DOUBLE JEOPARDY NOT AN ISSUE

In New Mexico we have two recent instances which would seem to involve
double jeopardy questions. In both instances, there is no such problem.

First, there are the indictments in State court of witnesses in the federal
prosecution of Robert Vigil, the former State Treasurer. Those witnesses
were prosecuted in federal court, plead guilty, and bargained for leniency
by giving testimony against Vigil. The witnesses gave their testimony and
the Vigil prosecution resulted in a mistrial for jury disagreement. It was
reported that one juror held out, on the basis that Vigil had been “set up.”
No doubt he had been set up; the question submitted to the jury was
whether Vigil was guilty as charged. A lot of wasted time and judicial
resources, because the federal government (as New Mexico) unnecessarily
requires a unanimous verdict from its twelve-person juries.

Back to jeopardy. Can the State prosecute the federal witnesses for
crimes which essentially are the same as those for which the federal
government has or will sentence these same defendants? The answer is
yes, because the United States Supreme Court has ruled that the United
States and the State of New Mexico are two separate sovereigns.
Jeopardy in one is not jeopardy in the other; hence no double jeopardy.

Second, we see in the newspapers this week that a number of sex
offenders have been sentenced without having added to the sentence of
imprisonment, a long period of parole or probation. The long period of
supervision after release from prison, is a mandatory provision of the
legislature. Some judges imposed sentence without following the statute.
Now the State will seek to have the prisoners resentenced. The result will
be that the new sentence will imposed conditions of confinement or
supervision that were not included in the original sentence. This is
forbidden, as a general rule (double punishment). Once a sentence has
been imposed, it can be reduced, but not increased, without offending the
constitutional provision against double jeopardy.

However, if the Judge has imposed an illegal sentence, she may
resentence, to a legal sentence, even though the new sentence exceeds in
severity the old sentence. “The law is common sense, put in good
grammar.”

MIRANDA v. ARIZONA -- 40 YEARS OLD AND BAD LAW

On June 13, 1966, the Supreme Court of the United States handed down the decision of Miranda v. Arizona, 384 U.S 436 (1966). A week later, the Supreme Court decided in Johnson v. New Jersey, 384 U.S. 719 (1966), ruled that the Miranda case was not to be applied to cases in which the trial had already occurred.

Forty years ago today, the Supreme Court changed the rules relating to interrogation of persons accused of felony. The applicable rule, from the birth of the nation, had been that an admission or confession which was voluntary (no promises; no threats or coercion)was admissible in the criminal trial. Now the rule became much more restrictive. Interrogation of an accused in custody would be lawful (the evidence admissible) only if the accused (no matter his education nor knowledge of law)is given certain advice: the Miranda warning. You have the right to remain silent; anything you say may be used against you; you have the right to a lawyer to advise you and to be present with you during questioning; if you cannot afford a lawyer, one will be appointed for you; if you give up your right to a lawyer and agree to answer questions, you have the right to stop answering the questions at any time. Words to that effect (thousands of cases wrestled with the issue of whether the right words were used by the police).

If the accused "knowingly and intelligently" gave up, or waived, his right to an attorney, and confessed, we may use the confession to convict and impose the death penalty. This test, this rule, is worthy of ridicule. The rule is ridiculous. With all due respect for the Court. Before the Miranda case, only the ignorant, the fearful, the remorseful, the mentally impaired confessed. After the Miranda case, it is only the very remorseful, fearful, ignorant, etc. who confess. We have a rule that penalizes the weak and favors the hardened and strong criminal.

Even if the Miranda case had been decided correctly (it overruled a number of its own cases), it was ill-advised to make it applicable to cases that were awaiting trial. Many cases had been properly investigated under the old rule, with no misconduct by the police, and confessions obtained. Those confessions were now inadmissible, and there was no way to go back and do the interrogation over, with the Miranda warnings. These accused persons had lawyers now, and lawyers do not allow guilty clients to talk to the police.

In the Albuquerque office, the District Attorney had three murder cases pending trial in which the police had a confession, and the cases were too weak to prosecute without the confession. The result was that those three cases were dismissed. Justice was denied because the Supreme Court changed the rule and made it apply to cases where the confession had already been obtained. In June, 1966, there were approximately 285,000 people in Bernalillo County. One miscarriage of justice in case of murder, for every 100 thousand population. The population of the United States was approximately 180 million. That makes 1,800 miscarried murder cases. How can such a result be justified? How can such a rule be justified?

