The Albuquerque Journal for Friday, August 11, 2006, has a story about the scheduled retrial of former State Treasurer Robert Vigil. Defense attorney Sam Bregman has filed a motion seeking a change of venue to another district. The State of New Mexico is one federal judicial district, so a venue change would involve a trial of the case out of New Mexico. The principal basis of the motion is that publicity about the case and the first trial (mistrial for jury disagreement, or "hung jury") has been so extensive, detailed and harmful to the case of the accused, that the Judge cannot find a fair and impartial jury in New Mexico, and that Vigil will be denied his constitutional right to a jury trial.
Questionaires were sent out by the Court to the prospective jurors, and according to the returns, 73% had seen media reports about Vigil's case, more than 33% had formed an opinion about the case, and almost all of the opinions were that Vigil was guilty.
The rule of law is that for a prospective juror to be disqualified as biased or prejudiced by pretrial publicity, she must be unable to set aside what she read or heard about the case, and try the case on the evidence presented in the courtroom. To put it another way, a prospective juror may have heard or read about the case, and may even have formed an opinion as to guilt or innocence, and may even have expressed such an opinion, and still be qualified to sit as a juror. The Judge must determine that such a juror has the ability and honest intention of setting aside that preconceived opinion, and seting aside what she has read and heard about the case, and base her verdict on the law as the Judge tells her the law, and the evidence that she has seen and heard in the courtroom.
In most cases pretrial publicity means little, and does not disqualify the hearer or reader. An important exception is the case of pretrial publicity regarding a confession or other critical evidence which has been suppressed. In such cases the Judge's job is much more difficult. If the Judge knows that the highly prejudicial evidence referred to in pretrial publicity will be admitted into evidence in the government's case, the job of the Judge is less difficult. The prospective jurors are under oath when questioned on this subject ("voir dire"), and in most cases the law assumes that the one questioned speaks the truth when she states that she can and will set aside her biases and prejudices and preconceived opinions.
Saturday, August 12, 2006
Monday, July 31, 2006
MY LITTLE GIRL IS SICK; HELP.
Joe Sixpack showed up at the firestation, dressed in work clothes, walking, carrying a bundle, a little girl in her pajamas, barefoot and bareheaded. Joe seemed distraught, and the FIREPERSON could smell Budweiser. The FIREPERSON, being a professional person, and non-judgmental, immediately recognized that this was a serious problem. The Bud was secondary. What was wrong with the girl? How can I help and how can our FIREDEPARTMENT help? We have emergency people, med-techs. We are authorized to help this girl, and we are authorized to practice medicine in order to do so. Emergency medicine. We will help her; we will save her life!
Socialized medicine has reared its ugly head. Tell us how expensive it is; tell us how inefficient the Canadian or English system is; tell us how wrong it is to take money from the affluent and give it out to the non-working poor. Why do these people act like they are entitled? Why don't they buy insurance, provide for themselves and their children?
If this is one of those expensive cancer cases, why doesn't Joe Sixpack get a quart fruit jar, put his girl's picture on it, place it next to the STATE OF NEW MEXICO lottery ticket dispenser in the gas stations and grocery stores, and beg for charity so that he can pay the doctors and save his child's life.
What would Captain Kirk say? What would Bones say? What would Christopher Reeve say? What will Guliani, Frist, McCain and Gingrich say? What will Hillary say?
The State and federal governments tax us and give, yes give, millions and billions to business and agriculture and other special interest groups to subsidize such groups. $200 million a year in tax breaks to Intel; $100 million to subsidize Eclipse. Why not first things first?
Socialized medicine has reared its ugly head. Tell us how expensive it is; tell us how inefficient the Canadian or English system is; tell us how wrong it is to take money from the affluent and give it out to the non-working poor. Why do these people act like they are entitled? Why don't they buy insurance, provide for themselves and their children?
If this is one of those expensive cancer cases, why doesn't Joe Sixpack get a quart fruit jar, put his girl's picture on it, place it next to the STATE OF NEW MEXICO lottery ticket dispenser in the gas stations and grocery stores, and beg for charity so that he can pay the doctors and save his child's life.
What would Captain Kirk say? What would Bones say? What would Christopher Reeve say? What will Guliani, Frist, McCain and Gingrich say? What will Hillary say?
The State and federal governments tax us and give, yes give, millions and billions to business and agriculture and other special interest groups to subsidize such groups. $200 million a year in tax breaks to Intel; $100 million to subsidize Eclipse. Why not first things first?
