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."  ]

.

 

Mark D'Antonio Should Continue as our District Attorney

In 2012, Democrat Mark D'Antonio beat District Attorney Amy Orlando, Susana Martinez's protegé. 

Martinez/Orlando mandated a scorched-earth policy: get rid of paperwork that might help D'Antonio and his people get oriented. D'Antonio invited everyone to reapply and hired all but one of those who did so; but Martinez people viewed staying as “disloyal.” Most top staff left. 

Four years later, James Dickens, a ten-year Martinez assistant, then Orlando's chief deputy, is challenging D'Antonio – in the Democratic Primary. In 2012, Dickens didn't apply to work under D'Antonio. He joined Republican Diana Martwick, 12^th District DA, despite the long commute to Alamogordo. Dickens registered Democratic in 2013.

After winning a tough election against incumbent Orlando, D'Antonio brought serious and positive change. Do I agree with his every decision? No – but I'm not a prosecutor. 

Martinez/Orlando reportedly charged defendants with higher-level crimes than the facts warranted, knowing that lingering in jail facing those charges would soften up some defendants to plead to anything. (In 2015, the Court of Appeals overturned defendant Flores's conviction for letting his infant child die, because Martinez/Orlando had violated his Constitutional right to a speedy trial.)

A district attorney should aggressively prosecute crimes, particularly violent crimes, and should represent the community and victims' interests. But s/he also has a duty to justice. As one lawyer said, “D'Antonio was quoted the other day as saying 'people charged with crimes have rights.' I never heard that from Martinez or Orlando. And it's not a sign of weakness. It's a sign of respect for our system.”

That's a key difference. Respecting everyone's rights doesn't equate to “soft on crime.” Actually, it makes for better protection for the community. Trampling on defendants' rights means sometimes watching folks like Flores walk free. 

This race raises two interesting questions: what's Dickens doing in the Democratic primary? and has he committed a serious ethical violation?

He says he became a Democrat because on key issues Democrats, more than Republicans, are working toward the kind of world he wants for his children. (See my blog for details.) He sounds convincing.

But until last month all his campaign contributions were to Republicans, ranging from Martinez to 2014 sheriff candidate Craig Buckingham, and including several Martinez judicial appointees (all fellow former prosecutors under her). 

Would Dickens bring back Martinez-style handling of the office? One lawyer notes that while Dickens may have good instincts personally, the entire legal environment he's grown up in has been questionable: Martinez/Orlando, then the 12^th District. A major campaign contributor is Matthew Gaddy - who gave Martinez big bucks both times she ran and helped fund the vicious attempt to recall three of our city councilors.

The ethics issue concerns Dickens's use or abuse of the electronic Case Management System. Attorneys are meant to use CMS for state business. Dickens looked into 48 Las Cruces cases during January-March, then told the Sun-News about it. The files contained confidential information. He used state resources for his own political purpose. D'Antonio, in a letter to Dickens's boss, called this “a serious ethical breach . . . potential criminal activity.” Dickens told me he could have had legitimate reasons for looking at some cases. (48 seems a lot.) He then asserted it was no big deal. 

Experienced neutrals are reluctant to comment, but one called the action “very unusual” and a New Mexico D.A. stated, “I can tell you I wouldn't do it.”

I like both men. Dickens is pleasant, and an experienced prosecutor, but I don't see that he would improve the office. I do see significant risks. I'll vote for D'Antonio.

                                               -30-

[The column above appears in the Las Cruces Sun-News this morning, Sunday, 22 May, and will appear shortly on the KRWG-TV website under News --> Local Viewpoints.  I welcome comments, questions, and criticism here or on either of those sites.]

