A Disastrous Governor

What a disaster Susana Martinez has been!

Recent investigative journalism suggests that some of her apparent “pay-for-play” conduct involved law-breaking, at least by the folks who paid her to disregard our interest to serve theirs; and her Education Department has released new anti-science rules for teaching science. 

She wrongfully destroyed mental health facilities to clear the field for Arizona companies that had contributed to her campaign. 

According to The International Business Times, investment firms that gave Martinez and her supporters $1.2 million saw huge amounts of public money (in educational retirement funds and state investment funds) move from safer investments to those firms, with nice management fees. Those deals may have broken federal securities laws. State Rep. Bill McCamley has asked AG Hector Balderas to investigate whether they broke state campaign laws. Martinez chairs the State Investment Council, which oversees about $20 billion in state funds. Will those funds go the way of our mental health facilities?

Meanwhile, her Education Department wants to weaken the teaching of science by avoiding evolution, ignoring the scientific consensus that the Earth is nearly 4.6 billion years old, and hiding our heads in the sand about global warming. A national team of scientists and teachers developed a plan for science teaching; but either Susana knows better or it's politically inconvenient to teach science honestly.

Will teachers tell students that heavy things may fall toward Earth when they're dropped, because God has a heavy hand? Lion cubs may result from adult lions mating. The seas may be rising because God is blowing them up like a balloon. 

 

I'm all for healthy skepticism about scientific conclusions. Leeches and shock treatments were once standard treatments. Eggs are healthy or unhealthy, depending on the decade.

But science is right more often than it's wrong. It reaches conclusions by the method best calculated to approach Truth: the scientific method, stessing experiments and evidence, not the pronuncements of some seer, potentate, or astrologist. Test everything – then test it again.

I loathe what Susana and her minions are trying to do because I like honesty, candor, and evidence-based arguments. I dislike greedy politicians telling artists what they can create or scientists what their experiments should and shouldn't discover. I respect people's religions and ideas, and fight for their rights to express them; but I'd appreciate the same courtesy. Let our government govern, not waste time trying to protect religious beliefs. It's no coincidence that just when New Mexico is “adjusting” science to religion, Turkey's government is doing the same. No one religion or nationality has a corner on the arrogance market. There are stupid leaders everywhere.

Everyone from unemployed workers to the Chamber of Commerce says we need business development. All the experts say an educated work-force is one major quality companies look for. 

Many are tech companies, whose products are based on science.

For businesses to function in this modern world, a solid knowledge of science is essential. Imagine trying to build ships to navigate the universe if we still taught that the flat Earth was its center. If Earth is a few thousand years old, as some religious extremists say, were fossils and petroleum inserted into rocks by mischievous atheists? 

 

Republicans would offer us Steve Pearce as our next act. Someone who thinks women should obey their husbands; and whose political success depends on pretending global warming is a myth, oil and gas never pollute wells and streams, and solar energy is impractical.

Political corruption knows no party. Like science, democracy is a process. We need to be skeptical of all political candidates. Test them. And monitor results closely.

                                                        -30-

[The column above appeared this morning, Sunday, 24 September 2017, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website.  An abbreviated version will air during the week on KRWG Radio and KTAL-LP 101.5 FM.]

[Unbeknownst to me, while I was writing this column Algernon D'Amassa was writing column on the "post-truth political assault on science and liberty."]

[Meanwhile the big sports news this weekend is political: Donald Trump has dumbly involved himself in unnecessary bickering with popular athletes.  Insignificant in themselves, the recent controversies embody Trump's inability to control his mouth, his defensiveness and bullying, and his willingness to divide the country along ethnic lines.

One involves the aftermath of the Colin Kaepernick situation I wrote about a couple of months ago.  He's a qualified football quarterback without a job.  Most believe he's without a job because last season he started kneeling during the pre-game national anthem, as a protest.  People overreacted.  Trump overreacted, saying no team should hire him.  More and more players, even recently some white players, have begun emulating Kaepernick's form of protest.  A sane and sensible U.S. President would ignore this.  Theoretically he has weightier matters on his mind.  Trump has called them "sons of bitches" (to which Kaepernick's mom, though not really a fan of his protest, said "I guess that makes me a proud bitch") and said they should all be fired or suspended.  Playing to his base.  Predictably, that has increased the enthusiasm of players for the protest movement.  It's a way to protest Trump now.  A little less predictably, not only the owner of the San Francisco 49ers but several owners, such as the NY Giants' Mara, Robert Kraft (New England Patriots), and Shad Khan (Jacksonville Jaguars) have criticized Trump.  Kraft is a long-time pal of Trump's, and all three contributed money to his campaign and/or his inauguration.  The NFL contributed $100,000 to the inauguration, I think.  (Khan gave $1,000,000 to the Inauguration!)  In short, to garner a few raucous cheers from his base, Trump has further estranged himself not only to players and some of their fans, but to NFL owners.  

Meanwhile it looked likely the Golden State Warriors would decline an invitation to the White House to honor the NBA Championship they won earlier this year.  Star Steph Curry said he'd vote "No!"  Coach Steve Kerr, whose father was killed by terrorists in Beirut and who sees that Trump's conduct and policies exacerbate ethnic divisions and potential terrorism, was not personally in favor of going to the White House, but would let the players decide.  Trump took the decision out of their hands by rescinding the invitation.  Too thin-skinned to bear their likely rejection of him, he called more attention to it.  As Curry said, this is beneath Trump -- or beneath his current position -- and "isn't what a leader does."

Obama would likely have said that while he didn't agree with a lot of Kaepernick's views, our democracy depends on our tolerance, diversity, and freedom of expression.   The Warriors would have visited him, as they did two years ago, so that problem wouldn't exist.

A sensible Republican president with a sense of our country's values - John McCain , say -- would have ignored the football business, demonstrating he had more important concerns.  Such a Republican president would likely host the Warriors without incident, since he wouldn't have engaged in Trump's hateful rhetoric about minorities and immigrants; but if a team had talked about ducking a White House visit, he'd ignore it, express polite regret, or maybe -- given Kaepernick's having played with the 49ers -- just made some joke about California sports teams and California's governor being a little odd.  

All trivial.  Except that a fatal flaw in Mr. Trump is that in every situation, the highest priority is to look good.  Not to accomplish a goal that serves the national interest.  To look good.  Given a chance to forego looking like the star but get some concession that would help the country, Obama or McCain or Reagan would have been secure enough to forego for a moment appearing to be the smartest man in the room, if it would help some negotiation succeed.  Not the Donald.

An example of the reaction Trump inspired, from a story on The Hill.com by Brandon Carter: 

Former NFL head coach Rex Ryan blasted President Trump for his criticism of NFL players who kneel during the national anthem, saying on Sunday that he is “appalled” at Trump’s comments.

“I’m pissed off, I’ll be honest with you,” Ryan said on ESPN’s “Sunday NFL Countdown.” “I supported Donald Trump. When he asked me to introduce him at a rally in Buffalo, I did that. But I’m reading these comments and it’s appalling to me and I’m sure it’s appalling to any citizen in our country.”

“Calling our players SOBs and all that kind of stuff? That’s not the men that I know,” Ryan, who's  now an analyst, continued. “The men I know in the locker room, I’m proud of, I’m proud to be associated with those people.”