Saturday, July 29, 2006
SPECIAL PROSECUTORS EMASCULATED
A few years ago, an investigation was commenced in connection with the New Mexico Highway Department. Some questions were raised about transactions that occurred in Bernalillo County. District Attorney Robert Schwartz said he had a conflict, and asked the Attorney General to act. Attorney General Tom Udall had a conflict and issued a request for proposals (bids) for a special prosecutor to handle the investigation. The "low bidder" got the contract at $85.00 per hour. Things proceeded according to law, a grand jury was convened in Santa Fe County, and another in Bernalillo County. Witnesses were called. Indictments were imminent.
Officers of corporations were in jeopardy. The companies hired lawyers for the likely accused, and also hired lawyers for key employees (who were eye witnesses). A stone wall succeeded in delaying, but not thwarting the investigation.
Defense counsel for the officers then rooted out the illegal investigation and stripped the low-bidding ("crazy things going on")so-called special prosecutor. The defense counsel filed a motion with Bernalillo County District Judge Woodrow "Woody" Smith, seeking an order shutting down the Bernalillo County grand jury investigation (and preventing any indictments). The defense counsel claimed that the special prosecutor had no authority, because the Attorney General gave the special prosecutor too much authority. The Attorney General authorized the special prosecutor the authority to investigate and seek indictments and prosecute.
Judge Smith ruled that the defense counsel were right. The Attorney General gave too much authority to the special prosecutor; the Attorney General, who had a conflict that prevented him from handling the investigation, is required by law to retain authority to investigate and prosecute, and cannot delegate that authority to any private lawyer, however qualified.
The Supreme Court of New Mexico affirmed, with no published opinion.
In spite of his conflict, District Attorney Robert Schwartz announced for the newspapers that he had gone back and reviewed the evidence and that there was no basis for any criminal charges. He did not talk to the investigator for the special prosecution team, nor to the special prosecutor, nor did he review any transcript of the many days of grand jury proceedings in Bernalillo nor Santa Fe counties.
Not to worry. This ruling and outcome was unprecedented and is unlikely to be repeated. Mission accomplished. Disclaimer. We were the low-bidder. Over the 50 odd years since we got into criminal law in New Mexico, we have seen many instances of pure justice. This highway department investigation case was not justice; it was injustice. Figure for yourself.
Officers of corporations were in jeopardy. The companies hired lawyers for the likely accused, and also hired lawyers for key employees (who were eye witnesses). A stone wall succeeded in delaying, but not thwarting the investigation.
Defense counsel for the officers then rooted out the illegal investigation and stripped the low-bidding ("crazy things going on")so-called special prosecutor. The defense counsel filed a motion with Bernalillo County District Judge Woodrow "Woody" Smith, seeking an order shutting down the Bernalillo County grand jury investigation (and preventing any indictments). The defense counsel claimed that the special prosecutor had no authority, because the Attorney General gave the special prosecutor too much authority. The Attorney General authorized the special prosecutor the authority to investigate and seek indictments and prosecute.
Judge Smith ruled that the defense counsel were right. The Attorney General gave too much authority to the special prosecutor; the Attorney General, who had a conflict that prevented him from handling the investigation, is required by law to retain authority to investigate and prosecute, and cannot delegate that authority to any private lawyer, however qualified.
The Supreme Court of New Mexico affirmed, with no published opinion.
In spite of his conflict, District Attorney Robert Schwartz announced for the newspapers that he had gone back and reviewed the evidence and that there was no basis for any criminal charges. He did not talk to the investigator for the special prosecution team, nor to the special prosecutor, nor did he review any transcript of the many days of grand jury proceedings in Bernalillo nor Santa Fe counties.
Not to worry. This ruling and outcome was unprecedented and is unlikely to be repeated. Mission accomplished. Disclaimer. We were the low-bidder. Over the 50 odd years since we got into criminal law in New Mexico, we have seen many instances of pure justice. This highway department investigation case was not justice; it was injustice. Figure for yourself.
Friday, July 28, 2006
"INVISIBLE IN WAR; INVINCIBLE IN PEACE"
Someone has said, "There is no fury like that of a non-combatant." And it was said of a veteran of the Civil War who spoke out like a war-hawk when international problems came along between 1865 and 1885, that the veteran was "invisible in war and invincible in peace." The basis or grain of truth was that the veteran, an officer for the Union at the beginning of the war, was captured early and paroled on the promise that he would not again take up arms against the South.
