JURORS ACQUIT JACKSON THEN COMPLAIN OF JURY PRESSURE

This week it was reported that two of the Michael Jackson jurors have written books about their service. They claim that they were convinced beyond a reasonable doubt that Jackson was guilty, but they finally gave in to the majority and voted “Not Guilty.”

In Allen v. United States (1896), the Supreme Court of the United States approved a trial Judge’s instruction to the jury which was designed to prevent a mistrial by jury disagreement. The “Allen” charge, also referred to as a “dynamite charge,” and as a "shotgun" charge,has been used in some form in the federal and state courts in criminal cases as a last resort to try to avoid a “hung jury.”

The instruction tells the jury members of their right to hold out if they are not convinced, but the instruction reminds the jurors of their duty to listen to and consider the opinions of the other jurors. Paraphrased, the instruction is:

"In a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusions of his fellows, yet you should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other.

"It is your duty to decide the case if you can conscientiously do so. You should listen, with a disposition to be convinced, to each other’s arguments. If much the larger number are for conviction, a dissenting juror should consider whether his doubt is a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself.

"If, upon the other hand, the majority is for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority."
Volume 164, United States Reports, page 492.

This type of instruction is truly dynamite when it is given to a criminal case jury which has deliberated for a long period and is divided, say, 10 to two, or 11 to one. The Supreme Court of New Mexico does not allow this instruction to be given, nor any type of “dynamite” charge to be given, during jury deliberations. Our Court requires a modified version of the instruction to be given in every case, but at the beginning of the arguments, following the evidence. Of course a written copy of the instructions goes with the jury for use during deliberations. The New Mexico instruction is as follows:

"Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agrees. Your verdict must be unanimous.

"It is your duty to consult with one another and try to reach an agreement. However, you are not required to give up your individual judgment. Each of you must decide the case for yourself, but you must do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own view and change your opinion if you are convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the purpose of reaching a verdict.

"You are judges - judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case." Uniform Jury Instructions - Criminal, Section 14-6008.

In its Use Note, the Court directs: “This instruction must be given in every case. After the jury has retired for deliberation neither this instruction nor any 'shotgun' instruction shall be given." The commentary of the State Bar committee which proposes instructions, points out that the federal rule and the standards of the American Bar Association are in accord with this approach by our Supreme Court.

DWI CAN BE PREVENTED; BEST ON A NATIONAL LEVEL

Two sessions ago in the New Mexico legislature, W. Ken Martinez, legislator from Grants, proposed an Interlock on all motor vehicles registered in New Mexico. The proposal was rejected. This last session, Mr. Martinez proposed an Interlock on all motor vehicles used by first-time DWI convicts. That measure passed. To his credit, Mr. Martinez made sure that the "Interlock" could include any technology which would accomplish the purpose (preventing an impaired driver from operating the vehicle).

Sandia Base scientists were working on a device that required the proposed driver to lay her wrist on a plate, in order to use the ignition key and start the vehicle. The plate would record the blood-alcohol content in the brain (by calculation) and the key would not work for a person with a certain BA level. Good idea, and there must be many more devices out there which would accomplish the purpose. Expand the idea to preventing operation of the motor vehicle by any impaired (by drugs; fatigue; alcohol; etc.) driver.

Next step, and better on a national level. No new motor vehicle to be registered in the United States unless it has an "Interlock." Is not such a device as important as air bags, if not as important as seat belts? Why should a manufacturer be allowed to sell a huge truck or truck and trailer for tens of thousands of dollars, without including an "Interlock," which would add perhaps a few hundred dollars to the price? Why should an owner be allowed to operate such a huge vehicle on our highways with an impaired driver?

Same issue with those who want to go 75 miles per hour in an SUV or pickup truck. Why should they be allowed to put the vehicle on the highway without this safeguard: cannot be operated by an impaired driver? We go to great lengths to keep unqualified drivers off the road, with drivers' licenses. Then we purport to revoke the license (punish a convict for DWI) as a law enforcement measure. Perhaps we are on the wrong track. If it is within our ability and means, why not a safety feature such as this?

The device could check the driver periodically, and disable (carefully) the vehicle until it could be operated by an unimpaired driver. A true "field" sobriety test. Except that it also stops operation by drivers who are fatigued, impaired by drugs, too sleepy for safety, or otherwise unable to operate heavy machinery at high speeds with safety for others (think semi on your tail on the freeway).

New Mexico was not ready two years ago when W. Ken Martinez came forward with the proposal. He was right, but only a little ahead of his time. With his expanded definition of "Interlock," which invites and promotes innovations by the best minds and vehicle engineers, he is now right on time.

