The Libby jury is reported to have asked for a clarification as to the meaning of “reasonable doubt.” The government must prove guilt beyond a reasonable doubt. Not beyond all doubt. Not beyond a shadow of a doubt. Beyond a reasonable doubt. Here is the instruction to be given to the jury by the Judge in criminal cases in New Mexico.
14-5060. Presumption of innocence; reasonable doubt; burden of proof.(fn1)
1. Statute text
The law presumes the defendant to be innocent unless and until you are satisfied beyond a reasonable doubt of his guilt.
The burden is always on the state to prove guilt beyond a reasonable doubt. It is not required that the state prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense - the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life.
USE NOTE
1. This instruction must be given in all cases.
Annotations
Committee commentary. - The language of this instruction was derived from Devitt & Blackmar, Federal Jury Practice and Instructions, Section 11.01 (1970), and State v. Ellison, 19 N.M. 428, 144 P. 10 (1914). See also State v. Rodriguez, 23 N.M. 156, 167 P. 426, 1918A L.R.A. 1016 (1917).
Because of the importance of the presumption of innocence and the need to find guilt beyond a reasonable doubt, this instruction is required in all cases. It repeats some of the explanation given the jury at the outset of the trial in UJI 14-101.
It is generally accepted that the reasonable doubt instruction will cover a multitude of problems. For example, an instruction on the danger of eyewitness testimony is not necessary where the jury is given this instruction and UJI 14-5020, Credibility of witnesses. See State v. Mazurek, 88 N.M. 56, 537 P.2d 51 (Ct. App. 1975).
Now have you got it?
Monday, March 19, 2007
Wednesday, March 07, 2007
DENTAL CARE FOR POOR NEEDS ATTENTION
On February 5th, in a radio broadcast on KKOB, Albuquerque, Rush Limbaugh commented on the size of the proposed federal budget. He pointed out that the budget was for 2.9 trillion dollars. Then he said to this effect, “Don’t tell me there is anything [underfunded]!”
In our view his conclusion does not follow merely from the size of the proposed outlays. What are the outlays for? If the budget includes billions for corporation stockholder welfare (corporations do not pocket the money; CEO’s and stockholders do), and too little for Medicaid dental care, then indeed there is something underfunded. Or perhaps Mr. Limbaugh meant to say there is nothing that is unjustifiably underfunded.
We submit that Medicaid dental care is unjustifiably underfunded, or poorly administered. If the program is designed to provide dental care for people who cannot afford to buy dental insurance, and cannot afford to pay for the care, then it falls short. See an excellent article, with pictures, at page E2 in the Albuquerque Journal of December 12, 2006, written by Lean Holt. She says it is difficult in New Mexico to get dentists to take Medicaid patients. Her report centered on one not for profit clinic which opens at 7:00 a.m. but can handle only about 15 to 20 emergency patients a day. As early as 4:30 a.m., people are standing or squatting or sitting on the floor in the hall outside the clinic, suffering from swollen jaws and aching teeth, hoping to be among those who are given care that morning
The neglect of dental care for poor children because of poor pay by Medicaid is discussed in the post dated May 17, 2006.
Perhaps the Medicaid dental program is poorly administered. One solution is to require dentists to take Medicaid patients whether they want to or not. The lawyers have a tradition of serving indigent defendants in criminal cases for inadequate pay or for no pay. That was particularly true before the government started hiring public defenders. The government could hire dentists to serve, or could lower the standards for admission to practice as a dentist, on condition that these new dentists agree to take Medicaid patients for a few years at least.
Why require an undergraduate degree, with years of college, with many hours of electives, for a license to practice dentistry? Do you really care whether your dentist knows English literature, or grammar? A foreign language, say French or German? Really, what knowledge and skill does it take to administer an anesthetic to a suffering patient, and allow the dentist to diagnose and direct the treatment, to be administered by qualified persons other than those who have spent seven years in college?
We admire and respect the licensed dentist. But the system (the trade union aspect of the licensing laws) requires a brain surgeon to lance a boil. The system also requires one to take years of college courses which could be done after the dental school and while the graduate of dental school treats the needy.
The government could also raise the pay to the level at least of Medicare. That would be giving in to the present system, but would a least get the care to where it is needed.
In our view his conclusion does not follow merely from the size of the proposed outlays. What are the outlays for? If the budget includes billions for corporation stockholder welfare (corporations do not pocket the money; CEO’s and stockholders do), and too little for Medicaid dental care, then indeed there is something underfunded. Or perhaps Mr. Limbaugh meant to say there is nothing that is unjustifiably underfunded.
We submit that Medicaid dental care is unjustifiably underfunded, or poorly administered. If the program is designed to provide dental care for people who cannot afford to buy dental insurance, and cannot afford to pay for the care, then it falls short. See an excellent article, with pictures, at page E2 in the Albuquerque Journal of December 12, 2006, written by Lean Holt. She says it is difficult in New Mexico to get dentists to take Medicaid patients. Her report centered on one not for profit clinic which opens at 7:00 a.m. but can handle only about 15 to 20 emergency patients a day. As early as 4:30 a.m., people are standing or squatting or sitting on the floor in the hall outside the clinic, suffering from swollen jaws and aching teeth, hoping to be among those who are given care that morning
The neglect of dental care for poor children because of poor pay by Medicaid is discussed in the post dated May 17, 2006.
Perhaps the Medicaid dental program is poorly administered. One solution is to require dentists to take Medicaid patients whether they want to or not. The lawyers have a tradition of serving indigent defendants in criminal cases for inadequate pay or for no pay. That was particularly true before the government started hiring public defenders. The government could hire dentists to serve, or could lower the standards for admission to practice as a dentist, on condition that these new dentists agree to take Medicaid patients for a few years at least.
Why require an undergraduate degree, with years of college, with many hours of electives, for a license to practice dentistry? Do you really care whether your dentist knows English literature, or grammar? A foreign language, say French or German? Really, what knowledge and skill does it take to administer an anesthetic to a suffering patient, and allow the dentist to diagnose and direct the treatment, to be administered by qualified persons other than those who have spent seven years in college?
We admire and respect the licensed dentist. But the system (the trade union aspect of the licensing laws) requires a brain surgeon to lance a boil. The system also requires one to take years of college courses which could be done after the dental school and while the graduate of dental school treats the needy.
The government could also raise the pay to the level at least of Medicare. That would be giving in to the present system, but would a least get the care to where it is needed.
Saturday, March 03, 2007
NEW MEXICO HYPOCRITES AND WEED
What a bunch of hypocrites! Putting down Governor Gary Johnson, and John Dendahl (you ran him out of New Mexico). Using clever remarks such as “snow bunnies“ and “Puff Daddy.”
Oh ye hypocrites! Begone, or put up or shut up! I am not asking you if you have experimented with weed. I am asking you whether the 50 million who have should be in prison. That is the law you have sprouted and supported.
As a criminal lawyer and prosecutor, I have prosecuted seeds and one stick cases and defended 10,000 pounds cases. Where do you stand?
Hide out, congress! Hide out, state legislature of Arizona and New Mexico!
He who knows all observes all.
Oh ye hypocrites! Begone, or put up or shut up! I am not asking you if you have experimented with weed. I am asking you whether the 50 million who have should be in prison. That is the law you have sprouted and supported.
As a criminal lawyer and prosecutor, I have prosecuted seeds and one stick cases and defended 10,000 pounds cases. Where do you stand?
Hide out, congress! Hide out, state legislature of Arizona and New Mexico!
He who knows all observes all.