[On circumstances of Dickens's departure from 3rd J.D.: D'Antonio says he invited everyone to reapply.  Those who did reapply had no break in service.  Dickens says: (a) D'Antonio did not immediately make it known that people were welcome, (b) when that invitation was made, Dickens had already talked to the 12th District, and that (c) he wouldn't have been Chief Deputy under D'Antonio.   
D'Antonio says the top lawyers left en masse -- and that Dickens never spoke with him.  D'Antonio never said Dickens could not continue as Chief Deputy, because Dickens never asked, but D'Antonio concedes that the likelihood of Dickens being Chief Deputy was pretty limited.  He also says that knowing Dickens loathed his commute to Alamogordo, he reached out to him twice during the past four years to offer him a job. Once Dickens declined, once he didn't respond at all.
Who do I believe? D'ANTONIO.
First of all, the context: almost everyone close to Martinez left if he or she could afford to.  As D'Antonio puts it, "They were told that if they worked for me they'd be persona non grata, and that she'd get them jobs.  And she did."  She not only appointed many of her ex-prosecutors as judges, others suddenly got employed by entities where she had influence: CYFD, juvenile detention center, and friendly (Republican) DA's such as Martwick in the 12th.  (I've spoken to someone whom Martinez appointed to a judgeship but who later became a Democrat and worked for D'Antonio, and he told me he changed parties mostly because of conduct toward him by Republicans, though he wouldn't get specific.)  Interestingly, in 2013 Martinez judicial appointees Beverly Singleman and Richard Wellborn became Democrats, and Nelson Goodin (according to Wellborn, though Goodin denies it) thought seriously about switching parties.  That's the same year Dickens switched, but there may be no connection.
Secondly, Dickens's account doesn't sound real credible.  He had written a very negative letter about D'Antonio, and so might have special reason for concern; but if he'd had some interest in staying where he was (rather than undertaking a long daily commute!), wouldn't he have asked D'Antonio about his situation?  D'Antonio certainly hadn't told him he had to leave.  If I had a wife and two or three kids and a community and a church, I'd sure make a quick phone call to D'Antonio if I had the least interest in staying on.  So his account lacks credibility, and is almost internally inconsistent.  (He implied to me, but didn't actually state, that D'Antonio had told him he wouldn't be Chief Deputy; and one has to doubt that ceasing to be Chief Deputy was a deal-breaker, because in going to the 12th J.D. he didn't stay a Chief Deputy either.  He just had a longer commute and a Republican boss.)
Third, more context: reportedly Dickens and the ten others who left did not leave any transfer memos to help their replacements on cases, and had no consultation with attorneys who had to start fresh on old cases.  "They left us high and dry," D'Antonio recalls.  (This is supported by an email inadvertently left behind.)  To me (as a lawyer and as a taxpayer) that's not how things ought to have gone down.  (Dickens says he was careful to leave his case-files in good order.)]
[Anyway, the fact that Dickens made no inquiry, left immediately when all the others did, and went (as they did) somewhere Martinez had influence is pretty suggestive that he had no interest in working under Mr. D'Antonio.
Finally, I believe D'Antonio because although we have our differences and he ain't perfect, I don't think he's lied to me.]
[I do think that when I finally get around to reading the entire file, I'll agree with some of the DASO personnel that jailer Chris Barela should have been prosecuted.  My sense of the situation is that some of what Barela did that appears illegal was time-barred, so that D'Antonio could do nothing; and that other things he did that appear illegal didn't put money in his own pocket but passed county resources to others.  That has a lot less impact on a jury than lining his own pockets would have had, and a savvy prosecutor could reasonably conclude that a conviction in a jury trial would be unlikely.]
[At any rate: D'Antonio (who himself had been a Republican until not long before he ran) took on a hell of a tough challenge in 2012, and prevailed.  Thereafter he stuck to his principles despite some harassment from the Governor's Office.  He's been a good DA, although I think he can improve.  Why would citizens -- particularly Democrats -- want to toss him out for someone who may still be a Martinez loyalist?]
[I should also mention that Dickens is very convincing when he talks about why he switched parties.  While carefully avoiding criticism of Martinez, he discusses his personal learning curve about how important community mental health resources can be.  He also notes that the absolutist "We gotta get rid of all the illegals" view didn't suit him too well, because he knows (and has in his family) immigrants from other countries.  Similarly, the absolutist view articulated by the National Rifle Association troubles him.  He notes that everyone has the Constitutional right to bear arms, and says that's fine, but "there are some simple steps to limit" some of the unnecessary dangers that presents to the public.  He favors prudent steps to keep firearms out of the hands of people who aren't sane -- and he didn't see such steps as inconsistent with the 2nd Amendment.  Talking with him, I wished he was still here, working as a prosecutor under D'Antonio.  He had some good suggestions.  (However, he declined to discuss with me some of his views on social issues, and gave an excuse that didn't sound real valid to me.)  Dickens shouldn't be our next D.A.; but I wish Martinez/Orlando hadn't leaned on some capable and experienced prosecutors to refuse to work with D'Antonio.  D'Antonio's fresh approach and their experience and observations might have yielded an even better four years.]
[Sorry to have gone on at such length; but I've tried to be fair to everyone.]

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.]

On Emails and Email Destruction

You'll have read that Amy Orlando, Governor Martinez's hand-picked successor, apparently destroyed emails, erased hard-drives, shredded documents, and tried to undermine successor D.A. Mark D'Antonio's ability to do his job.

