IS CONGRESS A MERE ADVISOR IN THIS WAR?

Our Attorney General, Alberto Gonzales, thinks that certain provisions of the Geneva Conventions (no interrogation of prisoners of war) are quaint. The implication is that those provisions do not apply to the USA today in the circumstances of the global effort to combat terrorists. Indeed, Gonzales follows up by giving the President an opinion that in this war on terror, we may take into custody our suspected opponents, declare that they are “terrorists,” or “enemy combatants”, and the detainees may be held and treated as the Commander in Chief directs. If any act of Congress purports to limit that power of the executive, the statute may be ignored because it is an unlawful effort to limit the Chief in his conduct of the war.

A detainee is taken into custody by the Armed Forces of the United States. Does the detainee get taken before a neutral, independent magistrate, for a hearing to determine whether there are reasonable grounds to believe that he is a terrorist? No. Does he get the protection of a grand jury or other investigating authority, to review the showing of probable cause? No. No bail (that is okay, because this is a capital offense). No written charges, nor any opportunity to question his wardens as to when, where, why, what. No chance to prove innocence at a trial, because no trial. Forget the burden of proof.

A detainee may be interrogated (that is okay, why not; and if he does not answer we may reasonably infer that he has something to hide). To induce the detainee to give up valuable information about the terrorists and their plans, we may use interrogation techniques which our President and Attorney General and Secretary of Defense approve. Never mind that most Americans would not approve; it is enough that they do not know what the techniques are or have been led to believe that “those” techniques have been discontinued. Never debated in Congress!

WHEN DO WE DEBATE TORTURE?

"No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." Article 17, 1949 Geneva Convention. Http://www.iacenter.org/geneva.

As I understand it, it is the policy of our administration to follow the Geneva Convention in cases of prisoners of war. We have defined the captives at Guantanamo and some at Abu Ghraib, as other than prisoners of war (and of course, as other than accused criminals, who would be entitled to even more rights than prisoners of war). The name is not important (unlawful combatants; terrorists; insurgents; detainees) ("A soft word turneth away wrath.").

Let us assume that they are international terrorist criminals. The administration says that they will be treated "consistent" with the Geneva Convention. What does that mean? Does it mean that they will be treated as though the Geneva Convention applied to them? Sounds that way, but we know that is not the case.

The bottom line question is this. Are there accused persons who are captives of United States troops whom we are willing to torture? If so, under what circumstances, by whom, and with what safeguards, if any? And are we going to be allowed to vote on this policy?

Another issue is who is to do the technique. If it indeed is torture as defined by the International Red Cross, or some other international body, such as the United Nations, then do we want our military personnel to do the job? I think not. They are hired to be soldiers and we owe it to them to keep them from having to do that kind of job. Secretary Rumsfeld apparently draws a distinction between torture by our people directly, and torture by some underworld country at our request. Is that right?

The time for joking about the "hazing" is over. I admire Al Gore for asking the question, "How dare they?"; but to adopt his view assumes the question. The question is, is our policy one that we want to maintain? What is our policy?

We could begin without the list of our techniques. We could simply take up various interrogation methods and see if we want to use them. Take the matter of water-boarding. The South Vietnamese in 1964 were treating suspected Viet Cong prisoners to a near-drowning technique: hose down throat, funnel in hose, water poured in funnel until captive thinks he is going to drown; revive, question, then repeat. American "advisors" stood by, supposedly not participating. As I understand it, we now take the captives and dunk them, either on a board or by hand, dunk them repeatedly, causing the captive to think he is about to drown. Question; then repeat. Is this "faux drowning" technique permissible, or is a version of it permissible?

You do not have to decide whether it is torture, just decide whether you want to permit it (or in the case of soldiers, order the soldiers to execute the procedure). Then make that decision publicly, allowing us to vote on it in an open society; then the world will know and we will know what kind of people we are, and what we will do collectively in the name of national security.

It is not enough to say that one or more of us privately, to protect our family, would use torture or worse if the circumstances were right. We are speaking of a national policy, one which we would surely recommend for all other nations of the world.

Is not this issue more important and pressing, than the question of terrorist wiretapping? Should the President dragnet our communications system to find evidence of terrorism, and if so should he submit to Court oversight of the process? Those are important questions, quite apart from whether the President has the power under our constitution to do it the way he has chosen. But are such questions as important as whether we want to order, approve, or condone water-boarding (and other interrogation techniques), and if so under what circumstances, by whom, with what oversight and with what accountability, if any?

GUN COLLECTORS LOSE OUT

Here we are on the mesa outside of Albuquerque. We are going to blow up some guns. Yes, we have a compressor in town and this week we have squeezed hundreds of guns into scrap metal. But with all of the gun confiscations of late, we are behind, and need to blow up a lot of guns. These are guns which we are legally obligated to return to the ones from whom we took them [inmost instances], but those people are too ignorant or frightened to make a claim. We could bring an action to permit the police to sell the guns at auction, one at a time or en masse, as we do wallets, briefcases, tools, etc., that we have seized. Then why are we blowing up these guns or squeezing them into metal paperweights?

Chief Schultz said blow them up. The Chief is answerable to Mayor Martin Chavez, you say. Well, Mayor Chavez is in charge, but it appears that he approves of the blow up.

This action does not make sense. Hundreds of thousands of handguns are imported, and domestic manufacturers make more. If the gun is workable, it is the product of someone's labor. If it is not contrababnd, such as heroin, why crush the firearm into a paperweight? Why blow it up?

This is like that deal where the police used a chain saw to cut down the trees near an apartment complex, because dope pushers might stand behind a tree to make a sale.

Bottom line. Let us say that someone unlawfully carries (say into a bar) in Albuquerque. The offender is arrested, the firearm is taken for evidence, or even if it is forfeited, what then? Do we punish that firearm by crushing it or blowing it up? Does that make sense? What explains this, in a State where any adult, trained or not, experienced or not, has the absolute right to strap a six-gun on exposed, and walk down the street [yes, certain places excepted]?

Bottom line. New police officer, get ready for the real world. You may be ordered to cut down a bunch of trees next to an apartment complex [to keep drug pushers from hiding behind the trees]. You may be ordered to close that bar, because the police have received too many calls about illegal activity. What, do you suggest that the Chief put more resources out there where the crooks are? That is not how we operate.

So you would like to get some overtime? You have heard that some officers, just as you, same badge, same uniform, same car, earn (?) $30,000 to $40,000 overtime each year? Your turn will come. It is called “Chief’s Overtime.” When the public, such as “BigTime Subdivision” gets fed up with all of the crime in the neighborhood, they talk to the powers in the police department and decide to hire off-duty officers, at time and a half, with the same uniform, same badge, same gun, same car, to do what the police are obligated already to do.

Welcome to the Albuquerque Police Department, the thin blue line. This is said sincerely. You can make a difference. It does not have to be the way it has been. The people will be with you when you ask why? The people want to have a “thin blue line,” and the people admire and respect your service. Do not be disheartened. Leadership is needed. Maybe the Mayor should appoint a Police Commissioner, and see if she can bring the police administration (brass) in line.