NURSING HOMES SHOULD BE ON LINE
Today Congressman Steve Pearce, who represents the Southern district of New Mexico, came to Albuquerque and appeared on the Jim Villaneuci show on KKOB radio. A caller related a complaint about some nursing home, not named, in which patients were neglected, for example, they were left [with untidied diapers]. Congressman Pearce stated that that was a “state issue,” and made no further comment. Later in the show he said that he was up there in Washington to look after the best interests of the people of New Mexico. What? Is it the case that no federal taxpayer money is used to subsidize nursing home care?
Here is a suggestion. If federal taxpayer money is to be allocated to provide hospice care, or personal care, for New Mexico citizens, why not put the program on line? TV cameras monitor the care and the digits are on line (not accessible by general public, but by those with a right to know). How is Grandma in the nursing home? Is her bed clothing changed as needed? Let us get on line and see.
What has Congressman Pearce to offer on this problem, if he acknowledges that he has a responsibility?
Here is a suggestion. If federal taxpayer money is to be allocated to provide hospice care, or personal care, for New Mexico citizens, why not put the program on line? TV cameras monitor the care and the digits are on line (not accessible by general public, but by those with a right to know). How is Grandma in the nursing home? Is her bed clothing changed as needed? Let us get on line and see.
What has Congressman Pearce to offer on this problem, if he acknowledges that he has a responsibility?
Wednesday, February 28, 2007
RICHARDSON FOR PRESIDENT DESERVES BETTER
Governor Bill Richardson deserves a fair chance in the Democrat party primary for President. [I do not find the term "Democrat" offensive, even in this sense.]
One albatross is the rooster fighting gambling. Rooster fighters (the non-combatants, like Rush Limbaugh), the ones who say "Let's you and him fight!" Gamblers! Not gaming, gambling! The so-called tradition of cock fighting is based on gambling.
We need to correct our laws to eliminate another possible albatross. Now, while the legislature is in session, we need to overhaul our short gun laws. During territorial days and up until 1963, it was unlawful to carry a firearm, except while traveling. No carrying in villages, towns or cities. Since 1963, carrying a firearm openly has been lawful (with restrictions as to places, age of carrier, etc.). This is not even law of the old West. This is law of the ridiculous!
Why saddle Governor Richardson with this albatross? Now is the time. We have the time, in this session of the legislature. Let us lift this burden from the back of the Governor, and bring New Mexico more into the Union.
One albatross is the rooster fighting gambling. Rooster fighters (the non-combatants, like Rush Limbaugh), the ones who say "Let's you and him fight!" Gamblers! Not gaming, gambling! The so-called tradition of cock fighting is based on gambling.
We need to correct our laws to eliminate another possible albatross. Now, while the legislature is in session, we need to overhaul our short gun laws. During territorial days and up until 1963, it was unlawful to carry a firearm, except while traveling. No carrying in villages, towns or cities. Since 1963, carrying a firearm openly has been lawful (with restrictions as to places, age of carrier, etc.). This is not even law of the old West. This is law of the ridiculous!
Why saddle Governor Richardson with this albatross? Now is the time. We have the time, in this session of the legislature. Let us lift this burden from the back of the Governor, and bring New Mexico more into the Union.
Monday, February 12, 2007
STOP THE CRUELTY AND TORTURE OF COCKFIGHTING AS WE KNOW IT
It makes me ashamed when I hear that fellow New Mexicans (Lea County people, especially!) are gambling by means of tormenting, torturing and cruelly forcing God's creatures to kill each other. This is done for the entertainment of grown people and children. Some sport.
An English judge wrote before 1844, ". . . cock-fighting must be considered a barbarous diversion, which ought not to be encouraged or sanctioned in a court of justice." Another English judge wrote in 1844, " . . . cockfighting . . . is a violation . . . of the plain dictates of humanity, which is at the basis of the common law. . . ." As another English judge put it, ". . . as being barbarous and cruel, leading to disorder and danger, and tending to deaden the feelings of humanity, both in those who participate in it, and those who witness it ...." You say you do not respect the English common law? The lawyers amoung our founding fathers respected it. In any event, were not these English judges right?
In New Mexico, from what we read, the roosters are encouraged to continue fighting even after they are wounded and seriously injured. In an 1863 English case, he Court ruled that one was guilty of causing a cock to be cruelly ill-treated, abused, and tortured where the cock, having suffered a broken thigh, was put back into the ring with the cock it was fighting, whereby it was killed ...."
We believe that the most recent word on the subject of cruelty to roosters comes from the case of State v. Buford, 65 New Mexico Reports , page 51 (Supreme Court of New Mexico 1958). Justice James B. McGhee wrote the opinion, from which Justice Sadler dissented. McGhee wrote, "Thus we reach the conclusion that the type of cruelty to animal statute we are construing was not passed with the intention of prohibiting such sports as cockfighting. ...."
All else aside, how can it possibly be justified to arm the roosters with razor sharp gaffs? If it is the nature of the rooster to fight other roosters, and it is part of someone's culture to watch and enjoy, then why not allow the roosters to fight bare footed, and allow a losing rooster to leave the fight when he wants to toss in the towel? This is torment and torture to helpless creatures and ought to be outlawed, in the name of humanity.
Governor Richardson deserves a run for President without being saddled with this shame and disgrace (legal torture and torment of helpless fowl). It is bad enough to have to face the national voters when you are from a state which allows its citizens to walk down the street with six guns strapped on the hips [from 1842 to 1963, carrying, concealed or unconcealed, was unlawful].
An English judge wrote before 1844, ". . . cock-fighting must be considered a barbarous diversion, which ought not to be encouraged or sanctioned in a court of justice." Another English judge wrote in 1844, " . . . cockfighting . . . is a violation . . . of the plain dictates of humanity, which is at the basis of the common law. . . ." As another English judge put it, ". . . as being barbarous and cruel, leading to disorder and danger, and tending to deaden the feelings of humanity, both in those who participate in it, and those who witness it ...." You say you do not respect the English common law? The lawyers amoung our founding fathers respected it. In any event, were not these English judges right?
In New Mexico, from what we read, the roosters are encouraged to continue fighting even after they are wounded and seriously injured. In an 1863 English case, he Court ruled that one was guilty of causing a cock to be cruelly ill-treated, abused, and tortured where the cock, having suffered a broken thigh, was put back into the ring with the cock it was fighting, whereby it was killed ...."
We believe that the most recent word on the subject of cruelty to roosters comes from the case of State v. Buford, 65 New Mexico Reports , page 51 (Supreme Court of New Mexico 1958). Justice James B. McGhee wrote the opinion, from which Justice Sadler dissented. McGhee wrote, "Thus we reach the conclusion that the type of cruelty to animal statute we are construing was not passed with the intention of prohibiting such sports as cockfighting. ...."
All else aside, how can it possibly be justified to arm the roosters with razor sharp gaffs? If it is the nature of the rooster to fight other roosters, and it is part of someone's culture to watch and enjoy, then why not allow the roosters to fight bare footed, and allow a losing rooster to leave the fight when he wants to toss in the towel? This is torment and torture to helpless creatures and ought to be outlawed, in the name of humanity.
Governor Richardson deserves a run for President without being saddled with this shame and disgrace (legal torture and torment of helpless fowl). It is bad enough to have to face the national voters when you are from a state which allows its citizens to walk down the street with six guns strapped on the hips [from 1842 to 1963, carrying, concealed or unconcealed, was unlawful].
Wednesday, January 10, 2007
"ARNOLD CARE" FOR ME AND MINE
Someone has referred to it as “Arnold Care.” What a nice term. What a nice man! I am for Arnold Care! Sure, I could point out problems. Remember the movie in which Hume Cronyn played the CEO of Potts & Company? Cronyn was dictating a letter in response to an irate customer who had written to complain about a defective pot (Potts was in the pots business.) He dictated, “We do not claim that our pots are perfect – (then quizzical, wide-eyed, and somewhat indignant) – whose pots are?”
