihood of detection, apprehension, prosecution and conviction of dangerous drivers. This can be done with radar video and computers programmed to detect (by driving pattern) the dangerous driver. This should be handled by our police officers, not outside sources; and the surveillance should be on the internet, so that the citizens can monitor the surveillance. The identity of lawful drivers and their vehicles need not be disclosed. This loss of privacy is worth the cost, and can be more palatable than the loss of privacy in some present methods of law enforcement, for example, the road block or surveillance by officers in cherry pickers.

9-11 CALLS SHOULD BE EASY

9-11 operators must have a hard job. How else can we explain the conduct of some of them when they respond to what they consider to be unreasonable calls? Some of their responses are outrageous, such as the one reported today in which the operator asked the distraught mother complaining of an out of control teenage daughter, "What do you want us to do, send someone over to shoot her?"

9-11 operators should be professionals. Sure, they are subjected to inappropriate calls, and have to deal with disturbed and rude callers. That goes with the job, and if the operators do not want the job, they should resign. However, we do have a suggestion to help.

This should be done on the federal level, and right away, to avoid the proliferation of plans such as the ones for calling in DWI's and other important calls (for example, "Call 828-8DWI," or "Call 828-STOP."). We need uniformity and simplicity. Our suggestion is to set aside the 9-1 series of numbers now, nationally. 9-11 will be life or death; 9-12 could be burglary in progress, etc.; 9-13 could be DWI in progress; and on through 9-19. A great deal of thought should be given to the priority of numbers, and to memory aids. Think of the children's song, "This Old Man." "This old man, he play two, he play knick-knack on my shoe, etc."

Imagine yourself driving down the freeway at 70 miles per hour, and you see in the lane ahead an old aluminum chair which has apparently fallen off someone's truck. Or you see a large dead dog. What do you do, call 9-11? It would be better if you called 9-1_. What if you are at a mall and see a man set a briefcase down and walk off rapidly? What if you are at a mall and see a child locked in a hot car? Do you know how to call the police, or the sheriff, or the State police, without looking into a telephone directory? Why not a non-emergency 9-1 number?

We submit that this is an urgent problem, and it should be handled by the federal government now. Transportation department, or Homeland Security?

NOTARY NOT THERE WHEN I SIGNED

Did you sign a paper which was supposed to be notarized, and you knew the notary was not there with you when you signed? That is not necessarily an error on your part. Did the notary then come along and notarize your signature, with you present, but without you signing again, in the presence of the notary? That is not necessarily an error on your part or on the part of the notary. This post is prompted by an article in the paper this week in which it was implied that a deed should be signed in the presence of a notary public.

Among other duties prescribed by law, a notary public of New Mexico may take statements under oath (verifications) and may take acknowledgments. These are two separate functions. Only one, the verification, requires that the notary public be present when the writing is signed, and see the paper being signed. The notary then states,"Signed and Sworn to before me by ____, etc." "Subscribed and sworn to, etc." is the old form, and means the same thing. Subscribing and signing are the same, and neither word carries any more weight in the law of this subject.

The other function, that of the taking of the acknowledgment, requires that the notary and the signer be present together, but the notary need not see the signing of the paper (deed, mortgage, etc.). The function of the notary here is to know the identity of the one who claims to have signed this paper, and to learn from the one who claims to have signed it, that this person indeed signed her name, that she understands that the paper is a deed, or mortgage, etc., and that she signed it of her own free will.

In the case of acknowledgments, the notary need not see the signing person actually sign the paper. The signer identifies herself to the notary public, says that she signed this paper, that it is a deed to the ranch, for example, and that she intends to transfer the property by this deed and is doing it willing. The notary then writes that the deed was "acknowledged before me this ____ day of ______, 2005, by ____________."

Any time the notary work says, "Signed and sworn to," the person signing should be in the presence of the notary, swear to the facts, and sign. The notary in such cases violates the law if she places her signature and seal on an affidavit, or verification, when she has failed to swear in the signer (place the signer under oath and have her say these facts are true), or when she has failed to watch the signature.

Why have the notaries? The notaries serve an important function. They prevent some fraud and overreaching and forgery. They also prove, by their signature and seal, at least prima facie (sufficient proof unless controverted by proof to the contrary), that the signer did sign, and did sign willingly and with understanding of the instrument signed. In some cases, the law requires that an instrument (a deed to land, for example) be acknowledged before the deed may be filed for record with the County Clerk. All of this facilitates commerce and helps protect the innocent on both ends.

WARRANTS FOR DWI BLOOD TESTS

We see in the paper this morning a story about a school district employee who was arrested for DWI. He reportedly was pulled over for weaving on the Interstate, and had an odor of alcoholic beverages, blurred speech, and watery eyes.

The first question is whether the officer had probable cause if he observed a swerving of the defendant's automobile into another lane of the Interstate, saw that defendant was driving, smelled a strong odor of alcoholic beverages on defendant, saw that defendant's eyes were watery and heard blurred speech from defendant. The answer is definitely, "Yes." That is probable cause.

Notice that we stated that it is probable cause if the officer sees this and hears that and smells that. A federal Judge one time, in denying a motion to suppress evidence, stated, "If the police officer testifies that he smelled a strong odor of marijuana emanating from within the vehicle, that is probable cause." Defense counsel did not correct the Judge, and point out that the rule should be, "If the police officer smells a strong odor of marijuana emanating from within the vehicle, that is probable cause." We are not impugning the integrity of the officer; but with modern technology we can cut down on the cases in which there is a dispute between the officer's testimony and the testimony of the accused.