CLEAN BILL OF HEALTH LAW

Here is a suggestion for the powers that be in New Mexico government. Prioritize. Let us put something ahead of the grandiose schemes to invest the public money [taken by taxes]in this enterprise or that. Why take my money from me in the form of taxes and use it to "invest" in any "enterprise"?

Eclipse may get off the ground, with the taxpayers’ help. Why not issue bonds [not backed by New Mexico taxpayers] and see who will buy Eclipse bonds? Spaceport may get off the earth with taxpayers’help. Why not issue bonds for the spaceport [not backed by NM taxpayers]and the sky is the limit! Why not have Intel issue bonds and raise the money it needs, rather than grant it a tax relief of over $200 million per year for decades [keep in mind that $10 million is the annual operating cost of the train to the taxpayers]. Meanwhile, how about addressing ourselves to a more mundane but more important problem.

According to Sen. Tim Jennings of Roswell, we should have a law that imposes a tax to be used by the New Mexico government under Governor Bill Richardson, to pay for screening for breast cancer for low income women. His wife has been diagnosed with cancer after an MRI and we approach this subject with due respect for the feelings of his family and loved ones.

But now this has been put in the newspaper. So we have a right to comment. Why are not all New Mexicans entitled as a matter of right, to preventative, diagnostic medical tests? What is so magical about an MRI? Is it a good diagnostic tool? Do we want to use it, if it gives us bad news? Jennings as much as says that the mamogram, which his wife took every quarter, was not as useful as the MRI. Incidentally, why take a mammogram every quarter, when the doctors say every year or two or five (are the doctors counting the beans?)

Why not use the MRI machine and test everybody, for everything wrong? Every quarter or every month. If you answer anything except “money,” please say what. Money. The greatest nation on earth, in history, cannot provide [by confiscatory taxes] the money to check its citizens to see if they are invaded by the germ enemy (cancer). In years past the military provided examinations for certain diseases, and who complained that it was socialized medicine?

Part of the problem is cost. We hire a brain surgeon to lance a boil. That is not accurate, we give in to the trade union element of the American Medical Association which controls, and says if you New Mexicans want a boil lanced, you must hire a brain surgeon.

Hey. Let’s talk about a spaceport. A train.

DNA SAMPLING EXTENDED BY KATIE’S LAW

Jayann Sepich of Carlsbad has written an Op-Ed piece for the January 15, 2006, Albuquerque Journal. She is advocating “Katie’s Law,” a bill to be introduced by Rep. John Heaton, D-Carlsbad. The bill would require law enforcement officials to take DNA samples from persons who are arrested on felony charges, and the samples would be put in a state database. Katie, Ms. Sepich’s daughter, was raped and murdered in Las Cruces in 2003. It was then that Ms. Sepich learned that DNA samples were not taken routinely.

“Only the guilty would have any reason to fear DNA.”, Sepich stated. She claims that DNA technology can save lives, protect the innocent, and solve crime. In general, she is right. No need here to point out that some expert like Dr. Henry Lee of the OJ trial may muddy up the waters by simply saying, “Something is wrong here.” Ms. Sepich is right, but her stopping place is wrong. She would require New Mexicans to give a DNA sample for a law enforcement database. Fair play would extend that requirement to all of us.

Can we justify making a class of those arrested for felony? No conviction of a crime of violence, nor even a charge of a crime of violence. In a sense, this sampling is punishment, and in a sense it is preventive law enforcement. Assuming that the arrest is lawful, a reasonable and prudent police officer believed that the accused had committed a felony. Seems fair enough such a person should give up the DNA sample.

Would it not be fairer, however, to take the sample from us all? Much more effective; much more even handed. Search us all; not some of us; that is the fair thing to do (for example, at the airport).

Let every resident of New Mexico give up a sample. Meanwhile, let us support “Katie’s Law” as a start.

MEDICAL MARIJUANA ON AGENDA; GOVERNOR RICHARDSON DESERVES FULL MARKS

Governor Richardson could easily have passed up the request to put the issue of medical [read that “smoked”] marijuana before the legislature. After all, the federal government, which is slowly but surely taking over the police power from the states, claims the right to prohibit people from smoking marijuana. The feds claim the right to deny smoked marijuana to people with terminal illnesses, people with intractable pain. They do not arrest the patient; they threaten the license of the doctor. Have you heard any of our congress people discuss this?

The Governor came forward and laid the problem on the table. New Mexico may be spinning its wheels, but the principle is there. No longer will we roll over and say to the DEA, tell us how to practice medicine. If our legislature passes the bill, it may amount to no more than a resolution, and that is all right. We will say to the federal powers that this is a State matter, and get out of the sickroom and restrict your governance to matters that are appropriately federal (national and constitutional).

SHOULD WE RETURN TO “BLUE RIBBON” JURIES?

In the federal criminal justice system, we used to have “Blue Ribbon Juries.” The law was changed by Congress forty years ago. Now we select the jury panel by a random method.

Under the Blue Ribbon system, the Judge would appoint “suggestors” in each county of the State. The suggestors were prominent in their communities, and were trusted by the Judge to do a good job of suggesting people who would make upright, honest jurors. From those suggested, a panel, say 24 or 36, would be chosen to try the criminal cases. The defense lawyers tried to find out the details of how the suggestors were chosen, and what methods the suggestors used to choose those whose names were sent forward. The lawyers were unsuccesful; they and their clients remained in the dark.

In October, 1966, forty years ago, Reis Lopez Tijerina and his followers took over the Echo Amphitheatre in northern New Mexico, and held forest rangers against their will. The rangers were taken before a “judge,” Jerry Noll, who claimed to be King of the Indies and the rightful owner (by grant from a Spanish king) of all land West of the Alleghenies. The upshot of it all was that Tijerina and several others were put on trial and convicted in federal Court.

At the time of the trial, in early 1967, the Blue Ribbon Jury system was in use in the United States District Court, but Congress had just passed a law abolishing the practice. The law was not applicable to the Echo Amphitheatre case, but Howard Bratton, United States District Court Judge, ruled that he would use the new system for the case. That was out of an abundance of caution, as they say. Judge Bratton was an outstanding jurist.

The case was tried in Las Cruces, and a jury was selected from the southwest part of the State. A conviction resulted, and Tijerina did federal time. Before he did time, he was on bond while he appealed his federal conviction. It took the court reporter nine months to prepare the appeal transcript. Meanwhile, in June, 1967, Tijerina was involved in the courthouse raid in Tierra Amarilla, in Rio Arriba County.

Tijerina was convicted of assault with intent to kill Eulogio Salazar, a deputy Sheriff, who was shot through the face while trying to escape the courthouse through an open window in the office of the Sheriff. Tijerina was sentenced to not less than two nor more than ten years by [State]District Judge Garnett Burks [Sr.] but Tijerina was pardoned by Governor Jerry Apodaca before Tijerina served any of his sentence. If he had served time, he would have been entitled to credit for a short time that he was in jail on the raid charges and before he was released on bail.