The basic point is that Governor Schwartzeneggar wants universal health care for the people of California. One tenth of the nation. More people than the entire United States’ population at the time of the Civil War. Reminds me of President Clinton’s greatest hour, when he stood before Congress and challenged Congress to send him a universal health care bill, or the President would veto what was sent to him (holding the pen high to emphasize his sincerity). Reminds me of Captain Kirk instructing Bones, "On the Enterprise, treat all of the crew and passengers the same -- universal health care, to the best of our means [imagined].”
Turning to the Twelfth Amendment, I see “. . . no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” Shall we consider an amendment, after 200 years?
Yes, we may believe that the world is getting better.
The basic point is that Governor Schwartzeneggar wants universal health care for the people of California. One tenth of the nation. More people than the entire United States’ population at the time of the Civil War. Reminds me of President Clinton’s greatest hour, when he stood before Congress and challenged Congress to send him a universal health care bill, or the President would veto what was sent to him (holding the pen high to emphasize his sincerity). Reminds me of Captain Kirk instructing Bones, "On the Enterprise, treat all of the crew and passengers the same -- universal health care, to the best of our means [imagined].”
Turning to the Twelfth Amendment, I see “. . . no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” Shall we consider an amendment, after 200 years?
Yes, we may believe that the world is getting better.
Friday, January 05, 2007
NEW MEXICO GOVERNOR GIVES INAUGURAL ADDRESS
New Mexico's Governor, Bill Richardson, began his second four-year term on Monday, January 1, 2007. In his speech, Governor Richardson set some very important goals. Here are several, dealing with the lives of the children of New Mexico.
Speaking of his first term, the Governor said, "We made health insurance more affordable for small businesses, and guaranteed that every child under five can get quality health care." He explained that [even now] "Too many New Mexico families have their home budget stretched and their opporunities limited, by poor health and no health care."
Looking ahead, he said, "I believe that together, we can make New Mexico a place where every child can get a sound education, grow up safe and healthy, find a good paying job, be near their families and build their dreams. . . . . Because for New Mexico -- the best is yet to come."
These words warm the heart. Now let us put forth a challenge to our sister Western states to match these goals. Yes, we are speaking of entitlements, and that means taxpayer money. Let us face it; first things first.
Speaking of his first term, the Governor said, "We made health insurance more affordable for small businesses, and guaranteed that every child under five can get quality health care." He explained that [even now] "Too many New Mexico families have their home budget stretched and their opporunities limited, by poor health and no health care."
Looking ahead, he said, "I believe that together, we can make New Mexico a place where every child can get a sound education, grow up safe and healthy, find a good paying job, be near their families and build their dreams. . . . . Because for New Mexico -- the best is yet to come."
These words warm the heart. Now let us put forth a challenge to our sister Western states to match these goals. Yes, we are speaking of entitlements, and that means taxpayer money. Let us face it; first things first.
Monday, January 01, 2007
Monday, November 20, 2006
VICE PRESIDENT CHENEY AND ATTORNEY GENERAL ALBERTO GONZALES
Vice President Cheney and Attorney General Alberto Gonzales are asking Congress to approve certain proposed legislation. They say the legislation is necessary for the defense of the country. We have questions.
Are these two afraid that something they have already done may subject them to prosecution for war crimes (by Germany, or some other country, or by some international body)? If not, why does this legislation provide retroactive immunity to our agents for war crimes committed during the period September, 2001 to September 2006?
Leave that motivation aside. Address the merits of their proposed legislation which authorizes searchs and seizures with probable cause, but without a warrant. The Fourh Amendment forbids unreasonable searchs and seizures; but it goes further and in effect defines unreasonable. The amendment has two parts. For a search or seizure to be reasonable, first there must be probable cause, and second, except in exigent circumstances, that probable cause must be submitted by the law enforcement officers to a neutral, independent magistrate and a warrant (okay in writing) obtained. There is no reason to believe that the Fourth Amendment procedure would interfere with any legitimate procedure. For example, if there is good reason to monitor all calls from country X, get a warrant, a blanket warrant. You come up with the scenario (need) and I, as a federal judge, will give you a warrant. If you have an emergency, act and then seek approval. What is the problem? No one has said, except to spin the argument so that a "liberal" demand for a warrant is spun to be a liberal demand that the search or seizure be forbidden.
It seems that the Vice President and Attrney General both are of the opinion that the warrant requirement of the Fourh Amendment is inapplicable because this nation is at war and the powers of the President to search and seize are not limited by the Fourth Amendment. Let that be the issue, and let us debate and settle it immediately. Then let us abide the decision or, if we want to, leave the country.
Are these two afraid that something they have already done may subject them to prosecution for war crimes (by Germany, or some other country, or by some international body)? If not, why does this legislation provide retroactive immunity to our agents for war crimes committed during the period September, 2001 to September 2006?
Leave that motivation aside. Address the merits of their proposed legislation which authorizes searchs and seizures with probable cause, but without a warrant. The Fourh Amendment forbids unreasonable searchs and seizures; but it goes further and in effect defines unreasonable. The amendment has two parts. For a search or seizure to be reasonable, first there must be probable cause, and second, except in exigent circumstances, that probable cause must be submitted by the law enforcement officers to a neutral, independent magistrate and a warrant (okay in writing) obtained. There is no reason to believe that the Fourth Amendment procedure would interfere with any legitimate procedure. For example, if there is good reason to monitor all calls from country X, get a warrant, a blanket warrant. You come up with the scenario (need) and I, as a federal judge, will give you a warrant. If you have an emergency, act and then seek approval. What is the problem? No one has said, except to spin the argument so that a "liberal" demand for a warrant is spun to be a liberal demand that the search or seizure be forbidden.
It seems that the Vice President and Attrney General both are of the opinion that the warrant requirement of the Fourh Amendment is inapplicable because this nation is at war and the powers of the President to search and seize are not limited by the Fourth Amendment. Let that be the issue, and let us debate and settle it immediately. Then let us abide the decision or, if we want to, leave the country.
Monday, October 30, 2006
GOVERNMENT SHOULD BE PUBLIC, THAT IS, ON LINE
Joe Bisquithooks sells the home place, and the deed is recorded. Recording is done by photocopying, and a record is put on a digital database. The clerk in the office of County Clerk (real estate records) can access the information with his computer. Why cannot we BIG CITIZENS do the same?
Yes, I can get in my car and drive down to Fifth and Marquette IN Albuquerque; go into the county office building; go to the sixth floor to the office of the County Clerk; and ask a clerk to look into his computer screen and tell me whether Joe Bisquithooks has signed a deed to the home place. Why is this database NOT ON LINE?
A “public” hearing is taking place in federal Court; it is a motion to suppress evidence in a State corruption prosecution. Yes, I can get in my car and drive down to the federal courthouse on Fourth and Lomas, park in a secure place, walk a block and enter the front door, go through a checkpoint, go to the courtroom, and see the proceedings. Why are these proceedings not put on line with an unobtrusive video camera sending a video stream ON LINE, so that BIG CITIZEN can know better what the government is doing?
All public records and all public proceedings should be on line.
Yes, I can get in my car and drive down to Fifth and Marquette IN Albuquerque; go into the county office building; go to the sixth floor to the office of the County Clerk; and ask a clerk to look into his computer screen and tell me whether Joe Bisquithooks has signed a deed to the home place. Why is this database NOT ON LINE?
A “public” hearing is taking place in federal Court; it is a motion to suppress evidence in a State corruption prosecution. Yes, I can get in my car and drive down to the federal courthouse on Fourth and Lomas, park in a secure place, walk a block and enter the front door, go through a checkpoint, go to the courtroom, and see the proceedings. Why are these proceedings not put on line with an unobtrusive video camera sending a video stream ON LINE, so that BIG CITIZEN can know better what the government is doing?