Back to this case: the officer thereupon offered roadside tests, which the defendant tried and failed. The probable cause (reasonable grounds to believe that the defendant is driving a motor vehicle under the influence of alcohol) justifies the request for a breath-alcohol test, which was offered. The defendant declined the test.

Serious consequences follow because defendant refused to take the breath test, but the investigation would have been more complete if blood had been drawn and tested. A blood test could be authorized, whether defendant wanted one or not, by the order of a magistrate. Every District Judge is a magistrate; and every Metropolitan Court Judge is a magistrate. That makes approximately 30 magistrates in Bernalillo County. The New Mexico Constitution requires that the officer have probable cause, and that the officer present that probable cause to a magistrate [except in exigent circumstances]; and the Constitution allows a warrant to issue based upon a sworn written statement of the probable cause.

It would seem that a recorded telephone or radio call or email from the officer to the magistrate would serve the purpose of a writing. After all, New Mexico did not even have an exclusionary rule (illegally obtained evidence to be suppressed) until one was imposed on this State by Mapp v. Ohio (U.S. Supreme Court, 1961).

Why not have the officer call a magistrate on telephone duty for this purpose, to get a blood test, in DWI cases in which the accused refuses a breath test? The warrant need not be in hand, on a paper, to authorize the officer to take the blood with the assistance of a medical care provider. If the suspect refuses to submit voluntarily after the warrant is issued, the officer can call back to the magistrate for a warrant authorizing more physical means. The alternative is to go without a scientific test, and that does not seem right when such a test (blood alcohol) is available.

To conduct the investigation in this manner would aid in arriving at the truth of the matter charged; but it may be too inconvenient or costly. On the other hand, an unnecessary trial is inconvenient and costly, and does not always result in justice. No officer would be unreasonably hampered in her investigation, the accused would have the full benefit of the New Mexico and federal constitutional warrant requirement, and the full truth would be more likely to come out.

Another use that could be made of telephone warrants is the authorization of searches of automobiles out on the highway. Although the officer can conduct a lawful search upon probable cause or with consent of the proper person (your brother can give consent to the police to read your diary, was the ruling in the Sirhan-Sirhan case), it is not consent if the person merely acquiesces to the pretended authority of the police officer.

Why bite off that swearing match, probable cause or no, consent or acquiesence? Let the State Police or other officer call a magistrate to get authority to search a vehicle. The magistrate may swear the officer and then inquire, "Officer, you are asking for a warrant, that is, permission, to search this suspect and his car. Please tell me all of the facts that cause you to believe this search would be reasonable, etc." There could be give and take, back and forth, with the officer under oath, until the neutral, detached magistrate ruled on the record whether probable cause for the search had been established. The magistrate could place restrictions in the warrant, for example, same gender search, or search only the inside of the car, not the trunk and not the suitcase in the trunk. Fewer searches, less marijuana found, less coke and meth seized; and occasionally, a murderer allowed to slip through the roadblock with the body or murder weapon in the trunk; but the Constitutional rights of all the citizens would be better protected.

Another bit of technology, which will be the subject of a later post, is the driving simulator. Imagine a DWI suspect sitting at the wheel of a driving simulator, in a BatMobile, being fully videotaped. Volunteering, of course, but the invitation can be recorded by videotape as well. Tests by the side of the highway are somewhat subjective, difficult to videotape record, and expose the officer and accused to extra danger.

DEPUTY SHERIFF INDICTMENT FOR MANSLAUGHTER

At page 1 of the Albuquerque Journal Thursday a report appears that Otero County Deputy Sheriff Sgt. Billy Anders, a 33 year veteran, has been indicted for voluntary manslaughter. Deputy Anders allegedly killed Earl Flippen. Flippen had just shot another Deputy, and had earlier shot and killed Flippen's girlfriend. Thus, the accused Deputy Sheriff, Sgt. Billy Anders, is indicted for the unlawfully killing, in the heat of passion, of Earl Flippen, after Flippen had killed Flippen's girlfriend, and a Deputy who accompanied Anders to the scene to investigate. Flippen had killed the deceased Deputy at the back of the house, walked around the house toward the front, exchanged gunfire with Sgt. Anders, and was fatally shot. Flippen received four gunshot wounds total (left hand, left upper arm, head, and chest).

The District Attorney reportedly declined to discuss the case, saying that the indictment speaks for itself. The defense attorney reportedly stated that his client, Sgt. Anders, shot Flippen in self defense or in the defense of others.

Sgt. Anders reportedly appeared and testified before the grand jury. Presumably, the grand jury found reasonable grounds to believe that Sgt. Anders unlawfully killed Mr. Flippen; that is, that the killing was not legally justified (self defense or defense of others). That does not mean that the grand jury thought that Sgt. Anders should be convicted of unlawfuly killing Mr. Flippen, only that there is sufficient evidence, which if presented to a petty (petit) jury and not contradicted, would warrant the petty jury in finding guilt beyond a reasonable doubt of an unlawful killing.

An unlawful killing, that is, a killing without legal justification or excuse, is
ordinarily second degree murder. To elevate the killing to first degree murder, there must be deliberation, a thinking over of the act with a calm and reflective state of mind. Second degree murder requires premeditation, that is a thinking of the act before the commission of the act. Some Courts (not New Mexico) say that premeditation is the state of mind which New Mexico calls deliberation. Here it is not necessary to ponder whether there was deliberation in this killing; there obviously was not, Sgt. Anders did not act after thinking the matter over with a calm and reflective state of mind. It is a closer issue, whether he should have been indicted for second degree murder.

