NOTE THIS CORRECTION PLEASE

Please note this correction to my post regarding evidence before grand juries in New Mexico. Someone has called to my attention that Section 31-6-11 of New Mexico Statutes Annotated 1978 was amended to provide that the Rules of Evidence do not apply to grand jury proceedings. I overlooked that amendment and certainly should have discussed it in the post. My error. My recommendation still is that the Legislature memorialize the Supreme Court and ask for an amendment of Evidence Rule 1101, so there will be no conflict between the statute and the rule; and further, that the formal rules of evidence be made inapplicable to preliminary hearings. For the original post, see "previous posts."

ABOLISHING DEATH PENALTY NOT WISE

Rep. Gail C. Beam has introduced HB 576, which would abolish the death penalty in New Mexico, and would provide for a life sentence without possibility of release or parole. The death penalty system is flawed, and should be changed. But abolition is unwise. Consider this. Has there ever been in history a case which deserved the death penalty? If so, can we be assured that there will never again be such a case? If there has never been a case deserving the death penalty, can we be assured that in the future there will not be one? If you want to narrow the instances in which the death penalty can be imposed, fine. If you want to streamline the procedure so that convicts do not sit on death row for decades, that is good. If you want to require the Courts to give priority to death penalty cases, so we do not have years of appeals, that is good. It is scandalous that it takes years, even decades, for the appeals to be over.

A word about the deterrence argument. For many years, people have argued that the death penalty is no deterrent, by pointing to the variations in the "murder" rate among the States. The statistics relied upon are the FBI reports of non-negligent homicides. These include second degree murder and voluntary manslaughter. [I could be wrong; but I have never seen statistics of first degree murder, as I understand the term.] If the statistics were of murders in the first degree, that is, wilful and deliberate murder, committed intentionally after a thinking over the pros and cons, with a calm and reflective state of mind, then when one said State X has a low murder rate and no death penalty, it would mean something. It would not in itself prove that the death penalty has no deterrent effect, but it would be worthy of more consideration.

In countries South of us, prosecutors and judges are murdered, for the purpose of interfering with the criminal justice system. Here, children are murdered to prevent their testimony. Are these cases worthy of the death penalty? The death penalty cannot be justified except on the basis that it saves innocent lives. Presumably our Creator considers us all equally innocent, so we do not kill the murderer because he is evil, or we hate him, but because his death will result in the saving of innocent lives. What happens when evil people begin to use bombs on the judges and their families, or on the juries and their families, or the police and their families? What happens to the criminal justice system?

This proposed step of abolition is too drastic. Let those who object to the death penalty specify which of the cases covered by present New Mexico law that they would change, so that the penalty for such act would be so-called life without parole and not the possibility of death. The law requires an aggravating circumstance for the death penalty to be imposed. Which of the statutory aggravating circumstances should be repealed? This is a graver and more important affair of life, so let us pause and hesitate to act.

LEGISLATOR STRIKES DWI BLOW

Rep. W. Ken Martinez has two bills before the Legislature that deal with DWI. They require the use of an "interlock device" on the motor vehicles of persons convicted of DWI. HB 282. Further, by his HB 565, Rep. Martinez looks to the future and defines "interlock device" to include technologies or techniques which may be in existence or may be developed, to accomplish the same end. The end sought to be accomplished, is a motor vehicle which cannot be started nor driven by an impaired driver.

Rep. Martinez is not proposing that all motor vehicles licensed in New Mexico be fitted with such a device, but that such a device be fitted to the motor vehicle of the convicted DWI defendant. When the technology gets in use and is fully accepted, and it becomes convenient and economical and foolproof, perhaps it can be required on all State vehicles first, then on all motor vehicles licensed in this State. So when you buy that new Ford sedan, it comes with a device that makes it impossible to start or drive by an impaired driver. Such an interlock device will cost a fraction of the air bag, and may save many more lives.

In HB 565, Rep. Martinez seeks to level the playing field among the various companies which make devices to prevent impaired driving. The bill defines "interlock" to include other technologies approved by the Traffic Bureau. This will enable the new technology being developed at Sandia Laboratories to be adapted for the purpose, if the developers so choose. That is an ignition key that requires the operator to lay her forearm on a screen that will detect alcohol in the bloodstream. Pupillometry as a drug and alcohol testing tool may be adapted to the driver’s seat. Essex County, New Jersey, Probation Department has information on that subject. This technique requires a base line, but that should not prevent its use if adapted. Look into the eye holes and your car will start unless you are impaired.