All public records and all public proceedings should be on line.
Thursday, October 26, 2006
BIG CITIZEN OVERSIGHT NEEDED FOR COMMUNITY CUSTODY PROGRAM
The Bernalillo County Commission is debating this month over the issue of early release of convicts. It seems that the Community Custody program may be expanded. Convicts are placed in the program as an alternative to jail, and the program calls for intensive monitoring, work release, electronic bracelets, drug testing, etc. The County accepts the program, because at present a transfer from regular jail to the community program (referred to as “early release”) is approved by the sentencing judge.
The jail authorities think so highly of the program that they want to expand it by adding convicts who have been sentenced to jail regardless of whether the convicts have been cleared by the Judge for such community service. The jail authorities want to make the decision as to who gets early release. Judges want to retain control. The proposal has been deferred in the County Commission for several weeks while a compromise is put forth.
This Community Custody program is a useful tool, another arrow in the Judge’s quiver. The Judge should decide, and the public should hold the Judge accountable for errors of judgment. It is like old-fashioned probation; it can be good, or it can be ill-advised.
Here is a suggestion. The Community Custody program should be monitored by Big Citizen. The citizens should have access to on-line programs to monitor the monitors, and thereby be assured that Joe Sixpack is following his directions. Home at certain hours; no booze; some booze; booze at certain hours; work certain hours; show at school at certain times; and the like.
If this supervision were put on-line, the citizens and police would have confidence that violations would be detected and reported (back to the responsible Judge). We favor house arrest; home detention; drug (including alcohol) monitoring; and other restrictions of liberty. They can be used to punish and to rehabilitate, if applied properly, in deserving cases, and if there is a proper follow up with monitoring. However, this is a program which needs close monitoring by BIG CITIZEN.
The jail authorities think so highly of the program that they want to expand it by adding convicts who have been sentenced to jail regardless of whether the convicts have been cleared by the Judge for such community service. The jail authorities want to make the decision as to who gets early release. Judges want to retain control. The proposal has been deferred in the County Commission for several weeks while a compromise is put forth.
This Community Custody program is a useful tool, another arrow in the Judge’s quiver. The Judge should decide, and the public should hold the Judge accountable for errors of judgment. It is like old-fashioned probation; it can be good, or it can be ill-advised.
Here is a suggestion. The Community Custody program should be monitored by Big Citizen. The citizens should have access to on-line programs to monitor the monitors, and thereby be assured that Joe Sixpack is following his directions. Home at certain hours; no booze; some booze; booze at certain hours; work certain hours; show at school at certain times; and the like.
If this supervision were put on-line, the citizens and police would have confidence that violations would be detected and reported (back to the responsible Judge). We favor house arrest; home detention; drug (including alcohol) monitoring; and other restrictions of liberty. They can be used to punish and to rehabilitate, if applied properly, in deserving cases, and if there is a proper follow up with monitoring. However, this is a program which needs close monitoring by BIG CITIZEN.
Tuesday, October 24, 2006
SHORTAGE OF POLICE IN ALBUQUERQUE
In the news we see that Albuquerque is short at least 100 police officers. That has been the case for years, and the City is at a loss as to how to recruit enough new officers. We submit that the City should change its recruiting policies, regardless of whether and when the City is up to the desired strength.
First, the idea of paramilitary police should be examined. Some police ought to be paramilitary, just like there should be some other specialty teams. Mental health, SWAT, close-encounter rough and ready teams, of one or more, should be available. But the tedious, boring, hard and dangerous work of patrolling and answering calls, may be handled by officers without special qualifications, and without special physical attributes.
There must be hundreds of honest, capable, intelligent men and women of age 50 and over, who would be willing to work 20 hour weeks, either as a moonlight job, or otherwise. Uniformed, armed, in marked vehicles, these auxiliary officers could perform many of the routine services. They would be excellent as investigators, because of their life experiences.
A radio ad for a local alarm company (all retired police officers) states that it may take up to six (6) hours for the APD to respond to a house alarm (because there are 80,000 home alarms in the City). Auxiliary officers could do it. Do you doubt it? Yes, some training will be necessary. Training and continued education are very important.
Not all officers need go through a boot camp type academy to qualify. Why have those people out at 6 a.m. jogging through the Valley? Why have their hair cut short? Why have drill instructor types yelling at the recruits?
People with physical disabilities can serve. What is the difference between them and small women in excellent physical condition?
We can benefit from opening the force to others than young, physically superior, people with two years of college (or military). These other people, too, can protect and serve.
This is all with due respect to the men and women presently serving. With few exceptions, they do their duty, protect and serve, and deserve our respect and gratitude.
First, the idea of paramilitary police should be examined. Some police ought to be paramilitary, just like there should be some other specialty teams. Mental health, SWAT, close-encounter rough and ready teams, of one or more, should be available. But the tedious, boring, hard and dangerous work of patrolling and answering calls, may be handled by officers without special qualifications, and without special physical attributes.
There must be hundreds of honest, capable, intelligent men and women of age 50 and over, who would be willing to work 20 hour weeks, either as a moonlight job, or otherwise. Uniformed, armed, in marked vehicles, these auxiliary officers could perform many of the routine services. They would be excellent as investigators, because of their life experiences.
A radio ad for a local alarm company (all retired police officers) states that it may take up to six (6) hours for the APD to respond to a house alarm (because there are 80,000 home alarms in the City). Auxiliary officers could do it. Do you doubt it? Yes, some training will be necessary. Training and continued education are very important.
Not all officers need go through a boot camp type academy to qualify. Why have those people out at 6 a.m. jogging through the Valley? Why have their hair cut short? Why have drill instructor types yelling at the recruits?
People with physical disabilities can serve. What is the difference between them and small women in excellent physical condition?
We can benefit from opening the force to others than young, physically superior, people with two years of college (or military). These other people, too, can protect and serve.
This is all with due respect to the men and women presently serving. With few exceptions, they do their duty, protect and serve, and deserve our respect and gratitude.
Tuesday, October 17, 2006
PRESIDENT BUSH SIGNS BILL SETTING FORTH RIGHTS OF DETAINEES AND CIA DURING INTERROGATION
Today, President George W. Bush signed the "miliary tribunal" bill. We have not read the legislation in its final form, unless it is identical to the version approved by the House of Representatives on September 29th (53 pages). So the answer to the following questions may be set forth in the bill as signed. In any event, the title of the legislation is misleading, because it fails to tell us that the law will provide a retroactive defense for some war crimes committed after September 11, 2001, and now; and it fails to tell us that the law provides for the protection of CIA agents whose interrogation techniques are questioned.
The questions are for Senators John McCain and John Warner; and for Representatives Pearce and Wilson, of New Mexico. The questions are these:
1. Under this legislation, is waterboarding permissible?
2. Same question regarding sleep deprivation?
Answers: [ ] Have no idea; and it does not matter.
[ ] Yes.
[ ] No.
[ ] Essentially, that matter is left to the discretion of
the President; and if he says "Yes," then that is the answer
and if he says "No," that is the answer.
[ ] Other:______________________________________________________.
The questions are for Senators John McCain and John Warner; and for Representatives Pearce and Wilson, of New Mexico. The questions are these:
1. Under this legislation, is waterboarding permissible?
2. Same question regarding sleep deprivation?
Answers: [ ] Have no idea; and it does not matter.
[ ] Yes.
[ ] No.
[ ] Essentially, that matter is left to the discretion of
the President; and if he says "Yes," then that is the answer
and if he says "No," that is the answer.
[ ] Other:______________________________________________________.
Wednesday, October 11, 2006
QUESTIONS ABOUT INTERROGATION OF DETAINEES: TORTURE, OR OTHER WAR CRIMES, OR LAWFUL UNDER NEW HOUSE BILL?