The grand jury has charged Sgt. Anders with an intentional killing (or intentional infliction of great bodily harm, from which Flippen died). The grand jury also found that Sgt. Anders probably acted in the "heat of passion." It is quite understandable, on these alleged facts, how the grand jury would think that the shot that killed Flippen was inflicted while Sgt. Anders was "in the heat of passion." However, "heat of passion" in this context is a term of art, with a special meaning in the law.

The statute states that manslaughter is an unlawful killing upon a sudden quarrel or in the heat of passion. The trial (petty) jury is not instructed on that statute, but upon the case law interpreting the statute. The case law is distilled into jury instructions approved in advance by the Supreme Court of New Mexico, which the trial Judge reads to the jury. Grand juries consider the law as set forth by our Supreme Court, and determine whether there is sufficient evidence to indict, and force the accused to stand trial before a trial jury.

The grand jury was governed by this rule, set forth in Uniform Jury Instructions, Criminal, 14-220: The difference between second degree murder and voluntary manslaughter is sufficient provocation. In second degree murder the defendant kills without having been sufficiently provoked, that is, without sufficient provocation. In the case of voluntary manslaughter the defendant kills after having been sufficiently provoked, that is, as a result of sufficient provocation. Sufficient provocation reduces second degree murder to voluntary manslaughter.

The grand jury is further governed by this rule, set forth as 14-222:
"Sufficient provocation" can be any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition. The "provocation" is not sufficient if an ordinary person would have cooled off before acting.

For an unlawful killing to be reduced from murder in the second degree to voluntary manslaughter, the killer must have acted while his reason was dethroned (subjective test, what was he thinking and feeling) and the reason of an ordinary reasonable person would have been dethroned (objective test, what would an ordinary person be thinking and feeling and do). Moreover, the law says that there are some circumstances, which would seem to meet the two tests set forth here, which are never "sufficient provocation;" and hence are never "in the heat of passion." The classic example is words alone. Call a man the worst thing, and even if his reason is dethroned and he acts in passion, the law says that is not "sufficient provocation;" is not "in the heat of passion" as the grand jury used the term.

Now, to the bottom line. There was a report on December 18, 2004, the date of the shooting out of which these charges arose, that Mr. Flippen was handcuffed when fatally shot, or that he may have been handcuffed when fatally shot; and that a video of the incident existed which might tell the tale. Some TV stations tried to get that video and were unsuccessful; but it was reportedly used at the grand jury hearing (secret, so we will not know). In the story of the indictment Thursday, the paper quotes the defense counsel as saying he hopes we [the public] get to see the video. If Flippen was killed while Flippen was handcuffed, that is important; not conclusive of anything, but important.

The District Attorney said that he would not discuss the details, but would let the indictment speak for itself. That indictment does not tell us much. The Defense attorney says he hopes we get to see the video. We, the general public, want to know what our public officials are doing; and we want to know whether the grand jury has gone haywire (runaway) in indicting a 33 year veteran Deputy Sheriff Sergeant. One question is why this matter was being handled by a grand jury (rather than a magistrate, with preliminary hearing open to the public). Certainly less publicity. We are not claiming that an injustice is being done, but we are claiming that the general public should be shown the video tape; and that that could be handled without unfairly tainting the petty jury pool.

Another thing is very important here. If Sgt. Anders is convicted and appeals, and if the appellate Court determines that he is not guilty of manslaughter, but is guilty of murder (that if he had been charged with murder, and convicted of murder, the conviction would stand), he goes free. For example, if the appellate Court says the evidence is that the deceased was handcuffed and he was killed for revenge, he is not guilty of manslaughter (no "sufficient provocation" under the law) so he goes Scot free. See details in an earlier post on Murder and Manslaughter, in February Archives.

LETTER TO SANDOVAL COUNTY RE ATTORNEY FEE CONTRACTS

Dear County Commissioners of Sandoval County. We submit a few suggestions regarding the PROFESSIONAL SERVICES AGREEMENT between the County of Sandoval and bond counsel. These come from a resident of the far Southeast corner of the County. The contract was entered into in February, 2003, to cover a four-year period. As we understand it, the contract can be amended by agreement of the parties, or can be terminated by either party on 60 days written notice.

Our remarks are regarding the compensation of bond counsel, the lawyers who are engaged by contract (after a request for proposals, or bid) to provide services to the County in connection with the drafting of ordinances authorizing bond issues, and the issuance of the bonds. Your contract has a compensation clause for the payment of the bond counsel, which clause reads as follows:

Exhibit A
Fee Schedule

A. General Obligation Bonds $1.00 per $1,000 face amount
of bonds with a minimum fee of $10,000 per issue;
B. Revenue Bonds $1.25 per $1,000 . . . minimum . . . $10,000 . . .
C. County Improvement Districts $6.00 per $1,000 . . . $10,000 . . .
D. Lease-Purchase Financing $1.25 per $1,000 . . . $10,000 . . . and
D.[sic] Conduit Financings, $3.00 per $1,000 face amount of bonds up
to $15,000,000 of bonds with a minimum fee of $25,000, plus
$1.00 per $1,000 face amount of bonds over $15,000,000 up to
$50,000,000, thereafter, $.40 per $1,000 face amount. All fees and
expenses to be paid by the developer.

Out-of-pocket expenses, including photocopies, long-distance telephone calls, courier services, mailings, travel expenses (with prior approval), gross receipts taxes, and other similar expenses will be paid by the County in addition to the amount billed for fees.