Now to the question. Why not return to the Blue Ribbon system? Why do we trust such important matters as life or death, or long prison sentences, to the type of juries we get today? As a practical matter, many well qualified persons are excused from jury service, or are excluded by peremptory challenges by lawyers who are looking not simply for a fair jury, but for a biased jury. We have allowed the system to be twisted to the extent that those accused of crime who can afford it are helped by professionals who study the biases of prospective jurors, and advise the lawyers how best to obfuscate and mislead the jury panel and the jury.

This is not to rail against our criminal justice system, but to encourage reform. We may be able to do better, and it is time for discussion of possible ways to do better. We owe it to the victims of crime, and to the persons accused and found guilty. The more likely the criminal is apprehended, promptly tried and punished if found guilty, the less his punishment needs to be.

POSEY YOUTH ON TRIAL FOR MURDERS

Sixteen year old Cody Posey is on trial for murder, accused of killing his father, stepmother and stepsister with a firearm. Posey was fourteen when the incident occurred, on a southern New Mexico ranch owned by Sam Donaldson.

Last week the Judge ruled that the boy’s confession would be admitted into evidence. Defense attorney Gary Mitchell had argued that use of the confession would violate Posey’s constitutional rights under the case of Miranda v. Arizona (1966). The case requires that the accused be advised of certain “rights,” principally the right to counsel, and that the accused “waive” the right to counsel. The Judge said that happened here; and that because Posey “waived” his right to remain silent, and waived his right to counsel [same thing, as a lawyer would have told him to keep his mouth shut], the confession could be used. Otherwise the confession would have been excluded from the State’s case.

The Miranda case not only encourages fraud, it requires fraud to be committed by our law enforcement officers. Fraud in the sense of omission of critically material information. The police “advise” the accused, such as this boy when the boy was fourteen. “You have a right to an attorney while you are being questioned.” That is grossly misleading. There is no such thing as an attorney during questioning. If the accused indicates in any way that he wants an attorney, all questioning must cease. Questioning may resume if and when an attorney is hired or appointed and the attorney agrees to let her client talk to the police.

Fraud in the sense that the police omit to tell the accused fourteen year old that if he refuses to talk, if he “lawyers up,” that refusal cannot be used against the accused. Fraud in the sense that it is not in the best interests of a guilty accused, ever, to talk to the police without advice from an attorney.

The police take candy from the babies [ignorant, fearful, remorseful, stupid, emotionally disturbed], and the hardened criminal, the mafiosa and drug kingpin lawyer up. Yes, those babies are often cold blooded killers, but do we really want to have rules which favor the intelligent, remorseless, fearless killers?

The Miranda case is ill-advised and results in uneven justice. The Miranda case, and Griffin v. California (1965), give a one-two punch that results in our use of interrogation to punish the little man while we release the hardened killer and rapist.

The Miranda case allows the accused or lawyer to stop all interrogation; and the Griffin case says no inference may be drawn from the silence of the accused. Where is the common sense, the fairness, in such rules? From time immemorial before 1966, confessions were admitted into evidence if they were voluntary [no violence nor coercion nor threats of the like].

The Warren Court in 1966 decided that the police could not be trusted to tell the truth as to whether the confession was voluntary. So the Court laid down an absurd and unworkable waiver rule, but then said we will accept the word of the police as to whether the accused "waived" his rights to remain silent and get a lawyer's advice to keep mouth shut. This is an invitation to perjury, and is meaningless or ridiculous. This is said with all due respect to the Court.

Can you say that you are satisfied that Posey, at age fourteen, made a “knowing and intelligent” waiver of his rights to silence and advice of an attorney to remain silent? The rules laid down in the Miranda case and the Griffin case should be reexamined by the Supreme Court [now that we have two new hard liners]; or the rules should be reexamined by Congress and a constitutional amendment offered to in effect reverse these two cases. Forty years of impaired justice is enough.

CONSTABLE BLUNDERS AND MURDERER IS PARDONED

The title to this post is a paraphrase of (Justice Cardozo’s?) statement in opposition to the exclusionary rule. The federal exclusionary rule, a Court rule not required by the Constitution of the United States, was devised in 1914 in Weeks v. United States. The purpose was to give teeth to the Fourth Amendment prohibition of unreasonable searches and seizures. The Court felt that the only way to give meaning to the prohibition of the unconstitutional activities of the law enforcement officers, was to suppress the evidence obtained, that is to exclude the evidence in any trial of criminal charges against the person whose rights were violated.

We lived with the exclusionary rule in the federal criminal justice system and still do. Each state was allowed to decide whether there should be such a rule for state criminal law trials. New Mexico was one which rejected the idea of an exclusionary rule. Thus, from 1914 to 1961, in New Mexico, if the police violated constitutional rights to privacy, by committing a search and seizure in violation of the Fourth Amendment, the evidence would be excluded (suppressed) in any federal criminal trial, but could be used in a New Mexico criminal trial.

In 1961, that was changed. The United States Supreme Court, in Mapp v. Ohio (1961), ruled that evidence obtained in violation of the Fourth Amendment must be suppressed, excluded, from trials in state criminal cases as well as federal criminal cases. The exclusionary rule is not restricted to wilful, intentional violations of the Fourth Amendment. A constable (read that, any law enforcement officer) may through ignorance of law or clerical error violate the warrant requirement of the Fourth Amendment, or misjudge her powers to search or seize without a warrant. The constable blunders and the murderer goes free. If the evidence is essential to a conviction, then it is true that the constable blunders and the murderer is pardoned. No need for the Governor to act on an application for a pardon or commutation. The constable, or part-time deputy in Jal or Aztec, Yeso or Claunch, has that power.

Next post: How the Supreme Court of New Mexico overruled its precedents and extended the exclusionary rule even beyond that required by the United States Supreme Court. The irony of all of this is that we have a government that is willing to order its agents (CIA or soldiers) to engage in cruel, inhuman or degrading interrogation of captives (a violation of international law), with no warrant requirement, that is, no Court intercession; but we are so insistent on observance of constitutional directives in our domestic criminal procedure that we go overboard and release (pardon) the guilty, including murderers, on hyper-technicalities.

EXECUTION OF STANLEY WILLIAMS

The execution of Stanley (Tookie) Williams last night was flawed in respect to timing. He was sentenced to death for murder 25 years ago, for a killing that occurred in 1979. A final indignity was the difficulty, or failure, to find a blood vessel for the needle for 15 minutes after Williams was strapped in a modified dentist chair.

With due respect to the United States Supreme Court: you are responsible for the quarter of a century delay in justice. How can you justify such criminal justice procedure? Why is this not “cruel and inhuman” in itself?

Executioners, how about stepping up, shooting Williams with a tranquilizer dart, and then start the procedure? Or offer him a tranquilizer pill if he wants to sit up and look at the audience and spend a few more minutes before the needle is injected; or skip the needle if he wants to do it by some cocktail. The idea is to end his life, not torture him.