Emails were destroyed despite Orlando's (emailed) acknowledgment that “Anything put on computers is property of the State.”

My question is, what's most appalling? Massive destruction of documents and erasure of backup tapes? The appearance that the office and its resources were used improperly to support political campaigns? (Some emails they couldn't destroy concern 2010 Martinez campaign logistics or issues.) Or one of the few emails they couldn't erase? (These are mostly sent emails, which are harder to destroy.)

Certainly the massive destruction matters. So does apparently lying about it. A reporter's IPRA request for emails was met by a claim that they weren't available because the email servers were “routinely cleaned”; but an IT person from the Martinez-Orlando era (supported by other IT folks) admits they were not “routinely cleaned.”

One email attempts to deny the DA's office money it could use prosecuting cases. Orlando asks how much of certain grant money will be left for the office after she leaves. She learns her office has spent about $ 400,000 for 120 cases, and that 70 more cases should yield $200,000 to $300,000. Orlando begs an underling not to let D'Antonio know how to obtain and use the grant money: “Don't leave ANY note about how to do it!! Please.” That suggests her priority isn't us, but her political interest and her childish resentment of D'Antonio. By trying to deny the DA's office grant money, does she mean that if she can't be the D.A., she's on the criminals' side??)

Another email says Martinez wants her inauguration event to be “no Mexican affair!!”

Need more? A financial specialist has to “forget” Martinez's signature on an affidavit related to a hotel bill; Orlando asks underlings to change who has access to her office calendar and lie about it; and (like something out of the East German film “The Lives of Others”) Martinez and Orlando apparently copied and read employees' emails.

Particularly interesting is the Saturday, November 6, 2010 email from Martinez headed “from: Amy Orlando” that starts: “This is Susana. I am sending this email from Amy's BB. I want to make something very clear to all of you. When Amy or Susan [Reidel] gives any of you instructions – they are approved by me. . . [Anyone who's dissatisfied should] call me directly.” That tends to confirm the widespread view that Martinez remained in control of the DA's Office after leaving for Santa Fe. She goes on to ream out employees for “frankly mean emails,” “mean gossip,” and spending too much time emailing and visiting each other's offices. “I hope I have made myself clear,” she closes.

(She's been elected Governor days earlier, yet is still micro-managing the DA's Office here.)

Interestingly, the same email reams people out for failing to decline the Sunland Park case, adding that she has long “known that there was little to no evidence to charge this case. . . There is no reason for this case to linger this long in the office.” What's interesting is that her protege, or some say puppet, soon ramped up an investigation of that case and announced a bunch of very public indictments. Why?

D'Antonio's office investigated the email issue after trying to respond to an IPRA Request for emails – and discovering that the emails had disappeared. D'Antonio did not open a criminal investigation, which could have been a conflict of interest, and he says any such proceedings would be up to the State Attorney General.
                                                   -30-
[Note: this column was published yesterday, Sunday, 28 September in the Las Cruces Sun-News.  Sorry not to post it here Sunday morning, as usual -- and not sure I can post copies of some of the emails, as I'd hoped to do.  May be able to add 'em soon.]

Developments with Subjects of Past Columns

“The more things change, the more they remain the same.” Unfortunately, that's true of many subjects these Sunday columns have touched on.

I wrote in January that Governor Martinez, like NJ Governor Christie, tended to “maintain a personal vindictiveness that doesn't fade as they move up the political ladder.” And “Mark D'Antonio's presence in her old office is like an itch she can't keep from scratching.”

She continues to illustrate my point. Shortly before Independence Day a visitor remarked to D.A. Mark D'Antonio that D'Antonio's office had a great view of the Field of Dreams. A plan emerged to gather there with their families to watch the fireworks.

One evening soon afterward, Doña Ana County Commissioner Dr. David Garcia got a call at home. “Is this Dr. Garcia?” “Yes.” “Is this Commissioner Garcia?” “Yes.” Finally the woman identified herself as “your Governor.” Guv told Garcia of D'Antonio's party plan. He wondered what she wanted him do do. “Shut it down.” “But it's his office.”

Dr. G. obligingly contacted the County Manager, who issued some edict against booze in county offices. (Did the Guv always keep that office alcohol free?) Also no shooting of fireworks from the county building's roof.

Does it get any pettier than trying to prevent a fireworks-watching-party in her former office? Even if D'Antonio had been planning to serve booze, is this what oughtta be keeping our Guv up at night?