Mr. Martinez should try again, with the aid of Governor Bill Richardson, in this special session. The requirement could be limited in New Mexico to new vehicles registered in New Mexico. If you can buy a new car, can you not afford this safeguard? That will encourage innovations and new technologies for the purpose. Part of the expense when the device is used as a punishment, is the monitoring. That would not be necessary with some technology, or at least would not need to be as intensive as necessary with punishment.

Getting the national government into the act may be the best answer now, as we would expand the options from a modification of the ignition system on all motor vehicles registered in New Mexico, to factory installed "Interlocks" which would go into the new vehicles along with air bags, seat belts, and turn signals, mechanisms that prevent the starting of the engine while the vehicle is in gear, devices that tell us when a door is open, etc. If the federals will not do it now, New Mexico can lead the way. Grants from the federal government could be expected.

At first blush one would think that an operator who wanted more freedom would simply disable the device. That would be an unpopular crime, looked on with disfavor by most of the jurors, sort of like hitting a toddler in the face with the fist. Not like buying a radar detector (looked on with disfavor by many).

REVENUE BONDS FOR SUBSIDY TO NEW MATTRESS FACTORY

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

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

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

PRISON ASSAULT CAN BE REDUCED

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OFFICERS CLEARED IN SHOOTINGS; PROCEEDINGS TOOK 18 MONTHS

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

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

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

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

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

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

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

MINIMUM WAGE -- INCREASE OR REPEAL

In the Albuquerque Journal, in an op-ed July 13, 2005, Professor Alan Reed opposes the proposed minimum wage which may be considered in Albuquerque. He criticizes (Democrat Party Chairman) John Wertheim’s op-ed supporting a referendum on a minimum wage increase. He says that Wertheim's article ". . . trots out images of suffering people without the slightest evidence that such suffering occurs. . . ." He refers to Wertheim's support of an increase in minimum wage (even if it has to be by the City) as ". . . Wertheim's old socialist gambit...," and says it appeals to ". . . the lowest human instincts."

In the nuclear family, we follow the rule, from each according to her ability, to each according to her needs, to paraphrase the socialist. Those are not low human instincts. They are unwise beyond the nuclear family, as unworkable, just as advice to the rich man to sell is property and give the proceeds to the poor, is unworkable and discourages production of goods and services. But, Professor Reed, with due respect, they are not low instincts. The minimum wage law is government interference with the right to contract, and with the free market; but so is the forty-hour week, and workers' compensation legislation. So are the sugar tariff, farm subsidies, and the oil and gas depletion allowance (27% is okay until you reach 100%, but it keeps on going).

Professor Reed says the market sets wages. Maybe the market should be allowed to set wages, but the law can also set (a floor) under wages. He states that the original reason for such laws was not to [merely] share the wealth, but "... They are a statement that exploitation of workers, often new immigrants, would not be allowed...." Is such legislation (to increase the minimum) wrong? Or is it right, as just raising the minimum to keep up with inflation? Of course, if the principle of a minimum wage itself is wrong, then there should be no new legislation, by the City or otherwise, raising that minimum.

Reed says there is only so much money in a business. If minimum wage earners under today’s minimum get more under a new minimum, then some higher paid wage earner must take a cut. Does that necessarily follow? How about management (read that CEO) taking a cut? How about the owner (promoter, or stockholders) taking a cut? If Reed means that every additional dollar paid to the present minimum wage earner, must come from somewhere in the business, then he is correct. But it is not accurate to say that it necessarily comes from higher wage earners.

Is it all right for people to hire others to work and pay them any wage the worker is willing to work for? Even if the wage is below what is necessary to live in decency and health? Maybe so. A good argument can be made against minimum wage laws. But Professor Reed does not forthrightly come out and say he is against all such laws. He speaks of part-time immigrants without much education or language skill, being minimum wage earners. Is he speaking of part-time in the sense of seasonal, or does he think the immigrant only wants to work a few hours a day? That immigrant would probably be willing to work with a short hoe, cultivating the chile in Southern New Mexico; but should our government allow an employer to work a person that way?

Reed seems to be against the principle of minimum wage laws. However, he does not say so. He says not many people are forced to work for the minimum wage we presently have, and that those are probably not breadwinners. That does not answer the question as to whether such a statutory minimum, a mandatory floor, a government interference with the right to contract, is justified in any case. Why does he not address that issue?

With due respect, Professor Reed, it would seem to me that we should have no minimum wage, or we should increase the minimum to keep up with inflation.