Now even surmising that owners and commentators (as Ryan now is) have some motive not to become anathema to players, these are strong.]

[Later in the day, I red this Dan Wetzel story]on how unifying and inspiring it was that Khan, in the NFL's first game this season in London, showed such support for his players against Trump's insults that he linked arms with them at the start of the game.   It's worth a read, even to a non-football-fan.  Too, the Jaguars did go out and wax Baltimore 44-7.]

[Still later, it was clear that the issue was widespread.  About 24 players from the two teams playing in the Wembley Stadium Game took a knee; the Jaguars who didn't mostly or all locked arms to show their solidarity, and the team's owner joined them.  With one exception, a player who'd served three tours of duty in Afghanistan, the Pittsburgh Steelers all avoided the divisive decision by staying in the locker room until the anthem was over. 
Meanwhile, basketball players criticized Trump's conduct toward the Golden State Warriors.  Perhaps one of the best statements I ran across was from Steve Kerr, the Warriors' coach, as quoted on-line:

Kerr still has a message for the commander in chief.

"I’ve been fortunate enough to meet President Reagan, both Bushes, Clinton, and Obama," Kerr told The Crossover's Chris Ballard. "I didn’t agree with all of them, but it was easy to set politics aside because each possessed an inherent respect for the office, as well as the humility that comes with being a public servant in an incredible position of power, representing 300 million people.

"And that’s the problem now. In his tweet to Steph [Curry], Trump talked about honoring the White House but, really, isn’t it you who must honor the White House, Mr. President? And the way to do that is through compassion and dignity and being above the fray. Not causing the fray."  ]

.

 

Adventures of a Slightly Tipsy Governor

Santa Fe cops went to break up a loud party in a hotel room, then chickened out upon learning that one reveler was Governor Susana Martinez.

Doesn't bother me that the Governor got caught drinking. Does bother me that she threw her weight around, wasted the 911 operator's time, and showed her vindictive side – then gave us a damage-control “apology” containing bald-faced lies.

The 911 tapes establish that: Martinez's party had been warned repeatedly about loud noise, but neither quieted down nor dispersed; Martinez, while not slurring her words much, spoke in a weird sing-songy voice suggesting alcohol was influencing her; and both hotel security and the responding police officer thought her “inebriated.” 

 

The tapes also document that she repeatedly demanded from police and the desk clerk the name or room number of the complainant. For years, observers have described her as vindictive, and there's now a federal grand jury interested in whether she abused her position as DA to get back at folks who opposed her. Now that unfortunate character flaw is on audiotape.

Martinez also repeatedly makes sure everyone knows she's The Governor. The police officer's belt-tape suggests that this was effective: he commiserates with hotel security about not being able to evict her and shares hopes that she and her friends will keep quiet the rest of the night. (A laborer behaving as Martinez did might be in jail.)

Since, Martinez and her office have lied, including:

(1) saying she drank a drink and a half over the course of 4-5 hours, while eating. I've rarely (if ever) seen such minimal intake affect anyone so strongly. The cop, the security guy, and most who've heard the tapes have called her “drunk” or “inebriated.” (I'd be kinder: “a bit tipsy.”)

(2) saying the party wasn't noisy. Hotel guests had complained for a long time. Hotel staff had repeatedly warned the group. When the cops went up to the room, a woman sitting outside said it had been very noisy for a long time. The security guy also said he'd heard the noise. I've never stayed in a hotel where staff repeatedly warned folks, then called police to throw them out, for no reason. (“Oh, I'm sorry. I didn't know we couldn't talk in our room,” Martinez remarks at one point.)

Ex-D.A. Martinez criticizes the cops. She should understand that police endanger themselves by not taking calls like this seriously. Although Martinez says there were no weapons and no danger, the police couldn't rule out either based on the available information. They didn't know how many people were in the room, how intoxicated those people were, or whether or not they had weapons. 

 

Ex-D.A. Martinez should know that 911dispatchers shouldn't give out a complainant's name to the subject of the complaint. She was asking for special treatment. She also should not have tried to bully the desk clerk into identifying the complainant(s). 

 

Ex-D.A. Martinez knows that 911 dispatchers' time is valuable. Citizens should keep their calls short. But our Governor kept dispatcher and supervisor on the line for a collective six minutes plus – not to report an emergency but to complain about being complained about, and to seek the names of the complainant(s). 

 

Let's assume that Martinez wasn't influenced by alcohol: that means that when completely sober she's a vindictive bully, she isn't very truthful or considerate, and she has the bad judgment to confront a desk clerk in person, letting her bullying, condescension, and sarcasm be recorded for all to hear. 

 

How's that better than getting smashed now and then? Next time, blame it on the bubbly.

                                                                 -30-

[This column appeared in the Las Cruces Sun-News this morning, Sunday, 27 December, and will appear later in the day on KRWG-TV's website, under >News>Local Viewpoints.  Or at least, so I assume: nobody's delivering newspapers out our way this morning, given the snow; the Sun-News recently hasn't posted my column Saturday night, but gets it up Monday or Tuesday; and I'm not going out to buy a paper.  It looks like this here:

We think it's called "snow"

 

It looks like this

 

and I think that's a pickup truck

maybe i'll just sit awhile and wait

[Everyone should listen to the tapes and make up his or her own mind, of course.  Initially there were three tapes: (1) of a call from the hotel desk clerk to 911 reporting loud guests "partying in their room" who've "been warned already"; (2) of  a second call in which the desk clerk says that "Actually I have someone here who wants to talk to you" and Martinez comes on the line; and (3) of the second part of that call, after Martinez has been connected, at her request, with a supervisor.   A day or two later another recording, apparently from the responding police officer's belt, became public.  This one features the officer, a hotel security employee, and Martinez; and it's this one on which the security guy says he knows "she's . . .", the officer inserts "inebriated," and the security guard agrees. This should take you to a transcript of the three calls  This is Joe Monahan's blog coverage.]

[A couple of points I omitted: 

(1) was it right that we paid nearly $8,000 for the party that this incident followed? 

(2) there's a move to impeach Martinez over this.

I don't yet know the answer to the first.  It may surprise readers to know that I also don't know how I feel about the second.  Of course I voted against Martinez.  I've written about possible corruption and about her petty vindictiveness.   I understand she dislikes me.  

But something bothers me about rushing to impeach her over this.  Maybe it's that there have been more substantive issues that people were too chickenshit to impeach her over.  Maybe it's how inclined I am to say "So what?" about someone getting a bit tipsy.  Maybe I feel sorry for her.  At the same time, as a lawyer I could sure write a set of charges that sounded serious enough to warrant impeachment.  She did try to use her influence to get preferential treatment and even to enable herself to take revenge on the folks who complained about her.  She probably lied to a police officer.  

Her contact was obviously unappealing.   But except for not being very smart, it was rather in line with what we already knew about her.  Did I want her to be Governor? No.   Do I think New Mexico would be far better off if she retired?  Hell, yes.   But do I want us to spent time and public money increasing our political polarization by impeaching her?  If I were a decision-maker I'd want to think about that one longer than I have so far, and maybe know a couple more things.  And read over the relevant laws once or twice.]