Governor Tony Anaya is in the news today. We like and respect Governor Anaya, but he was wrong, and deserves no respect, by and for the way he handled the death penalty during his term. When he ran for Governor, he was forthright in saying he opposed the death penalty, but he misled us when he said that there would be no executions on his watch. The misleading was his omission of an intention to commute every death sentence in New Mexico while he had the power.

Governor Anaya commuted the death sentences of all on death row in New Mexico just before he left office (1984?). There were four or five. He said he would commute the death sentence of a child rape murderer, if the death sentence were imposed in December, but the Judge said I am in control of my calendar, and the sentencing hearing will be in January. That murderer was the first one executed since 1960, and the only to date, to die by lethal injection.

Makes us think of the “Red Light Bandit,” Caryl Chessman, who pretended to be a police officer (red light shining on top of car) and raped in California. One of the women he raped became insane. The jury said death. Twelve years later (yes, 12), Chessman went to the gas chamber. Later, the United States Supreme Court ruled that no one can be executed for any crime against a person except murder.

Perhaps we should give up on the death penalty. Nullification has set in. The juries are reluctant, the Courts are reluctant, the United States Supreme Court is woefully incompetent in this field. Congress is paralyzed, but the blame really lies with the Supreme Court, which affords a review (properly so) of the State’s procedures; but which then clouds and obscures and delays and drags its feet and the feet of the numerous federal Judges, until a quarter of a century goes by between the time that Cain slays Abel and Cain pays the price.

Most of the death penalty cases are not worthy death penalty cases, that is part of the problem. The idea that you take a life, you forfeit your life, sounds good in the Bible, but it does not work. People will not enforce that rule. They should not enforce that rule. The death penalty should be reserved for extraordinary cases, those in which the people, if all sat on a jury, would rise up and say, “Outrage! Kill him!”

Socrates had a jury of 500. Majority rules. After conviction, the jury, in a sentencing proceeding, imposed the punishment, choosing between two: the convict suggested one; the prosecutor suggested another (a glass of hemlock). We could at least have a jury of 1200, by use of video and on-line technology. The idea of leaving life or death decisions to a group of twelve persons who are called for jury duty and have no acceptable excuse (or who want to serve), is unreasonable in the 21st Century. How about a 12 person jury in Texas, handing out sentences of 900 years (murder) and 15 years (Candy Barr, stripper, for one pound of marijuana)?

Question: is it time for a complete review and overhaul of our criminal justice system, including the question of where the police power should reside? For example, in California and about a dozen other States, a doctor can prescribe, and a patient, especially the terminally ill, can take, smoked marijuana as medicine. Yet, the federal government has laws on the books that make the doctor and patient federal criminals. Is this not worthy of attention?

TAXING POWER ABUSED; ARE LIBERALS OR CONSERVATIVES TO BLAME?

The taxing power is being abused, if you accept our analysis. We believe the taxing power should be limited, and used to raise money for government purposes. Taxes should be fairly imposed, and should be separated from government policy.

For example. Some people would like to own (keep and bear) submachine guns. Tommy guns are preferable, or some other authomatic of more recent vintage. Each to his own. For some reason, good or bad, the government wants to prevent the people from keeping and bearing Tommy Guns. Some in Congress want to take away my right (if it is a constitutional right, they cannot do it, but that is not the issue here).

First question. Those in power in the government (Congress) who want to take away my right to keep and bear a Tommy Gun; are they liberal or conservative? If Congress had been given the police power (in the Constitution), that would enable Congress to forthrightly say the people are to be left alone in the right to keep and bear a Tommy Gun, or to say, the people ought not to, and will not be allowed to, keep and bear a Tommy Gun.

Right there, we would look at Congress, see those who are trying to take away the right to keep and bear the Tommy Gun; and see those who are for staying out of the matter and allowing those who want the gun to keep and bear it. Then we could clearly identify the liberal and the conservative, and vote accordingly.

Complication. The Constitution, which is the social contract we signed, grants certain powers, and some necessarily implied powers, to the United States government; but not the police power. That is reserved to the States, or to the people. So how does Congress manage to outlaw the Tommy Gun? If the Congress wants to take that step, they must hang their hat on the power to regulate interstate commerce, or the power to tax; and in either case, that is an abuse of power.

So Congress imposes a confiscatory tax on Tommy Guns, and in effect usurps the police power, and takes away our right to keep and bear the Tommy Gun. Was that a conservative, or a liberal measure by which they took away that right? If Congress had the police power and took away our Tommy Guns, would that be conservative or liberal?

Some may favor the police power being used to take away people's rights to keep and bear the Tommy Gun. Are they liberal or conservative? But when you favor using the taxing power to accomplish that goal, what are you?

A law was recently passed, to forgive millions in taxes each year (is not this a subsidy?) to induce some promoters to open up businesses in New Mexico. Loans to businesses, with taxpayer money, are subsidies, are they not? Are these practices conservative, or liberal?

Let us pass a law, impose a tax, and raise money and give it to Graham Wellington, a promoter, who wants to open a business in New Mexico (a corporation, or LLC, or limited liability partnership, so Wellington does not risk his own assets). All those in favor, say Aye. Are you liberal? Are you conservative? Are you a Democrat, tax and spend? Or are you a Republican, small, limited government person?

PRESIDENT BUSH IS RIGHT: ABSTINENCE, ONE PARTNER; OR CONDUM

President George W. Bush, even though his programs are influenced by his religious beliefs [he is wrong to impose his Christian beliefs on others] has a good formula to prevent or help cure AIDS in Africa. It is ABC, abstinence, faithfulness, and condums.

Too bad KKOB radio has two people on who trivialize the problem, on AIDS day. This is a disease. Villaneucci and (I am sorry to say) Richard Eads have trivilized the problem. That is not too bad, because as Jim says, this is a talk show and is for entertainment. But it goes beyond that. He and Richard are saying things that are dangerous to the public.

Jim Villaneucci refers to the two [not the most likely, but the "two"] ways to get AIDS, as [anal sex] and [sex with persons who do drugs with needles]. To our dismay, Richard Eads parrots, "It's preventable!" What did Richard mean? Was he saying, as Jim seemed to be saying, that you can prevent AIDS and keep yourself from getting AIDS, if you do not engage in anal sex or sex with addicts who do drugs with needles?

This is outrageous. KKOB, Villaneucci and Richard Eads should do a series to apologize for their ignorance (best case).

When a caller referred to children in Africa with AIDS, Jim said he felt sorry for the little children, but the money was being wasted! What money? Is he referring to the money used for medicine for the disease? He blithely refers to the 15 billion that USA put up. Wait. It was a pledge of 15 billion over 5 years, which is 3 billion a year. Is that a couple of months of the war in Iraq?

We hereby call on KKOB to apologize for this shallow program, whether entertainment or not, which lets us down in our fight against a terrible disease. When one caller asked about sex with a woman not the wife, Jim started talking about "protection." He also said he was checked for HIV every time he had a physical. What kind of message is he sending? Where is Richard Eads on this? Is it wrong to call this OUTRAGEOUS?