An hourly rate of $150 will be billed by the Firm for any additional legal
services provided not specified within this Agreement.

The Intel bonds of 2004 were not general obligation bonds. The question is whether they were "revenue bonds," or "Conduit Financings." If they were revenue bonds, the fee would be $20,000,000; if they were conduit financing, the fee would be $6,448,000. The actual fee was negotiated down to $400,000. Intel paid the lawyers' fees directly.

In this deal, Intel agreed to pay over $80 million to the County (presumably to make up for Intel's savings in ad valorem taxes, which savings will be approximately $150 million each year for 30 years). Question: who actually paid the $400,000 lawyer fees? It could be argued that the taxpayers of Sandoval County paid the fees. Presumably Intel is interested in the money, and would not care whether it paid the $400,000 to the City of Rio Rancho, to Sandoval County, or to bond counsel employed by the County (not to be confused with the regular, hard working County Attorney).

So the case can be made that we taxpayers of Sandoval County have authorized our County Commissioners, including Chairman Jack C. Thomas, to agree with bond counsel (after a request for proposals) that counsel will be paid on the basis of a percentage of the bonds issued and sold. Why do we do that? Why do we enter into such a contract?

Suggestion. Next time the matter comes around (February, 2007), let us change the contract. We could also do it now, without breaching our present agreement, by consent of bond counsel and the Commission, or by giving 60 days notice. Let us consider a new contract, one in which we pay bond counsel by the hour for the services. The hourly rate could be increased as the amount involved increases, but there is no reason to be contracting to pay out such large amounts, on a percentage basis.

The work is complex, yes. Malpractice could be disastrous, yes. If need be, the County could provide the malpractice insurance, so that would not be a factor relied upon to justify astronomical fees. What if we said in no event shall a fee be paid by the County, nor by the developer, in excess of $600 per hour? Would that be enough to obtain proposals from competent bond counsel? If so, all excess is a waste (giveaway) of the taxpayer's money. If you cannot get lawyers to bid for the work at $600 per hour or less, we will be shocked and publish the result.

We will not know at what price bond counsel will do the work, unless we put out a request for proposals that states that we want an hourly rate fixed for each lawyer involved. Similar to the contract for risk management counsel for the State.

SUGGESTIONS FOR UDALL SOCIAL SECURITY SPEECH

To Representative Tom Udall, with respect. Please do not follow the general Democrat line that there is no problem with Social Security. Do not even get into the argument as to whether there is merely a problem, or whether the problem is a crisis. Do not refer to "privatization" or "private accounts." Do not argue that the administration wants to destroy social security, and is starting the privatization process by taking a portion and will be back later for the remainder. Do not try to frighten the old folks (born before 1950) with the specter that their benefits, their insurance, will be diminished. These arguments are non-productive, and of course some are unfair and misleading. You are above that, but some, a few misguided Democrats, might want you to make those arguments as you go about the State next week.

When the issue of ownership comes up, the answer is that there is no ownership in insurance premiums paid, until and unless there is a loss. How could there be anything left to leave to the heirs? If we increase the amount paid in, to allow a nest egg for heirs to build up (like a whole-life insurance policy), that is an increase in taxes. Rather than increase the payroll taxes to provide such a nest egg, let each wage earner invest her after-tax income in such a whole-life policy to provide her estate with money (ownership) which she can leave to her heirs.

The issue remains, and we submit that it is the principal issue, whether our people should be required by law to buy insurance through the government, for old age partial-subsistence living expenses, for survivor's benefits (husbands and children), and for disability benefits. Should the government dictate in this regard? Should this insurance be compulsory? The compulsory feature is the essence of the plan put into place 70 years ago. Should we change this, at least in part, so that the insurance is no longer compulsory? This should be the issue.

Some refer to personal accounts as a diversion of a "small amount" of their payroll taxes into personal accounts, and argue that this would be a good thing. Whether it would be a good thing for the individual depends on whether she can buy the insurance (with the same guarantees) for less money, or whether she would be better off in the long run without the insurance. The small amount discussed is 4% of the 12 1/2% payroll tax. Does this mean 4%, that she and her employer each put 2% into her personal account?

In such case, she is taking 33% of her support from the governnment-run, compulsory insurance scheme, and presumably will take a 33% cut in the payments when and if a loss occurs (here we include payments after 62 or 65 for partial subsistence, as a "loss" in insurance terms). The nest egg in her personal account will make up for the reduction in payments from the compulsory, government-run scheme. Does anyone have any idea what the premiums would be for private insurance that would provide the coverage of the government-run scheme? Leave aside the issue of guarantee (private corporations sometimes go under, or their CEO's steal it all), who sells such insurance (coverage as in social security) and at what price? Check on this before we go from government to private.

Our only legitimate concern here is what happens when we no longer compel people to buy insurance of the nature of social security? Maybe they will do well and take care of themselves, or their relatives or friends or members of their church will take care of them. But what if they become public charges? There is the rub. You and I will not allow them to simply lie down and starve to death or do without the necessaries of life. We will be compelled by human decency, to provide for these. That is the principle behind compulsory insurance. Sen. Robert Dole advocated a safety net (though not a hammock). How can you have a safety net without compulsory social security?

Many fought that principle (compel them to buy social security) back in the 1930's (and fought the same principle in Medicare in the 1960's), and well-intentioned and fair-minded people today oppose the compulsory nature of the social security insurance safety net. They think that they can handle their money without the necessity of the government getting involved. This is the issue that should be debated, compulsory or not compulsory? Private is okay if it is guaranteed; but if it is not guaranteed and compulsory, then government-run compulsory insurance is justified.