[But I do, obviously, disagree with Heath Haussamen, whose recent column expressed delight and gratitude that Martinez had apologized.  First of all, her apology contained obvious untruths.  (I've wondered, by the way, whether or not she's apologized to the hotel desk clerk, who deserves a gubernatorial apology in person.)  Secondly, it's easy to apologize when you're not under indictment and not too likely to be, so don't compare her with Duran, for example.   Third, it was less an apology (though she said she shouldn't have handled the situation as she did, and that she would "own it") than a damage-control statement issued to try to improve her appearance in the public eye.  Toward that end, it never actually admitted trying to abuse her position, being a bit tipsy, or that anyone ever actually made any noise; but it did make self-serving statements and a vague apology (without really owning up to the conduct that warranted an apology).  In fact, she tries to distance herself from what she said and did and even shifts blame to staff-members:  "I want to apologize for the conduct of my staff on the night of our holiday party. There apparently was a party in a hotel room earlier in the night that was disruptive. None of that should have happened, and I was not aware of the extent of the ruckus and the behavior until just recently."  Both during the incident and later, she has tried to conflate the post-midnight noise she and her companions were making for an hour or two and earlier conduct in which someone dropped bottles from the balcony (although her office later claimed that only snowballs were thrown).  That took place six hours earlier, as she points out to police in an effort to suggest that the hotel staff who'd warned her several times thn called the police at 1:30 a.m. were complaining about the earlier incident, not about any later ruckus that she could have been personally involved in.  But the staffers didn't try to con or intimidate police or obtain special treatment, which is what really needs apologizing for.

I respect Heath and consider him a friend; but I hope he'll rethink his gratitude for the "apology."]

[I'm also concerned about her pattern of petty vindictiveness,  Two years ago, I wrote about  it in earlier columns (one on the Albuquerque Downs deal, another called Politicians Can Trip When They Look Vindictively Backward, and this update on her "petty vindictiveness" ) and interviewed some very nice folks on my radio show who testified to it first hand.  It was also no secret among Third Judicial District lawyers.  Many others have written about it. 
 As Joe Monahan put it:
"Rather than the compassionate but tough middle-aged lady who relishes reading to third graders and who reminds you of your favorite aunt, you have this dark, vindictive, petty personality seeking out whoever dared challenge her authority with the clear implication that they will suffer retaliation."

And as noted in the column, that same trait has sparked an investigation into allegations (and let's keep in mind that so far these are only allegations) of improper behavior in checking out license plates of and information on political opponents.]   



 

The Constitution Guarantees a Speedy Trial

[Update [1Jun2015]: The Attorney-General has filed papers asking the New Mexico Supreme Court to take a look at this case.  Word should come down within 60 days or so on whether or not the court will do so.  I suspect the decision is more likely to stand than not; but it remains just plain wrong that this fellow would walk free after doing about a month and a half of jail time.  He killed an infant.  Didn't mean to, apparently, but damned sure did -- and afterward, out of fear and perhaps inebriation, apparently didn't immediately call 911 then told a couple of different stories about how the girl died.   The Court of Appeals sort of had to do what it did; but my heart goes out to the rest of the girl's family.  She deserved better.]

Many here are outraged that Robert J. Flores, convicted after his daughter died through his inexcusable neglect, will not be jailed. A Soundoff said his daughter, Kalynne, deserved better.

I agree, and would hope former DA Susana Martinez is apologizing in her heart to Kalynne and will some day do so publicly.

It's not the court's fault: our constitutional guarantee of a speedy trial protects us. Despots can keep someone in jail for years pending trial. Our Founders said no to that practice, and meant it. If you get falsely accused used of some crime, you deserve to be heard in court soon. Not five years later, when the DA and her successor have moved on to other jobs.

Is it shocking that a fellow who killed his infant daughter by leaving her in a hamper so he could go out for beer without having neighbors hear her cries won't be jailed? You betcha!
But the speedy trial laws are no secret.

The appellate court had no real choice. The court examined a well-known set of four factors. This delay was extreme and unjustifiable. The Court of Appeal even gave the State the benefit of one big doubt: it classified as “neutral” sixteen months' delay traceable to the DA's unsuccessful appeal of a pre-trial order. (Details on my blog.)

(You can't blame the current D.A. Trial started within a month of his taking office. ADAs Jacinto Palomino and Roxanne Esquivel got a conviction, and an eighteen-year sentence.)

A closer look reveals additional problems.

Had there been no such delay, the courts might have had to free Flores because of other mistakes or misconduct. Law and Order fans know police must give a suspect Miranda warnings. Flores was allegedly taken into police custody (without probable cause, the police reportedly admitted), not “Mirandized,” and subjected to six hours of custodial interrogation. By then, many suspects would be ready to sign whatever you handed 'em, just to stop the interrogation.  (That's particularly true of one who was young and confused, perhaps a bit inebriated, and had just lost his daughter through his own negligence.)

The appeal alleged additional misconduct which the decision doesn't address because the speedy trial issue was sufficient to resolve the appeal. Thus we don't know how those issues would have come out; but appellate specialist Caren Friedman, who helped with the appeal, said “Robert's conviction was obtained through numerous Constitutional violations.” (The Governor's Office hasn't called me back to comment.)

This case seems sadly symbolic of how Martinez ran the office: much “tough on crime” talk, but some sloppy lawyering. Here, part of the delay occurred because the prosecutors said they couldn't prepare for trial in two months. But was this such a complex case it couldn't be tried with two months' preparation? Palomino had only a month.

I wonder now about the decision initially to seek a possible life sentence.

Apparently Robert was a normal young man, who was perhaps too young to be a father and proved it by doing something indefensibly dumb that had horrendous consequences. He was WRONG. His daughter DIED. But did he intend that? Was the clothes hamper obviously life-threatening? If not, what's the right punishment? I don't know, and I don't know all the facts of this case, so I won't speculate. But I doubt it's life imprisonment.   (I know that in my youth I did a host of dumb things that could have killed people, including me, but was luckier than I deserved.)

Generally, New Mexico courts are moving away from treating parenting decisions as criminal matters.

Martinez made a lot of noise and unsuccessfully sought a much longer sentence; but her office failed even to get this kid to trial and may well have ignored basic constitutional rights.

If Martinez runs for national office Flores might get famous; but that won't help Kalynne.
                                                -30-



[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 31 May, and will appear today on KRWG's website.]

[You can read the New Mexico Court of Appeals decision for yourself.  The court seems almost angry -- at the DA's conduct and perhaps at the pliability of the local courts.  I tried to ascertain whether or not Governor Martinez had anything to say to defend herself.  Wednesday, a very pleasant young man returned my call and said he would look into it and get me her response, if any, that evening or Thursday.  No one called me with any such response.  So maybe I did ascertain whether she has anything to say in her defense.]
 
[It's easy to say the court should have ignored the abuses and stuck the guy in jail for twenty years because a child died.  But another factor is what happens throughout this country when DA's can get away with this sort of misconduct.  There are abundant examples of kids who never did a damned thing but got picked up and charged, sat in jail, and had a wonderful choice: sit in jail for perhaps years and then probably get convicted in an unfair trial or plea-bargain, pleading to a lighter sentence (years in jail) for a crime you had nothing to do with.  DA's shouldn't get to use time as a weapon that way.  Defendants -- who are presumed not guilty and sometimes actually are -- have a right to get into the court and fight the charge if they choose to.]