H.R. 6166 has passed the House of Representatives, and our Representatives Steve Pearce and Heather Wilson voted YES. Tom Udall voted NO. Where are we now?
18 U.S.C 2441. War Crimes. . . . (c) Definition. – As used in ths section the term “war crime” means any conduct – . . . (3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or . . . .
A violation of common Article 3 of the Geneva conventions (which applies when detainees are not prisoners of war), is a “war crime.” 18 U.S.C 1441. Article 3 forbids cruel, inhuman or degrading treatment of a detainee who is in our custody, in the USA or abroad.
A defense to the charge is, that an nterrogation technique was authorized at the time it was used; that the actor in good faith believed the technique to be authorized and lawful; and that a reasonable person would so believe. It is a defense if technique was authorized, and we acted reasonably and in good faith in the belief that the technique was authorized. Section of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1). See next paragraph.
42 U.S.C. 2000dd-1(b), Section 1004. (a) Protection of United States Government Personnel - In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of . . . [use of] specific operational practices, that involve detention and interrogation of [designated] aliens . . . and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such . . . [accused] did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful . . . .
That was the law before H.R. 6166, supported by Congressman Pearce and Congresswoman Wilson. By this Bill, the House seeks to extend a defense to the War Crimes Act, to war crimes which are a violation of commn Article 3 of the Geneva Conventions. See next paragraph.
H. R. 6166, Sec. 8 (b). Protection of Personnel – Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that – . . . (2) is grounded in section 2441(c)(3) of title 18, United States Code; and . . .
So with this background, we respectfully ask Representatives Steve Pearce and Heather Wilson, these questions:
1. (A) At the time you voted for this law, did you believe that water-boarding was authorized as a technique of interrogation? (B) Did you believe that it had ever been authorized? (C) Do you believe that water-boarding is now authorized?
2. (A)-(C). Same questions regarding the technique of sleep deprivation.
3. (A)-(C). Same question regarding hooding and beating about the face and head.
4. (A)-(C). Same question regarding chaining detainee in fetal position on concrete floor in his own waste for 40 hour
5. At the time that you voted for this law, did you intend to make lawful any one or more of those four techniques of interrogation?
6. When you state in H.R. 6166 that the defense of good faith set forth in Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply to war crimes based on a violation of common article 3 of the Geneva conventions that occurred in the past after 9/11/2001, was it your intention to provide a retroactive defense for a war crime based on any of the four interrogation techniques under discussion?
7. Are you in favor of the United States authorizing any one or more of the four interrogation techniques under discussion? If so, which one or ones?
8. Do you believe that the voters in New Mexico are entitled to know whether any of these four techniques of interrogation is lawful? If not, why not?
18 U.S.C 2441. War Crimes. . . . (c) Definition. – As used in ths section the term “war crime” means any conduct – . . . (3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or . . . .
A violation of common Article 3 of the Geneva conventions (which applies when detainees are not prisoners of war), is a “war crime.” 18 U.S.C 1441. Article 3 forbids cruel, inhuman or degrading treatment of a detainee who is in our custody, in the USA or abroad.
A defense to the charge is, that an nterrogation technique was authorized at the time it was used; that the actor in good faith believed the technique to be authorized and lawful; and that a reasonable person would so believe. It is a defense if technique was authorized, and we acted reasonably and in good faith in the belief that the technique was authorized. Section of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1). See next paragraph.
42 U.S.C. 2000dd-1(b), Section 1004. (a) Protection of United States Government Personnel - In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of . . . [use of] specific operational practices, that involve detention and interrogation of [designated] aliens . . . and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such . . . [accused] did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful . . . .
That was the law before H.R. 6166, supported by Congressman Pearce and Congresswoman Wilson. By this Bill, the House seeks to extend a defense to the War Crimes Act, to war crimes which are a violation of commn Article 3 of the Geneva Conventions. See next paragraph.
H. R. 6166, Sec. 8 (b). Protection of Personnel – Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that – . . . (2) is grounded in section 2441(c)(3) of title 18, United States Code; and . . .
So with this background, we respectfully ask Representatives Steve Pearce and Heather Wilson, these questions:
1. (A) At the time you voted for this law, did you believe that water-boarding was authorized as a technique of interrogation? (B) Did you believe that it had ever been authorized? (C) Do you believe that water-boarding is now authorized?
2. (A)-(C). Same questions regarding the technique of sleep deprivation.
3. (A)-(C). Same question regarding hooding and beating about the face and head.
4. (A)-(C). Same question regarding chaining detainee in fetal position on concrete floor in his own waste for 40 hour
5. At the time that you voted for this law, did you intend to make lawful any one or more of those four techniques of interrogation?
6. When you state in H.R. 6166 that the defense of good faith set forth in Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply to war crimes based on a violation of common article 3 of the Geneva conventions that occurred in the past after 9/11/2001, was it your intention to provide a retroactive defense for a war crime based on any of the four interrogation techniques under discussion?
7. Are you in favor of the United States authorizing any one or more of the four interrogation techniques under discussion? If so, which one or ones?
8. Do you believe that the voters in New Mexico are entitled to know whether any of these four techniques of interrogation is lawful? If not, why not?
Monday, October 02, 2006
VERDICT IN VIGIL CRIMINAL TRIAL
Saturday morning, the jury in the federal prosecution of Robert Vigil returned a verdict. Vigil was acquitted of 23 of the 24 charges. The conviction was on the charge of attempted extortion (hire this woman at a high salary, or you do not get the contract). The 23 acquittals were on various kickback and corruption charges.
Now it is okay to Monday morning quarterback.
First, why so many counts (charges). Looks bad to inexperienced jurors, because the U. S. Attorney let the other accused off with only one count each. Did those who plead guilty to one count (in a plea agreement) get a “sweetheart deal”? Hardly, but an ignorant jury might be mislead. The prosecutor has to file numerous charges (throw a big loop); otherwise, the defense counsel will argue that indeed, the accused may be guilty of some crime, but there is a reasonable doubt that he is guilty of this charge. The prosecutor is not allowed to explain that he throws a big loop because he wants a conviction, and would settle for a plea of guilty to one count, just as he did with the co-defendants or other defendants.
Next, where was the United States Attorney? This was a political trial to many, and perhaps to some of the jury. In any event, it is an important case, not the usual type of charge (drug pushing; or felony in Indian Country; e.g.). The jury likes to see the DA herself or the U.S. Attorney himself in high profile cases. Makes the jury feel that jurors are respected.
Next, did Sam Bregman, defense attorney, get away with an appeal to the sympathy of the jurors (in the closing argument)? Sounds like it, if the newspapers report of the argument is correct and complete. Did the prosecutor object, respond in kind, or let it pass? If he let it pass, was it because he thought the jury would be too intelligent to be swayed by an argument that the accused and his family [look out there; they are sitting there on the front row] would suffer from a conviction. Even intelligent jurors can be swayed by the sympathy argument. That is why juries are told that they are not to allow sympathy, or the consequences of their verdict, to affect their verdict.
Yes, this is Monday morning quarter-backing; and we may be completely off base. We saw none of the trial, due to the relative secrecy of federal criminal trials and appeals. No on-line information here; no television; no radio; no still photographs. Our uninformed opinion is that the prosecution did a good job and that conviction of a charge that carries a possible 20 years is a definite victory for the government.
Now it is okay to Monday morning quarterback.