In May I wrote that we pay appallingly inadequate compensation to contract public defenders. Constitutionally, the State owes indigents a defense to criminal charges; but at current rates, a contract lawyer must either short-change his client significantly or work many unpaid hours to give that client a defense remotely equal to what a paying client would receive.

What sparked the column was lawyer Gary Mitchell's motion, filed in several criminal cases, demanding the State put up or shut up: since the Constitution says you gotta pay me to defend the accused, either do so or drop your case against him.

Sounded fair. I called Mr. Mitchell Monday to ask whether any court had yet ruled on such a motion. None had. (Judges rule at their own pace.) “Hopefully, we can get a ruling pretty quick,” Mr. Mitchell said.

In 2013 we questioned the mindless rush to spend a bunch of money putting artificial turf on the Field of Dreams. Proponents claimed you could use it for many events; but you can't – unless you cover it with an expensive wooden platform to protect it from spilled drinks and high heels, etc. Sure enough, first big concert – no one could sit on the field, and many had to be unreasonably far from the stage.

Two columns earlier this year concerned the Doña Ana Soil and Water Conservation District bond election, which failed 500-2,859. That's the result I favored; but I wrote that those of us concerned about soil and water conservation shouldn't just nod off and leave this group to spend their time opposing conservation and preservation measures, most of which have little to do with their charge. Concern about local flooding deserves serious attention.

Mea culpa. I just haven't taken the time I'd intended on this. But in writing this column I saw the group was to meet Thursday, August 14, and I resolved to attend.
Quite recently, I wrote of rattlesnakes. A few days later, taking care of a neighbor's place, the wife reached for something near a Russian Sage. Curled under the bush lay a rattler. He lazily stuck out his tongue at her. She thanked him for his serenity and gave him a wide berth thereafter.
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[The column above appeared in the Las Cruces Sun-News today, Sunday, 17 August.]

Fellow Republicans Point to Martinez-McLeskey Corruption

Has anyone noticed how strongly the sweet scent of corruption permeates the New Mexico Governor's Office these days?

Maybe not. Newspapers, barely surviving economically, often don't report the facts in much detail; and as our politics grow more polarized, folks no longer bother to read critically. If there's an unpleasant fact about someone in the opposing party, it's probably true. If it concerns someone in your party, it's been fabricated or exaggerated by the other side.

But many of the most troubling accusations against Ms. Martinez and Governor Jay McLeskey come from credible Republicans appointed by Mart-lesky.

The recently unsealed whistleblower complaint against the Martinez Administration should be the final straw for anyone who still believed Martinez was some sort of antidote to corruption in Santa Fe.
 
She's right in the middle of it. She and her people aren't even subtle. But they're consistent: if you're a generous friend, they'll pay you back with our money or softened regulations; but if you speak up, they'll try to bury you.

The 33-page complaint filed in February alleges that a company co-founded by Jon Barela, Mart-leskey's secretary of the New Mexico Economic Development Department, secretly benefited from a state tax credit program. It also claims: aides to Martinez instructed a state employee to use his personal email for sensitive government work to evade public records requests; Barela and his deputy, Barbara Brazil, ignored waste and management at the state's Spaceport project; and that Brazil ran several Dairy Queen franchises she had an interest in “while simultaneously being paid by the State of New Mexico.” When other officials questioned the apparent misconduct, they were demoted, then fired.

Interestingly, the lawsuit echoes earlier complaints about evasion of IPRA requirements, and involves the same private lawyer who was right in the middle of the Albuquerque Downs mess.

There, Martinez stacked a board with folks who would ignore the facts and give a lucrative contract to a company owned by Martinez campaign contributors, despite that company's poor record.
The whistleblower plaintiffs are two Republicans, appointed to office by Martinez. The wife of one had worked as a scheduler during the 2010 election campaign.

Two of the most consistent voices discussing the Albuquerque Downs misconduct were Republicans Tom Tinnin, and Charlotte Rode. Both were Martinez appointees. Ms. Rode, a reform Republican and political neophyte, is a true soccer mom (and long-time basketball coach) and life-long Republican. Caught letting campaign contributions override prudent government, Mart-leskey immediately attacked the messengers. (Martinez even tried to threaten Tinnin, he says.)

To be fair: Mart-leskey's Albuquerque Downs misconduct resembles Governor Richardson's; and I can't prove in either case that laws were broken. Ethics were sure scarce.