LAWYER HAS DUTY TO REPORT UNREASONABLE LAWYER FEES

We lawyers in New Mexico have been reminded of our obligation to report lawyers who charge unreasonable lawyer fees. In an Ethics Advisory Opinion issued May 30, 2005 (State Bar Bulletin, Vol. 44, No. 21), the State Bar of New Mexico Ethics Advisory Committee referred to a case that was reported to it by an attorney representing an insurance company. The facts of the case were recited by the Committee:

“Two minor members of a family are injured in a motor vehicle accident. The lawyer representing the two injured parties requests from the insurance carrier immediate payment of one million dollars ($1,000,000.00) based on the lawyer’s understanding of the insurance policy limits. The insurance carrier, through no work of the lawyer representing the injured parties, informs the lawyer that the policy is actually three million dollars ($3,000,000.00), which the carrier immediately agrees to pay.”

The lawyer representing the insurance carrier questioned the reasonableness of a potential $1,000,000.00 contingent fee for work believed mostly involving phone calls, which was in an uncontested matter, and was not novel, difficult nor time-consuming.

The Committee gave the reported case as an example of the type of case that should be reported if a lawyer believes a fee that she charges, or the fee that another lawyer charges, is unreasonable because excessive. In other words, a lawyer should report herself if she charges an excessive fee; and she should report any other lawyer who charges an excessive fee. To fail to do so is a breach of a mandatory duty of a lawyer, and such failure also violates the public trust.

The question was posed as follows: "QUESTION PRESENTED: Does a lawyer have an obligation to report what the lawyer believes to be an unreasonable fee charged by another lawyer?" The answer was stated as follows: "SHORT ANSWER: Yes. A lawyer has a mandatory duty . . . to report professional misconduct. Charging an unreasonable fee is misconduct . . . ."

I understand and of course will be governed accordingly. Report yourself if you charge an excessive fee; report the other attorney if she charges an excessive fee.
I do have a question, however. It has to do with cases in which the lawyer represents the State of New Mexico or its political subdivisions in litigation (say suing the tobacco companies) or legal work (say handling bond issues), and purportedly gets her fees from a party other than the State or political subdivision.

For example, two firms are hired to assist the State in suing the tobacco companies. They negotiate a settlement as part of a national settlement. They get a fee of $24 million dollars for 18 months’ representation. They recover for the taxpayers, the sum of $1.5 billion. My question is not whether the $24 million fee is excessive, but whether it is a fee paid by the taxpayers. Some say it does not cost the taxpayers anything, because the tobacco companies pay it.

Another example. The lawyer is hired by the County Commissioners to handle a bond issue. The agreement is that the lawyer will get her fee from the company which seeks the backing of the Commission so the bonds can be issued to help the company with a project. Say it is an industrial revenue bond. Say it is a huge issue, and the company wants it so badly that the company is willing to pay millions to the County if the bond issue is approved by the Commission. The Commission, with the services of the lawyer, negotiates a deal. The deal is that the taxpayers get $86 million; and the lawyer gets $400,000. My question is not whether the lawyer did $400,000 worth of work, or whether the fee is excessive, but whether the fee is actually paid by the taxpayers. Some say it does not cost the taxpayers any money, that the developer (the company) pays it.

Before we attorneys can know whether to report what we consider to be excessive fees, it would help us to know whether the taxpayers are in essence being charged the fee in these cases. Does Big Tobacco care whether they pay the private counsel hired by New Mexico to assist the Attorney General in joining the national lawsuits, or whether they pay the taxpayers? Does Intel, for example, care whether it pays $400,000 to the attorney hired by Sandoval County Commissioners, or whether Intel pays the money to the taxpayers?

WHAT RESPONSIBILITY DOES RADIO STATION HAVE FOR ADVERTISING?

I spend a great deal of time listening to radio in Albuquerque. Some of the advertising may mislead the listener. Do the stations recognize this? Does a station owe its listeners the duty of scrutinizing its advertising content and weeding out ads that may mislead?

During the month of June I have heard the following advertisements (this recitation is not word for word, even when quotes are used). One jeweler advertises that "No other jeweler can meet these prices!" What do they mean? Are they saying that their prices are the lowest in town, or that they will meet anyone's price? They also say that if you want to buy on credit, not to worry, "Zero percent interest for 5 years!" How can that be; how can they sell on credit at zero percent interest? Obviously, they have to increase the price. The question is whether this is so obvious that no one is misled. That sounds like a good defense.