SUGGESTIONS FOR UNITED STATES DISTRICT COURTS -- CRIMINAL PROCEDURE OVERHAUL DUE

The trial Courts in the federal system are called United States District Courts. Here are some suggestions for change in the procedure of such Courts.

First, open up the Court to TV and radio. These Courts are way behind, and the result is they conduct their proceedings in relative secrecy. Do not say cameras and audio are disruptive; modern technology can cure that. No doubt such broadcasts affect some lawyers, Judges, jurors, witnesses, and others. But is that bad, or good? We believe that such broadcasts will educate the public so fast that the grandstanding will end. There is grandstanding, obfuscation, misleading and chicanery at present (without TV and radio). We think the situation will get better, not worse. Make the camera fuzzy on witness and jury faces if necessary.

If you were a defense lawyer and you wanted to pull the wool over the eyes of the jury, would you try it with a jury which had watched real live Court television?
More likely, you, as a lawyer, would conduct yourself as you do in a non-jury (bench) trial. Trial lawyers have at least two styles: one for the jury; another for the Judge in a bench trial. Ask your lawyer friend if that is so; and then ask why.

Second, why require unanimity for a verdict? Would not 9-3, or 10-2, or even 11-1 do better? Consider this case recently in which our former State Treasurer won a great victory against the United States government (his lawyer's assessment). The case ended in a mistrial, because of jury disagreement. It is reported that the jury was 11-1 for conviction of one or more charges. One juror reported that the jury, faced with twenty something counts, or charges, and faced with a holdout, decided to consider first three of the strongest counts. Spinsters later said that the lone holdout was not out of line, because the others wanted convictions on only two or three charges. We imagine the eleven would have been satisfied with one guilty verdict and leave the remaining charges for another jury.

Would it take a constitutional amendment to allow less than a unanimous verdict in a federal criminal case? Overrule some precedent, or amend the constitution; the times call for it. This has nothing to do with the "War on Terror," but with the "War on Crime." In these days, it is too easy to buy or intimidate one juror.

PUT DENTAL CARE IN SCHOOLS

Albuquerque Public School District is proposing a 351 million bond issue for a new high school. We have a suggestion. Have the architect build in a nurse's station and a dental technician's station, state of the art.

Prophylaxis and feasible on-site care for the school children, paid as part of the science program. No more worry about what dentist to send the poor to [Medicaid is too stingy and full of red tape (!!??)].

We can all feel good. Who would begrudge a first grader or (especially) a ninth grader getting a tooth cleaning, instruction in proper dental care and personal hygiene, check ups regularly for cavities, minor filling work, etc.? If this be socialism, so be it. Raw recruits in the miilitary get the same; and all of our children are bound by law to do such military duty when needed. The duty to serve is the consideration for minimal heath care (dental here) in advance, when most needed. This makes sense, because we need healthy young people to do the fighting.

Take the crime of mayhem. The King had the right to the services of every man as a fighting man. Cut off a limb of a vicltim, and you have committed mayhem, because the male victim can no longer fight for the King when needed. Same with putting out an eye, or knocking out some teeth. Deprive a King's subject of the ability to fight and you commit mayhem.

This is conservatism. The principle is ancient, mellowed in the crucible of time.

OPEN THE DEBATE ON HEALTH CARE, IMMIGRATION AND PRIVACY RIGHTS

We believe it is possible to have a civil, rational dialogue, even debate, on three major issues. They are healthcare, immigration and privacy rights.

Healthcare [not health insurance, but care]. Perhaps we could start off with the basics. In health care, we need to ask the question whether the taxpayers should pay, under a compulsory plan such as Medicare. More basic, is whether the government should get involved in the provision of any medical care. And another basic is whether, if the government does get involved, does it use the funds paid by affluent taxpayers, to pay for the health care of the poor. President’s Clinton's finest [but lost] hour was when he held up his pen and told Congress to send him a health care bill that was universal. He said "this pen" will veto any bill which is not universal!

Socialized medicine? Any person who served in the military lived under it. Are there some things that are not for sale? Dialysis? Vital organs? Priority of heart transplants? A right to languish in dignity in your old age?