The impression the hosts left from this AIDS program was that one need not worry about AIDS if one did not engage on the receiving end in anal sex, and avoided sex with people who use needles for drug addictions. No emphasis, no reference, to practices to protect oneself otherwise, except the generalization, "protection." And get a blood test every time that you get a physical. Is this comment unfair? Perhaps so.

MAYOR SHOULD BE COMMENDED FOR VIDEO SURVEILLANCE

In the title to this blog, we use the term “video surveillance,” as that is a forthright description of what we are talking about. You may call it “Big Brother.” Sugar coating video surveillance by calling it “red light cameras,” may make it more acceptable in the short run. But we may want to step up and say that video surveillance by the police, in a public place, is an acceptable practice in law enforcement; and in such case, we should discard the euphemisms.

Mayor Martin Chavez is a leader in this form of law enforcement, and he should be commended. We ought to encourage him and the police to use video surveillance for deterrence of speeders, red light runners, stop sign runners, drivers who change lanes illegally, impaired drivers, tailgaters, and other dangerous drivers. No one has a right to drive dangerously in a motor vehicle on the public roadways.

This is a limited government, a government of delegated powers, so it is not accurate to say that driving of a motor vehicle is a privilege. It is a right. However, it may be regulated, or limited, for the protection of public health and safety. So we are back to the point: no one has a right to drive dangerously in a motor vehicle on the public roadways. We have laws against it, the laws are within the law-making power of the Legislature (and City legislature), and the laws should be enforced. These are generalities with which most citizens would agree. Here, now, is where we part company.

How and when and in what circumstances, do we enforce the law against speeding? Today, if the law is enforced, it is hit and miss. If the speeder causes an accident, the speeding may come to the attention of the police. If a police person is in a vehicle on the highway, the speeder may be detected, with or without radar. If a police person is in a crow’s nest atop a machine used to lift workers into the air for tree trimming, telephone line repair, and the like, the speeder may be detected. Apprehension is another matter. Prosecution is another matter. Apprehension entails danger to the police person who makes the physical stop, and to other people on the roadway. Prosecution requires time and effort, appearance of witnesses, etc. Video makes conviction more certain and deters trial demands in cases where there is no honest defense.

Once the speeder is detected and apprehended, and prosecuted (commencing with summons), the question arises, what is the appropriate punishment? One dollar, ten dollars, or one hundred dollars fine, for each mile over the posted speed limit? People would balk at the idea that one mile over the limit should draw a $300 fine, would they not? But isn’t that someone’s suggestion for a fine for school zone speeding? They say a drunk driver drives drunk 1,200 times for each time she is caught. How many times does a speeder speed for each time she is caught? Is it not obvious that certainty of detection and prosecution will be adequate deterrence, without draconian fines? If you take off for Santa Fe from Albuquerque, unless you are in dire circumstances, you will not speed if you are certain to be detected and prosecuted, even if the fine is relatively modest.

We as the majority have a right to punish speeders; but we have an obligation to catch as many guilty as we reasonably can, so that the ones who are caught and prosecuted do not have to pay for the crimes of the many. For each crime, someone pays a fine; but it is not always the one who commits the crime. In these days of modern technology in law enforcement, it is not right to make A pay for her crime and for the crime of B, if we can easily make each pay for her own offense.

The use of video surveillance of our roadways will enable our police to detect and prosecute traffic offenders. The placement of such cameras in many different locations, on and about the roadways, will make our streets and highways safer for all. We drive from North 14 down South to Interstate 40, and often see two Sheriff’s vehicles sitting beside the highway, watching for traffic offenders. If we had a half dozen video surveillance cameras on Highway 14 North, would not that accomplish the job?

How should we handle the prosecution, after we have detected the dangerous driver, and if we do not immediately apprehend him? Now, in Albuquerque, the matter is handled as a civil infraction, nuisance-type offense, and the citation goes out from Arizona to the address of the registered owner. Some objected to that, because the registered owner is automatically suspected of being the driver when the vehicle runs a red light, for example. That is a hyper-technical defense which ought to be rejected.

If a motor vehicle is operated, on the roadway, it may be presumed in the law, to be operated by its registered owner. The presumption is rebuttable, but in the absence of a sworn denial by the registered owner, the presumption should be adequate for conviction of a crime, including DWI and vehicular homicide. These examples may arise after an accident and when the police arrive there is no driver around, or there are several persons around and none acknowledges driving the offender vehicle.

Finally, it might not be necessary to cite an offending driver, even for a civil infraction. The police could install the cameras, put the results on line, and invite the insurance companies to the database. We could use the Arizona firm, for instance, but not pay by the infraction cited, but by the day or month.

Imagine that your driving habits are going on line, for your insurance company to see or review; for some trial lawyer to see or review in case of an accident even months later, etc. Would this prospect get your attention? All of us would be able to look online and see and review infractions of the law in video. We could eliminate favoritism, ticket fixing, and the like. Big Citizens keeping a watch on the offenders, and on the law enforcement authorities.

PRESIDENT BUSH AND VP CHENEY GETTING BAD RAP

This torture, no torture debate needs some direction. Too bad the listener cannot ask questions. Right now we have the Senate saying 90-9, “[No] cruel, inhuman or degrading [treatment of prisoners]”. Vice President Cheney is saying, let us exempt agents of the CIA when the acts are done on foreign soil. President Bush is saying, “We do not torture.” Some critics are saying that the President and Vice President are contradicting each other.

What the critics say does not necessarily follow. Even if the President and Vice President were talking about the same conduct, they may be consistent. It may be that we do not torture, as that term is defined by Alberto Gonzales, the Attorney General. Or it may be that some of us have tortured, as Gonzales defines the term, but that we have quit and have been prosecuted. Then the President’s assurances would be accurate.

It may be that Vice President Cheney is talking about “torture” as that term is used by the President (and the Attorney General), in which case Cheney may be asking Congress to exempt the CIA on foreign soil, from prosecution for torture. If such is the case, there is an inconsistency between what the President is saying and what the Vice President is asking. However, if the Vice President is seeking an exemption from prosecution merely for cruel, inhuman or degrading treatment of suspected terrorists, there would be no inconsistency. Merely exempt the CIA from prosecution for treatment of terrorists in a cruel, inhuman or degrading manner on foreign soil. We can still say we do not torture.

One problem, as Defense Secretary Rumsfeld points out, is that other countries in the civilized world may contend that a violation of the convention against cruel, inhuman or degrading treatment, is indeed “torture,” or may constitute “torture,” even though the treatment does not amount to “torture” under the latest revision of the definition by Attorney General Gonzales.

What is more likely than not, is that the President and Vice President and the Attorney General, are all on the same page, and that literally there is no inconsistency between the remarks of Bush and Cheney. President Bush says we do not torture, and that can reasonably be taken to mean that we do not torture as that term has been defined by Alberto Gonzales. Vice President Cheney says in effect, we do use cruel, inhuman or degrading treatment of suspected terrorists; but we do it by the CIA and on foreign soil. Let us continue, as we need to do it for our defense. It would seem that there is no inconsistency, and that the critics are wrong to say so.