Bracelets are now in use for the ankle which detect alcohol in the blood stream. They can be used to prevent consumption of alcohol, but are not specifically designed to disable the car when an impaired driver is behind the wheel. The technology exists to fit the convict with two wrist-watch size bracelets, and through a computer program determine whether the wearer is operating a motor vehicle. So with present technology we can make a person stay home (electronic bracelet); or make him stop drinking (alcohol bracelet); or prevent him from driving (two bracelets and a computer program); or prevent him from being in a moving vehicle (GPS and bracelet). The interlock device is designed to prevent the offender from driving while impaired. That leaves the offender free to drink, or to drive, but not to do both at the same time. The idea seems best designed to solve the problem, and it concentrates on the vehicle.

The beauty of the approach being taken by Rep. Martinez, with HB 282 and HB 565, is that we are able to take advantage of proven technology to accomplish a great deal toward preventing DWI now; and we are keeping the door open for future technology. Thirty years ago Bill Gates made a computer in Albuquerque. Maybe a young Bill Gates will come up with a technique or device which will require that operators of airplanes, boats, motor vehicles, and other dangerous machinery and equipment be unimpaired. Meanwhile, the interlock legislation has been shown to be worthy of support.

NEW MEXICO'S SHAME AND DISGRACE

I am talking about the lottery here. In New Mexico, you and I cannot legally make a social bet on the Super Bowl. We cannot legally raffle jars of preserves at the womens’ club. We cannot legally gamble small, sociable stakes on domino games, such as moon or pitch. We cannot bet on a cockfight, one of our cultural traditions. We cannot legally play sociable, two-bit limit poker. But we can bet the ranch on a State-run numbers racket.

I read that slots had to pay 80%. Some casinos advertise "loose" slots, so I guess that is greater than an 80% payout. Our State of New Mexico numbers racket pays 33%. $150 million comes in from the poor and ignorant and desperate. $50 million goes to the "winners," so they can place their bets another day (like the stock market). $50 million goes to some college students (it is not right to blame them, under the circumstances). And the final $50 million goes to management, or administration. "Gaming" officials. We will not tolerate the name, "gambling." Gives us a bad image.

Speaking of image. Who thought up the idea of taking the State bird, the chaparral (a magnificent bird), and making it into a logo for a numbers game? If that was not designed to appeal to children, I will throw in with them. Have you recently heard the benefits, the advantages, of the New Mexico lottery praised by an eight year old? I have. Have you seen a six year old boy urge his mother to buy one of the colorful scratch tickets at the gas station checkout counter? I have. It is dismaying. The Legislature is in session. Why not get rid of this shameful practice of government involvement in gambling in the State of New Mexico?

WE CAN TAKE A REFORM OF SOCIAL SECURITY

President Bush has said that those of us 55 years of age and older will not be affected; our Social Security program will remain the same. That is good news.

How about the Social Security program for the workers under age 55? Should we give them "ownership, choice and personal responsibility," by letting them cut their payroll (Social Security) taxes and invest the money in private, personal retirement accounts? Those who opt to put the 4% (4/7ths of their payroll taxes) into a private investment account would presumably take a 4/7ths reduction in their social insurance coverage under Social Security. Sounds all right.

If the boomer becomes disabled, his ["he" means "he" or "she"] Social Security check would be 3/7ths of what it would otherwise be; same with survivor’s benefits for the minor children of the boomer, and for the widow, if the boomer gets killed. When the boomer reaches 62 or 65 and retires, the retirement benefits would be 3/7ths of what they would otherwise be. The Medicare benefits would be 3/7ths of what they otherwise would be. That would be fair to all. If the boomer and his dependents can get by with 3/7ths, all would be okay.

Proponents say there will be no problem. They say the boomer will make up the 4/7ths cut in their social insurance coverage under Social Security, by the retirement account that they will build up through the investment of the taxes not paid as taxes. The employer contribution (another 4/7ths) would be added in for the boomer. The boomers earned it.