[Finally, for those interested in the nature of the actual delays but not so interested as to read the Court of Appeals decision, I summarize below the basic reasons for delays and how the Court of Appeals viewed those:
 

Many appellate decisions outline the system reviewing courts in New Mexico use to appraise a delay. Factors include length of delay, reasons for different portions of the delay, complexity of the case, and prejudice to defendant. The court analyzes whether portions of the delay were prosecutor's fault, defendant's fault, or no one's fault.

A delay of 12 months in a “simple” case and 18 months in a “complex case” is “presumptively prejudicial.” The greater the delay, the more presumptively prejudicial it is. Here, the courts accepted, over Defendant's objection, the prosecutor's (the State's) argument that this was a complex case. 

Breaking down the length delay, the Court of Appeals held:

12/2007 to May 2008 was negligent and weighed against State. (“The record shows no activity initiated by the State to prosecute this case other than a request to review Defendant's conditions of release because he was seen at a local basketball game.” Defendant did not file initial witness list until May 21, 2008 – and only after four letters from Defendant's counsel requesting disclosure so he could interview witnesses.
5/2008 to 1/2009 was classified as administrative delay that weighed against the State. (The first trial was set for June 3, 2008; May 22, State filed motion to delay six months, up to and including Jan 2, 2009 because prosecutor had another jury trial during the period.)
1/2009 – 3/2009 was “attributable to and weighed against the State. (Court rescheduled to February, State filed motion to extend six-months, S.Ct granted ext to May 2 2009. Defendant made certain motions a month before trial, but did not move to continue; three weeks later the State successfully moved for an extension of time to respond to the motions. The trial court granted the extension, necessitating trial continuance. The Court of Appeals said the three motions were filed “well within the time allocated by rule for the State to respond.” The State's cited reason was need for more time to research and respond.)
4/2009 – 7/2009 weighed against State. (State moved on June 18, a month before trial but 3 days before hearing on suppression motion, to exclude D's expert, whose testimony was expected to be offered at suppression hearing. Trial court ran out of time to respond, necessitated new trial continuance.)
Mid-July to late November 2009 was weighted neutrally. (Defendant moved for change of venue, which the court initially denied then granted, and this was weighed neutrally because the change-of-venue motion was meritorious.).
Dec. 2009 to Sept. 2010 was a six-month negligent delay against the State. (On Dec 18 State petitioned to extend trial to July 2 (8 months after venue change) stating re-set would require special arrangements with Court in Bernalillo County. This ten-month delay was judged significant, particularly in context, and the Court of Appeal noted that the prosecutor hadn't done much to start making those arrangements.)
Then on Feb 16 2011 State moved to continue April 6 2011 setting because prosecutor assigned to the case appointed to the judiciary. (Note that the new prosecutor would have had almost two months to prepare, more than the single month ultimately available to the folks who actually tried the case and won it.) The trial court denied motion to continue, but then granted a defense motion to exclude evidence that the reason Flores had left his daughter alone was to buy beer. The State appealed. This caused a further 16-month delay, which was weighed neutrally by the Court of Appeals even though the appellate court upheld the trial court's decision that the evidence more prejudicial than probative and should be excluded.
July 2012 – January 2013 further administrative delays that were weighed against the State.
The cumulative delays were so long that although Defendant's counsel argued prejudice, the Court of Appeals held that it didn't have to find actual prejudice because the three other factors weighted too heavily against the State.]

Politicians Can Trip When they Look Vindictively Backward

Why do some politicians, once crossed, maintain a personal vindictiveness that doesn't fade as they move up the political ladder?

I'm thinking of N.J. Governor Chris Christie, N.M. Governor Susana Martinez, and the Clintons. Hillary, at least.

Yes, Don Corleone (hero of Christie's favorite movie) felt the need to avenge even the smallest slight in a public way to set an example. Probably a reasonable idea in his business. But politicians who feel a comparable impulse should stifle it.

Christie's sad story is headline material. Needing to portray himself as especially bipartisan, or atnd capable of dialogue with the nasty old Democrats, he put out the word that Democratic mayors in New Jersey should endorse him. When the Mayor of Fort Lee declined to do so, Christie's minions got back at him in a stupid and probably illegal way. They closed the local entries to and exits from the George Washington Bridge, snarling traffic and interfering with emergency responders, schoolbuses, and just plain citizens. Brilliant.

Christie either knew exactly what was going on or had set a clear example of petty vengefulness. (When the King Henry II asks “Will no one rid me of this meddlesome Priest?” his courtiers don't need written instructions concerning Thomas Becket.) Additional mayors have since come forward with accounts of reprisals by Christie's people.

What Christie's aides did was potentially dangerous and just plain dumb.

Just when Christie had a decent shot at the Presidential nomination, he shoots himself in the foot trying to settle a score. Reminds me of a football player on the point of scoring a touchdown to take his team to the Super Bowl who turns around to kick a defender in the crotch instead – and gets tackled.

A more local example is our former District Attorney. She's now Governor Martinez. Rumors have her as a possible candidate for the Vice-Presidency. You'd think she'd be busy enough with state issues and possibly national ambitions that she'd ignore the impulse to interfere with matters down here in Las Cruces.

Yet she and her favorite aide can't forgive or forget perceived slights. For just one example, Mark D'Antonio's presence in her old office is like an itch she can't keep from scratching. Several people could tell interesting pieces of this story if they chose to. When I asked a non-partisan observer about it recently, thinking he might not have heard anything of it, he just shook his head and said, “It's just something personal.” We shook our heads. With all she has going on in her professional life, why would she bother? I can't say she's done anything illegal; but underhanded and unpleasant, yes.
But neither political party holds a patent on petty vengefulness.

If widespread reports are at all accurate, Hillary Clinton kept a personal hit-list in 2008, listing fellow Democrats whose sins included endorsing Barack Obama for the Democratic nomination.
Look out, John Kerry, Jay Rockefeller, Patrick Leahy, and (above all) Claire McCaskill. Our own Bill Richardson was also on the list, and Clinton staffers reportedly watched with delight when Richardson started getting investigated.

What we're reading about the Clintonian “enemies list” is both tasteless and stupid. Sure, most campaigns keep a list of friends and enemies; and an early critical endorsement is a political gamble, with significant consequences if the underdog you endorse becomes President or the favorite at whom you thumbed your nose moves into the White House.

But few campaigns (Nixon's, perhaps) keep lists as detailed as Clinton's.

I don't see the list-keeping as helpful. Does it really help Clinton in 2016 to have magnified her differences with folks who endorsed Barack eight years ago as the superior of two good choices?
I'm not seeing the wisdom in it. I'm not seeing anything sensible about unnecessarily avenging perceived insults, turning potential friends into enemies, and enemies into raging lions.
I don't think Chris would have been nominated for President this year anyway. Look what the extremist-dominated primary process did to Romney, who hadn't hobnobbed with the Democratic Devil the way Christie did after Hurricane Sandy.

I don't think Susana will get the nod as VP: her ethnicity and gender are politically convenient, but choosing an obscure governor from a small state might be unappealing to a party still dreaming that McCain could have won in 2008 without the soccer mom.

Hillary, of course, has the 2016 nomination wrapped up, just as she had the 2008 nomination wrapped up in 2006.

Me, with a few exceptions, I can't be bothered remembering things people do to hurt me. Carrying those memories pollutes my mind and heart, not theirs.