New car advertisement: Anyone can enjoy the employee discount. GM employee discount.
You will recall that this is an ad in which a young ne'er-do-well applies for a job at GM, and later admits he does not want a job with GM, but merely wants to buy a new vehicle and get the employee discount. The GM interviewer solves the problem by telling the young man that he does not have to work for GM in order to get the GM employee discount -- that everyone can now get the employee discount. If everyone can get the discount, it is a price reduction, not an employee discount.

New pickup advertisement. “E pricing plan.” This local new pickup dealer advertises on the radio that now the public can buy at the same price that the company allows its employees to buy. What of the employees, do they go on the general public pricing plan? Or are we all, general public and employees, now on the same pricing plan? If so, so what, are they saying that the prices are being reduced? This ad boggles the mind. If it is true, they could advertise that they have terminated all employee discounts and have reduced all of their prices (as a consequence? in addition?).

New pickup advertisement. Our price is only [quotes price], "and that’s after factory rebate! This dealer gives us the information that there will be no "factory rebate" in this purchase; but phrases it so that the listener hears something else, or is simply dumbfounded and thinks the quoted price must be even more favorable to the purchaser than the listener first thought.

Introductory offer of 1.9% interest on loan; 4.5% APR. This ad speaks of a very low interest rate in an introductory offer. Then at the end, in quick, throw-away language, the speaker says "APR 4.5%." Question, is the introductory offer 4.5% APR? Or is the interest rate after the introduction 4.5%? If the ultimate APR does not exceed 4.5%, I will be surprised. More than likely, the original, introductory rate is 4.5% APR (because some fee is figured in on top of the 1.9%).

Small print now becomes unintelligible jabber, spoken so fast it cannot be considered. The rest of the ad is in large type: almost shouted at us. You have heard these radio ads. Bombastic, emphatic language in the pitch; and unintelligible, rapid jibberish in the disclaimer. How is that for a fair trade practice?

Question: Does a radio station have some obligation to screen the ads, to prevent ads that may mislead the listeners? Buyer, beware.

SUPREME COURT RULING ON EMINENT DOMAIN;

Yesterday, the Supreme Court decided Kelo v. City of New London, #04-108 (6/23/05). Justice Stevens wrote the majority opinion, and with the help of a concurring opinion from Justice Kennedy, got a 5-4 majority. Justice O’Connor dissented, and the Chief Justice and Justices Scalia and Thomas joined. Justice Thomas also wrote a separate dissenting opinion.

The case deals with the power of eminent domain (condemnation), in this case excercised by the municipality of New London, Connecticut. New London was losing population and business, and the city government decided that it should legislate to revive the City. The City decided to take property, including homes, from a number of residents, and to turn the property over to developers to upgrade the area in question, bring in jobs, and increase the tax base. The State did not object, but encouraged the project.

Most of the property owners agreed to sell to the City, as the first step, but some owners balked. The City decided to use its powers of eminent domain to take the property of the objecting owners. The eminent domain clause, a part of the Fifth Amendment, states “. . . nor shall private property be taken for public use, without just compensation.”


This was not a case of blight; there is no claim that the area in question was blighted, for example, by vacant, run-down, dangerous buildings, nor by poverty and dirty and unsanitary conditions. This is not a blight case, and no claim is made that blight justifies the taking here.

This is also not a case of the City taking private property to put the property to public use in the ordinary sense of the word, such as a park, a stadium (public has right to use), or a jail or courthouse. Nor is it a case of public use such as a mother irrigation ditch, or an oil pipeline, which may be owned by a private individual, but which the public has a right to use if need be.

Here we have no question as to whether and why the federal constitutional provision regarding eminent domain places a restriction on the use of the condemnation power by States and their political subdivisions. Apparently all of the justices agree that the eminent domain provision in the United States Constitution, restricts the States (and counties and cities) in two ways. First, no eminent domain (condemnation) unless just compensation is paid. Second, no eminent domain unless the taking of the property is for public use. “

Is a taking for a “public purpose” a taking for “public use?” The majority says Yes. The minority says that they are not satisfied that the taking in this case is for a “public purpose,” but even if it is, the taking must be for a public purpose which is also a “public use.” The minority says that the proposed use in this case, revitalization of the City, production of jobs, and increase of the tax base, may be for a “public purpose,” but the proposed use is not a “public use.” That is the issue in this case.


Justice O’Connor and those who joined her opinion, and Justice Thomas in his separate dissent, argue that the redevelopment plan of the City may be for a public purpose (though that is a question in itself) but even if the plan is for a public purpose, it must also be for a public use, and it is not in this case.

