QUESTIONS ABOUT INTERROGATION OF DETAINEES: TORTURE, OR OTHER WAR CRIMES, OR LAWFUL UNDER NEW HOUSE BILL?

H.R. 6166 has passed the House of Representatives, and our Representatives Steve Pearce and Heather Wilson voted YES. Tom Udall voted NO. Where are we now?

18 U.S.C 2441. War Crimes. . . . (c) Definition. – As used in ths section the term “war crime” means any conduct – . . . (3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or . . . .

A violation of common Article 3 of the Geneva conventions (which applies when detainees are not prisoners of war), is a “war crime.” 18 U.S.C 1441. Article 3 forbids cruel, inhuman or degrading treatment of a detainee who is in our custody, in the USA or abroad.

A defense to the charge is, that an nterrogation technique was authorized at the time it was used; that the actor in good faith believed the technique to be authorized and lawful; and that a reasonable person would so believe. It is a defense if technique was authorized, and we acted reasonably and in good faith in the belief that the technique was authorized. Section of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1). See next paragraph.

42 U.S.C. 2000dd-1(b), Section 1004. (a) Protection of United States Government Personnel - In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of . . . [use of] specific operational practices, that involve detention and interrogation of [designated] aliens . . . and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such . . . [accused] did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful . . . .

That was the law before H.R. 6166, supported by Congressman Pearce and Congresswoman Wilson. By this Bill, the House seeks to extend a defense to the War Crimes Act, to war crimes which are a violation of commn Article 3 of the Geneva Conventions. See next paragraph.

H. R. 6166, Sec. 8 (b). Protection of Personnel – Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that – . . . (2) is grounded in section 2441(c)(3) of title 18, United States Code; and . . .

So with this background, we respectfully ask Representatives Steve Pearce and Heather Wilson, these questions:

1. (A) At the time you voted for this law, did you believe that water-boarding was authorized as a technique of interrogation? (B) Did you believe that it had ever been authorized? (C) Do you believe that water-boarding is now authorized?

2. (A)-(C). Same questions regarding the technique of sleep deprivation.

3. (A)-(C). Same question regarding hooding and beating about the face and head.

4. (A)-(C). Same question regarding chaining detainee in fetal position on concrete floor in his own waste for 40 hour

5. At the time that you voted for this law, did you intend to make lawful any one or more of those four techniques of interrogation?

6. When you state in H.R. 6166 that the defense of good faith set forth in Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply to war crimes based on a violation of common article 3 of the Geneva conventions that occurred in the past after 9/11/2001, was it your intention to provide a retroactive defense for a war crime based on any of the four interrogation techniques under discussion?

7. Are you in favor of the United States authorizing any one or more of the four interrogation techniques under discussion? If so, which one or ones?

8. Do you believe that the voters in New Mexico are entitled to know whether any of these four techniques of interrogation is lawful? If not, why not?

VERDICT IN VIGIL CRIMINAL TRIAL

Saturday morning, the jury in the federal prosecution of Robert Vigil returned a verdict. Vigil was acquitted of 23 of the 24 charges. The conviction was on the charge of attempted extortion (hire this woman at a high salary, or you do not get the contract). The 23 acquittals were on various kickback and corruption charges.

Now it is okay to Monday morning quarterback.

First, why so many counts (charges). Looks bad to inexperienced jurors, because the U. S. Attorney let the other accused off with only one count each. Did those who plead guilty to one count (in a plea agreement) get a “sweetheart deal”? Hardly, but an ignorant jury might be mislead. The prosecutor has to file numerous charges (throw a big loop); otherwise, the defense counsel will argue that indeed, the accused may be guilty of some crime, but there is a reasonable doubt that he is guilty of this charge. The prosecutor is not allowed to explain that he throws a big loop because he wants a conviction, and would settle for a plea of guilty to one count, just as he did with the co-defendants or other defendants.

Next, where was the United States Attorney? This was a political trial to many, and perhaps to some of the jury. In any event, it is an important case, not the usual type of charge (drug pushing; or felony in Indian Country; e.g.). The jury likes to see the DA herself or the U.S. Attorney himself in high profile cases. Makes the jury feel that jurors are respected.