Is there a crisis? Irrelevant. There is a problem. To fix the problem, we must raise taxes on someone (not necessarily immediately) or cut benefits for someone (not necessarily immediately). Some have suggested a means test; say no to that. No means test for social security benefits (beyond that we already have, as the rich are now scaled down in benefits); or we are all on relief. Let us get some facts, figures, as to what percentage of increase of the payroll tax on those under $90 thousand would be necessary to fund social security as we know it for 75 more years. Let us get such figures as to how high we would have to raise the $90 thousand cap to permit social security as we know it to continue for 75 years.

Democrats, stop saying there is no problem. Admit that there is a problem, and give the administration the room to make a concrete proposal or proposals to cure the problem. President Bush has said he would consider raising the cap on payroll taxes. Seems it would be helpful to find out what effect it would have if we raised or eliminated the payroll tax cap. The bottom line is that we should say, Yes, we have a problem, and yes, we will consider whatever concrete proposal the administration wants to make (no generalities, please).

BLACK BOXES FOR ALCOHOL DRINKS

Perhaps we should have labeling of alcoholic beverages. By that I mean compulsory labeling. Budweiser can do this voluntarily, but that is not likely.

I suggest that each alocholic beverage container be labeled to show the number of servings (12 ounce beer; or one ounce spirits; or four ounce wine) that it generally takes for a 150 pound person to have in the blood stream, to be likely to have a .08% blood alcohol concentration. Three beers; three shots; three four-ounce glasses of wine. We could require a black box on booze. In the case of Budweiser, for example, the numeral "3" would appear in large type and a logo showing a driver prohibited from driving.

In places where alcohol is served by the drink, each drink could be accompanied by a tag with the black box on it. Some margaritas might have the numeral "1." Some "beer" comes with 8% alcohol by volume; so a 12-ounce draft should have a label or tag with a black box and the numeral "1 1/2" on it.

Yes, this is a restriction on the right to do a lawful business. Yes, it is a liberal proposal, which injects government control into business. However, it is not prohibition; and it is not a teetotal measure. This proposal would result in a constant reminder to the server and to the served as to how many are too many to get behind the wheel. We cannot entirely stop drunken driving; and we cannot effectively stop drinking and driving. We can reduce driving while impaired, and this proposal may be one small step in that direction. Is it worth the loss of liberty entailed? Is it worth the intrusion into the business of sale of alcoholic beverages, a lawful enterprise? Of paramount importance, would it have any beneficial effect? Toss the idea?

A Jimmy Dean sausage, egg and cheese croissant, 4.5 ounce size, has 430 calories, 280 of which come from fat. I know because it says so on the wrapping. Why should the business of selling these breakfast biscuits, frozen for use at home, harmful, if at all, to no one except the consumer, be regulated more than the sale of alcoholic beverages?

We have discovered after decades of experience with DWI laws, that deterrence has a limit. Increase of punishment does not do the job when the punishment gets so severe that we have nullification (officers may become reluctant to apprehend and arrest; prosecutors may become reluctant to prosecute for the full offense; and Judges may be reluctant to judge offenders guilty, or may be reluctant to impose the punishment prescribed by law; and in jury cases the jury may be reluctant to find guilt, on the theory that "but for the grace of . . .").

Our attack on driving while impaired should focus on prevention by education, and deterrence by a high likelihood of apprehension, prosecution and conviction. DWI roadblocks are an unreasonable intrusion and result in some paying the penalty for the many. We could place radar-video cameras on our streets and put a practical stop to dangerous driving (including impaired driving). We could put the results on line, so that the public could have confidence in the administration of this part of our criminal laws. Take the officers out of the cherry pickers, and get rid of the mannequin officers. Use modern technology to apprehend the guilty and to establish BIG CITIZEN oversight of the criminal process. No more "May I see your papers?" No more unbridled discretion in petty officers. Rather than enslave us, the machine, technology, vigilantly used, can set us freer.

GAMBLING AND TRUTH IN ADVERTISING

In keeping with the principle of our truth in advertising laws, perhaps we should require the operators of commercial gambling devices or schemes to post their odds. For example, take the New Mexico lottery. Its operators use a puppy and the roadrunner to encourage people to gamble, and they advertise when someone wins a jackpot. The lottery takes in $150 million a year, pays $50 million to the winners, pays $50 million for administration, and pays $50 million for college scholarships. The odds are what, three to one in favor of the house? It would be forthright and helpful to those who gamble their money, if the lottery advertisements would state in bold figures, "33 cents," which is what the house pays the winners.

The same principle could be applied to the slot machines. We have heard it said that the machines must pay 80%; and we have heard "loose slots" advertised. Assuming that the slots must pay 80%, and that someone can enforce that requirement, would it be a good idea for each slot to have stated on it, in bold figures, "80 cents?"

Is it right to allow a filling station to sell lottery tickets and post a sign stating "$18,000 paid out!" without requiring that vendor to also state "$54,000 taken in!"?

COUEY NOT A PIECE OF TRASH

Citrus County Sheriff Jeff Dawsy has reported that the nine-year old girl, missing three weeks, has been found. She is dead. The Sheriff apparently did a good job, and is to be commended; but it was unprofessional for him to say of the accused, as reported, "This guy is not a quality person, by any means . . . He's truly a piece of trash."