But Jacqueline Bisset said it best. Asked at the Golden Globes how she managed to look so great at 69, she said, “If you want to look good, forgive everyone. That's the best beauty aid I know.”
                                                              -30-

State Freezes Funds and Leaves Public in the Dark

Let’s work this one out together.  Is the move by Governor Martinez to destroy several southern New Mexico mental health care providers good government or something else?

To put it another way, did Governor Martinez have to do this – or was her Administration looking for an excuse?  Score each paragraph below from 0 to 10.  Note down zero if it doesn’t at all tend to show this was a good-government move, 10 if the paragraph gives you serious pause for thought, or something in between.

The State hires an audit group, Public Consulting Group, to investigate possible fraud by the agencies, knowing that in North Carolina, Public Consulting did a similar audit and claimed $38 million in recoverable overpayments, but North Carolina’s state auditor found that the true figure was a little less than a tenth of that.

While most auditors discuss issues in detail and invite the subjects of the audit to point out facts or address possible problems, Public Consulting, according to folks here who got audited, made  no such efforts, but just came in to get files and folders without ever inviting or permitting any dialogue regarding the contents.

When the audit finishes, the State – knowing that a freeze of funds will essentially kill the mental health providers involved –  freezes funding, claiming the freeze was legally required, when in fact the federal laws and regulations gave the State discretion whether to freeze funds pending further inquiry.

Although experts would suggest that mental health, substance abuse, and suicide prevention clients might be those most in need of continuity in providers, the State determines that future needs here will be served by certain Arizona companies.

The State claims the audit (which started in mid-March, as far as one company knew, and reported a few weeks ago) requires it to engage folks from Arizona, on an emergency basis, when in fact the State had been talking with the Arizona folks as early as January, apparently well before any audit findings and perhaps before the audit even started.

The State claims that Optum Health, which had been overseeing the providers, reported the providers as fraudulent right from the start, but others say that’s not so – and point out that Optum’s own record-keeping inadequacies made Optum a nightmare to deal with and had elicited a $1 million fine a few years ago.

Although the New Mexico Public Records Act would appear to require release of the audit findings as a document of public interest, the State refuses, claiming that since it’s now turned the audit findings over to the Attorney General, the audit report is exempt as a criminal investigative report.

When the New Mexico State Auditor wants a look at the report, the State refuses; that is, the audit is good enough to destroy companies and perhaps lives over, but not solid enough to show trained and neutral eyes; and when the New Mexico judicial system orders the State to show the Auditor the report by a certain deadline, the State ignores the deadline – displaying a clean-cut scorn for legal constraints while insisting the mental health providers follow the law to the letter.

A competent, neutral examination of the detailed findings of the audit shows . . . oops, forgot.  We have no way of knowing what such an examination would show, because the State doesn’t think we’re grown up enough to have a look for ourselves.

If you’re scoring home, it can’t look too good for those of us looking for good government.

Many people are appalled.  When I ask folks about this situation, they reply with words like “hit” and “rape” and “scary.”

I don’t know how it’ll all turn out, or how it should.  

I do know that, to keep payroll going, Roque Garcia put up $50,000 he can’t well afford to lose.

However, it may turn out that his group and some or all of the others have been stealing.

But if the audit and funding freeze were righteous, why is the State so unwilling to show us so?  Can’t be fear that the mental health providers will have a better defense, because if the facts were so unmistakably damning, letting opposing lawyers see those facts today instead of next month oughtn’t to make much difference in the ultimate result.

Of course, too, given scarcity of funds, the State could reasonably have guessed that any providers which were wronged wouldn’t have enough chips to say in the game another round.  How can folks who can’t keep their doors open pay lawyers to do a top-notch job seeking justice for them?

I can’t help guessing that that disparity of resources played a role here.  Susana and Sidonie can spend your money and mine lawyering this for a decade.  They likely figure Roque and the others can’t.

These things touch our lives, sometimes deeply.  I don’t want to see this end without a full hearing.  Not only the mental health providers but you and I deserve to see this one well-lawyered on both sides.  If we were being taken, we deserve to know that.  If this is all a political attack, with very little real justification, we deserve to know that too.

Meanwhile, the providers have asked the Tenth Circuit U.S. Court of Appeal to enjoin the State from freezing funds pending some showing of justification.  The State is due to respond before this column appears.

                                              -30-
[The column above appeared in the Las Cruces Sun-News this morning, 4 August 2013.]
        In case the column doesn't make this clear enough: I'm not saying the mental health providers aren't guilty.  I have no idea.  Some or all may be guilty of intentional fraud.  Some or all may be guilty of the kind of negligence and confusion in billing that amount to inaccuracies warranting some refund to the public coffers but not worth driving 'em out of existence.  Or maybe none are guilty of anything.
        Even the fact that the existing precedent (the North Carolina audit done by the same Boston consultant that got whittled down to less than 10 per cent of the claimed over-payments once the state auditor got a look at it) doesn't mean the same will happen here.
       What concerns me is the high-handed process.  What concerns me is the refusal to be reasonably frank with the public or even the New Mexico State Auditor.  What concerns me is the irregularities already apparent in the state government's conduct in this matter -- and its apparent refusal to follow the orders of a New Mexico court order mandating disclosure to the auditor.  
       Maybe everything the Martinez Administration did will turn out to have been justified; but if so, we deserve to know that.   (Unfortunately the spokesperson for the Department hasn't yet gotten back to me, so I can't even add in here the Department's best responses to some of the questions suggested in the column.)

Special Prosecutor Finally Drops Felony Charges against Former Judge Michael Murphy

If the Murphy case was a football game, Special Prosecutor Matt Chandler and Susana Martinez lost 42-3.

They brought five felony charges against Michael Murphy, plus a misdemeanor charge of conduct unbecoming of a judge.  The court dismissed the misdemeanor.   The felony charges were losers, and Chandler finally dismissed them Thursday.  The lawyers disinterred the “conduct unbecoming” charge, and Murphy pled no contest to that, saving the prosecution a bit of face.  It’s as if Barry Bonds struck out five times but they let him hit one off a T so he wouldn’t cry.

Thursday’s hearing was interesting.  Chandler made an extensive presentation arguing that Murphy was guilty of felonies.

Twice the Judge asked pointedly, “If that’s all true, then why are we here?  Why are we here on a misdemeanor?”

Afterward I pressed Chandler on the point.  I assumed he did not believe he could convict Murphy on the felonies.  He corrected me: “Absolutely we could prove each and every felony count beyond a reasonable doubt.”

Then why were we here on a misdemeanor?  He replied that the case had “started as an open case against a sitting judge, and now we’ve got a former judge who is a convicted criminal.”  (He added that even a jury verdict against Murphy could have been set aside by the trial judge or appellate courts, leaving Murphy unconvicted.)

Stout disagreed: “They did not have the goods, because it wasn’t true.  This wasn’t a plea bargain for Murphy, it was a plea bargain for the State.   They got something they couldn’t have gotten, a conviction.  Murphy got only what he was going to get at trial, dismissal of the felonies.  We were willing to do it so Murphy could go on with his life.”

Murphy was a loudmouth.  He made unpleasant remarks about gays, and exceptionally stupid comments about politics and judgeships.  He was short on tolerance and common sense.  That cost him his judgeship.