Next, did Sam Bregman, defense attorney, get away with an appeal to the sympathy of the jurors (in the closing argument)? Sounds like it, if the newspapers report of the argument is correct and complete. Did the prosecutor object, respond in kind, or let it pass? If he let it pass, was it because he thought the jury would be too intelligent to be swayed by an argument that the accused and his family [look out there; they are sitting there on the front row] would suffer from a conviction. Even intelligent jurors can be swayed by the sympathy argument. That is why juries are told that they are not to allow sympathy, or the consequences of their verdict, to affect their verdict.

Yes, this is Monday morning quarter-backing; and we may be completely off base. We saw none of the trial, due to the relative secrecy of federal criminal trials and appeals. No on-line information here; no television; no radio; no still photographs. Our uninformed opinion is that the prosecution did a good job and that conviction of a charge that carries a possible 20 years is a definite victory for the government.

RANDOM THOUGHTS REGARDING DWI (DUI)

In the news today, Linda Atkinson, executive director of DWI Resources Center, has unveiled a map showing the location of motor vehicle crashes in which alcohol was a factor. Surprisingly, Louisiana and Central shows up as the most dangerous in this respect; and the South Valley is number five. It would seem that it is safer to drive through Isleta and Bridge than it is to drive through Central and Louisiana, at least after 6:00 p.m. on weekends.

The report prompts these random thoughts on the crime of DWI (DUI).

Nullification has set in. Right here in New Mexico, a Legislator asked the Chief of Police in a Southern town, to ask the arresting officer to not show for a DWI hearing. Right here in Albuquerque, officers fail to show and Judges fail to sanction (they dismiss DWI cases instead of making witnesses shape up).

On the punishment of deprivation of driver’s licence. Historically, the Judges did not punish by restricting the right to drive. The Legislature told the Judges to punish by taking the license and sending it to Santa Fe. In many cases the Judges refused to comply. The Legislature did not trust the Judges, and placed the responsibility of revocation with the Motor Vehicle Department (MVD).

Many Judges then failed to send in the report of conviction, so the MVD was unable to revoke the license. The Legislature then arranged it so the MVD would get involved when an arrest was made for DWI, rather than wait for a trial. Then the defense attorneys raised many technicalities in MVD hearings; and arresting officers often failed to appear at MVD hearings; and the MVD caved in and started letting the accused off because of technicalities and no shows.

Doesn’t this tell us something, after 60 years or so? We have nullification.

The interlock solution.

We catch the offender is one of a thousand offenses he commits. Then we try to take the driver’s license; or the car; or put on an interlock. Why not put on an interlock before the first offense (first offense, not first conviction)? Why not require any brand new motor vehicle to have an interlock (as defined in the statute passed at the instance of W. Ken Martinez, a Legislator from Grants)? Ultimately, all but the antiques would have them.

It is as simple as Congress telling the manufacturers to put in all new vehicles a safety device that prevents an alcohol-impaired driver from starting the vehicle, and prevents the continued driving of a vehicle by one who becomes alcohol-impaired. The key is the key, coupled with the alcohol detecting device developed at Sandia Labs. The scientists and inventors would come up with devices that are foolproof and non-intrusive and non-burdensome to unimpaired drivers. A touch of the key to start the vehicle; a touch (on demand) of the key to keep the vehicle running. Why don’t we do this, and save thousands of lives and hundreds of thousands of serious injuries each year?

A final thought here. Jane Sixpack likes to get drunk; and she needs to drive while sober. Tell her she can get alcohol-impaired, and she can drive her vehicle; but she will not be allowed to do both at the same time. Under our present system, we could use the alcohol bracelet as a preventative and as punishment. The alcohol ankle bracelet detects and reports the blood-alcohol level. Existing, workable technology.

After the arrest, the Judge directs as a condition of release that the accused wear an alcohol ankle bracelet until trial (no more need for a “six-month” rule to speed trials). Defense lawyers who are encouraged by the arbitrary six month rule to manipulate the system and stall the trial, will be requesting speedy trials to close the case if their clients get no booze until trial. Then, in cases of conviction, the Judge can restrict the alcohol intake of the convict: no alcohol in the blood unless the convict is at home; or only during certain hours, and at home; or only to a certain alcohol level, etc.

Put yourself in the shoes of Jane Sixpack, who drives while alcohol-impaired. She is threatened with loss of driver’s license; or she is threatened with forced alcohol abstinence. Is there any doubt as to which punishment she would fear the more?