Immigration. What if we negotiated a treaty with Mexico. It would go something like this. United States entrepreneurs would be allowed to open shop in Mexico, with their investments guaranteed by the USA from being stolen by the people or the Mexican government. These shops (farms, factories, nursing homes, etc.) could hire only those 11 million illegal immigrants now in the USA. Promoters could be benefactors or exploiters, but would use the formerly illegal labor, as a condition of the guarantees of the USA and tolerance of Vicente Fox.

Or consider another variation on the handling of illegal immigrants. Punish them by rewarding the next 11 million. As the next 11 million come in legally over the years, give them a fast track to citizenship. No need for a stick for the illegals; use a carrot for those who are and were law abiding.

Privacy rights are relative. The government has the delegated power (right) to invade our privacy under certain conditions. Can't be "unreasonable." The question that should be debated, if any, is whether there ought to be a warrant requirement, as well as a probable cause ("reasonableness") requirement. The President and Vice President argue that the probable cause, or reasonableness, requirement is all that is required by law, including the Constitution, under these wartime circumstances. They may be right, and even if they are right, is that the way we want our Fourth Amendment interpreted?

Can we say that the rule for criminal cases, that generally requires probable cause and a warrant, is unworkable in the fight against terrorism? On May 7th Sean Hannity said words to the effect, "I don't know any conservative who opposes [our listening in on Al Quaida]." Nor does any liberal, as far as I know. The question is whether the executive should generally have to get a warrant when the rights of our citizens are invaded.

Let us sit down together and discuss these matters; or stand up and debate them in a civil manner. Some ideas which seem outlandish at first glance can stir thought and thus be helpful with discussion, however brief. President Nixon said we should stop yelling at each other, so that we can hear each other.

SUGGESTION TO CRIME PAGE EDITORS

Here, with due respect, is a suggestion to crime page editors.

When a person is formally accused of a crime, certainly if the accusation is in the form of a criminal complaint or indictment, the reporter should try to interview the accused, to get his side of the story. Do not interview the lawyer who has been hired by the accused, unless an effort has been made, and thwarted, to interview the accused.

Then the story should recite that the accused, who, for example, was implicated in criminal activity by the sworn public testimony of a witness, not only "denied wrongdoing," but answered specific allegations. The questions and answers should be in such form that they could be repeated in any Court proceedings that might follow.

If the accused declined to answer questions, the story should say so; and then the attorney may be quoted. However, when the attorney states words to the effect that his client is innocent, or has done nothing wrong, the reporter should ask follow-up questions such as "How is this known?" or "How do you know?" or "Do you speak from personal knowledge, and if not, from whom did you get your information, etc.?" The answers should be in the story.

The result would be that one formally accused would not be able to simply remain quiet and avoid an adverse inference of guilt (which the public may reasonably and fairly draw from the silence). Further, mouthpiece lawyers would be deterred. Our definition of mouthpiece lawyers is those lawyers who publicly mouth that their clients are innocent, when the lawyers have no personal knowledge that such is so, and the lawyers also know they do not intend to allow their clients to answer legitimate questions. You want examples? F. Lee Bailey and Alan Dershowitz both made public statements that their client, O. J. Simpson, was innocent of the butchering of Simpson's ex-wife. How did those lawyers know? Were they placing their own reputations and character in the balance, to affect public opinion? That is not permissible in the practice of criminal law.

Here in Albuquerque in recent days, a convicted former State Treasurer swore under oath that he had received $100,000 or more from a prominent stockbroker, in return for giving business to the broker. This testimony was reported, and it was reported immediately following, that an attorney for the broker has denied that testimony. No mention in the story that anyone asked the broker about the allegation.

We have no business trying to tell the news media how to do the job. However, we respectfully suggest that the procedure outlined here would be fair, legitimate, and would benefit the public and improve the image of lawyers (we are especially sensitive here).

TOO FEW LAWYERS

In 1950, at UNM School of Law, they had a Professor who taught two required courses: constitutional law, and legal writing. If you could not pass those courses, it was the highway. The students had a nickname for the Prof. It was “The Hatchet.”
The Professor announced one day in class that it was his job to prevent the incompetent from getting out of law school and taking a shot at the bar exam.
Neither of his courses was necessary for a student to become a competent lawyer, not even for the niche of constitutional law, nor legal writing.