Partial releases of the “audit” Mart-lesky used to destroy mental health outfits in southern New Mexico keep adding more evidence that supports charges that the disruption was purely political. It looked that way initially: with no semblance of due-process, small companies were “suspended” and effectively destroyed, supposedly based on an audit by an out-of-state firm that found massive alleged fraud. Previously, in another state, the same audit firm had found massive that state auditors reviewing the allegations found were only minimal amounts of problem bills. Nevertheless, Mart-leskey declined to let the companies keep operating pending an investigation – and lied to the public by claiming the Administration had no choice.

It quickly became public that Mart-leskey had actually signed up the Arizona replacement mental-health firm before the audit that allegedly sparked the concern. This was done without bidding. Mart-leskey doesn't care for public bidding, as demonstrated in the Albuquerque Downs case, where the bidding was open only a token length of time. Public bidding can be so inconvenient when you have a paying pal eager to do the job.

Then Mart-leskey's people allegedly gave the State Auditor a version of the report that omitted the conclusion that there was no “credible evidence of fraud.”

As the AG's Office looks into the alleged mental-health scandal, the “fraud” diminishes with each closer look. The audit work on two or three of the mental-health firms has now been checked, and the fraud seems as illusory as the “widespread voter fraud” Mart-leskey used to push for a Voter ID law that conveniently would tend to decrease turnout among poor folks and non-native-English speakers.
A week ago the AG reported some overbillings but “no actionable evidence of fraud” by one of the companies. The State is trying to recover $340,000 in alleged overpayments to another, while the company denies any overbilling and the AG found $19,000 in overbillings.

Meanwhile, we keep hearing that significant Republican donors with a taste for good government are finding Mart-leskey unpalatably arrogant.

Will any of this make much difference in November? New Mexico voters are traditionally a little slow in responding to corruption. And the Koch Brothers, oil and gas interests, and other deep pockets are sending Mart-leskey plenty of loot to flood the airwaves with misleading commercials.
                                                                    -30-
[The column above appeared in the Las Cruces Sun-News today, Sunday, 18 May, 2014.]

Downs Deal - A Window into our Present State Government?

This week three past and present State Fair Commissioners, Republicans appointed by Republican Governors including Susana Martinez, gave testimony suggesting Martinez (or Jay McCleskey) improperly pushed through a contract to help one of her campaign contributors.

One, Tom Tinnin testified that Martinez had tried to intimidate him, in a way no other governor ever had. Martinez appointee Charlotte Rode, testified “They wanted to keep the process secret . . . everyone involved was somehow connected to Jay McCleskey.”

The Downs at Albuquerque “racino” deal, which may exemplify how the Martinez Administration conducts state business, was worth a billion dollars. Martinez let it go through like a petty cash purchase of paper clips.

I talked with Tinnin, who served on the State Board of Finance and Administration for 16 years, under four governors. He quit when Martinez tried to intimidate him. His Committee had the final word on the deal. The proposal looked far too favorable to the Downs and unfavorable to the State. It was a very long lease, and the Downs had proved a very bad manager.

The RFP process for the new lease was a joke. Tinnin had chaired the State Fair Commission for 6 ½ years. The Commission put out such an RFP for at least 90 days to garner national attention and maximize competitive bidding, and advertise it nationally. “We had interest from New Jersey to California.”

When Martinez came in, things changed. The controversial RFP was for 30-days, making the current lessee a prohibitive favorite, since there'd be no national advertising and few competitors would manage to bid.

At the time, the deal looked questionable, as former State Senator Steve Fischmann remarked recently on radio. It generated many allegations and calls for investigations.

I wonder how much potential this case has for awakening centrist voters who've never looked closely at our Governor.

For one thing, it seems to symbolize a lot of the problems in her Administration: an air of secrecy, disappearing emails, intimidation, dubious-looking assistance to a campaign contributor, and McCleskey's central role.

Secondly, the key witnesses weren't progressives, but Republicans with an old-fashioned taste for good government. Tinnin is a rich Republican. Charlotte Rode is a reform-minded Republican with seven kids and a record working as a legislative assistant for Republican State Sen. Mark Boitano, who calls her “a straight shooter.”

Third, the whole thing was painfully obvious: the deal would benefit a campaign contributor; therefore Martinez created an extraordinarily favorable process for that contributor, and tried to intimidate folks who realized that. It was a backroom deal in RFP clothing.