END PROHIBITION, BUT START SLOWLY; END PROHIBITION OF SMOKED MARIJUANA AS PRESCRIBED MEDICINE

Stanley Crouch, in his syndicated column in the Albuquerque Journal of April 29, 2006, argues that we should “Declare Victory and End Drug War.” We could even acknowledge defeat and end the drug war. Abuse of recreational drugs (including alcohol) should be against the law; and the law should be so reasonable that it will be enforced, evenly, fairly and with good judgment. The key word here is "abuse."

We now see in the news that Afghanistan produces 90% of the world supply of opium. The USA uses enough cocaine and heroin to support drug lords the world over. We support these people by imposing prohibition. Drug prohibition.

Does it follow from one’s opposition to the war on drugs, prohibition, that one advocates use of recreational drugs? No. We can be against recreational use of drugs, and against prohibition as we know it. In 1956, fifty years ago, the federal government enacted laws to impose mandatory prison terms for simple possession. Draconian measures; full prisons; turf wars; etc. This war is a failure. More than 50 million have used marijuana. That is a federal offense. Even if your State allows it; even if your doctor prescribes it; watch out, as the United States Attorney General and the United States Attorney will prosecute you. They threaten the Legislature of New Mexico to prevent passage of a medical marijuana bill. What have we come to?

Gary Johnson, while Governor of New Mexico, had the courage to advocate an end to prohibition as we know it. This is not a partisan issue. President Clinton at least tried (used) marijuana; and so did President George W. Bush. Is this not common knowledge? How can we imprison for that? How can we ruin lives, for that? How can we support drug lords for that, when people could grow their own marijuana, more easily than making home brew? Let us work on legislation to end this "war," and yet minimize the harm that comes from the abuse of these drugs.

NEW MEXICO APPELLATE COURTS IMPOSE SEVERE RESTRICTIONS ON LAW ENFORCEMENT -- CONCLUDED

In an earlier post (July 13, 2006) we discussed the exclusionary rule. The rule excludes relevant evidence from criminal trials, if the evidence was obtained in violation of certain provisions of the United States Constitution. Fourth Amendment prohibition of unreasonable searches and seizures, is the clear example.

The exclusionary rule was adopted by the United States Supreme Court, in the Weeks case, in 1914, as a rule to govern federal criminal prosecutions, but not to apply to the States. The States were free to adopt an exclusionary rule or to continue with the common law rule that evidence is not to be excluded from evidence (for example, the murder weapon; or the body of the victim, with dna attached), on the basis that the evidence was obtained in violation of the Fourth Amendment. A violation of the Constitution may be the basis of a civil action; but the evidence may be used in the criminal prosecution. New Mexico did not have an exclusionary rule. State v. Dillon, 34 N.M.366 (1929).

Then, in 1961, in the case of Mapp v. Ohio, the United States Supreme Court imposed the exclusionary rule on the States; and from 1961 on, New Mexico has followed the federal rule. We do now have an exclusionary rule. If the constable blunders, the murderer goes free. If the underpaid deputy makes a good faith misjudgment as to the law (very complex), the incriminating evidence is excluded and the killer goes free. However, in 1993, the New Mexico Supreme Court, instead of merely following the federal rule (which it was required to do), went further, and adopted an exclusionary rule that places additional restrictions on New Mexico law enforcement.

In 1993, our Supreme Court, in State v. Gutierrez, 116 N.M.431 (1993), considered the federal exclusionary rule in a case in which the law enforcement officer in New Mexico had in good faith sought a warrant, and a magistrate had in good faith issued a warrant for a search and seizure. The warrant was defective. Looking first to federal law, our Court saw that the United States Supreme Court had created an exception to the exclusionary rule that it had imposed on federal and State courts. The exception was that if the officer in good faith seeks a warrant, and the magistrate in good faith issues the warrant, the search may proceed; and if evidence is found, it may be used in criminal court, even though as a matter of law the warrant is defective. This exception was adopted in part because it encouraged officers to seek warrants, rather than to act on their own on what they thought was probable cause.

Our Court did not follow that federal precedent, and overruled our 1929 case, and adopted an exclusionary rule that is more stringent (restrictive of the police) than the federal rule. Thus we went from no exclusionary rule (from time immemorial to 1961) to the federal rule, imposed on us by the United States Supreme Court (in 1961), to our expanded exclusionary rule, imposed by our own Supreme Court in 1993. That is called standing the rule of law on its head.