Prior to 1934, a person could become a lawyer in New Mexico by studying for the bar, through apprenticeship or “reading” law, then passing the bar exam required by the Supreme Court of New Mexico. In 1934, the legislature enacted a law that required a person to graduate from a law school before that person could take the bar exam, and further required that the law school must be one approved by the American Bar Association. New Mexico was the first state in the nation to pass such a law. This gave the ABA the power to limit the practice of law in New Mexico. At that time, New Mexico had no law school at all; and it did not get one until 1947.

In 1956, the New Mexico Supreme Court ruled, in Henington v. Bar Commissioners, that the requirement enacted by the legislature in 1934, was constitutional. The challenge, among others, was that the statute unlawfully delegated legislative authority of the State to a private group of individuals (a national bar association). The Court did not discuss this one, the most important challenge, but nevertheless upheld the statute.

We were aware at that time that three of the five justices sitting on the Supreme Court had not graduated from an ABA approved law school; and two of the five had never graduated from any law school. They were competent; just as many of the Founders, and many in Lincoln’s time (including himself), without having gone to law school.

What is our point? It is this. The only legitimate reason for requiring competence in lawyers, is to protect the public. Apprenticeship is the best preparation for the practice of law. Apprenticeship should be allowed.

That is not the major point, however. The practice should be broken down into parts, so that one who is competent to practice one part, may do so, without also having to be skilled in other parts. The podiatrist is qualified (and permitted by law) to cut the carbuncle off the foot. The septic tank installer is qualified (and permitted by law) to install a septic tank (even though not legally qualified to practice all “plumbing”).

One who is qualified to practice in magistrate court, or other Courts of limited jurisdiction, should be allowed to do so even though she is not qualified to practice in a Court of general jurisdiction (such as District Court), or the appellate Court. If this were permitted, the public could be protected from the incompetent, and at a lower charge for the services. That is the case, unless, as is implicit in our present scheme of things, no one can be qualified to handle small Court matters unless qualified to handle the more complex matters (as in the higher Courts). Do you have to be a brain surgeon, in order to be qualified to lance a boil?

Thus, we say that we have too few lawyers.

RELATIVELY MILD CRUELTY TO ANIMALS

Today is Thursday, so we received the Albuquerque Journal and the East Mountain Telegraph (Thursdays only). Two of the stories saddened us even though they described events that were supposed to be happy ones. The two stories were one, the high school boy who was roping a calf; and the second, the grownups who were catching and releasing the trout at Tingley Beach.

It is relatively mild cruelty, but cruelty, nonetheless, to rope, throw and tie a calf. As long as 65 years ago, we high school boys helped out with the roundup and branding in Eastern New Mexico. No roping was allowed, because the ranchers did not want their stock injured. Today, high school boys are allowed to chase the calves with a horse, rope the calves, jerk the calves to the ground, or up-end the calves by wrestling them to the ground, and tying three legs of the calf together.

That is not like cock-fighting as we know it (forget the illegal "gaming"), where the cocks are instigated to fight one another, with razor-sharp gaffs attached to their spurs by their human owners. Nor is it like bull-fighting, nor dog fighting, nor bear-baiting. Yet is cruelty to the calves, sentient creatures of the Lord.

The fishing is somewhat different. The fish gets let go, if caught from the "Catch and Release Pool." Some sport. This teaches a bad lesson to the kids. If we catch a fish, kill it instantly and mercifully, and eat it, or give it to someone who will eat it. On a moral scale, that is better than catch and release.

No, this is not a case, yet, where we need the legislature. (Though the City should remove the regulation that requires release of the fish at certain ponds.) Just think about it, and discuss it, and see if this is what we should encourage in our kids.

"UNPUBLISHED" APPELLATE COURT OPINIONS

We have just reread a post by Joel Jacobson, Esq. on the subject of unpublished appellate court opinions in federal courts. See his weblog, "www.judgingcrimes.com".
His post, as usual, is well-written and informative.

The justification for "unpublished" opinions is that nothing new or novel is involved in the appeal; no need for the Court to write out its reasons for ruling, as the correct ruling is obvious, a slam dunk. There are cases in which the rule is abused, and opinions are declared "not to be published, nor cited as precedent," for no good reason. Some cases (appellate decisions and opinions) are embarrassing and need to be swept under the rug.