When the eventual RFP came before the Board of Finance and Administration, Tinnin was still on the Board and had expressed concerns about the deal. Martinez invited her to visit him. “She tried to tell me that it was all kosher, how wonderful it was,” but he reiterated his concerns, which she couldn't really answer. “Then she looked at me and said, 'If you disparage any of my people in a public platform, I'm going to take it personally.' Later she said it again. The third time she said it I said, 'Governor, why don't we just agree to disagree.' I'm not going to be intimidated or have my integrity undermined.'” He resigned that day.

The irregularities in this deal are too numerous to list fully here. State Sen. Tim Keller has asked the AG to investigate whether Martinez handpicked the RFP selection committee, in violation of the procurement code; intimidated Commissioners to approve the lease; had staff communicate improperly with Downs during the process; let non-state employees conduct state business; and other issues, including why the Downs, which hadn't made all its payments under the previous lease and had let barns and stables deteriorate badly, was scored as an excellent manager. (Omitted are possible open records act violations.)

Keller was one of the few senators to voice serious concerns about the deal at the time. Asked by Keller during the recent hearing whether the problem was mismanagement or “money and politics?” Tinnin replied, “I think this was planned and they got what they wanted.

On Martinez's behalf, it's fair to ask two questions. Didn't her Democratic predecessor also try to help the same people in some ways that didn't smell too good? (Richardson was pushing Downs, despite its allegedly sloppy management and breaches of contract; and he tried to offer the Downs not just 25 years but 40.) And why the furor now? (Some of the same people have been saying the same things and seeking an investigation since 2011.)

But it's also fair to suggest answers: The widespread sense that Richardson was corrupt was a major reason Martinez was elected. People sought exactly the kind of change she hasn't delivered. And it's fair to wonder if the Downs's critics have been right since 2011.

Whether or not the deal broke the law, it's a pretty clear example of governing for political and financial gain rather than for New Mexico.

                                                                  -30- 
[The column above appeared today, Sunday, 16 February in the Las Cruces Sun-News.]

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.”
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A New Political Fashion Here: Musical Chairs

Local Democrats may look closely at some “Democratic” judicial candidates this year.

In December I was told that four past and/or present judicial candidates appointed by Republican Governor Susana Martinez had just become Democrats or were about to switch.

The four are Beverly Singleman; Richard Wellborn, Jacinto Palomino, and Nelson Goodin. Martinez has appointed each to a judicial position here, and has appointed Goodin twice. All but Singleman worked with Martinez in the District Attorney's Office; and three lost judicial elections in 2010 or 2012.

Magistrate Judge Singleman, once a Democrat, then briefly an Independent, is now a Democrat. In April 2012, Martinez appointed Singleman, an Independent. In November 2012, Singleman won an election to retain her seat. (She ran unopposed: two Democrats were disqualified because of the new requirement that a magistrate judge be a lawyer.) She says her switch back to the Democratic Party is unrelated to what others were doing. “I missed some aspects of the Democratic Party, particularly the women’s group,” she said, adding that an Independent must gather many more signatures in a short time to get on the ballot. That's problematic for someone who’s in court all day.

Martinez appointed former Assistant District Attorneys Palomino and Goodin as District Court Judges, and voters rejected both in November 2012. She then appointed Goodin to Magistrate Court in 2013.

Palomino's switch made some sense. I talked with him during the 2012 race. He seemed moderate. I thought he might be fair and impartial. Some lawyers who’d observed him in court confirmed that.

He says he changed parties months ago, fairly soon after going to work for District Attorney Mark D'Antonio last January. D'Antonio, who he said “welcomed me with open arms,” didn't ask him to change parties. Rather, former friends in the Republican Party, angered by his taking a job with D'Antonio, made him feel distinctly unwelcome. Since he could be comfortable as a Democrat, he changed parties.

Palomino declined to discuss just what Republicans said or did after D'Antonio hired him. Goodin remains a Republican and says he has no plan to switch. He denies that he seriously considered switching. Wellborn says that when he told Goodin he was going to meet with County Democratic Chairperson Christy French, Goodin said “You can tell her I'm thinking about it as well.” Goodin declined to confirm that he'd discussed the matter with Wellborn.

Wellborn's case is the most interesting.

Wellborn, an ADA under Martinez, ran and lost as a Republican for a district court judgeship in 2010. Hoping for an appointment to District Court, he failed to get past the Judicial Nominating Committee. The Martinez administration appointed him General Counsel to the Department of Transportation. Then Martinez appointed him Magistrate Judge in October, 2013. By early December he'd become a Democrat.

Wellborn insists his change of parties reflects his beliefs. He says his beliefs have always been more in line with Democrats than with Republicans. He says he became a Republican when he went to work with Martinez in the District Attorney's Office.