John Evander Couey, the accused, age 46, grew up during the Viet Nam War. He was an infant when we began sending "advisors" over there during the John F. Kennedy administration. Could the war have had some influence on him? We know he is capable of sexual assault of female children; and of murder (presumably to silence the witness). How did he get there? Where did his parents go wrong? All of these questions are irrelevant. He should be put to death promptly, as painlessly as possible, as a deterrent to others who have committed crimes which are punishable by long (in effect lifetime) prison sentences, and who are contemplating killing the witness.

Why should the government kill? Not because we hate Mr. Couey; not because we despise him; not because he is a piece of trash. We should kill him because to do so may save innocent lives. Mr. Couey is human, one of us. He is a product of his heredity and his environment. Things equal to the same things are equal to each other. If any one of us had his heredity and his environment, we would have made the same choice that he made, to take the little girl's life. The important thing is that his death (or whatever else happens to him) is part of the environment of each of the rest of us, and those yet of age to be tempted.

The way things are going now, with our criminal justice system, there may be problems. For example, was he given his Miranda warnings in an acceptable manner? Did he say, "I don't know; maybe I need a lawyer?" Was cajolery used? Was his request for a lawyer (someone to help him hide the truth by keeping his mouth shut) shunted aside, just temporarily, by some change of subject such as the officer calling for a sandwich or cigarette or coffee?

These officers must have been under great stress walking the tightrope, taking Couey into custody but avoiding calling him a suspect; questioning him but hoping he did not "lawyer up." If they did violate his Miranda rights, and his confession led to the body, the body and surrounding evidence (DNA perhaps; a weapon perhaps) must be suppressed, as well as the confession. These are the rules that we operate under. These are the Warren Court (1961 — 1966) rules that seem to have everyone, Congress, the Supreme Court, the President, the people, paralyzed. The idea that this case could end with Couey on death row for a decade should cause the public to rise up and shout, "Outrage!"

No, Sheriff. Mr. Couey is a human being; he should not be dehumanized by being called a "piece of trash" by the high Sheriff. Yours is a position of honor. It will be your duty to execute him at the appropriate time. No need to talk trash.

F. LEE BAILEY AND THE N WORD

F. Lee Bailey is lawyer for the defense, and he is cross examining Jimmie James, an important government witness. Bailey is telling about it in the portion of his book quoted below:

[Bailey:] Q. Did you also say to Delane and to the others, "He's right about one thing, I hate n______s"?
A. No, sir.
Q. Did you make that statement or didn't you?
A. Absolutely not, and you heard me correctly, sir. I absolutely did not say that.
Jimmie James made the answer sound as emphatic as he could, but he was clearly nervous. And the atmosphere in the courtroom was equally tense, for it had changed noticeably when I used the word "n_____s." I had barked out the word, trying to give it as much meanness and venom as I could. It hung in the air, an all but palpable accusation. Within seconds the witness was showing signs of strain. He sat motionless, but he was biting His lip frequently now, and the jury was staring at him.
My pace had been very fast, so I slowed it a bit by pausing, and then picked up the speed again. My voice was firm and loud.

Q. You say that you did not. You do not use that word at all, do you?

I knew that if James denied using the word, I could put the investigator on the stand to refute him, thereby impeaching that statement and casting doubt on the rest of his testimony as well. The witness must have had similar thoughts.

A. I'm sure I've used it, yes, sir, because I'm from the South.

Several jurors who had been watching me returned their gaze to the witness. As soon as James said he used the word,I had what I needed to asked [sic] the next two questions without objection from the prosecutor. I almost shouted them.

Q. As recently as last week, perhaps, in Greenville?

James went literally pale. His hand gripped the top of the witness box.

A. I may have.

Q. Describing your own employee, Lee Grimes, whom you call a n______ on a daily basis?

A. He enjoys it.

I waited a moment for the impact of his answer to sink in, and then I said, as I picked up my notes and returned to the defense table, "'He enjoys it.' And you believe all men are equal in your eyes? Thank you. No further questions."

Hugh Smith [prosecutor] was on his feet like a shot, objecting to my final remark. But the jury hardly noticed him. All eyes were on Jimmie James, the "fair and equal" man.

One black juror, a woman who had betrayed absolutely no emotion up to that point, appeared stunned. She stared at the witness.

The lawyers went to the sidebar, where Smith prevailed in the argument that my last remark should be disregarded. The woman paid no attention as the Judge said, "Ladies and Gentlemen of the Jury, I want you to disregard the comment Mr. Bailey made when he sat down. It was not addressed to the witness or anyone else. You may proceed, Mr. Smith."

The Judge could have saved his breath for all the apparent effect it had on the
jury. The black woman in the front row continued to stare at Jimmie James all through Smith's less-than-enthusiastic redirect examination. The juror next to her, another woman, kept patting her on the knee the whole time, saying what even an amateur lip reader could recognize as "Calm down now, calm down."

F. Lee Bailey, FOR THE DEFENSE (with John Greenya)
New York ATHENEUM 1975

DWI MAY COME FROM THREE DRINKS

Reading of people who come up with a blood alcohol level of .08% or .1% or .15%, and who say they had two or three drinks, or two or three beers, we may wonder whether these drivers are telling the whole truth. The important thing in these DWI cases is the condition of the driver at the time of the driving. The test we have come up with is the test of the alcohol content of the blood. From that information, we know that the alcohol in the blood is also in the watery substance around the brain. That is what causes the impairment of ability to operate a motor vehicle with safety to self and others. The alcohol on the brain, or the blood alcohol content, may affect different drivers in different ways. However, there is a blood alcohol level at which all of us are impaired, that is, the ability to operate a motor vehicle with safety is impaired in each and all of us. Some years ago, that figure was set at .15%, because the medical doctors claimed that everyone with a blood alcohol of .15% was impaired. They wanted acceptance of blood alcohol testing, and intentionally set the bar high to gain that acceptance from the general public.