It happens in the appellate court in New Mexico, too. Good examples are cases in which the criminal (including murderers) are freed because the District Attorney makes a clerical mistake, fails to apply for an extension of the "six-month rule." Or the Clerk makes a clerical error in the Court records If the public knew how many criminals were freed on technicalities, they would cry, "Outrage!"
(The six-month rule, which is not required by the federal or State Constitutions, is a rule adopted by the Supreme Court of New Mexico, and may be repealed by a majority of that Court).

The Tenth Circuit Court of Appeals has ruled, in an unpublished opinion, that a citizen could not sue a municipality for alleged destruction of audio-taped evidence. Was the case important? Yes. Was it a case of first impression? Yes. Did the Court explain its ruling, so others could be guided by it? No.

The New Mexico Court of Appeals (with tacit approval of the Supreme Court of New Mexico, ruled in an unpublished opinion that an armed robber should go free under the six-month rule. The Clerk of the District Court had made a note that the accused was "arrested" when he was booked into jail. The Court of Appeals ruled that the "arrest" occurred at the hospital 90 days earlier (accused had broken his leg while escaping after the robbery). The defense attorney had asked for a continuance, and specifically assured the trial Court that there was time for the postponement without violation of the six-month rule.

On appeal from the ruling of the trial Court that the six-month rule was never intended to require a release of an accused under such circumstances, the Court of Appeals issued an opinion releasing the accused free of all charges; and the appeals Court specified that the opinion was not to be published nor cited as precedent. The result was that the news media also did not discuss the case; so the Supreme Court was not embarrassed by the six-month rule.

The rule that allows "unpublished" opinions results in unwarranted secrecy. It is ill-advised, and contrary to good government. The rule should be abolished by the Court which adopted it, the Supreme Court of New Mexico. The impetus could be brought by the legislature; but it has no power to adopt any legislation which would be repugnant to the New Mexico Supreme Court's rules. In this respect the New Mexico Supreme Court has more power in such matters than the Supreme Court of the United States(which can be overruled by the Congress in regard to rules).

ASTORGA ARRESTED IN MEXICO; EXPELLED TO USA

The news this week is that Michael Astorga was arrested in Mexico. He is suspected of murder of a Deputy Sheriff officer near Albuquerque. The news reminded us of the case of Jose Franco Padilla. State v. Padilla, 66 New Mexico 289 (1958).

Padilla was wanted for rape murder of a female child nine years old. The abduction and killing happened near Roswell, New Mexico. Padilla fled to Mexico, and was arrested by Mexican authorities 600 miles south of the border. The Mexican authorities transported Padilla by automobile to Juarez and turned him over to the Roswell authorities at the border at El Paso, Texas; from there he was brought to Roswell. He confessed to abduction, child rape and murder of the little girl, and claimed he was influenced by marijuana and alcohol.

During his confession, Padilla said he traveled 600 miles without urinating, even though the Mexican authorities invited him several times to get out of the car and walk out to relieve himself. He said he feared that he would be shot for attempted escape.


This Astorga case, in which the accused is facing capital murder charges of murder of a police officer [the officer stopped a vehicle and was killed by gunshot], brought some strong opinions on the afternoon KKOB radio show (Jim Villaneucci). Many were concerned that Mexico would not agree to th extradition of Astorga, unless the United States guaranteed that the death penalty would not be sought.

Some suggestions the radio listeners put forth: 1) when we apply for extradition, we should lie about our intentions, that is, conceal the possibility that we will seek a death penalty -- several tricky means worthy of mouthpieces were suggested; 2) let us send a hit person to kill him; and 3) let us bring him back on a guarantee of no death penalty, and let the “prison justice” take care of the problem [let him be killed in prison by a verdict of the other prisoners, his peers].

Obvious objections to those three proposals are that the first is a proposal that the State of New Mexico commit a fraud; the second is that the State of New Mexico should stoop to murder in its war on crime; and the third is that while Astorga may be convicted of killing a gang memember in November, he will also be convicted of killing a law enforcement officer. What are the rules of the “prison justice” system? Will Astorga escape punishment for the gang killing because he is a member of another gang? Is his mistake in killing a gang member offset by the fact that he killed a deputy?