The Supreme Court had previously ruled that blight of an area (even though the objecting land owner’s business was not blighted) justified the taking of the entire area and transferring it to private developers, upon payment of the just compensation, for improvements and elimination of blight, and that such a taking was for a public use. Blight removal is a public use. Berman v. Parker , 348 U.S. 26 (1954).

The Supreme Court had previously ruled that the Hawaii Housing Authority could use the power of eminent domain to take the property of a few large landowners in Hawaii, and transfer the property to a number of persons who had been leasing homes from the big landowners. The purpose was to reduce the concentration of land ownership. That was a “public use.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).

Based primarily on those two cases, the Berman case and the Hawaii case, the majority ruled in this Connecticut case that the development plan was for a “public use,” even though a large portion of the property taken was to be transferred to private individuals for private businesses. The majority assures us that the power of eminent domain cannot be used to take the property of one private individual to transfer it to another private person, even upon payment of just compensation, unless the use is to be for a “public purpose.”

We are justified in being concerned; but not to worry, as it will now become a local issue. What is gone is most of our protection provided by the Public Use Clause of the Fifth Amendment. We can live without this provision of the Fifth Amendment. However, we are now at the mercy of the developers who get the ear of the city councils and county commissions. We will get “just compensation,” but that is defined as fair market value of the property, or what a willing buyer would pay a willing seller, neither being under any compulsion. No compensation for having to leave your home or land when you would rather not sell, that is, no compensation for being forced to sell.

GOVERNOR 'S SPEEDING MORE DANGEROUS THAN SHIRLEY'S SMOKING

Once again in today's paper we read of speeding by the Governor. This in the City of Albuquerque. Never mind that the driver did not stop; we may accept the story that the driver did not recognize the chaser as the police (unmarked car; civilian clothes). That is not the point. Allegedly there was speeding before any attempt at a stop. The bottom line is, officers claim the Governor was speeding. Reportedly they claimed the vehicle was being driven erratically also, but leave that aside.

When Governor Richardson speeds, he is more dangerous than E. Shirley Baca and her glass pipe. She wasn't driving. Many demanded her resignation.

What is really bad about the speeding by the Governor is that it sets a bad example. We have young people getting their license to drive and going to drivers' school and learning that speed kills. Speeding is dangerous driving. Worse yet, the Governor imposes on the State Police officer who is driving; forcing the officer to violate the law he or she is sworn to uphold.

Also, what about John Denko, head of the Department of Public Safety; he is put in the position of having to cover for or apologize for the Governor. What about Bob Schwartz, the Governor's crime adviser? What about the DWI Czar? The Governor is not being fair to them. You say that is far fetched? Not so, when you consider the fact that the traffic laws, the regulations, are designed to promote safety, to protect the public; and the Department of Public Safety, the DWI Czar and the Crime Advisor are out on the front line promoting law enforcement.

If you were working for the Governor and were being put in the position of promoting traffic safety and compliance with the law, would you not be embarrassed by this speeding? If your job, and your retirement, perhaps, were at stake, would you not resent the actions of the Governor, which are an embarrassment to law enforcement?

Violation of the speeding laws, especially in the City, endangers lives. How does the driver, a sworn police officer, justify this conduct? How does John Denko justify this conduct? How does Governor Richardson justify it? We, the people of New Mexico, are entitled to an express, public apology from John Denko and Governor Richardson; and a pledge that this conduct is ended.

EVEN PLAYING FIELD IN CRIME DETECTION AND PUNISHMENT

In the criminal law especially, the playing field should be level. The police should have the same power to investigate the rich, influential and powerful, as the poor, weak and down and out. Then we can feel that justice is being done in that regard and we will have increased confidence in the overall criminal justice system. The result will be better protection of life and property.

Take search and seizure. Which people do we want to the police to search? What vehicles or homes do we want the police to search? Do we want to leave it up to the police as to whom to search and what vehicle or home to search? If so, every man’s privacy is in the hands of every police officer.

If we do not want everyone and every place to be searched, then how do we go about authorizing some people and some places to be searched? Under the Fourth Amendment, and New Mexico’s equivalent, the power of search generally requires probable cause. That is a restriction, placed by the Constitution on the police. A further restriction, is that except in exigent circumstances (no magistrate available, immediate action needed), the police must submit that probable cause to a neutral, independent magistrate, and get permission (a warrant), before the search.

Now let us take the case of the motorist. The vehicle is stopped by the police, lawfully, because of a traffic infraction (speeding, illegal lane change, bald tires, broken tail light, etc.). This type of stop and temporary inconvenience is more likely to occur if the police officer suspects that a search of the driver and vehicle may produce contraband or other evidence of a felony. We want the stop to be made; we want the driver to be arrested if impaired; and we want proper citations to be issued. We want to be assured that the vehicle is registered, that it is insured, and that the driver is licensed. Let us assume that all of that is done. What next?