First, why so many counts (charges). Looks bad to inexperienced jurors, because the U. S. Attorney let the other accused off with only one count each. Did those who plead guilty to one count (in a plea agreement) get a “sweetheart deal”? Hardly, but an ignorant jury might be mislead. The prosecutor has to file numerous charges (throw a big loop); otherwise, the defense counsel will argue that indeed, the accused may be guilty of some crime, but there is a reasonable doubt that he is guilty of this charge. The prosecutor is not allowed to explain that he throws a big loop because he wants a conviction, and would settle for a plea of guilty to one count, just as he did with the co-defendants or other defendants.
Next, where was the United States Attorney? This was a political trial to many, and perhaps to some of the jury. In any event, it is an important case, not the usual type of charge (drug pushing; or felony in Indian Country; e.g.). The jury likes to see the DA herself or the U.S. Attorney himself in high profile cases. Makes the jury feel that jurors are respected.
Next, did Sam Bregman, defense attorney, get away with an appeal to the sympathy of the jurors (in the closing argument)? Sounds like it, if the newspapers report of the argument is correct and complete. Did the prosecutor object, respond in kind, or let it pass? If he let it pass, was it because he thought the jury would be too intelligent to be swayed by an argument that the accused and his family [look out there; they are sitting there on the front row] would suffer from a conviction. Even intelligent jurors can be swayed by the sympathy argument. That is why juries are told that they are not to allow sympathy, or the consequences of their verdict, to affect their verdict.
Yes, this is Monday morning quarter-backing; and we may be completely off base. We saw none of the trial, due to the relative secrecy of federal criminal trials and appeals. No on-line information here; no television; no radio; no still photographs. Our uninformed opinion is that the prosecution did a good job and that conviction of a charge that carries a possible 20 years is a definite victory for the government.
Thursday, September 14, 2006
RANDOM THOUGHTS REGARDING DWI (DUI)
In the news today, Linda Atkinson, executive director of DWI Resources Center, has unveiled a map showing the location of motor vehicle crashes in which alcohol was a factor. Surprisingly, Louisiana and Central shows up as the most dangerous in this respect; and the South Valley is number five. It would seem that it is safer to drive through Isleta and Bridge than it is to drive through Central and Louisiana, at least after 6:00 p.m. on weekends.
The report prompts these random thoughts on the crime of DWI (DUI).
Nullification has set in. Right here in New Mexico, a Legislator asked the Chief of Police in a Southern town, to ask the arresting officer to not show for a DWI hearing. Right here in Albuquerque, officers fail to show and Judges fail to sanction (they dismiss DWI cases instead of making witnesses shape up).
On the punishment of deprivation of driver’s licence. Historically, the Judges did not punish by restricting the right to drive. The Legislature told the Judges to punish by taking the license and sending it to Santa Fe. In many cases the Judges refused to comply. The Legislature did not trust the Judges, and placed the responsibility of revocation with the Motor Vehicle Department (MVD).
Many Judges then failed to send in the report of conviction, so the MVD was unable to revoke the license. The Legislature then arranged it so the MVD would get involved when an arrest was made for DWI, rather than wait for a trial. Then the defense attorneys raised many technicalities in MVD hearings; and arresting officers often failed to appear at MVD hearings; and the MVD caved in and started letting the accused off because of technicalities and no shows.
Doesn’t this tell us something, after 60 years or so? We have nullification.
The interlock solution.
We catch the offender is one of a thousand offenses he commits. Then we try to take the driver’s license; or the car; or put on an interlock. Why not put on an interlock before the first offense (first offense, not first conviction)? Why not require any brand new motor vehicle to have an interlock (as defined in the statute passed at the instance of W. Ken Martinez, a Legislator from Grants)? Ultimately, all but the antiques would have them.
It is as simple as Congress telling the manufacturers to put in all new vehicles a safety device that prevents an alcohol-impaired driver from starting the vehicle, and prevents the continued driving of a vehicle by one who becomes alcohol-impaired. The key is the key, coupled with the alcohol detecting device developed at Sandia Labs. The scientists and inventors would come up with devices that are foolproof and non-intrusive and non-burdensome to unimpaired drivers. A touch of the key to start the vehicle; a touch (on demand) of the key to keep the vehicle running. Why don’t we do this, and save thousands of lives and hundreds of thousands of serious injuries each year?
A final thought here. Jane Sixpack likes to get drunk; and she needs to drive while sober. Tell her she can get alcohol-impaired, and she can drive her vehicle; but she will not be allowed to do both at the same time. Under our present system, we could use the alcohol bracelet as a preventative and as punishment. The alcohol ankle bracelet detects and reports the blood-alcohol level. Existing, workable technology.
After the arrest, the Judge directs as a condition of release that the accused wear an alcohol ankle bracelet until trial (no more need for a “six-month” rule to speed trials). Defense lawyers who are encouraged by the arbitrary six month rule to manipulate the system and stall the trial, will be requesting speedy trials to close the case if their clients get no booze until trial. Then, in cases of conviction, the Judge can restrict the alcohol intake of the convict: no alcohol in the blood unless the convict is at home; or only during certain hours, and at home; or only to a certain alcohol level, etc.
Put yourself in the shoes of Jane Sixpack, who drives while alcohol-impaired. She is threatened with loss of driver’s license; or she is threatened with forced alcohol abstinence. Is there any doubt as to which punishment she would fear the more?
The report prompts these random thoughts on the crime of DWI (DUI).
Nullification has set in. Right here in New Mexico, a Legislator asked the Chief of Police in a Southern town, to ask the arresting officer to not show for a DWI hearing. Right here in Albuquerque, officers fail to show and Judges fail to sanction (they dismiss DWI cases instead of making witnesses shape up).
On the punishment of deprivation of driver’s licence. Historically, the Judges did not punish by restricting the right to drive. The Legislature told the Judges to punish by taking the license and sending it to Santa Fe. In many cases the Judges refused to comply. The Legislature did not trust the Judges, and placed the responsibility of revocation with the Motor Vehicle Department (MVD).
Many Judges then failed to send in the report of conviction, so the MVD was unable to revoke the license. The Legislature then arranged it so the MVD would get involved when an arrest was made for DWI, rather than wait for a trial. Then the defense attorneys raised many technicalities in MVD hearings; and arresting officers often failed to appear at MVD hearings; and the MVD caved in and started letting the accused off because of technicalities and no shows.
Doesn’t this tell us something, after 60 years or so? We have nullification.
The interlock solution.
We catch the offender is one of a thousand offenses he commits. Then we try to take the driver’s license; or the car; or put on an interlock. Why not put on an interlock before the first offense (first offense, not first conviction)? Why not require any brand new motor vehicle to have an interlock (as defined in the statute passed at the instance of W. Ken Martinez, a Legislator from Grants)? Ultimately, all but the antiques would have them.
It is as simple as Congress telling the manufacturers to put in all new vehicles a safety device that prevents an alcohol-impaired driver from starting the vehicle, and prevents the continued driving of a vehicle by one who becomes alcohol-impaired. The key is the key, coupled with the alcohol detecting device developed at Sandia Labs. The scientists and inventors would come up with devices that are foolproof and non-intrusive and non-burdensome to unimpaired drivers. A touch of the key to start the vehicle; a touch (on demand) of the key to keep the vehicle running. Why don’t we do this, and save thousands of lives and hundreds of thousands of serious injuries each year?
A final thought here. Jane Sixpack likes to get drunk; and she needs to drive while sober. Tell her she can get alcohol-impaired, and she can drive her vehicle; but she will not be allowed to do both at the same time. Under our present system, we could use the alcohol bracelet as a preventative and as punishment. The alcohol ankle bracelet detects and reports the blood-alcohol level. Existing, workable technology.
After the arrest, the Judge directs as a condition of release that the accused wear an alcohol ankle bracelet until trial (no more need for a “six-month” rule to speed trials). Defense lawyers who are encouraged by the arbitrary six month rule to manipulate the system and stall the trial, will be requesting speedy trials to close the case if their clients get no booze until trial. Then, in cases of conviction, the Judge can restrict the alcohol intake of the convict: no alcohol in the blood unless the convict is at home; or only during certain hours, and at home; or only to a certain alcohol level, etc.