Another judge thought his comments suggested something criminal.  She complained to various authorities.  None saw evidence of a crime
.
Then she reached out to Susana Martinez.  Martinez either suspected criminality or scented political opportunity.   Enter Chandler, an ambitious Republican politico from Clovis.   Even with Republicans, his conduct of the case shouldn’t help him politically.

First Chandler tried judge-shopping.  His unsuccessful efforts included demeaning and possibly slandering defense counsel Stout and Chief Justice Charles Daniels.  According to his then-deputy, Kirk Chavez, Chandler tried to manipulate the system to keep a southern judge (Democratic) from hearing the case, by suggesting Daniels and Stout had colluded about the appointment.

Chavez, found Chandler’s conduct so unethical that he resigned in April 2011 – and signed an affidavit, under penalty of perjury, stating some very unappetizing facts.   He wrote that although he otherwise admired Chandler as a mentor and fine lawyer, conscience wouldn’t let him keep silent.

Chandler says that by the time of the affidavit, Chavez was “a disgruntled former employee.”  New Mexico Supreme Court Chief Justice Charles W. Daniels cited the affidavit in a 2011 ruling in the case.

Chavez wrote that Chandler secretly recorded other judges and their clerks.   He said Chandler lied and misdirected the court and Stout about materials the court had ordered produced to the defense.  To hide the discovery deception from the court, Chandler allegedly maintained duplicate files.  Meanwhile Chandler was reporting regularly to Martinez on the case.

Chavez wrote that Chandler even told him to lie to the court about the whereabouts of the evidence file.   Then, when the court ordered Chavez to appear, Chandler told him not to go, fearing Chavez would provide the Court information.  When Chavez pointed out that he’d been expressly ordered to be there, Chandler ordered him to stand mute.

Chandler allegedly was “extremely adamant about arresting” Murphy.  It’s more usual in such cases to tell Murphy’s lawyer to bring him in.  But Chandler wanted to stage a “perp walk” to humiliate Murphy and make the evening news.

(That same mean-spiritedness was evident Thursday.  With Murphy convicted, and on probation, why ask the Court to prevent Murphy from leaving the county without permission?  It’s not as if he’s out on bail.)

Chavez reiterated these allegations in a recent conversation.  A tough conversation.   Chavez has suffered through extensive investigations and a suddenly difficult job market.  He lost his home and his wife and received one admonishment from the Bar.  “It’s sad to say,” he told me, “but if an ethical young lawyer were about to do something like that, I’d tell him it’s not worth it.”  Chavez also asked that if I ever met Murphy I apologize for what Chandler and Chavez did to him.

Murphy probably deserved to lose his judgeship for his intolerant remarks.  His other comments probably warranted investigation.  But when no evidence appeared, there should have been no prosecution.
He didn’t deserve what he got.  The New Mexico Judiciary did not deserve this blackening of its reputation.  Taxpayers didn’t deserve to pay for this case to continue so long.

I wasn’t there.  Maybe Murphy did commit those felonies.  But if he did, provably, I don’t quite get Chandler’s rationale for settling now.  He spoke of sending a message about judicial corruption.  If he really believed he could prove the sort of corruption he claims, he should have pressed on.  Murphy had already lost his judgeship, law license, and reputation.  A misdemeanor conviction doesn’t add much to his punishment.

                                       - 30 -
[The foregoing column appeared in the Las Cruces Sun-News this morning, 21 April, 2013.  As always, it represents my views, not necessarily those of the Sun-news.  In the additional comments below, I explain in more detail why I don't buy the prosecutorial rationalizations of a settlement that seemed to show pretty clearly that a trial would have been highly unlikely to result in conviction.]


Both sides claimed victory Thursday when Special Prosecutor Matt Chandler dropped all five felony charges against former Judge Michael Murphy, while Murphy pled guilty to a misdemeanor charge and is on probation.
I spoke afterward with Mr. Chandler.  He was a polite, well-spoken fellow, who reminded me of more young, ambitious lawyers than I can count.  As discussed in the column, he told me that at least with this settlement, Murphy was a convicted criminal.
His point, to be fair, was that without this misdemeanor conviction there would always be a possibility that Murphy could escape any legal penalty at all.  As he said, even if he proved all five felonies to a jury’s satisfaction, the trial judge could overturn the case or an appellate ruling could . While that would be extremely unlikely, it’s not impossible.
He was a well-spoken and courteous young man, and made this sound plausible enough, but I don’t really believe him.  
I disagree not because we see political issues differently.  If the kind of corruption he described were rality here, I would be as appalled as he, if not more so.  I think most of us would be.
I disagree because of these specific points that undermine his credibility.
To me or to others, Chandler said, basically, “We got Murphy removed from the bench” and “We got Murphy branded as a convicted criminal.”  
The first claim may not be true.  Murphy wasn’t removed, he resigned.  That resignation came in the context of Judicial Standards Committee deliberations.  As I understand it, those deliberations concerned Murphy’s intemperate remarks, not the bribery allegations.  As I understand it, too, Chandler did not participate in the Judicial Standards Committee consideration of Murphy – unless it was behind the scenes, which would probably not be ethical.
Chandler could argue that his prosecutorial activities turned up the pressure on Murphy. However, Murphy was off the bench in February 2012, more than a year ago.  Getting him off the bench can’t be a motive for continuing the prosecution after that point.  Chandler could probably have had this same deal a year ago.
That leaves the claimed importance of getting Murphy branded a misdemeanant.  Would the certainty of that outweigh shooting for a felony conviction?  Not if you had a reasonable degree of confidence that you could get the felony conviction.
Here are four reasons I don’t quite believe Mr. Chandler:
1.If Chandler really believed what he told me, that he could have proved the elements of each felony beyond a reasonable doubt, he’d have done so.  First of all, that would have been his obligation as a prosecutor.  Secondly, having allegedly bent the rules to try to pursue this case, he’d have seen some redemption, certainly some political value, in winning if he could.  Third, by the logic of his insistence on “sending a message” to potentially corrupt judges, he would have felt it important to send a stronger one than this misdemeanor conviction could ever do.
2. Stout is an experienced defense counsel.  If Chandler could prove five felonies beyond a reasonable doubt, Stout would likely have recognized that probability and we’d be dealing with a plea in which Murphy pled to at least one felony in return for four dropped felonies and a relatively light sentence.  Stout says he was dealing from a position of strength, because the State couldn’t prove its case.  Chandler says he too was dealing from a position of strength; but the nature of the deal they reached supports Stout’s view of reality, not Chandler’s.
3.As Stout pointed out in court, Judge Schultz’s story was a little weird and fantastical, for several reasons.  In her view of the world during Governor Richardson’s time, all the judges before her paid bribes to get into office and similar bribes were demanded of judicial candidates who followed her, but she herself never received such a demand or paid such a bribe.  Odd, unless she is some sort of Chosen Person too fine for the evildoers to even think of trying to corrupt.
It’s worth noting, too, that Judge Schultz told numerous different authorities the facts as she saw them; and none apparently saw criminal conduct, or even a serious ethical violation, in those facts, until Martinez and Chandler.  
        One of those authorities I have known for a long time and trust.  Another was the FBI, to which Martinez and Schultz took Schultz's story, but the FBI decided not to pursue it.  Either they are all in on a conspiracy, or there really wasn’t much indication of criminal conduct here; and Chandler’s decision to give up would support the latter.
         4. A misdemeanor conviction doesn't prevent Murphy from practicing law.  (He has a license, although it's currently inactive.)  A felony conviction for bribery surely would.  If Chandler believes Murphy to be so vile and dishonest, he owed it to us to hold out for a felony conviction if he thought he could.