Why all this turmoil? Is it because we have seen that there have been only two people executed in the last 45 years, and we are fed up with death row delays, reprieves, appeals, technicalities, and commutations? Governor Toney Anaya said during his race for Governor that he was opposed to the death penalty, and that no convict would die on his watch. What he did not say was that he had no intention to commute the sentences of all five persons on death row. Therefore, a commutation of death penalty sentences did not constitute a breach of a pre-election pledge. As he left office, Governor Anaya commuted to life imprisonment, the death sentences of all five death-row prisoners. At that point many of us mentally threw up our hands.

Here is another question. If the death penalty does not deter, why have a law that provides for the death penalty for the murder of a police officer and not Joe Sixpack?

A final question. If the accused is not tried within six months, will the case be dismissed under the “six month rule” adopted by the Supreme Court of New Mexico [as a legislative matter]? Will a clerical mistake in the office of the District Attorney or the office of the Clerk of the District Court, which does no real harm to anyone, result in release [mandated by the Supreme Court under its legislative powers, without regard to the discretion of the trial Judge) of the accused, free of all charges? Unfortunately, that is our “six month rule.”

The rule is not required by the Constitution of the United States; nor by the Constitution of New Mexico; nor by any rule or law except the rule adopted and continued by the majority of the persons now serving on the Supreme Court. The federal rule requires a trial within 70 days; but leaves it to the Judge as to the sanction for a violation. The New Mexico Supreme Court dictates in advance that a clerical error shall set a murderer free, regardless of the circumstances, and regardless of what the trial Judge may think. Why do we tolerate this?

TOO LITTLE GOVERNMENT REGULATION

In a few instances we can prove that the government engages in too little regulation. Take truth in advertising. Why do we even have such a phrase, such a concept? It is because a small minority of business persons, greedy and crooked, like to cheat the ordinary consumer.

Fortunately, the words “free” and “sale” and “savings” are now meaningless. They have been used by crooks so long that people no longer trust them, so they have to a great extent become harmless.

How many clever phrases have been used by the car dealers? Are they inspired, or instigated, by the manufacturers, or are the makers merely complicit in the schemes? Take the “factory invoice” and “factory rebate” and the “manufacturer’s suggested retail price.” What do those terms mean? Is it a case of the factory and local dealer making a pretense of giving a good deal, better than the usual market price? What else? How is this different from marking up the price immediately before a “sale?”

When a merchant has a product to sell, she can sell for cash, or on credit. If she sells on credit, she has a risk, and needs interest on her money. If she says “0%” interest, she is jacking up the price. How can it be otherwise? Is this honesty in business?

On KKOB, on the Rush Limbaugh program, we hear repeatedly an advertisement for wood flooring. Bellowood, or Belleauwood, or a sound-a-like. The pitch is that the company offers a “50 year warranty.” Somewhere else in the pitch (smaller print) we hear that the warranty is for “50 years so long as you live there.” With the fine print, it is a warranty for 50 years or as long as the buyer lives in the room that is floored, whichever is sooner. People move residences every four or five years on average. Go figure.

Where are the regulators? The enforcers? No doubt the honest businesspersons would be happy to be rid of the unfair competition of the crooks.

Think of it this way. You work and pile up credits (US dollars). When the merchant sells you a service or product by use of fraud, she is stealing your work. Instead of "Buyer beware!" the law should speak out, "Crooked business persons beware!"

DENTAL CARE FOR THE KIDS

In the Albuquerque Journal of March 9, 2006, is a sad story by Leann Holt, Staff Writer. It has to do with dental care in New Mexico for children. She writes about decay, just the simple problem of tooth decay. However, she points out that the disease is serious, as it causes missed school days and can lead to mal-nutrition, school failure and low self-esteem.

Statistics from the story: 40% of New Mexico’s children suffer from tooth decay; only 6% of Medicaid-eligible children in New Mexico get dental care (third lowest in the nation); and only one-third of New Mexico’s dentists are willing to take patients based on Medicaid payments. One school nurse is quoted as saying that it is not unusual to see “crater-sized cavities” and children in pain, with no dentist to send them to.

The story features Small Smiles Dentistry, a clinic which is part of a chain, (one on the West Side, and now one at Central and San Pedro). One dentist there said it is not unusual to see children who have cavities in 18 out of 20 teeth.

Medicaid pays only about 66% of what other insurance companies pay. Red tape may be a problem, and undoubtedly is, but there is red tape in dealing with HMO’s and insurance claims people too. So is it money?