Put yourself in the shoes of Jane Sixpack, who drives while alcohol-impaired. She is threatened with loss of driver’s license; or she is threatened with forced alcohol abstinence. Is there any doubt as to which punishment she would fear the more?
Sunday, September 10, 2006
END PROHIBITION, BUT START SLOWLY; END PROHIBITION OF SMOKED MARIJUANA AS PRESCRIBED MEDICINE
Stanley Crouch, in his syndicated column in the Albuquerque Journal of April 29, 2006, argues that we should “Declare Victory and End Drug War.” We could even acknowledge defeat and end the drug war. Abuse of recreational drugs (including alcohol) should be against the law; and the law should be so reasonable that it will be enforced, evenly, fairly and with good judgment. The key word here is "abuse."
We now see in the news that Afghanistan produces 90% of the world supply of opium. The USA uses enough cocaine and heroin to support drug lords the world over. We support these people by imposing prohibition. Drug prohibition.
Does it follow from one’s opposition to the war on drugs, prohibition, that one advocates use of recreational drugs? No. We can be against recreational use of drugs, and against prohibition as we know it. In 1956, fifty years ago, the federal government enacted laws to impose mandatory prison terms for simple possession. Draconian measures; full prisons; turf wars; etc. This war is a failure. More than 50 million have used marijuana. That is a federal offense. Even if your State allows it; even if your doctor prescribes it; watch out, as the United States Attorney General and the United States Attorney will prosecute you. They threaten the Legislature of New Mexico to prevent passage of a medical marijuana bill. What have we come to?
Gary Johnson, while Governor of New Mexico, had the courage to advocate an end to prohibition as we know it. This is not a partisan issue. President Clinton at least tried (used) marijuana; and so did President George W. Bush. Is this not common knowledge? How can we imprison for that? How can we ruin lives, for that? How can we support drug lords for that, when people could grow their own marijuana, more easily than making home brew? Let us work on legislation to end this "war," and yet minimize the harm that comes from the abuse of these drugs.
We now see in the news that Afghanistan produces 90% of the world supply of opium. The USA uses enough cocaine and heroin to support drug lords the world over. We support these people by imposing prohibition. Drug prohibition.
Does it follow from one’s opposition to the war on drugs, prohibition, that one advocates use of recreational drugs? No. We can be against recreational use of drugs, and against prohibition as we know it. In 1956, fifty years ago, the federal government enacted laws to impose mandatory prison terms for simple possession. Draconian measures; full prisons; turf wars; etc. This war is a failure. More than 50 million have used marijuana. That is a federal offense. Even if your State allows it; even if your doctor prescribes it; watch out, as the United States Attorney General and the United States Attorney will prosecute you. They threaten the Legislature of New Mexico to prevent passage of a medical marijuana bill. What have we come to?
Gary Johnson, while Governor of New Mexico, had the courage to advocate an end to prohibition as we know it. This is not a partisan issue. President Clinton at least tried (used) marijuana; and so did President George W. Bush. Is this not common knowledge? How can we imprison for that? How can we ruin lives, for that? How can we support drug lords for that, when people could grow their own marijuana, more easily than making home brew? Let us work on legislation to end this "war," and yet minimize the harm that comes from the abuse of these drugs.
Tuesday, August 29, 2006
NEW MEXICO APPELLATE COURTS IMPOSE SEVERE RESTRICTIONS ON LAW ENFORCEMENT -- CONCLUDED
In an earlier post (July 13, 2006) we discussed the exclusionary rule. The rule excludes relevant evidence from criminal trials, if the evidence was obtained in violation of certain provisions of the United States Constitution. Fourth Amendment prohibition of unreasonable searches and seizures, is the clear example.
The exclusionary rule was adopted by the United States Supreme Court, in the Weeks case, in 1914, as a rule to govern federal criminal prosecutions, but not to apply to the States. The States were free to adopt an exclusionary rule or to continue with the common law rule that evidence is not to be excluded from evidence (for example, the murder weapon; or the body of the victim, with dna attached), on the basis that the evidence was obtained in violation of the Fourth Amendment. A violation of the Constitution may be the basis of a civil action; but the evidence may be used in the criminal prosecution. New Mexico did not have an exclusionary rule. State v. Dillon, 34 N.M.366 (1929).
Then, in 1961, in the case of Mapp v. Ohio, the United States Supreme Court imposed the exclusionary rule on the States; and from 1961 on, New Mexico has followed the federal rule. We do now have an exclusionary rule. If the constable blunders, the murderer goes free. If the underpaid deputy makes a good faith misjudgment as to the law (very complex), the incriminating evidence is excluded and the killer goes free. However, in 1993, the New Mexico Supreme Court, instead of merely following the federal rule (which it was required to do), went further, and adopted an exclusionary rule that places additional restrictions on New Mexico law enforcement.
In 1993, our Supreme Court, in State v. Gutierrez, 116 N.M.431 (1993), considered the federal exclusionary rule in a case in which the law enforcement officer in New Mexico had in good faith sought a warrant, and a magistrate had in good faith issued a warrant for a search and seizure. The warrant was defective. Looking first to federal law, our Court saw that the United States Supreme Court had created an exception to the exclusionary rule that it had imposed on federal and State courts. The exception was that if the officer in good faith seeks a warrant, and the magistrate in good faith issues the warrant, the search may proceed; and if evidence is found, it may be used in criminal court, even though as a matter of law the warrant is defective. This exception was adopted in part because it encouraged officers to seek warrants, rather than to act on their own on what they thought was probable cause.
Our Court did not follow that federal precedent, and overruled our 1929 case, and adopted an exclusionary rule that is more stringent (restrictive of the police) than the federal rule. Thus we went from no exclusionary rule (from time immemorial to 1961) to the federal rule, imposed on us by the United States Supreme Court (in 1961), to our expanded exclusionary rule, imposed by our own Supreme Court in 1993. That is called standing the rule of law on its head.
The exclusionary rule is arbitrary; it is capricious; it is so unfair that it gives one a sickening feeling in the stomach. The rule has to be followed as the United States Supreme Court directs; but it need not be expanded by New Mexico. Gross miscarriages of justice will follow; and perjury by law enforcement officers will increase; and officers will be further demoralized.
A serious, unintended result of the exclusionary rule, is that the Courts will narrow the rights to privacy of the general public, in order to avoid having to exclude evidence in difficult cases. For example, can the police read my diary based on permission from my brother? Yes, if you follow the Sirhan case ruling. Hard cases make bad law. Now all of us are subject to having our diaries read if our brother consents.
Can the police look in our seabag for a knife, based on the consent of our landlady? Yes, if you follow the Witherspoon case (knife-murder of eight nurses). Indeed, hard cases make bad law. Either adopt a rule that the brother can consent to your diary being read; and adopt a rule that your landlady can consent to a police search of your seabag; or let this vital evidence go in a hard case.
In a recent case, the Court of Appeals of New Mexico ruled that a Lea County man had a right of privacy in his trash after he set it out in sealed garbage bags in a non-transparent container for pickup by the trash collectors. Our Court found a right of privacy where the United States Supreme Court found none. Our Court then failed to follow a U.S Supreme exception to the exclusionary rule (if officers ask in good faith for warrant, and Magistrate in good faith issues invalid warrant, evidence will not be suppressed). No big deal, only marijuana and crack were suppressed by our Court of Appeals; but what if the garbage had been body parts or the murder firearm?
When, where and how often do you hear any criticism of this aspect of our criminal justice system? We have too few lawyers.