It is another matter if the critics want to step up and say that Gonzales was wrong on his definition, that any reasonable person knows that he was wrong, that the President knows that he was wrong, and that the President is not being forthcoming when he says, “We do not torture.” The critics would then be accusing the President of trying to mislead us regarding our policy in the treatment of alleged terrorists. The critics could also say that the watered down torture treatment of “cruel, inhuman or degrading treatment” is something we do not want to tolerate, not even by the CIA on foreign soil. Then we would have the issues defined and could have an intelligent debate, without name calling.

As we understand it, we have treaties (specifically, “Geneva Conventions”) by which we agree, (1) we will not torture prisoners of war; and (2) we will not treat any prisoner in a “cruel, inhuman or degrading” manner. It is important to keep those two prohibitions separate in our minds, as the debate progresses.

Let us not confuse the issue by simply saying, “We do not torture.” Do we use the techniques of sleep deprivation, the near-drowning, the electric prod, the foreign object inserted, the chaining to concrete floor in fetal position in waste? We did do so at Abu Grab [sic], did we not? That is, did not some rogue, out of control United States military people at a low level of command, at that prison, on some isolated night shift, perform some of these techniques? Let us be specific when we say we do not torture. It would seem that the electric prod, for example, or the near-drowning, which would cause discomfort; or the sleep deprivation technique, or the chain to floor in waste technique, which might induce temporary psychosis, would not be torture under the Alberto Gonzales definition. Would they not be “cruel, inhuman or degrading” treatment?

What if the Senate had defeated by 90-9, this new legislative “thou shalt not?” Would we say then that the techniques described are moral under the circumstances? Since the Senate passed this new “thou shalt not,” should we now say that the techniques are immoral under the circumstances? Should we ask for an exception for the CIA on foreign soil (does it matter whether it is by Sgt. England in a military lockup in the mainland USA, or a nameless CIA in a secret prison in foreign territory)?

How about under the “ticking dirty bomb” scenario, would the techniques described be moral under those circumstances? Would torture as defined by Attorney General Gonzales be justified under the “ticking dirty bomb” scenario? Would it require an amendment of some Geneva convention, a treaty which we have signed and ratified?

Would it be best if we came on forthrightly and advocated an amendment, to allow “torture straight up” in certain cases, and let someone (who?) decide the cases? If the application for the warrant were signed by the Secretary of Defense, and approved by the Supreme Court, would a warrant authorizing straight-up torture be justifiable? If our treaties do not allow it, that would be another problem, but assuming that we could get around the treaties, would we want it?

Can we rationally discuss these matters, even debate these policies? We need not identify our political persuasion (though you must see that the writer is a liberal). We could start by identifying the issues. First, all seem to agree that we should not torture (even if they do not agree as to whether we have been torturing). Fine; no torture. Next, let us define our term. What do we mean by torture? We are familiar with some of the interrogation techniques that are criticized. It would help if we would take these techniques, one at a time, and examine and explain them, and then decide whether they are “torture” as we use the term.

Once we define torture (think of it as a small circle), then we can proceed to define the term “cruel, inhuman or degrading,” which is a large circle which includes the torture. We do not suppose that very many Americans object to interrogation by any technique which is not cruel, inhuman or degrading.

To get here, to allow interrogation at all, we have to agree that these detainees are not prisoners of war, otherwise the Geneva conventions would apply. As we understand it, the Geneva prisoner of war convention bars interrogation, period. That is what Alberto Gonzales thought was "quaint" in todays war on terror. (Some misunderstood him, we believe, and thought he was saying that the Geneva conventions were "quaint."

LET’S PASS A LAW, IMPOSE A TAX, AND USE THE MONEY FOR THIS DEAL

Graham Wellington is the CEO of an LLC, and he is giving the New Mexico taxpayers an opportunity to invest in Wellington’s company. The company is a start-up type of company, with an idea that looks very promising. Wellington is the Chief Executive. The LLC is WELLINGTON ENTERPRISES, a limited liability company, formed as such to protect Wellington and his partners from being personally liable for the debts of the company.

The question is whether we New Mexico taxpayers should pass a law to impose a tax to raise the money and allow one of our employees or elected officials to invest with Wellington.

Joe Sixpack, who is a taxpayer, has asked us to explain how this works. He said he read that there are Albuquerque based companies which act as brokers between the State treasury people and enterprises such as that of WELLINGTON. Taxpayer money is involved. Taxpayers are required to pay taxes to raise money for the State to lend or give to enterprises such as that of WELLINGTON and other new, start-up companies. A middleman is also involved, making a living brokering between the State treasury and the promoters, such as Wellington. The idea is that we, the taxpayers, should invest in new companies, to create jobs, etc., and we will all be better off in the long run. We could keep those taxes and make our own investments, but the government of New Mexico believes it is better that the government handle the matter.

Joe Sixpack wanted to know how this got started, and why? He wonders why WELLINGTON ENTERPRISES does not simply borrow the start-up money from investors in general. Sell stock, or bonds and raise the money. When the project becomes profitable, all get paid back. If not all goes well, then the investors lose, but they stood to gain. But what if no one will invest with WELLINGTON? The company will never get off the ground. That is true. However, is it right to force the taxpayers to pay for this venture? Is this trip necessary?

The government cannot guarantee that all the children can get enough to eat, nor get a doctor when needed. The government should prioritize and take care of first things first. Two square meals, a roof over the head, and a doctor when sick. For all Americans. No pseudo entitlement, with a waiting list. If there is a waiting list, there is no entitlement for all.

When the government provides food, shelter and a doctor, that is socialism. No doubt about it. But it is just a small amount of socialism, like an inoculation. Over and above these necessities of life, which the taxpayers should provide under the social compact, there are material goals aplenty to keep us all working and producing. That is the beauty of rugged free enterprise, material reward to the diligent, the producers. Free enterprise brings out the best in us, whether it be movie star talent, ball playing talent, lawyering talent, CEO talent, or any other talent useful in a lawful occupation. That is why the estate tax is wrong; it penalizes production. Excessive taxation does the same.

We can have rugged free enterprise, consistent with cradle to the grave security. For example, body parts are not for sale. A human heart will not be transplanted to the high bidder. Blood donors who donate blood for medical care are not paid. This taste of socialism is familiar to those who have served in the military: socialized medicine; food, shelter, clothing.

Senator Robert Dole had the right idea. In 1996 he said give them a safety net, but not a hammock. Well and good. However, a safety floor is what we need, rather than a net. A safety floor (food, shelter, medical care) is an entitlement of all Americans who stay in this country after coming of age. This is a social compact which started in 1787. “We the People of the United States, in Order to . . . promote the general Welfare, . . . do ordain and establish this Constitution for the United States of America.” As each of us comes of age and remains in this country, we agree to abide by the social compact.