In the case of this motorist do we want her name to be run through police records so that we can see if she is wanted? That makes sense if we are deciding whether to arrest or cite, because a wanted person is less likely to appear in response to a citation than a person who is not wanted. So far, we have invaded the privacy of the driver and with justifiable cause.

In this motorist case, the police officer has a hunch, an intuition, or a suspicion, that there may be illegal drugs concealed in the car or on the person of the driver. The officer does not have probable cause. What to do? Do we want the officer to ask for permission to make these searches? Remember now that the State Police do it all of the time, and turn up drugs, money, guns, and other contraband.

If the officer does not have an intuition nor suspicion, should he be allowed to ask the driver whether the driver has drugs or firearms in the car, and then perhaps acquire suspicion by reason of the nervous response, and then request permission to search? If we do not want this to happen, we had better speak up, because that is what is happening.

It is not fair to allow the officers to search a car merely because he asks for permission and is given permission. Mere acquiescence to pretended authority is not consent. People do not consent; they acquiesce to pretended authority. The officers pretend they have authority, when they ask to search. The meek consent. They go to prison, or are subjected to a search of their vehicle and effects. Search us all; search none of us; or search only with probable cause and consent, or probable cause and a warrant. The present practice is beneath us. We should not order our officers to do it, and we should not permit our officers to do it.

The answer is to require the officer to submit her facts, by cell phone or radio, to a recording monitored by a magistrate. If the magistrate gives authority (a warrant), let the officer proceed. We have 20-30 magistrates in Bernalillo County, counting the District Judges. When the officer calls for a warrant (permission), she can explain under oath to the magistrate why she should be allowed to invade the privacy of the citizen. We will catch fewer criminals that way, but we will be protecting the constitutional rights of all of us.

SHOULD ALL U.S. CITIZENS BE PRINTED, MUGGED AND DNA’D?

The customary practice of the police is to fingerprint and take the mug shot of those who are arrested. The justification, among others, is to aid in the prevention of escape and to keep a record of convictions. In any event, regardless of whether there is an escape, and even if there is no conviction, the prints go to Washington. Some law enforcement agencies are seeking to add DNA to the identification material. Printing, mugging and taking of DNA are invasions of privacy, but otherwise they seem to be harmless.

Most people are glad the police follow these policies. It makes it possible to identify the perpetrator of some new crimes. As an example, a child is abducted and found dead in a shallow grave. Murder. DNA bb’s [body bits] are found, and fingerprints are found. Who is going to complain if the national database is consulted, including that part of the database provided by persons who are innocent of all wrongdoing and suspicion? No objections.

We want a database, and we will approve the keeping of such data on innocent people, and the routine (no warrant required) search of that database in unsolved cases. We are even tolerating surveillance cameras in public places for (among other things) the detection and apprehension of the wanted, by computer comparison of the current surveillance pictures with digital picture files. So the question is, do we want the government to take the fingerprints, mug shot and DNA of each of us? As has been repeatedly said, “If you have not done anything wrong, what have you got to hide?”

The fair thing, the right thing to do, is to take the information from all of us or none of us (unless in a specific case with a warrant). This would inevitably lead to a national ID card; but why not a national ID card?

DID JURY ACQUIT OR PARDON JACKSON IN SEX ABUSE TRIAL

Rush Limbaugh said today that the jury was not convinced of guilt in the Jackson sex abuse case. “They didn’t have the case; they didn’t make the case.” He said he did not know Mr. Sneddon, the prosecutor, but that he, Limbaugh, just knew that Sneddon presented a case which did not convince an ordinary group of jurors.

This assumes that the jurors were not convinced. You will never get the truth from post verdict interviews of jurors if they have pardoned an accused. Some of the jurors have said that they did not like the mother witness. That should be enough to furrow the brow. Some criticized the parents of the boys for allowing the boys to sleep with Mr. Jackson. That should cause puzzlement.

Under our jury system, the jurors are judges of the facts, and they take an oath to decide the case according to the law and the evidence. They promise to set aside their biases, and their prejudices, and to not be influenced by what may be the consequences of their verdict.

Contrary to the rules, the prospective jurors are subjected to obfuscation and appeals to bias and ignorance, by some defense lawyers (mouthpieces). The jury selection system has been allowed to become an opportunity for the mouthpieces to argue their cases and condition the jury, under the guise of seeking a fair and impartial jury.