The exclusionary rule was adopted by the United States Supreme Court, in the Weeks case, in 1914, as a rule to govern federal criminal prosecutions, but not to apply to the States. The States were free to adopt an exclusionary rule or to continue with the common law rule that evidence is not to be excluded from evidence (for example, the murder weapon; or the body of the victim, with dna attached), on the basis that the evidence was obtained in violation of the Fourth Amendment. A violation of the Constitution may be the basis of a civil action; but the evidence may be used in the criminal prosecution. New Mexico did not have an exclusionary rule. State v. Dillon, 34 N.M.366 (1929).
Then, in 1961, in the case of Mapp v. Ohio, the United States Supreme Court imposed the exclusionary rule on the States; and from 1961 on, New Mexico has followed the federal rule. We do now have an exclusionary rule. If the constable blunders, the murderer goes free. If the underpaid deputy makes a good faith misjudgment as to the law (very complex), the incriminating evidence is excluded and the killer goes free. However, in 1993, the New Mexico Supreme Court, instead of merely following the federal rule (which it was required to do), went further, and adopted an exclusionary rule that places additional restrictions on New Mexico law enforcement.
In 1993, our Supreme Court, in State v. Gutierrez, 116 N.M.431 (1993), considered the federal exclusionary rule in a case in which the law enforcement officer in New Mexico had in good faith sought a warrant, and a magistrate had in good faith issued a warrant for a search and seizure. The warrant was defective. Looking first to federal law, our Court saw that the United States Supreme Court had created an exception to the exclusionary rule that it had imposed on federal and State courts. The exception was that if the officer in good faith seeks a warrant, and the magistrate in good faith issues the warrant, the search may proceed; and if evidence is found, it may be used in criminal court, even though as a matter of law the warrant is defective. This exception was adopted in part because it encouraged officers to seek warrants, rather than to act on their own on what they thought was probable cause.
Our Court did not follow that federal precedent, and overruled our 1929 case, and adopted an exclusionary rule that is more stringent (restrictive of the police) than the federal rule. Thus we went from no exclusionary rule (from time immemorial to 1961) to the federal rule, imposed on us by the United States Supreme Court (in 1961), to our expanded exclusionary rule, imposed by our own Supreme Court in 1993. That is called standing the rule of law on its head.
The exclusionary rule is arbitrary; it is capricious; it is so unfair that it gives one a sickening feeling in the stomach. The rule has to be followed as the United States Supreme Court directs; but it need not be expanded by New Mexico. Gross miscarriages of justice will follow; and perjury by law enforcement officers will increase; and officers will be further demoralized.
A serious, unintended result of the exclusionary rule, is that the Courts will narrow the rights to privacy of the general public, in order to avoid having to exclude evidence in difficult cases. For example, can the police read my diary based on permission from my brother? Yes, if you follow the Sirhan case ruling. Hard cases make bad law. Now all of us are subject to having our diaries read if our brother consents.
Can the police look in our seabag for a knife, based on the consent of our landlady? Yes, if you follow the Witherspoon case (knife-murder of eight nurses). Indeed, hard cases make bad law. Either adopt a rule that the brother can consent to your diary being read; and adopt a rule that your landlady can consent to a police search of your seabag; or let this vital evidence go in a hard case.
In a recent case, the Court of Appeals of New Mexico ruled that a Lea County man had a right of privacy in his trash after he set it out in sealed garbage bags in a non-transparent container for pickup by the trash collectors. Our Court found a right of privacy where the United States Supreme Court found none. Our Court then failed to follow a U.S Supreme exception to the exclusionary rule (if officers ask in good faith for warrant, and Magistrate in good faith issues invalid warrant, evidence will not be suppressed). No big deal, only marijuana and crack were suppressed by our Court of Appeals; but what if the garbage had been body parts or the murder firearm?
When, where and how often do you hear any criticism of this aspect of our criminal justice system? We have too few lawyers.
Saturday, August 19, 2006
CARS TAKE AND SAVE LIVES
It may be said that cars take lives and cars save lives. Jim Belshaw, of the Albuquerque Journal, in his column for Sunday, August 13, 2006, points out how highway deaths have dropped in recent years, and attributes that drop largely to safer cars. He cites automotive design changes, especially air bags. He laments that the people who drive the cars are not safer (driving skills or habits not improving as the cars become safer). Seat belts and air bags prevent injuries and death. Who opposes those safety features being imposed by law?
It is time to revisit the idea put forth by W. Ken Martinez, legislator from Grants. He offered a bill that would require all motor vehicles to be outfitted with an interlock as a condition of registration in New Mexico. Many thought his bill went too far, and punished the innocent. They had no problem with an interlock on the automobile of one convicted of driving while under the influence, but opposed a universal interlock.
Martinez is a reasonable man and an attorney. He took what he could get and the result was an interlock for the vehicles of those convicted of DWI. Martinez was well aware that technology moves fast, so he worded the legislation to require an interlock, but defined the term to include future technology which would produce the same or a better result than the Interlock, which we understand is patented. This broad definition of “interlock” gives encouragement to those working on, or who will work on, technology to accomplish the purpose better and at a lower price.
For example, at Sandia Labs they were working on a small metal plate which would detect alcohol content of blood through the skin of the driver. Lay your wrist on the plate, get a safe blood-alcohol reading, and you are able to start your vehicle (or keep it running). It is reasonable to expect that motor vehicles could be outfitted with an effective, tamper-proof device that would make it impossible for a person with a certain blood-alcohol level (or who is otherwise impaired) to start or continue to operate a motor vehicle. Tractors; cranes; 18 wheelers; dump trucks; motorcycles; automobiles; etc.
Our legislature could follow Ken Martinez and take the lead in the nation, say, by requiring all new motor vehicles, starting with 2010 models, to have a factory installed interlock, if they are to be registered in this State. The federal government could also act and make the interlock a safety feature just as the seatbelt. Our Legislature could forego passing the law, and merely pass a resolution urging Congress to require the interlock (interstate commerce).
A child of tender age cannot open pill bottles; why should an impaired person be able to operate a motor vehicle?
It is time to revisit the idea put forth by W. Ken Martinez, legislator from Grants. He offered a bill that would require all motor vehicles to be outfitted with an interlock as a condition of registration in New Mexico. Many thought his bill went too far, and punished the innocent. They had no problem with an interlock on the automobile of one convicted of driving while under the influence, but opposed a universal interlock.
Martinez is a reasonable man and an attorney. He took what he could get and the result was an interlock for the vehicles of those convicted of DWI. Martinez was well aware that technology moves fast, so he worded the legislation to require an interlock, but defined the term to include future technology which would produce the same or a better result than the Interlock, which we understand is patented. This broad definition of “interlock” gives encouragement to those working on, or who will work on, technology to accomplish the purpose better and at a lower price.
For example, at Sandia Labs they were working on a small metal plate which would detect alcohol content of blood through the skin of the driver. Lay your wrist on the plate, get a safe blood-alcohol reading, and you are able to start your vehicle (or keep it running). It is reasonable to expect that motor vehicles could be outfitted with an effective, tamper-proof device that would make it impossible for a person with a certain blood-alcohol level (or who is otherwise impaired) to start or continue to operate a motor vehicle. Tractors; cranes; 18 wheelers; dump trucks; motorcycles; automobiles; etc.
Our legislature could follow Ken Martinez and take the lead in the nation, say, by requiring all new motor vehicles, starting with 2010 models, to have a factory installed interlock, if they are to be registered in this State. The federal government could also act and make the interlock a safety feature just as the seatbelt. Our Legislature could forego passing the law, and merely pass a resolution urging Congress to require the interlock (interstate commerce).
A child of tender age cannot open pill bottles; why should an impaired person be able to operate a motor vehicle?
Subscribe to:
Posts (Atom)