Many impaired drivers are better and safer drivers than many cold sober drivers. That is true, but irrelevant. The law is designed to prevent all drivers from driving impaired; that is, the law prohibits the excellent driver from driving when that driver is impaired. From each according to his ability, unimpaired by alcohol or other drugs. That is the rule.

Many people absorb alcohol into the blood stream, and hence onto the brain, faster than others; or they absorb alcohol faster if they take it on a relatively empty stomach; or the alcohol dissipates in their bodies faster than in the body of another person. True, but again irrelevant; because the law is concerned not with how long it took to get in that condition, but whether one has a concentration of alcohol of a certain level or higher at the time of the driving.

Ordinary DWI can be proved by proof of a blood alcohol concentration of .08% in adult drivers operating ordinary vehicles. If you weigh 100 pounds or 200 pounds, it is easy to calculate how many drinks you need in the bloodstream to get to the .08% level. The formula is BA = X over watery body weight. According to a respected theory, the average person has 10 ounces of watery substance in each pound of body weight. The watery substance is what we consider, because that is the medium that carries the alcohol to the brain.

So let us consider a 200 pound person of 10 ounces watery substance to the pound. That is 2000 ounces. The blood alcohol concentration, or BA, is .08%, or .0008. X is the amount of alcohol by weight ounce. BA = X over 2000. Cross multiply and X equals 1.6, that is 1.6 weight ounces of alcohol. Multiply that by 5/4 to get fluid ounces, and you have 2.0 fluid ounces of pure alcohol in the bloodstream of the 200 pound person and a presumptive DWI.

If she is drinking beer at 4%, that is about four 12-ounce beers "in the bloodstream." Add two beers for every three hours of drinking, for the oxidation, or dissipation, and you have someone who has had five beers before being stopped by the officer. Approximately the same for shots of 86 proof spirits. They are 43% alcohol, so a shot glass full is somewhat less than a 4% beer, but still close. Say the driver had 4 and ½ shots of spirits in the blood stream, and this driver with the .08% blood alcohol probably had 5 to 6 shots of spirits. Is that "three drinks?" It could easily be, but if the drinker is taking it straight from the bottle, it is more likely six drinks.

If you are 150 pounds, keep it to three shots or three beers in the blood stream, plus one for each 90 minutes of drinking, and you should be under .08%. The writer's experience with DWI cases began when defendants got a 12 person jury trial and the test was .15%. No one who had a BA under .15% was prosecuted for DWI in the Fifth District during that time(late 1950's). In the late 1960's, in Albuquerque, the acting coroner testified that all persons with a BA of .1% were under the influence. Now the presumptive level has dropped to .08%, and no jury, not even a 6 person one.

DISCLAIMER. Drinking and driving is dangerous in itself, because it is too easy to misjudge, or forget, how much you have had to drink. This discussion is not meant to encourage drinking and driving. IT IS IMPORTANT TO NOTE THAT ONE MAY BE IMPAIRED WITH A BLOOD ALCOHOL OF LESS THAN .08%. THE LEGAL TEST IS WHETHER THE DRIVING ABILITY OF THE ACCUSED IS IMPAIRED TO THE SLIGHTEST DEGREE ON ACCOUNT OF THE ALOCHOL OR OTHER DRUG. Also, I hope that someone with more knowledge and math skills reads this, so that this post can be corrected on any point if it is at all in error. It is serious business and corrections will appear here immediately. [The one in all caps just did; AND THE TITLE TO THIS POST HAS BEEN CHANGED TO CONFORM.]

INCREASE NEIGHBORHOOD SECURITY

Occasionally we read about complaints of high crime in some neighborhoods. Some parts of town are referred to as "war zones" by the people who live in those areas. Perhaps these people are not aware of the opportunity they have to get increased security in their neighborhoods.

The answer is "Chief's Overtime." The people, acting through a neighborhood association, can hire off-duty police officers to patrol the neighborhood and keep down crime. The rate of pay is $30 per hour per officer, but with that the people will get an officer of the APD, in the APD uniform, and with the APD vehicle. The point is that the bad guys will not be able to distinguish these off-duty officers from on duty officers. The $30 will pay the administration costs and leave the officer with more than the usual hourly rate; all with approval of the Chief of Police (hence, the term "Chief's Overtime").

To get one of these contracts for your neighborhood, call the Albuquerque Police Department "Off Duty Overtime," as it appears under City of Albuquerque, in the telephone directory. The people in the high crime areas of Albuquerque should take note of this.

NO DEATH PENALTY FOR JUVENILES

The Supreme Court has just decided Roper v. Simmons, and held that the Eighth Amendment prohibits the execution of a convict who was under the age of eighteen at the time of the capital crime. Roper was Superintendent of the Missouri correctional center which presumably would carry out the sentence. The case was decided March 1, 2005; it was a 5-4 decision, and the majority opinion was written by Justice Kennedy. This case, and other Supreme Court cases, may be viewed free of charge at Findlaw (http://www.findlaw.com/casecode/).