The exclusionary rule is arbitrary; it is capricious; it is so unfair that it gives one a sickening feeling in the stomach. The rule has to be followed as the United States Supreme Court directs; but it need not be expanded by New Mexico. Gross miscarriages of justice will follow; and perjury by law enforcement officers will increase; and officers will be further demoralized.

A serious, unintended result of the exclusionary rule, is that the Courts will narrow the rights to privacy of the general public, in order to avoid having to exclude evidence in difficult cases. For example, can the police read my diary based on permission from my brother? Yes, if you follow the Sirhan case ruling. Hard cases make bad law. Now all of us are subject to having our diaries read if our brother consents.

Can the police look in our seabag for a knife, based on the consent of our landlady? Yes, if you follow the Witherspoon case (knife-murder of eight nurses). Indeed, hard cases make bad law. Either adopt a rule that the brother can consent to your diary being read; and adopt a rule that your landlady can consent to a police search of your seabag; or let this vital evidence go in a hard case.

In a recent case, the Court of Appeals of New Mexico ruled that a Lea County man had a right of privacy in his trash after he set it out in sealed garbage bags in a non-transparent container for pickup by the trash collectors. Our Court found a right of privacy where the United States Supreme Court found none. Our Court then failed to follow a U.S Supreme exception to the exclusionary rule (if officers ask in good faith for warrant, and Magistrate in good faith issues invalid warrant, evidence will not be suppressed). No big deal, only marijuana and crack were suppressed by our Court of Appeals; but what if the garbage had been body parts or the murder firearm?

When, where and how often do you hear any criticism of this aspect of our criminal justice system? We have too few lawyers.

CARS TAKE AND SAVE LIVES

It may be said that cars take lives and cars save lives. Jim Belshaw, of the Albuquerque Journal, in his column for Sunday, August 13, 2006, points out how highway deaths have dropped in recent years, and attributes that drop largely to safer cars. He cites automotive design changes, especially air bags. He laments that the people who drive the cars are not safer (driving skills or habits not improving as the cars become safer). Seat belts and air bags prevent injuries and death. Who opposes those safety features being imposed by law?

It is time to revisit the idea put forth by W. Ken Martinez, legislator from Grants. He offered a bill that would require all motor vehicles to be outfitted with an interlock as a condition of registration in New Mexico. Many thought his bill went too far, and punished the innocent. They had no problem with an interlock on the automobile of one convicted of driving while under the influence, but opposed a universal interlock.

Martinez is a reasonable man and an attorney. He took what he could get and the result was an interlock for the vehicles of those convicted of DWI. Martinez was well aware that technology moves fast, so he worded the legislation to require an interlock, but defined the term to include future technology which would produce the same or a better result than the Interlock, which we understand is patented. This broad definition of “interlock” gives encouragement to those working on, or who will work on, technology to accomplish the purpose better and at a lower price.

For example, at Sandia Labs they were working on a small metal plate which would detect alcohol content of blood through the skin of the driver. Lay your wrist on the plate, get a safe blood-alcohol reading, and you are able to start your vehicle (or keep it running). It is reasonable to expect that motor vehicles could be outfitted with an effective, tamper-proof device that would make it impossible for a person with a certain blood-alcohol level (or who is otherwise impaired) to start or continue to operate a motor vehicle. Tractors; cranes; 18 wheelers; dump trucks; motorcycles; automobiles; etc.

Our legislature could follow Ken Martinez and take the lead in the nation, say, by requiring all new motor vehicles, starting with 2010 models, to have a factory installed interlock, if they are to be registered in this State. The federal government could also act and make the interlock a safety feature just as the seatbelt. Our Legislature could forego passing the law, and merely pass a resolution urging Congress to require the interlock (interstate commerce).

A child of tender age cannot open pill bottles; why should an impaired person be able to operate a motor vehicle?

MOTION FOR CHANGE OF VENUE

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.

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?

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.

"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.

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.

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.

DOUBLE JEOPARDY NOT AN ISSUE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PUT DENTAL CARE IN SCHOOLS

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

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

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

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

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

OPEN THE DEBATE ON HEALTH CARE, IMMIGRATION AND PRIVACY RIGHTS

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

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

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

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

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

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

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

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

SUGGESTION TO CRIME PAGE EDITORS

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

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

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

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

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

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

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

TOO FEW LAWYERS

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

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

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

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

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

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

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

Thus, we say that we have too few lawyers.

RELATIVELY MILD CRUELTY TO ANIMALS

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

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

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

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

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