Chandler’s very nature undermines his claim here.  He’s highly competitive.  He’s an eager prosecutor so determined to punish Murphy that at Thursday’s hearing he argued unsuccessfully for a maximum $1,000 fine (even though the plea agreement mentioned no fine), suggested that Murphy’s probation require him not to leave the county without permission, and urged the Court to order Murphy to community services “serving food” to homeless or the poor. 
Judge Smith declined to order any fine.  The travel restrictions didn’t make a lot of sense to me, since it isn’t as if Murphy were out on bail.  Judge Smith didn’t order any such travel restrictions.  When the judge said that having Murphy serve food, rather than, say, lecture on the law to old folks or poor people, Chandler still tried to argue the point; and the next morning’s newspapers quoted him as saying Murphy would be better at serving food than at lecturing on law.
Given all this, and the somewhat questionable portrait of the prosecution drawn by Kirk Chavez, it seems unlikely Chandler would give up unless he had to.   One could take the deal simply to be charitable, in light of Murphy’s health and the punishment already meted out, but that isn’t what Chandler did, and he didn’t try to argue that that was his motive.

What of his argument that at least he got Murphy branded a criminal?
I’m not sure why that’s such a big deal, since Murphy had already lost position, livelihood, and reputation.  But assuming it is, there’s a significant difference between a felony such as bribery and a misdemeanor for being uncouth.  I’m no expert on criminal law, but the idea that a jury might have convicted Murphy, then been overruled by the judge, seems highly unlikely.  It isn’t as if there were any allegedly illegal searches, rubber-hose confessions, or questionable witness identifications here.  The issues were the type juries normally resolve.  For the courts to overrule a jury on this one would have taken a massive mistake by the prosecution.  Taking four felonies off the table and securing a conviction on one would be a reasonable response to the possibility – known and articulated by all lawyers – that something always can go wrong.  Dismissing all five felonies says that either Chandler had no confidence he could get a conviction or he knew of or feared some fatal prosecutiorial mistake of which we know nothing.

Litigation isn’t poker.  The cards are pretty much on the table, although you surely can’t predict who’ll get lucky and who won’t.  

I’d respect Matt Chandler more if he’d said, “Listen, based on the facts as we’d been given them, and on Judge Schultz’s account, we thought there might be some really serious and systematic wrong-doing here.  I still think there may have been.  But realistically, our chance of proving it was so slim that we took the best deal we could get for the State, and saved the cost of a trial.”
His comments, which could be paraphrased as “We could have and would have kicked butt, but I took this deal, well, because,” seem a little less manly.
An interesting contrast with last night’s conduct by Austin Trout, who lost a damn close fight that the ringside announcers scored nearly a draw, but instead of complaining about Texas judges and a partisan crowd, he gracefully conceded that on this particular occasion, the other fellow had been the better man.

Again, I don’t practice criminal law.
But I spent decades dealing with significant trials.   
In one case, nearly twenty years ago, we represented a young, up-and-coming company with a new idea in its field.  The company was on the point of going public.  But a larger company, a company known to use its superior resources and propensity for litigation to bully start-ups, filed a lawsuit claiming it owned our client’s ideas.  It was a bullshit lawsuit, but until it was resolved our client could not go public.  It went to trial in Texas, in the home town of the big company’s President and CEO.  (Our client was a California company.)
After a couple of weeks of trial, we were pretty sure we were kicking ass.  The bigger company, also represented by experienced trial lawyers, apparently reached the same conclusion, and offered a settlement.  The proposed settlement would give the bigger company some cash – chump change to companies, but more than enough for you or me to live comfortably for the rest of our lives – and a small share of our client.  We were pretty sure we’d win if we let the trial continue; but one night we sat around discussing the settlement.  Everyone from the head trial lawyer and the Chairman of the Board of the client down to young lawyers and paralegals got to speak his or her piece.  The bottom line was that despite our confidence, the younger men from the client – the two guys who’d come up with the idea – could see that if they settled, and the company went public, even their secretaries would become millionaires within months.  If they continued, based on machismo or resentment, they risked the slim possibility of having to look those secretaries in the eye and explain why they weren’t going to be rich.   We settled.  (We also polled the jury, confirming that they had been strongly favoring our side.  Our client, by the way, went public and was highly successful.)
In short, folks settle for reasons that don’t have much to do with the merits of the case.  But if anyone was doing that here, giving up more than he had to, it likely was Murphy.  He’s the one who, if things went crazy at trial, could end up a felon, possibly in jail.  For the prosecution, if Chandler truly believed he had a winning case, there was no such motive to settle cheaply.  A loss would not put Murphy back on the bench.  It would merely be a momentary political embarrassment, marginally more embarrassing than this settlement.

This is already much too long a blog post, but for anyone who’s reading it somewhere beyond Dona Ana County, what seems to have happened is this: Judge Schultz, upon joining the 3rd Judicial District bench, felt uncomfortable with the other judges for some variety of reasons, and particularly with Murphy.  One source of friction, but not the only one, was that Judge Murphy reportedly made some unpleasant remarks regarding sexuality, and Judge Schultz is reportedly a lesbian.
At a lunch with another sitting judge and a lawyer who was interested in becoming a judge, when the lawyer asked how one improved one’s chances of getting appointed to the bench, Murphy said a candidate should strongly and loyally support the governor’s party and its candidates, with endorsements, campaign work, and campaign contributions.  As I understand it, neither Murphy, the other judge, or the lawyer thought he’d said anything criminal, but his way of expressing himself concerned the lawyer.  To emphasize the importance of consistent and vigorous support, not just a one-time check, he said something about delivering an envelope weekly.  According to Murphy and others, it was not meant literally.  Judge Schultz took it literally, 
Again, I obviously can’t know what Murphy really meant; but there’s abundant evidence, as discussed above, supporting Murphy’s account.  Certainly if there was convincing evidence otherwise, enough to persuade a reasonable jury, then Chandler completely abdicated his responsibility to prosecute Murphy vigorously to conviction.  
Chandler did treat us to a version of what likely would have been his opening statement.  He played snippets from witnesses, introducing them with his characterization of them and summarizing in his view what the witnesses said afterward, all of which is standard practice. It sounded devastating for the other side – as each side’s opening statement or closing argument usually does. 
One witness was a lawyer named Norman Osborne, who worked as counsel for the Third Judicial District Court judges at the time of these events.
In fact, Osborne had signed two affidavits affirming that Murphy “is an exceptionally honest person” and “an honest man [who] would not take or give a bribe,” and also described Murphy giving similar advice about political involvement in similarly exaggerated terms.  He swore that Murphy had not made any express or implied reference to bribery.  Further, Judge Schultz, he testified, had initially asked him to rite a memo concerning Judge Murphy’s behavior.  Using hypothetical facts supplied by her, he wrote the memo.  The conduct described “at worst . . . amounted to an ethics violation.  The conduct described was not a criminal violation.”  
Murphy deserved censure for some of his comments.  Others he made were tasteless and kind of stupid, but not actionable.  Most people I know seem glad he’s no longer on the bench – although Osborne called him “a very good judge who makes intelligent and measured judicial decisions.”
Apparently, some sad conjunction of Judge Schultz’s mental or emotional fixation on Murphy and the political convenience of enemies of former Governor Richardson blew all this up into a headline-grabbing alleged scandal.  Governor Martinez used it in her campaign for Governor, and one of her judicial appointees tried to use it in a campaign to keep her judgeship.
Now the “scandal” is less useful.  When you bring cases eventually you have to expose their weaknesses to unbiased jurors.  Or bail out.