A basic question is whether we want the government to force the boomers to buy Social Security insurance. Many of us are worried that some boomers may cut their payroll taxes to Social Security, and make bad investments and end up on the public dole in their interminable old age, or when they are disabled; or that the boomer will make bad investments and die early and leave the widow and minor children on the public dole.

I suppose the government intends to keep control of the private investment accounts, and to require that such money be invested on Wall Street. Could not allow investment in real estate investment trusts, for example, or private corporations, limited liability companies or partnerships or small businesses. This government restriction cuts down on choice and personal responsibility, but there is still ownership. Proponents say that the nest egg can be passed on to heirs in the event that it is not all used up by date of death. True; but we could accomplish that by adding an ordinary life insurance component to the present Social Security.

Solve the worry that the boomer will blow the 4/7ths and come back for a hand out from the taxpayers, and more of us will throw in with you. So all the boomers have to do (or I suppose the government intends to do this for the boomers, whether the boomers like it or not) is to find a policy or plan of social insurance that provides disability insurance; survivor’s insurance for minor children; survivor’s insurance for the widow; an annuity for retirement; Medicare from age 65 until death; and provides a substantial lump sum to be inherited by the heirs upon the death of the boomer. This proposed policy should pay benefits that make up the difference between what Social Security as we know it would pay; and the amount that Social Security minus 4/7ths of the payroll taxes, would pay. And this proposed policy must be sure to pay off; it must be guaranteed 100% sure to be there and in place when needed.

A good starting place is to look for a policy that provides this coverage and is 100% sure. See what it costs. Maybe the personal savings accounts are a good deal for the boomers. We older people are out of the picture now, and we were either overreached by President Roosevelt or not; that cannot be changed. We do have a right, however, to express an opinion and vote as to whether our children and grandchildren should run the risk of having to provide a dole for well meaning boomers who make bad investments or simply blown their 4/7ths.

We should also remember that it is only those who make $80,000 per year or less who are prevented from investing a portion of their Social Security payroll taxes in personal investment accounts. Those who make over $80,000 per year pay no Social Security taxes on the overage. They are free to invest all the overage they can save from the cost of living (and progressive income taxes), and they are not limited to investing it in Wall Street. They can make real estate investments, or invest in closely held private business entities.

If the boomer makes $1 million a year, why is he so concerned about the 4/7ths of the Social Security payroll taxes on his first $80 thousand? If the boomer is in the bracket that makes less than $80,000 per year, he should pause and hesitate to act before dropping an insurance policy which provides all of the coverage that Social Security does, at the premium now required.

SHOULD CRIMINAL PROCEDURE SIX-MONTH RULE BE AMENDED?

The six-month rule states that felony criminal cases in New Mexico must go to trial within six months. If a felony case does not go to trial within six months, the rule requires that the Judge dismiss the case and release the accused, free of such charges, forever. Persons accused of murder have been set free on this technicality. The archives of the Albuquerque Journal report many cases where charges of murder, vehicular homicide, and other felonies were required to be dismissed, and the accused set free, never to be tried again, because of the six-month rule. Search the archives under "six month rule."

An accused has a constitutional right to a speedy trial. We are not talking about that. The constitutional speedy trial rule requires a trial within a reasonable time, and is a necessary safeguard. A case is not dismissed under the constitutional speedy trial rule unless the accused demands a trial, and the accused is prejudiced by the delay in trial.

The six-month rule is a so-called "speedy trial" rule, but it is not required by the State or federal constitution. Under this rule, the accused may be out on bail, may be avoiding trial, may not want a trial, may be delaying the trial in every way he can, and yet he must be set free, never to be tried, if the trial does not occur within six months.

Extensions of the rule may be allowed, but an application must be made by the prosecutor. The most egregious miscarriages of justice have occurred when the prosecutor intends to apply for an extension, but forgets to, and the six-month rule runs out and the accused goes free. A simple solution is for the rule to be changed to provide that if the rule is violated, the Judge may dismiss the case but is not required to; the Judge may impose some other sanction if that is warranted. At present the case must be dismissed "with prejudice," so that it may never be tried and the accused goes free, regardless of the strength of the evidence. How do we explain such a dismissal, without trial, and release of the accused without further charges, to the family of the victims? We are talking here about gross miscarriages of justice; not many, that is true; but too many. Not one should occur.