When I spoke to him in December, he said all the right things in a pretty convincing manner. He mentioned (not in any way as platform planks) that he'd never voted for a Republican for President, had always supported same-sex marriage and economic equality, and was pro-choice. He also denied discussing the switch with Martinez, and said he hadn't actually spoken to her for years.

Others say Wellborn has always appeared very conservative. They doubt he'd have switched parties without approval from Martinez, who's hired or appointed him to several public positions. They believe he changed parties solely to enhance his chances to win.

Before Wellborn switched, District Court Clerk Norman Osborne was known to be planning to run for the magistrate judgeship. Osborne anticipated that his Republican opponent in the General Election would be Wellborn.

Then Wellborn came to see him at the Clerk's Office and, as an incumbent who was now also a Democratic, suggested Osborne withdraw. Osborne said the incident “took me by surprise” but was “very cordial.”

In December, Wellborn's account of the conversation omitted that he'd suggested Osborne withdraw.

Thereafter, Wellborn reportedly returned with a carrot. Osborne says Wellborn noted the probability that the State would add another Magistrate Judgeship here, and suggested that if Osborne withdrew, “he would put in a good word for me with the Governor.” Osborne found this “a rather strange proposal, for several reasons” – among them that “he's a Democrat and last time I looked, she's a Republican.” Osborne “politely declined,” partly because he was “pretty far along” in gathering signatures and had supporters eager to help with the race.

This week Wellborn confirmed that he'd encouraged Osborne to withdraw, but denied that Osborne's account was accurate. “That's not what I said. I did say, and this is all speculation, that there may be a position opening up. I don't think Norm would disagree that I'm doing a good job. If his first priority is the best interest of the court, it would be a selfless act on his part to withdraw [and seek the next vacancy] and that if he did that, which would show he put the court's interest above his own, then I would likely make a recommendation of him [if/when a vacancy occurred].”

                                                                     -30-
[This is the 12 January 2014 installment of my Sunday columns that appear in the Las Cruces Sun-News.  It's important to note that nothing in the column is, or should be taken as, an endorsement of any judicial candidate.]
[This was a tough one to edit down to something close to my allotted space in the newspaper.  Wanted to include all pertinent facts, positive and negative, but couldn't -- and wonder now if a lot of that was better left unsaid anyway. 
It's also an example of a column that changed greatly as I looked into the facts.  Initially it seemed a pattern.  And it seemed a distasteful one.   Three former Martinez ADA's, each appointed by her to a judgeship then defeated by the voters in favor of a Democrat, then appointed by her again.  Sounded like some English King appointing a series of Sheriffs of Nottingham, ignoring his subjects' preferences.  And there might be a little truth in that picture.  But Singleman was neither a Martinez ADA nor a Republican, and has never been rejected by the voters; Palomino is no longer a Republican, no longer a pal of Susana's, and not running for anything -- and is a fellow 49ers fan; Wellborn and Goodin are Martinez appointees running for re-election; but Goodin hasn't changed his registration and claims not to have given the idea serious consideration.  All say there was no conversation with Governor Martinez about changing parties to facilitate getting elected.]

[I do want to cover this year's judicial elections fully.   They get short shrift sometimes in news media, partly because judicial ethics don't let the candidates say much that would capture a head-line.  These elections are not about whether or not to wage war or legalize marijuana, they're about who'll run a court fairly, wisely, impartially, efficiently, humanely, courteously, and with some judgment and legal knowledge.  Each candidate says s/he'll do that very, very well, so we naturally agree with both of them.  If either has an opinion on an issue s/he might have to decide, s/he can't say anything about it. 
Too, judicial elections are tricky.  Sure, I'd rather see a judge who's political opinions make at least a little sense to me; but a judge with reasonable political opinions may conduct himself or herself as a complete autocrat in the courtroom, proud to be on the bench and wholly intolerant of legal arguments s/he doesn't approve of, while someone whose political opinions differ from mine can be a humane, careful, courteous, neutral arbiter in the courtroom.   A judge needs to check his or her political opinions at the door treat each case with the same impartiality a good reporter treats stories.  The capacity to do that should be independent of party affiliation.