Where are out priorities? We pass laws to impose taxes to provide up front money for promoters, tax breaks (subsidies) for billion dollar corporations with highly paid officers and other executives, and for landscaping of highways and maintenance of golf courses, and so on. “First things first!”

Two suggestions to help remedy this problem. First, Medicare (federal taxpayer money) should cover all dental care, including prophylaxis, at least for the children. Such dental care should be provided for all children (no means test to be applied) in the schools.

Second (and here we rely on free enterprise as a solution), we should change the law to encourage more qualified people to offer the services. One change we might try is to allow people into dental school if and when they are ready for dental school; and defer the bachelor degree requirement until after the dental school graduate begins practice. As part of their continuing professional education, these dentists could take the undergraduate courses, so that within a few years they will have the same formal education as those who completed a bachelor’s before getting into dental school.

Give these people an incentive, such as this waiver (deferral) of the undergraduate degree requirement for license; and in return, require these dentists to accept Medicaid child patients for a number of years.

These Medicaid dentists would not be as formally educated as the dentists with undergraduate degrees: no English literature; no foreign languages, nor dead languages; no psychology, philosophy, economics, nor electives. But these dentists will catch up later, on their own time, while they are making a living and also performing a public service.

How can we be proud of our State; our space station; our airplane industry; our Intel, with its $32 billion off the tax roll; our multimillion dollar stadiums [sic]; our lottery which takes from the poor and gives to college students; and so on; when we fail to provide our children with dental care? We do not have to go from the present system to socialism; that is, from monopoly to socialism. How about let us go from monopoly to free enterprise? Educational requirements for a license are necessary to prevent the incompetent from practicing quackery; but unnecessary educational requirements are in restraint of trade, and immoral.

PRESIDENT BUSH CORRECT ON OUTSOURCING

This week President Bush, who has just visited India, expressed the opinion that America should not be afraid of outsourcing tech jobs to India. We agree with him, as outsourcing is simply one aspect of free trade.

Here is one area in which outsourcing would be good. Medical care. Recently we read of an American, stooped with a back injury, and in need of two operations (estimated at $100,000 total). He flew to India and got the two operations for a total of $10,000. He praised the medical care providers and was glad he outsourced. My doctor friend expressed concern about the operations and aftercare. He was right, as the patient is not really qualified to determine whether the operation (“procedure”) was a success, or was a bargain. It was affordable.

One objection to outsourcing medical services, is the problem of screening out the incompetent practitioner and the outright quack. That could be resolved by international licensing, with malpractice insurance or financial security required, and with an international court to handle the claims. This could be an administrative procedure, similar to workers compensation laws, and we could even eliminate the jury trial lawyers in such cases, if that would sugar coat the pill.

We envision a promoter medical care provider putting an MRI, and a CAT scan, and a regular Xray machine, all on-line, and running 24-7. The machines send the pictures to India, where they are read by qualified people under a system in which the patient is guaranteed compensation for malpractice. Recently there was a news article that said that cancer in the brain often goes undiagnosed; and that some could be diagnosed with an MRI. This is only one example of how to improve health care and make it more available. Free trade.

Yes, free trade in the USA would be the logical place to start, but the trade-union, protectionist element of the American Medical Association makes reform in this country a slow, tough process.

UNITED ARAB EMIRATES ARE HIRED. TO DO WHAT??

If you have read this far, I expect you to say the question (in the title) is frivolous. However, can you really say, from the reports in the news, just what it is that the British company does with respect to six or so of our ports; and which will now be done by the UAE government company ("company")? Proponents and the administration clear up one aspect immediately: security at the ports is in the hands of the United States Coast Guard.

So. What does the comany do? Who do they contract with? What are they obligated to do under the contract? Is it a big contract -- six billion or so? Surely the company does not acquire a real estate interest, by purchase or lease, in the land and water surrounding and making up the port. What do they do?

My interest is heightened by the lineup of people who are publicly debating whether the USA should approve the [assignment of the contract to UAE]: Rush Limbaugh, Jimmy Carter, John McCain, Pete Domenici, are among those FOR; Sean Hannity, Bill Richardson, Heather Wilson, are among those AGAINST (or hold awhile).