New Mexico Should Legalize Marijuana Now

During my first year of college I knew slightly a kid named Bennett Hertzler. A gentle, harmless sort of guy. In a police search of dormitory rooms, he was caught with three or four marijuana seeds in a desk drawer – and sentenced to years in jail. While the rest of us continued our college educations, Ben languished in prison. It destroyed his life.

Could have been me. I smoked marijuana when I was young. Liked it fine. Then one evening, as I smoked, I became convinced that I was dying. In fact, I was fine physically, but I was sure I was dying, for about a half an hour. Thereafter, whenever I smoked the same thing happened. The pleasant high just wasn’t worth the miserable fear I had to go through first, and I was busy with professional tasks and obligations anyway, so I stopped. But I have friends who continued smoking for decades without any apparent problem, and still do so. Some are grandparents. 

Should marijuana be illegal?

Marijuana is relatively harmless. It doesn’t make people violent or, so far as I can discover, cause them serious medical problems.

Studies show that driving a car while high on marijuana is far less dangerous than driving while high on alcohol. Alcohol abuse over decades leads to serious illness and even death.

It is said that marijuana use by kids leads to use of stronger and more dangerous drugs. That can be true, primarily because the society that prohibits marijuana (a) tosses kids who want to smoke into the company of people who also sell other illegal drugs and (b) does so with propaganda that undermines our credibility when we tell kids about the very real dangers of more powerful drugs. It’s like telling kids that masturbation causes blindness, then expecting to be believed when we explain later why it’s important to avoid unprotected casual sex.

The Alcohol Prohibition didn’t work. While perhaps a noble experiment, it made drinking alcohol more fun, killed or injured people who drank bad booze, decreased respect for laws, increased corruption, enriched criminals, and generally caused new problems while failing miserably to solve the original one.

The Marijuana Prohibition doesn’t work. It leads to broken lives like Ben Hertzler’s, decreases respect for law, costs society an amazing amount for enforcement, trials, and prison space, enriches criminals, and prevents people from smoking marijuana that’s either homegrown or grown by someone licensed and inspected. It also keeps people who live in pain from easy access to marijuana’s ability to lessen that pain.

This is what we said decades ago and were thought crazy.

More recently, these thoughts have become more acceptable. A blue-ribbon panel of former public officials from all parties reached the same conclusion about the War on Drugs. Fifteen states have decriminalized marijuana. Three states voted this year to legalize it.

Here’s the choice: spend vast sums of money in bad economic times to arrest, try, and imprison people for something they do in their own homes, or legalize marijuana – and perhaps regulate it and tax sales.

Why do we choose one way regarding alcohol and differently for marijuana? Why do we do so even though alcohol causes greater driving impairment, a deeper addiction, and harsher medical issues than marijuana?

Initially, prejudice was part of the reason: our parents and grandparents had drunk alcohol, but marijuana was associated with blacks and later with the 1960's "counterculture."

The inequity persists because people with money like it that way: alcohol is big business; and selling marijuana illegally is far more profitable than selling it legally. Ending the marijuana prohibition would be devastating to cartels, which could no longer charge a "danger premium" to customers for something folks could grow it in their own homes.

Thus it’s heartening to see that a bill to lower penalties in New Mexico will be introduced soon.

It’s disheartening that if it passes Governor Martinez might veto it. That would be one more reflexively bad choice by our governor, who’s rapidly increasing her chance of serving only one term.

Martinez’s "defense" of her position sounds like an admission of misconduct.

Her press secretary says stiff marijuana penalties are good because "the vast majority of people convicted for possessing small amounts of marijuana are diverted to treatment programs, and those who are sentenced to prison are individuals with long criminal records with convictions for things like assault, burglary, and other crimes."

That is, these laws are great tools to put away folks with bad records against whom we can’t prove anything serious right now. For folks we approve of, it’s like driver education classes for speeders. Folks we don’t like could go to jail for several years.

That’s like criminalizing coffee and tea so that when you suspect someone of a crime but can’t prove it, or just don’t like someone, you can punish people you suspect of real crimes but can’t catch.

There was a time when students who questioned the wisdom of the war in Viet Nam or associated with folks of different "races" were thought dangerous and unpatriotic, but they had free speech rights. Small-minded district attorneys could do little. Conveniently, though, a lot of those rebellious young folks smoked marijuana, and could be imprisoned for that when the real complaint was their thought and speech.

That ain’t justice.
                                       -30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, December 9th, under a headline chosen by the newspaper.

Of course, there's more to say:

First of all, some more specifics on the proposed bill, as reported very recently in the Sun-News and elsewhere:
-- an interim committee heard details of the proposal last Thursday;
-- a major supporter is New Mexico Drug Policy Alliance (Director Emily Kaltenbach);
-- the bill would eliminate the penalty of up to one ounce, and reduce possession of 2-8 ounces from a misdemeanor to a fine.
-- as yet, no state legislator has stepped up to sponsor the bill, although a few have spoken positively about it.  Those included Vietnam veteran State Rp. Eliseo Alcon (D-Milan), who said that "part of our world is opposed to anything that might make someone happy", and State Sen. Richard Martinez (D-Espanola).
Fiftenen states have decriminalized possession of small amounts of marijuana.


Secondly:

While no cogent argument against legalizing marijuana use by adults outweighs the clear benefits of doing so, marijuana use by minors raises significant issues.  Marijuana and certain other drugs can produce scary moments (as my own experience, related above, would suggest); rather obviously, marijuana can lead to temporary confusion, fear, or paranoia, or can undermine judgment; and marijuana use can also be so delightful that it's hard to resist toking up more often than one should, and kids are particularly ill-equipped to interpose judgment and restraint.   Obivously kids don't have the context and maturity to handle many emotional situations that adults should have. 

The state has a legitimate interest in keeping grass out of the schools. 

But how best to do so is a legitimate question.  Certainly the current efforts are a miserable failure, in that grass is readily available to kids and smoked by many in schools. 

I'm no expert, but my guess is that if legalizing marijuana made much difference it might actually improve the state's ability to discourage marijuana use among kids.

First of all, once kids no longer believe in Santa Claus and the Tooth Fairy, I think we do better with them by explaining honestly the dangers of certain conduct.  Lies and gross exaggerations may work in the short term with some kids; but in the long run even those kids will see through you -- and, being kids, conclude that you're probably being equally fatuous in many of your other warnings and proscriptions. 

Secondly, to the extent that legalizing grass would lead to regulated growing and selling of the stuff, those businessfolk who grew and sell might be as vulnerable as bartenders and liquor store owners to stiff penalties for selling to minors.  A store-owner selling marijuana has an investment s/he would prefer to protect, and fines and suspensions might, as with alcohol sales, have at least some positive results. 

Third, to the extent that other and much more dangerous drugs are our real concern, separating sales of those from sales of marijuana might slightly decrease their use among kids. ]