The Eight Amendment provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Bill of Rights (first ten amendments) apply to the national legislature, Congress; and following the adoption of the Fourteenth Amendment, which expressly limits the powers of the States, the Supreme Court has taken portions of the Bill of Rights and made them applicable to the States also. The Eighth Amendment is one of those which the Supreme Courts says is binding on the States because of the adoption of the Fourteenth Amendment, with its due process clause.

Not all of the Bill of Rights is binding on the States. For example, the Fifth Amendment provides a privilege against self-incrimination ("He took the Fifth."); and the Fifth Amendment also provides that no one shall be prosecuted for a felony except upon indictment by a grand jury. The grand jury requirement is not binding on the States. You will see cases prosecuted by information (written charge by the District Attorney) after a preliminary hearing before a magistrate (the magistrate finds probable cause and binds the accused over for prosecution). Suffice it to say at this time, that the Eighth Amendment applies to the States, and now execution of convicts under 18 at the time of the capital crime, is forbidden as "cruel and unusual punishment." What is "cruel and unusual" depends in part on ". . . the evolving standards of decency that mark the progress of a maturing society."

In 1989, by a 5-4 decision, the opposite result was reached by the Supreme Court in Stanford v. Kentucky, 492 U.S. 361 (1989). In that case, the Court ruled that the Eighth Amendment did not prohibit the execution of convicts whose capital crime occurred when the offender was under 18 years of age (but over 15 years of age).

In this Roper case, over the objection of three of the dissenting justices, foreign attitudes were considered. The majority states that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China.

For punishment of death to be cruel and unusual, it need not be inherently barbaric; it may also be excessive in relation to the crime. Excessive in relation to the killer. Here Simmons was 17 years old and five months; he planned a burglary and murder, enlisted other juveniles, stated that he would get away with it because he was a juvenile, committed the burglary, took the woman victim, tied and duct-taped, and threw her off a bridge into a river to drown, all as he planned (and related his intentions) in advance. In the Stanford case, now overruled, the crimes were worse but there was less planning.

One interesting analogy, by dissenting Justice Scalia. The majority had pointed out that so many States were against the death penalty for juveniles, and included in those States against such penalty, those States which had abolished the death penalty entirely. Justice Scalia found fault with that statistic. He said ". . . Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing -- absolutely nothing --about consensus that offenders under 18 deserve special immunity from such a penalty.

BTK SUSPECT CONFESSING? WAIVING MIRANDA RIGHTS?

There are news reports today that the accused who was arrested in Kansas on BTK murder charges has begun to talk to the police. He is reported to be telling them about several murders, over a period of years. The officers will testify that BTK was given his Miranda rights, that the ritual of "advice of rights" was followed to the letter. They may even have a taped (video or audio) record of the statements, but less likely of the advice and "knowing and intelligent waiver." BTK had a right to have an attorney present during questioning. He has the right just like Timothy McVeigh did when he was questioned about the bomb and the Oklahoma federal building. They waive the right to the attorney.

They know that if they want an attorney, to consult with before questioning, or if they want to have an attorney during questioning, they can merely say so. They know that it is not proper for the police to use force or violence, or threats of force or violence, to get a confession. They know that the police cannot use any mental coercion, such as sleep deprivation. They know that the police cannot use a promise of reward or leniency. [In the case of David Cooper Nelson (1959), the one and only to ultimately get the gas chamber in New Mexico, the Chief of the New Mexico State Police told the accused that ". . . he would not fry if he copped a plea." A confession followed, and was used at trial. The first conviction was reversed. The second conviction, without the confession, resulted in death in the gas chamber.]

The accused persons know that mistreatment by police, as in New York Blue television, will not be permitted in a Court of law. They know that if they ask for an attorney, there will be no questioning until an attorney is obtained for them, free of charge. The best possible thing for them is to ask for an attorney. The attorney will surely tell them to remain silent. The attorney can also contact the authorities and say I represent the accused and I do not want you to question him unless I am present, and that will be never. TV shows lawyers sitting by while officers question their clients. Where does this actually happen?

What the prisoner does not know, and the police will not tell him, is that if he asks for a lawyer [I hate that term, "lawyers up."], and remains silent, his silence and his request for a lawyer can never be mentioned to the jury. What the prisoner does not know, and the police will not tell him, is that when they say that an attorney will be provided for him to be with him during questioning, the police have no intention of providing him an attorney. If he waives his right to an attorney, they will go ahead and take the confession. If he says he wants the attorney, he is returned to his cell and questioning stops. No force; no theats; no physical nor mental coercion; no cajolery; and no comment to the jury later.

If no taped record is made of the "waiver," we must take the word of the officers as to whether the accused waived his rights, gave a "knowing, intelligent waiver" of his rights to an attorney and to remain silent. The reason we have a Miranda case (June 13, 1966) is because we do not trust the officers to refrain from beating confessions out of prisoners. We do not trust the officers to testify truthfully as to whether they beat Joe Blow, but we do trust the officers to testify truthfully as to whether Joe Blow was advised of his rights and knowingly and intelligently waived his rights.

There is no requirement that the advice and waiver be recorded by any means. Why is that? The Miranda rule penalizes the weak, the ignorant, the stupid, the frightened, the mentally ill, and those overcome by guilt. Are we proud of a procedure which accepts confessions from such people, but prohibits us from drawing an inference of guilt from silence and failure to testify (for example, O. J. Simpson and Robert Blake)? Miranda v. Arizona (1966) and Griffin v. California (1965) are a one-two punch to common sense and fairness.

KEEP DEATH PENALTY BUT LIMIT IT?

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.

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.

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.