The proponents tell us that the company is not there to handle security, only to "operate" the port. They seem to say that we have no right to question a contract such as this [such as what, exactly?] if we are planning to take into consideration the fact that the company is foreign, and is the UAE. If we do take such facts into consideration, we are unreasonably fearful or biased against Arabs.
I am not sorry; I can't accept that.

Here is a place for Senator Pete Domenici (well respected and admired, with a world of experience) to educate us. Tell us what is involved here. Forget about how fearful we are, and give us the benefit of the doubt as to whether we are racial or ethnic profilers in an improper sense.

CODY POSEY SENTENCE FOR MURDER DICTATED BY ARBITRARY LAW

In less than an hour, the Judge will sentence Cody Posey for killing Posey’s father, stepmother and stepsister. He was convicted of first degree murder in the killing of the sister, a teenager.

The Judge held a sentencing hearing this week, and yesterday announced that this morning, at nine o’clock, he would impose sentence. The Judge’s discretion is limited by New Mexico law. The Judge must decide whether to sentence Posey as a child (the crime was committed when Posey was 14), or as an adult. The jury in New Mexico does not impose sentence, and is not supposed to even know what the possible sentences are.

If the Judge decides to sentence Posey as a child, the maximum sentence would be incarceration in a juvenile facility until Posey is age twenty-one, that is, five more years. If the Judge decides to sentence Posey as an adult, the Judge must impose a sentence which would mean at least thirty years without parole.

Mandatory sentences, whether mandatory in the sense of a limit on the amount of time, or mandatory as to the amount of time, or mandatory as to the minimum, are all arbitrary. Not necessarily unjust, but arbitrary. It is possible that the sentence set by the legislature will be the right sentence in some cases. However, there is no justification for a law that tells a Judge that he must sentence to a juvenile facility for five years, or to an adult facility for at least thirty years, with no in-between.

Our whole sentencing system should be reexamined. The power we give our District Judges (judges of courts of general jurisdiction) is awesome, too much. Yet we do greater injustice when we try to set the penalties by legislated mandatory sentences.

JUSTICE DEPARTMENT THREATENS OLD, SICK AND DYING NEW MEXICANS WHO TAKE PRESCRIPTION SMOKED MARIJUANA

I doubt that David C. Iglesias, United States Attorney for the District of New Mexico was eager to write a threatening letter to the Legislature this 30-day session. According to the paper, Iglesias wrote that he would prosecute any effort by New Mexicans to use prescription smoked marijuana to treat nausea and other symptoms of terminal illnesses or illnesses in which the patient suffers intractable pain. In effect Iglesias said he would make a federal case out of it if Grandma, dying of cancer and in unbearable pain, chose to use smoked marijuana (with a doctor’s prescription).

Mr. Iglesias undoubtedly got his instructions from the Department of Justice, as that is the way the federal system works. The U. S. Attorney does not have the discretion that state prosecutors have; the Justice department has a great deal of control. Thus, the Justice department, which as a matter of course fails to prosecute those who possess marijuana in New Mexico (except in large amounts), came alive when it looked like the people of New Mexico might choose to cut some slack in the state prohibition laws.

Yes, it is a federal crime to smoke a joint, even if your doctor prescribes the smoke rather than opiates or other drugs. But if 60 million Americans have tried the smoke, as it has been reported, that is 20% of the population. Two Presidents that we know of did the dastardly act. If New Mexicans are keeping up in the smoking of marijuana, that means about 350,000 New Mexicans have tried the stuff (not me).

Where has the office of the United States Attorney been? Why take their frustration out on the old, sick, dying folks? Why be frustrated at all?

This is federalism at work for us. The federal government has prohibition; and the State has prohibition. They are two sovereigns, so both governments can prosecute for the same offense (no double jeopardy, because two sovereigns). The federals sit on their hands and let the State taxpayers provide the officers to enforce the marijuana prohibition, except in big cases.


The State of New Mexico should repeal its prohibition laws, with respect to smoked marijuana by doctor’s prescription for intractable pain or nausea; and tell the federal government that if the United States Attorney makes good on the threat to prosecute doctors or patients, then New Mexico will tender all of its marijuana cases to the federals in the future.

Meanwhile, a word to the legislators in the House of Representatives who killed or worked against the medical marijuana legislation. Next election, there are going to be posts at this site in an effort to let the public know what part you played. Those posts will not be at some higher ups’ direction; nor will they be paid for in any way. No hard feelings; no offense.

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.