When we hear reports from some of the media commentators about violence breaking out in some part of the world, we often think of the Civil War officer, and the reference to the fury of non-combatants. We are presently listening to Rush Limbaugh discuss the violence in Gaza, Israel and Lebanon. Limbaugh is full of fury and follows the position of the administration that the international community should let Israel and Hamas and Hezbollah fight awhile. He also defends Israel from charges that the killing of U.N. observers "[the attack] appears to have been intentional." Kofi Anan's charge. We are not sure whether the deaths of the U.N. people are supposed to be considered "collateral damage." If so, is it possible that Anan is correct? If the blow to the compound was intentional, that in itself may not make it wrong under the circumstances. Let the U.N. investigate.
It is hard for us to understand why we send our Secretary of State overseas to discuss the conflict and to suggest a way to resolve it. Why has this small war not been brought before the general body of the United Nations? Why has no one insisted (or have they?) that representatives of the civilized nations of the world meet at the U.N. and let all blow off steam? It may very well be that Israel is entirely in the right in this matter. If so, and if the world community wrongfully votes against Israel, we have a veto.
It is ironic that Iran sends arms to Hezbollah; Syria sends arms to the terrorists; and the USA sends arms (ordered earlier)to Israel. If a Martian dropped in, would her or she think that Israel is a puppet of the USA? Hezbollah and Lebanon have failed to comply with a U.N. directive. How many U.N. directives is Israel violating with impunity? The policy of the administration in the USA is undermining the power of the United Nations. Shame on us.
When we hear reports from some of the media commentators about violence breaking out in some part of the world, we often think of the Civil War officer, and the reference to the fury of non-combatants. We are presently listening to Rush Limbaugh discuss the violence in Gaza, Israel and Lebanon. Limbaugh is full of fury and follows the position of the administration that the international community should let Israel and Hamas and Hezbollah fight awhile. He also defends Israel from charges that the killing of U.N. observers "[the attack] appears to have been intentional." Kofi Anan's charge. We are not sure whether the deaths of the U.N. people are supposed to be considered "collateral damage." If so, is it possible that Anan is correct? If the blow to the compound was intentional, that in itself may not make it wrong under the circumstances. Let the U.N. investigate.
It is hard for us to understand why we send our Secretary of State overseas to discuss the conflict and to suggest a way to resolve it. Why has this small war not been brought before the general body of the United Nations? Why has no one insisted (or have they?) that representatives of the civilized nations of the world meet at the U.N. and let all blow off steam? It may very well be that Israel is entirely in the right in this matter. If so, and if the world community wrongfully votes against Israel, we have a veto.
It is ironic that Iran sends arms to Hezbollah; Syria sends arms to the terrorists; and the USA sends arms (ordered earlier)to Israel. If a Martian dropped in, would her or she think that Israel is a puppet of the USA? Hezbollah and Lebanon have failed to comply with a U.N. directive. How many U.N. directives is Israel violating with impunity? The policy of the administration in the USA is undermining the power of the United Nations. Shame on us.
Saturday, July 15, 2006
UNITED STATES SHOULD RESPECT INTERNATIONAL LAW
This weekend we have reports of conflict in the Middle East, involving Israel. President Bush has asked for the attackers (Hezbollah?)to lay down their arms.
Where is JOHN BOLTON? He should be asking that the United Nations to get involved now, at least in debate. Our President should ask that this crisis (relatively small?) should be submitted to the international community for discussion, at the very least.
Israel has refused to comply with UN orders for decades. The US has prevented sanctions against Israel. That may have been right; or wrong.
This is a new deal. It is like the guy who was assassinated in Europe in 1914. Do we go to war and kill tens of millions? Or why not go immediately to the UNITED NATIONS. The result may be bad; but the policy is right.
Where is JOHN BOLTON? He should be asking that the United Nations to get involved now, at least in debate. Our President should ask that this crisis (relatively small?) should be submitted to the international community for discussion, at the very least.
Israel has refused to comply with UN orders for decades. The US has prevented sanctions against Israel. That may have been right; or wrong.
This is a new deal. It is like the guy who was assassinated in Europe in 1914. Do we go to war and kill tens of millions? Or why not go immediately to the UNITED NATIONS. The result may be bad; but the policy is right.