The federal rule of criminal procedure allows the Judge to dismiss the case without prejudice, allowing the prosecutor to re-file the case. The New Mexico rule can be changed to follow the federal rule. This would take action by the Supreme Court of New Mexico, but would not require any action by the Legislature. The Legislature may want to pass a memorial asking the Supreme Court to amend the six-month rule.

GRAND JURY AND RULES OF EVIDENCE

CRIMINAL JUSTICE REFORM. Should the Legislature pass a memorial requesting that the Supreme Court make a change in the Rules of Evidence?

Rule 11-1101 D (2) of the Rules of Evidence (a rule of the Supreme Court of New Mexico) provides that the formal rules of evidence do not apply in certain cases. If the words "preliminary hearings and grand jury proceedings" were added, the formal rules of evidence in criminal cases would not apply in cases heard before the grand jury, and they would not apply in cases heard by preliminary hearing before a magistrate. The law of privilege (for example, priest and penitent, or lawyer and client) would still apply; but hearsay would not be prohibited.

For example, in a car theft case, in which a Cadillac was stolen in Long Beach, California, and recovered in Albuquerque in the possession of the accused, it would not be necessary for the District Attorney to bring the witness (car’s owner) from Long Beach for a grand jury hearing or for a preliminary hearing before a magistrate in Albuquerque. An affidavit from the owner could be used, or the investigating officer could testify under oath as to the report and details from the alleged victim.

Why should the accused be entitled to force the California car owner to come to New Mexico to testify at this stage of the proceedings? The right to confront the witnesses will apply, but at trial. There is no constitutional requirement that the witnesses testify in person at grand jury or preliminary hearing proceedings. If the accused claims that he had permission to take the car, then that is a different matter, and the District Attorney would not have to, but might want to bring the alleged victim to testify in person, and that could be done. But if there is no claim that the car was not stolen, then why should the victim witness be required to come to New Mexico to testify that her car was stolen?

If the case were being prosecuted in federal Court, the formal rules of evidence would not apply to the grand jury proceedings, nor to the preliminary hearing. The federal rules of criminal procedure allow hearsay in grand jury and preliminary hearings. They have for more than 30 years, at least.

This rule change can be made by the Supreme Court of New Mexico, without the necessity of a hearing. Should the Legislature pass a memorial requesting such a rule change?

CRIMINAL JUSTICE SCENE

CRIMINAL JUSTICE SCENE
Item. Albuquerque, NM. January 27, 2005. A twenty-eight year old man was convicted of vehicular homicide in the death of 14 year old boy bicyclist. The accused admitted DWI, but argued that negligence of the child was the sole significant cause of the accident and death. Supreme Court approved jury instructions say ". . . if you find that the negligence of a person other than the defendant was the only significant cause of death, then the defendant is not guilty . . . " Uniform Jury Instructions, Criminal, 14-252. The jury undoubtedly found that the negligence of the boy bicyclist was a significant cause of the accident, but under the instructions of District Judge James Blackmer, the jury was allowed to find guilt if the DWI conduct of the accused was also a "significant cause" of the accident.

Item. Los Lunas, NM. July 11, 1993. The headline read, "Ruling in Fatal Crash Case May Force Plea Bargain." Albuquerque Journal. It was the case of Roger Bishop, accused of vehicular homicide in the death of three Albuquerque residents. Three passengers in a van, returning to Albuquerque from the opera in Santa Fe, were killed. The accused claimed that the driver of the van was negligent, and obtained a ruling from District Judge Martin Pearl to the effect that for the accused to be found guilty, the unlawful conduct of the accused must be the sole cause of the accident and deaths. The Judge’s instruction, announced before trial after arguments by the prosecutor and defense lawyer, caused the District Attorney to commence work on a plea agreement. The Judge's proposed instruction stated, "In the event you find the victim or another person contributed to the death or great bodily harm, you must find for the defendant."
Item. Santa Fe, NM, January 2, 1970. The Court of Appeals today ruled that an Albuquerque man was wrongfully convicted of involuntary manslaughter in the death of a 14 year old boy bicyclist in Albuquerque. The Court ruled that the prosecutor had proved that the accused had killed the 14 year old boy bicyclist, but that the prosecutor had failed to prove the name of the child. The Court pointed out that the indictment alleged that the defendant killed a boy named [naming him], but that in the trial the prosecutor failed to ask the police officers and pathologist what the name of the deceased boy was. The Court of Appeals ruled that such a failure of proof, that is, a lack of evidence, required that the conviction not only be reversed, but that the accused be set free and was not to be tried again for the same offense. State v. Vallo, 81 N.M. 148 (1970). [Note, the reported case does not state that the boy was a bicyclist; that is the writer's recollection from news reports at the time.]

