Our Newest Supreme Court Justice: Sonia Sotomayor

I have said it before, and I'll say it again, if Latinos want access to high ranking positions/appointments, the path to get there is paved with acheivements and accomplishments. 17 years as a Federal District Court judge, Ivy League educated, former editor of law review...etc., etc. Her qualifications were undeniable.

Then there's that other thing. Sotomayor is a female. I submit that her gender is not her fault/blessing. She would have been equally qualified were she a male.

I am proud to be a member of the Hispanic National Bar Association, and even prouder of the tremendous work the association's leadership did to ensure the confirmation of our newest United States Supreme Court Justice.

DWI: Crime and Punishment

This past Wednesday, Governor Richardson issued a press release to let us know that he is planning on changing DWI laws yet again. Specifically, he plans on changing the laws to make a first offense punishable by three days of mandatory jail time, and to do away with the possibility of using alternative programs to incarceration for DWI offenders.

Good politics makes for bad law. As DWI law stands in New Mexico, one can be convicted of DWI without ever having driven while intoxicated. Experts have found that blood-alcohol levels can change (diminish) by as much as .019/hour. Under our current DWI law, it is against the law to have a blood or breath-alcohol level of .08 or higher within three hours of having driven an automobile. In turn, the current DWI laws punish citizens for drinking alcohol instead of for driving drunk!

In addition, the Metropolitan Detention Center, the largest short-term detention center in New Mexico, has been sued several times for overcrowding. In order to ease overcrowding, the Courts have established community custody programs where low-risk inmates are allowed to serve their jail sentences in their own homes for crimes that carry mandatory minimum jail sentences. The governor's new DWI initiative ignores the jail overcrowding problems completely.

The state's DWI policy needs to change. There are clearly some individuals that shouldn't drink, because they have problems, and thus shouldn't drive --those people could really benefit from some intensive counseling, not jail time. However, the majority of first time DWI "offenders" don't have an alcohol problem, and would not benefit in any way from being incarcerated.

Aside from the aforementioned concerns, the State's taxpayers do not deserve the additional burden of paying to incarcerate someone that does not need to be incarcerated, nor the burden of paying out money for lawsuit after lawsuit due to jail overcrowding. Hmm...tax and spend Democrats out there? Aren't we facing a statewide budget shortfall as it is?

It will be interesting to see how the legislature deals with the governor's new DWI initiatives. By the way, I worked in the legislature while in law school --I can almost guarantee that your legislator will drink alcohol at least half the time he/she is there. At the same time, I can almost guarantee that your legislator is scared to do anything that might upset the governor.

Felony Drug/Firearm Possession

I recently represented someone charged with being a felon in possesion of a firearm that involved uncharged drug trafficking allegations. Successfully defending the case was especially important to the client as he was looking at upwards of a fifteen-year sentence due to his prior criminal history.

The Defendant was approached by gun-toting gung-ho police officers who chose to arrest him first, and ask questions later. The police officers had responded to a parking lot after an anonymous caller told dispatch that there were two Hispanic males that were passing a gun between each other in a car. The caller did not report of any threatening or menacing behavior, did not predict any future movements by the defendant or his travel companion, and left her telephone number so that police could call her back should they so desire. The police officers approached my client and his friend with their rifles drawn and fingers on the triggers and placed my client and his friend under arrest. Subsequently, while being patted down, a gun fell to the pavement from my client's pants.

There was some very bad U.S. Supreme Court case law that had to be overcome in defeating the case. The case law basically stood for the proposition that an investigatory stop (a Terry stop) can be had if the anonymous tipster sufficiently articulates a description of the target(s) and is able to predict the target(s) future movements. The facts in the case at hand were sufficiently distinguishable to escape the ugly federal precedent and through heavy briefing and intense litigation, I was able to get the entire case dismissed. Indeed, after my briefing was concluded, it was evident that the federal government would not seek to prosecute the matter too.

Federal re-prosecution is always a consideration in cases like this. Double jeopardy does not prevent the State and Federal governments from dual prosecutions because they are two soveriegns. The Federal precedent, however, will soon come into play as the State of New Mexico has started a DWI initiative that encourages the general public to anonymously report drunk drivers by calling a state-sponsored telephone number. I anticipate litigating many more anonymous tip-based stops in the future and I foresee several problems with the state requesting that the general public undertake law enforcement responsibilities that are generally left to trained professionals.

A Fresh Approach to Dealing Judicial Inpropriety

Due process guarantees a party to a case a fair trial before a fair tribunal/judge. There are no shortages of citations to this axiom: The Code of Judicial Conduct, Rule 21-400 NMRA 2009, a Judge must recuse itself from a proceeding in which “the judge’s impartiality might reasonably be questioned.” (emphasis added); see also, The 14th Amendment to the United States Constitution and Article II, Section 18 of the Constitution of the State of New Mexico guarantee every person the right of due process of law; see also, Lujan v. N.M. State Police Board, 100 N.M. 149, 151, 667 P.2d 456, 458 (1983), citing, Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)(“a fair trial in a fair tribunal is an essential requirement of due process, and that this concept applies to administrative agencies as well as to courts”).

And? So what, it is said. What gives those laws, that axiom it's teeth? How many attorneys are willing to stand up to judges and say, "stop it right now. You are not being fair and don't deserve to be a judge in this case." How often with the Judicial Standards section force a judge to give up the gavel?

A few years back, in Idaho, fed up voters attempted to pass a bill that would have made judges civilly liable for violating a litigant's rights. The bill didn't pass, however, as it faced a strong lobby in the American Bar Association (ABA). The ABA's concern was that the legislation would undercut separations of powers and the strength and independence of the judiciary. The ABA's concerns are correct --who'd want to undercut the independence of the judiciary? However, do we, as a society want judges on the bench who routinely violate litigants rights? Do we want those types of judges to be strong and independent? There has to be some middle ground that can be reached.