The conditioned jury has been misled and is ready to justify its action in granting the pardon. Maybe they should be allowed to simply grant a pardon; but that is not their right under the law as it is, the rule of law.

The jury system is not perfect; it is not even very good. My suggestion is increase the number of jurors, to 25, say; eliminate the exemptions; eliminate the peremptory (no reason needed) challenges to jurors; and allow a super-majority verdict. In this day of the mobile society, and the broadened jury pools, it is simply unwise to allow one or two jurors to prevent a verdict.

GUANTANAMO IS NOT THE MAIN ISSUE; DO TERRORISTS HAVE RIGHTS?

There is a push on for closure of Guantanamo Bay prison for terrorists, or at least for a commission to study, presumably, what is going on there. As a wise man used to say, "First things first." What is our overall approach to the handling of captured persons suspected of being terrorists? What work are we willing to order our service men and women to do, and what, if any chore, do we farm out to foreign allies, who reputedly are less sensitive than we? More to the point, are we American citizens, in this time of international threat, entitled to know how our military people treat those they take into physical custody on the basis that they are terrorists?

The whole hullaballoo began with the pictures of Pvt. England and her leashed Muslim terrorist. The investigation concentrated on the humiliation pictures and acts which caused humiliation. Little has been said about the physical alleged torture.

First, the pictures show humiliation; but the pictures raise the question of how did our guards get the prisoners to undress and be humiliated. What did our guards do, or threaten to do to get the prisoners to pose with electric wires on their privates?Second, the pictures do not show the alleged physical violence, including assault with a broom stick. Interrogation in a shower (?) of a prisoner who had a sack over his head (supposedly concealing his head and face injuries from his interrogators)? Insertion of a broomstick is not a new technique; it was used by convicts on the guards at the New Mexico State Penitentiary in the 1980 riot; but it is sad to see our armed forces put in the position of having to do such things.

The most important point is that the administration in effect concedes that the conduct in Iraq was wrong (not that it went wrong), yet the administration does not state that such conduct is prohibited in Guantanamo. Apparently, the line is being drawn between prisoners who are acknowledged to be under the Geneva convention protections against torture, and those in Guantanamo, who are not protected by the convention.

The question that should be raised, and debated in the United States now, is whether we condone torture of any captives (general term covering prisoners of “war” and terrorists). But so we do not get sidetracked, we also need to define “torture,” because some are in effect condoning what others call torture, and describing it as “conditioning,” “sleep delay,” or “diet adjustment.”

Maybe it is all right to permit our soldiers and civilian operatives to engage in physical or mental torture to get information under certain circumstances. I cannot conceive it, but I am willing to listen. But let us openly debate it. Also, remember that the Fourth Amendment (which I do not suggest applies here, although why not?) not only requires probable cause; it requires that such probable cause, known to the police, be submitted to a neutral, detached magistrate before action is warranted. Would it not be reasonable and fair to have some such requirement in the handling of terrorists?

Exigent circumstances excuse the submission to the magistrate. But take cases such as these. We have the prisoner under interrogation. He or she declines to talk, except for giving name, rank and serial number (if any). We, the interrogators, believe that the circumstances are such that torture (start with mild torture or with severe torture, depending on whether time is of the essence) is necessary and permitted by law. Why not submit a sworn written statement (email okay; voice mail okay) to a Judge and get a warrant that says okay to use water-boarding (repeated near-drownings), or forced masturbation, or forced pyramid stacking of naked people, or chained naked on concrete floor in own waste, or whatever else the CIA and Army intelligence want to propose.

Remember that Secretary Rumsfeld had a list of more than 20 approved techniques, kept secret so far. He originally approved 23, in writing; and when the pictures became public, the 23 became 20. What were the three which were dropped? What are the 20 which have been retained? Does Sen. John Warner know? We could feel much better if he, at least, were let in on the information.

Let us acknowledge what is happening, what methods we are willing to use under what circumstances, what the procedural requirements will be, what the rights of the prisoners shall be, and then we will have a rule of law. Then we should abide the rule of law. If the rule of law that we adopt does not meet with international approval, we should consider but not be controlled by that (for example, maybe we want to withdraw from Geneva rules; but at least we can say we are a nation which believes in the rule of law).

Finally, why get into a debate with the International Red Cross or Amnesty International about what is going on at Guantanamo or any of our other prisons? Open them to scrutiny by any legitimate international oversight group. Then we can regain our pride in being citizens of a country that is governed by the rule of law. We may have to give up torture as a weapon of self defense in the war on terror. That will be our choice; at least we will be honest about it. Some cringe when they think we may be using torture, or using torture unnecessarily or unwisely, but how is one to know whether we are or not?