Thursday, July 13, 2006
NEW MEXICO APPELLATE COURTS IMPOSE SERIOUS RESTRICTIONS ON LAW ENFORCEMENT
In 1914, the United States Supreme Court imposed the exclusionary rule on federal law enforcement. The case was Weeks v. United States. The Court ruled that evidence obtained in violation of the United States Constitution is to be excluded from evidence. "The constable blunders and the murderer goes free." The ruling did not apply to the States, and the States were free to have an exclusionary rule or not.
That rule was in effect from 1914 until 1961. At that time, in Mapp v. Ohio (1961), the United States Supreme Court ruled that evidence obtained in violation of the federal constitution (Fourth Amendment, principally), must be excluded in State criminal trials as well as federal criminal trials. The ruling was unrealistic, unreasonable, and in many instances has led to gross miscarriages of justice. The Deputy Sheriff of some rural county may make a good faith mistake in the law of search and seizure (a body of law that is extremely complex), and a killer goes free.
An immediate result of the Mapp case was that law enforcement officers were tempted to lie (not to convict the innocent, but to preserve clear evidence of guilt). For example, in the years immediately following 1961, the States had a raft of so-called "dropsy cases." Those were cases in which the officers testified that the accused "dropped" the evidence, that is, abandoned the evidence; hence there was no search at all; and of course, no illegal search.
We prosecuted and defended felony cases in New Mexico before and after 1961; and we are satisfied that perjury among law enforcement officers was rampant (with regard to compliance with federal constitutional requirements). These were officers who would never consider perjury with respect to guilt or innocence. These were disillusioned officers, whose morale had been shattered by what they considered to be a grossly erroneous excess of power by the Earl Warren Court. The New Mexico Courts had to follow suit, as the federal constitution (as interpreted) is supreme.
New Mexico did not have an exclusionary rule in 1914, when the federal exlusionary rule was adopted by the Supreme Court; nor did New Mexico adopt an exclusionary rule for State criminal trials, until forced to by the Mapp case in 1961. After the Mapp case in 1961, in New Mexico we could and did follow the federal rule and we went no further in excluding evidence on constitutional grounds. That was until the 1990's.
To be concluded.
That rule was in effect from 1914 until 1961. At that time, in Mapp v. Ohio (1961), the United States Supreme Court ruled that evidence obtained in violation of the federal constitution (Fourth Amendment, principally), must be excluded in State criminal trials as well as federal criminal trials. The ruling was unrealistic, unreasonable, and in many instances has led to gross miscarriages of justice. The Deputy Sheriff of some rural county may make a good faith mistake in the law of search and seizure (a body of law that is extremely complex), and a killer goes free.
An immediate result of the Mapp case was that law enforcement officers were tempted to lie (not to convict the innocent, but to preserve clear evidence of guilt). For example, in the years immediately following 1961, the States had a raft of so-called "dropsy cases." Those were cases in which the officers testified that the accused "dropped" the evidence, that is, abandoned the evidence; hence there was no search at all; and of course, no illegal search.
We prosecuted and defended felony cases in New Mexico before and after 1961; and we are satisfied that perjury among law enforcement officers was rampant (with regard to compliance with federal constitutional requirements). These were officers who would never consider perjury with respect to guilt or innocence. These were disillusioned officers, whose morale had been shattered by what they considered to be a grossly erroneous excess of power by the Earl Warren Court. The New Mexico Courts had to follow suit, as the federal constitution (as interpreted) is supreme.
New Mexico did not have an exclusionary rule in 1914, when the federal exlusionary rule was adopted by the Supreme Court; nor did New Mexico adopt an exclusionary rule for State criminal trials, until forced to by the Mapp case in 1961. After the Mapp case in 1961, in New Mexico we could and did follow the federal rule and we went no further in excluding evidence on constitutional grounds. That was until the 1990's.
To be concluded.
Thursday, June 29, 2006
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.”
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.”
Sunday, June 11, 2006
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?
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?
Saturday, May 27, 2006
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.
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.
Wednesday, May 17, 2006
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.
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.
Tuesday, May 16, 2006
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.
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.
Friday, April 28, 2006
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).
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).
Sunday, April 23, 2006
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.
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.
Thursday, April 20, 2006
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.
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.
Thursday, April 13, 2006
"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).
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).
Tuesday, April 04, 2006
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?
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?
Sunday, March 19, 2006
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!"
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!"
Thursday, March 09, 2006
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.
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.
Saturday, March 04, 2006
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.
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.
Saturday, February 25, 2006
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.
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.
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