We agree to go to prison for smoking marijuana to relieve ourselves of unbearable pain; we agree to go to prison for crimes and misdemeanors which we commit; we agree to pay taxes, including those imposed on us to lend or give to some start up company which the powers that be decide deserves a hand up from the taxpayers. We agree that some people (those who form corporations) can make millions per year.

We agree to some of these corporations receiving subsidies from us, the taxpayers. We agree that we and our children and grandchildren will serve in the military to fight the wars that our government chooses to fight. We the People do our part. We are entitled – not some of us; not most of us; all of us. An entitlement delayed is an entitlement denied; so no waiting lists.

JUSTICE DEPARTMENT MISSES POINT; PROSECUTORS SHOULD BE CAREFUL

Here in New Mexico, in announcing the indictments against Robert Vigil, our elected State Treasurer, United States Attorney David Iglesias, made some reference to the Treasurer using the treasury like an ATM machine. The accused, now resigned, is represented by Sam Bregman, an Albuquerque attorney who also has been trying his case in the media (tit for tat, fair response, etc., do not apply if either lawyer is wrong).

Bregman filed a motion asking for some relief because of the U.S. Attorney’s public statement about the ATM machine; and in the motion pointed out that the prosecutor has left the impression that there was a direct theft of cash from the State treasury. Bregman, the defense lawyer, invited the attention of the federal Judge to the fact that the charges were kickbacks, not placing the hand in the till to take money. In so doing, Bregman was claiming that the public remarks of the U.S. Attorney were argumentative, went beyond the mere recitation of the facts alleged in the indictment, and tended to taint the jury pool. He was also claiming that an allegation of stealing the public money directly, was worse than an allegation of taking kickbacks or bribes or extorting bribes.

In the response reportedly made by the office of the U.S. Attorney, it was argued that the metaphor of the accused’s conduct was accurate. Big deal. The metaphor (or simile) probably was accurate, in a broad sense, because when the accused authorized payment of taxpayer money, knowing he, the accused, would get some of that money back to himself through kickback, bribe, or extortion, that is like using the State treasury like an ATM machine. So is the U.S. Attorney cleared? There remains the matter of using a metaphor at all.

The use of the metaphor is argument, and places the integrity and personal beliefs of the U.S. Attorney into the balance against the accused. This tends to taint the jury pool. This is wrong, even if it does not taint the jury pool. And it is all under the guise of a permissible, simple public announcement of an investigation and the resulting indictment (things the public is entitled to know). The U.S. Attorney has every right to characterize the accused’s conduct as use of the State treasury like a personal ATM. But the place and time were wrong. This should be a part of the argument in the trial, after all the evidence is in.

Special Prosecutor Pat Fitzgerald made a similar mistake when he publicly announced the indictment of Scooter Libby. Fitzgerald used a baseball analogy. First, he referred to a pitcher (unknown) who winds up and throws a fastball and “. . . hit the batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that . . . .” And later he stated, “And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure out what happened and somebody blocked their view.”

Fitzgerald spoke of how important the investigation [and case] are to all of us, and that it shows the world thus and so; and the investigation is important because we need the intelligence [that the CIA is able to get with volunteer agents who expect and need protection]. (Washington Post website.)

In a sense, there is probably no harm done. The jury pool may not be tainted by such tactics. The public has heard so many lawyers, including prosecutors, try their cases in the media, that the public may very well take such tactics as mere lawyer talk. Like F. Lee Bailey and Alan Dershowitz saying (as if they knew) that O. J. Simpson was innocent of butchering his ex-wife. Like the car dealers claiming that they have a “sale” going on, where one can “save” thousands of dollars; and that the manufacturers are going to throw in a “rebate,” and you can do it all on credit with “0%” interest. Does the public really fall for those claims? Perhaps the public is smart enough to disregard all of these pretrial histrionics in criminal cases.

HOME ALONE; BUT OUT OF BEER

Here I am, home alone. Watching the game on TV. I am feeling good! Problem is, I am out of beer. Nothing in house. I want to keep drinking, because I am feeling good, watching the game, not hurting anybody, minding my own business. Baloney and cheese and white sliced bread in the ice box, so all is okay, but no beer. If I get in the pickup and try to go to a drive in window, there are no such windows. So I should park and walk in to the gas station, 7-11, or Walgreens, and buy myself a 12 pack. I am not Joe Sixpack.

But I know that if I get in the pickup and start driving down the street, I may hit a child, or crash into a minivan with a mom and children. It is 11:00 a.m., and some are going about their business, not expecting an impaired driver on the streets.

I heard that one blogger said we need home delivery. That is a good idea. I could call and have a case of Coors brought to my door. There are those who oppose that idea, and have got the law fixed so it is illegal for anyone to provide that service (except of course UPS is allowed to deliver wine to the better people). If I could buy my beer like a domino pizza, I would do it. The law says no. No one speaks up for home delivery of booze, except that one blogger.

Perhaps I will just go to sleep and not get in my pickup and endanger those kids on the street. If I go out on the street in my pickup, I hope someone calls DWI RESOURCE CENTER. They can bring an open mind and good judgment to this problem.

HARRIET MIERS KNOWS ALL THE CONSTITUTIONAL LAW NEEDED

From what we see in the papers, Harriet Miers is qualified to be on the Supreme Court. She obviously is not the most qualified person, but since when is that a reason to reject a nominee. Some Democrats plan to oppose her because they fear she would vote to overrule or limit the rule of Roe v. Wade. This is not a case where we are picking a representative to vote on whether the law ought to guarantee that a pregnant woman has an absolute right to end her pregnancy by abortion in the first trimester. We are picking someone to be a judge. If we believe she would be a good judge, we have nothing to fear, because a good judge will not let her own personal views interfere with her obligation to follow the law without fear or favor.

It has been said by many that she is not qualified because she is not well versed in federal constitutional law. That is not a big problem. She has not argued 39 cases in the Supreme Court, as Chief Justice John Roberts had. But how important is that? How much did John Roberts, lawyer, learn after the first or second appearance he made in the United States Supreme Court? What did he learn about? Sure, he learned some of the idiosyncrasies of the individual justices (from listening to them in oral arguments which were held in relative secrecy, no live audio nor video). Perhaps Roberts was there when Chief Justice Rehnquist in open Court reprimanded the lawyer who, while arguing his case, made the mistake of addressing the Chief as “Judge,” instead of “Mr. Chief Justice.”

What do you learn in oral argument before a Court where the justices interrupt the lawyers and talk down to them and otherwise treat them with disrespect? You learn what you are up against, and that is all. It is like talking to an audience; you learn what the audience is like and you try to please without being obsequious. Whatever constitutional law, or other law, you learn, you learn in reading the law and doing the brief. I doubt that the justices often ask questions and make comments to the arguing lawyers, in order to learn. I believe the questions that the justices ask (in the United States Supreme Court oral arguments) are often for the purpose of expounding the preconceived opinions of the one asking the questions.

A good example is that (it is reported) the new Chief Justice, at his first oral argument, interrupted the arguing lawyer during the lawyer’s first sentence, with a question which began with words to the effect,”But doesn’t that do thus and so, etc.?” What does that say about the Chief Justice? Would Harriet Miers have done that?