GOVERNMENT CANNOT CONTROL GUNS BUT GOVERNMENT CAN BAN LETHAL AMMUNITION

In today's Albuquerque Journal we see a report that the Albuquerque police will restrict their use of the Taser stun guns. Too dangerous to use, except when there is an immediate threat from the citizen who is to be shot. It seems to me that the new rule may turn out to be dangerous for the police. Why doesn't the citizen follow the orders of the police? That would avoid the need for the use of any force.

This week we also saw a report of how the Bernalillo County Sheriff's department received 900 applications, accepted about 30 for the training academy, and is putting the 30 through rigorous physical training as a beginning. The drill instructor is reported to have explained to the recruits, [words to the effect] "You are being put through this because out there somewhere there is a guy who is bigger and stronger than you, and you are going to have to handle him." Assume that Jane Blow makes it through the training, and becomes a Deputy Sheriff. She is in the best physical condition of her life. Will she be tested periodically to see that she remains in such good condition? Are the current Deputies held to such rigorous standards?

Sheriff Darren White should reach out and take his deputies from a broader pool of citizens. It is not necessary that all deputies be willing and able to engage in fisticuffs, or use a baton or blackjack to keep the peace. The uniform, the badge, and a respectful but clear order should do the job. If it goes beyond that, the officer should have a choice of weapons, and the gun should be utilized. Did I say shoot to kill, or place two, not one, but two bullets in the chest to "stop the action," as the police say? No; but a gun with non-lethal bullets should be standard issue. A gun with lethal ammunition, and a gun with non-lethal ammunition.

Non-lethal ammunition should have the force of a Mike Tyson blow. One to the chest and the next to the jaw. The beauty of this NL ammo, is that the government can limit the purchase and use of lethal ammunition -- limit the lethal ammo to police and citizens using other than handguns. Use the interstate commerce clause for the authority.

You say it will not work; that if we outlaw lethal ammo, only outlaws will possess such ammo. Not so, When is the last time you heard of a crime with a gun equipped with a silencer? When is the last time you saw a switchblade knife, or heard of the use of one? Same with submachine guns.

The ammunition can be the key. The NL ammo feels and looks just like lethal ammo, except the cartridge case is machine-stamped, "NL." The report from the explosion is just as loud.

No need to try to pry the gun from its owner's hands; let her feel the heft of it, smell the gun oil and burnt powder, admire the gun's fine steel mechanical parts and action, and enjoy the explosion. It would be like a Camel or Lucky Strike smoker going to a Doral. Almost all the benefits are there. Everything would be the same except what comes out of the barrel. And in the case of the NL ammo, what does come out of the barrel is awesome, literally, and should be sufficient for ordinary citizens who are not hunting big game.

CONVICTED COURTHOUSE RAIDERS PARDONED BY GOVERNORS KING AND APODACA

On June 7, 1967, Reies Lopez Tijerina led a raid on the Tierra Amarilla (Rio Arriba County) courthouse. Eulogio Salazar, a Deputy Sheriff, tried to go out of the window of the Sheriff's office, located at the front (North end) of the courthouse. As Deputy Salazar was going through the window, Mr. Tijerina shot Salazar through the jaw. Tijerina was convicted by a jury of assault with intent to kill Salazar, and Garnett Burks, Sr., District Judge, sentenced Tijerina to a term of not less than two nor more than ten years. Mr. Tijerina never served his time, because he was pardoned by Governor Jerry Apodaca. [CORRECTED in June 29, 2007 post. jack love].
The first shot that was fired during the courthouse raid, was fired by Juan Valdez, one of the followers of Reis Tijerina. Mr. Valdez shot Nick Saiz, a State policeman, who was on duty in the lobby of the courthouse. Mr. Valdez was convicted by a jury of assault with intent to kill Officer Saiz (Saiz' lung collapsed, and when he recovered, Saiz' left arm was permanently crippled). Judge Burks sentenced Juan Valdez to 2-10 years. Valdez did not serve any of his sentence, because he was pardoned by Governor Bruce King.

Baltazar Apodaca was declared incompetent to stand trial. Baltazar Martinez was found by a jury to be not guilty by reason of insanity. Thus ended the prosecutions of the alleged raiders of the Tierra Amarilla courthouse raid. This post was prompted by articles this week in the Albuquerque Journal and Albuquerque Tribune regarding the dedication of Reis Lopez Tijerina's papers to the archives of the UNM library.