You may ask why this 1993 case and this 1970 case are dredged up and reviewed. The writer has never had any interest in any one of these three cases, other than a general interest in criminal justice. These are cases of "criminal justice seen."

WHY NOT RUMSFELD INTERROGATION TECHNIQUES?

This need not be a partisan issue. The President, Secretary of Defense, and Attorney General nominee, have all said that "torture" is illegal and immoral and unAmerican, and that we will not engage in torture. Let us not look back at Guantanamo or Abu Grhaib; nor argue how far up the chain of command the responsibility went or should go. That leads to arguments and further polarization. Let us go forward, with definitions of approved interrogation techniques and specification of the circumstances that will justify the tehniques, and the procedures to protect against abuse of the process.

Let us agree to go forward with a rule of law that we are willing to follow, that most Americans will approve, and that we may, if we choose, recommend to the rest of the civilized world through the United Nations. Let us amend the Geneva accords relating to prisoners of war, if need be, or let us state (or affirm) that they do not apply to terrorists and enact a rule of law for the United States to deal with the problem.

Because we are all against "torture," perhaps we should not try to define torture (impermissible) but define permissible interrogation techniques. We could follow the principle we use in the United States, that is, we restrict the action (interrogation techniques) to use by qualified enforcement officers; we require such officers to have probable cause; we require the probable cause to be presented to a neutral, independent magistrate; and if the warrant is issued, the warrant sets forth what the officer may do. Let any JAG officer make the sworn application, on oath, setting forth the reliable hearsay that warrants the action. Let a general ranking officer, at least, be the magistrate and issue the order, the warrant. Let the warrant set forth exactly what may be done to get this suspect to reveal information he or she is believed to have and to which we are entitled. Let it be done by email to avoid delay in exigent cases.

Frankly, we are not talking about the Miranda rule (June 13, 1966); nor are we talking about the rule that says involuntary confessions (those obtained by mental or physical coercion or threats of such coercion, or promises of leniency) are inadmissible in American courts of criminal law. We are talking about what coercion will be permitted to get these terrorists to talk. Let Congress debate this in open session. Let us consider techniques that Congresspersons may advocate. We may consider authorizing the near-drowning (water-board) technique; the chain-him-in-a-fetal-position-in-waste for 48 hours technique; the forced en masse masturbation technique; the "light stick" or broom stick insertion technique; and the electrical shock to the appendages technique.

We certainly should consider the twenty-plus techniques signed off on by Secretary Rumsfeld,
as a great deal of expertise and thought went into them. Consider also the three techniques withdrawn from the Secretary's list after the digital pictures showed up. The point is that nothing is off limits to consider and reject or accept, and the rule of law which we adopt will give Americans a standard which we may all be willing to accept. If the rest of the civilized world goes along, fine. No global test here, however.

"UNIVERSE" CAN PROMOTE PEACE

Perhaps we should promote the idea of "Universe," a new language, a universal second language of 100 words to start. The United States Ambassador to the United Nations could make the proposal. We would have no motive except to promote world peace. The United Nations could assign its best scientists and linguists, and create a 100-word language that is easy to speak and is easy to write (digits?) on the World Wide Web. "Reverse Babel" is the idea. Giving all nations of the Earth a share of a universal language, setting aside nationalism and other divisions, and promoting tolerance and understanding, and ultimately, peace. Only 100 words to start, and for a generation to come, because the language will grow by itself if it is successful, and we want to encourage adults to learn it now. With the 100-word "Universe," travellers could go from country to country, or onto the web, learning and communicating, without being self-conscious.