The Justices do not read all of the petitions for hearings; there are thousands each year. They do not even claim to read the one-paragraph summaries contained in the petitions. They delegate this task to clerks or committees of clerks. They may tell their clerk to keep on the lookout for a case which will allow the Court to take up such and such an issue. We do not learn about this, because of the secrecy of the proceedings of this branch of the government. How would we feel if a general jurisdiction trial judge (say District Court, in New Mexico; or Superior Court, in California; or Supreme Court, in New York) were to tell her clerk, “Be on the lookout for a case that we can get assigned to hear, and that raises the issue of thus and so?” How would we feel if we were a party on one side or the other of a case involving just that issue?

If Harriet Miers is a good lawyer, with decades of experience as a lawyer, and especially if her experience has been varied, then she is qualified to be on the Supreme Court. She no more needs a cram course in constitutional law (read that federal constitutional law) than she needs one in the law of crimes, or the tax code, or the United States Code, or any of the other numerous fields of law that come before the Supreme Court. A good course in statutory construction would be helpful. A good course in American history would help. Latin would be a relative waste of time. A good grounding in law school, and experience, are enough.

It is not necessary that she have been a judge; there is always the first time when a lawyer becomes a judge. If you insist on a judge, at least insist on a trial Court judge.

If Harriet Miers is an honest person and a fair-minded person, and if she has the professional qualifications, then let her have the job. Let President Bush have his choice if we can be satisfied that Ms. Miers is honest and fair-minded, and experienced as a lawyer for decades. How would Chief Justice Roberts have done if given a job as a federal prosecutor, or a State public defender, or second chair in the defense of a medical malpractice case? Probably, very well; but that is because he is bright, not because he argued almost 40 cases before the Supreme Court.

The Supreme Court requires you to file an application to have your case heard; and if you are lucky enough to get a hearing, you will spend many days on the research and several days writing and editing your brief for the Court. You will then get 45 minutes to orally argue; big deal. So Chief Justice Roberts stood in the Supreme Court for 30 hours over the time of his career. I do not minimize that; I respect his abilities and reputation. But the lawyers who make oral argument before the Supreme Court seem to me to be like a specialty team (say kick-off) in football. We want industry, patience, good will, courtesy, integrity; and considerable experience as a lawyer in a wide variety of jobs.

If you personally had a very important case, one that affected your life or the lives of your family, would you want it tried to Judge Roberts, or to Judge Miers (sitting as a solo trial judge)?

ALBUQUERQUE BUSINESSES TO PAY EXTRA FOR POLICE PROTECTION

This week it was reported in the Albuquerque Journal that the City has entered into an agreement with owners of seventeen (17) convenience stores. The City found that there is a considerable amount of crime in and about these stores, and the police are too often called out to those locations to respond to crimes in progress or to take reports of crime. These are only a fraction of the total convenience stores in Albuquerque, and someone is quoted as saying that these stores are in bad neighborhoods. What is a “bad neighborhood,” except one in which there is an inordinate amount of crime?

Apparently the City plans to treat these stores differently from “crack houses” and East Central or South Broadway bars, locations which also generate an unusual number of calls for the police. Those bars will be bulldozed, or the owners bought out and the lots turned to uses that are approved by the City. Trees near apartment houses have been cut down by the City, because drug dealers may hide behind the trees and do drug deals.

We may wonder why the police do not simply put more officers in these areas, if there is more crime there that needs attention. Under the agreement, in order to avoid what they consider to be onerous regulation by the City, the store owners will take action to provide greater security for these premises. They will hire security. That is, in addition to utilizing the police protection that is now afforded, the store owners will hire further security officers at the owners’ expense. Thus business people who are operating legitimate businesses are being penalized because crime occurs in their stores or on their store premises. If crime is there, the police ought to be there. Instead of making sure the police are there, to protect and serve, the City sees an opportunity to sell protection.

The store owners have a choice: hire private security guards, or hire APD police to work for the store owners and provide police protection. These APD officers would be off-duty officers of the APD, but they would work for the store owners (for time and a half). They would look, and presumably act, like police officers on duty. They would drive the same cars, wear the same uniforms, carry the same gun and equipment and badge. A citizen would not be able to tell that these officers were not regular police officers, doing their duty protecting and serving. These are officers on “Chief’s Overtime.”

The store owners have a choice. They can hire these officers, or hire private security people. But they must hire one or the other. Which do you think the store owner is going to choose? Which would you choose? There is at least an appearance of impropriety here. It appears that the City is selling protection; or is allowing its off-duty officers to sell protection and mislead the public as to who is their employer. When I see an AKAL security officer, I believe that the officer is working for AKAL and the store owner who hired that security. When I see an APD officer, in uniform and official car and badge, I do not know who that officer is working for.

In the Thirties, protection was sold in the big cities, and the numbers racket was available. Today, protection is sold (although it is by commissioned officers, with the sanction of the City); and the State, yes, the State of New Mexico, runs the numbers game.

DEMEANING THE FEDERAL COURT

The case of United States v. Vigil is on trial – in the newspapers. It is rare that federal cases in New Mexico are tried in the newspapers. It is unseemly. The United States Attorney struck the first low blow, if the papers are right. He held a press conference and summed up by alleging that the State Treasurer, Mr. Vigil, was using the treasury as a personal ATM machine.

Sam Bregman, defense attorney, responded with the usual denial of guilt, but went one further. Instead of following the Reardon Rules, and restricting his statement to the approved rubric, “My client asserts his innocence.”, Bregman states that he, Bregman, knows that Vigil is innocent. In this, he went way over the line, unless he is an eye witness, in which case he should drop out as lawyer.

Perhaps Mr. Bregman has been influenced by lawyers such as Alan Dershowitz and F. Lee Bailey, who violated the rules of lawyering by expressing their personal opinions as to the guilt or innocence of a client, O. J. Simpson. But what motivates David C. Iglesias, U.S. Attorney, to try his case in the newspapers? Is it politics? He is certainly painting the Democratic party as a bunch of thieves and our elected Democrat watchdog officials as incompetent or corrupt. He has experienced assistants. Is he consulting them, have they become “yes-men,” or is he out there on his own? Does he have political ambitions?

Do you question whether Iglesias is trying his case in the newspapers? Why file (so it becomes public) detailed affidavits and so-called exhibits to “motions?” Do you question whether Bregman is following suit? Then point out another such exhibition. This mess degrades the federal Court criminal justice system.

In part, we blame the federal Courts, from the Supreme Court down. They operate in relative secrecy. No audio; no video. What a pity, because the federal Court in New Mexico would, if televised and put on line, raise all of the judiciary and justice system in the eyes of the citizens.

What a waste, to not have been able to see the hearing yesterday, regarding the conditions of release of the accused, Vigil, on live television, audio, and on-line. Senior U.S. District Court Judge James A. Parker, on-line, would do a great deal to restore, or bolster, the confidence of the people in the justice system.