Several factors complicate assessing judges.  Few see how good or bad a judge is.  First of all, although the law constrains the judge, s/he has rare power, exercised largely out of the public eye -- and a particular decision that incenses us when we read about it in the newspaper may be exactly right when you consider only the facts in evidence and apply the law too it as fairly as possible.  A decision may also be so filled with arcane points of law that most folks won't quite understand the judge's rationale, let alone be able to assess fairly whether or not it was required by rules or judicial precedent.  The judge acts mostly in private.  Few cases are highly newsworthy; when one is, budgets no longer permit a reported to sit through the entire trial; and the newspaper reader, a non-lawyer not present in the courtroom will not always understand why the judge acts as s/he does.   A mayor who was rude, intolerant, and autocratic would be so in public: either s/he'd show those qualities in the council meetings or city employees who experience or observed it would quietly inform a reporter they could trust.  Judges' work is viewed by a small crew of spectators, mostly those interested in the particular case for personal reasons; and lawyers who observe a particular judge won't speak publicly of that judge's conduct.   Speaking up about a bad judge could elicit retaliation against one's client in the next case, and praising one publicly sounds and feels like currying favor.

At the same time, these elections matter.  Once elected, District Court Judges (but not Magistrate Judges) don't have to run again in a regular election.  If we voters make a mistake, it's harder than usual to undo.

I will write further columns on the judicial races -- and invite all the judicial candidates to appear with Keith and me (and each other) on "Speak Up, Las Cruces!" -- which airs at 8-10 each weekday morning on KOBE-AM 1450.]

Our Lawless Governments

New Mexico governments are on a rampage recently, trampling on laws and constitutional rights and causing sometimes unnecessary lawsuits.

Our Governor abruptly deep-sixed mental health providers; and now the City of Las Cruces is suing the State over the Gross Receipts Tax.

A bad bill rushed through the legislature at the 11^th hour, unread by most legislators, cut cities' incomes but let them hike the GRT very slightly. Martinez allegedly warned cities not to exercise that right. Las Cruces did so. The State called the increase illegal because it didn't specify certain points – but the City doesn't see that requirement in writing.

Earlier, the State closed more than a dozen mental health providers, replacing them with an Arizona concern.

The State said an audit showed “credible allegations of fraud,” so that federal law required the State to impose the death penalty on all those companies, sans trial.

Actually, that law permitted the State to ignore the “requirement” in the public interest. Avoiding a disruptive change for patients, and keeping several New Mexico companies alive until proven guilty, would seem to qualify.

The State refused to show us the documents, in probable violation of state law, and got sued. Recently it released a little more of the audit. The auditors say they “did not find what we would consider to be credible allegations of fraud.”

No findings of fraud. No findings of “credible allegations of fraud.”

That the State had contacted the Arizona company months before the fatal audit even began adds to questions about whether Governor Martinez simply did what she wanted, for political reasons, without regard to law or fairness.

Maybe there was fraud. The State's behavior suggests not. While some Republican group paid a bunch of bucks for slick radio ads supporting the Governor's action, state officeholders refused opportunities to appear on the radio to articulate their defense, if any – and face questions. One agreed to participate in our radio program – then never answered further phone calls or participated

In July a jury found Dona Ana County had violated the law in firing Jorge Granados. The County was ordered to pay damages and attorney fees.

Now the County opposes Granados's lawyers request for fees. By statute, they get the fees – doubled. They took a gamble, working long unpaid hours for months or years to right a wrong, as they saw it; and the doubling could also deter further such wrongdoing.

The County objects that there were two lawyers – though we saw two in court for the County, and Raul Carrillo didn't do all the legal research and drafting for the defense.

Granados was turned down by all the Las Cruces lawyers he talked to. Then his El Paso lawyers won a case that the County lawyers thought had little chance. Questionably County motions that failed caused some of the legal fees; and the lawyers had to do all their trial preparation twice, because the County won a last-minute postponement from September 2012 to late June 2013.

The County's lawyers (and/or insurers) don't know when to hold 'em and when to fold 'em. (Ask Mr. Slevin.) They're appealing, against long odds. We or the insurers will likely end up paying two sets of lawyers to discuss these issues in the appellate courts.

One county attorney recently denied me a public record the NM Public Records Act clearly required him to show me. He claimed that a certain case supported him. I wasted time reading the case, discovering he was dead wrong, and writing a letter threatening suit. Then he backed down. In February, he startled everyone at a very long hearing by announcing in an odd, rambling way that he suddenly saw the case in a new way – at 3 a.m., after about nine hours.

More recently the same lawyer advised the Extraterritorial Zoning Authority (ETA) to deny two members of the public the right to speak during “Public Input.” We had a basic Constitutional right to do so. Generally, when a government opens an area to public speech, it can't outlaw speech based on content. The lawyer claimed that although we were going to discuss general issues, our statements might somehow be taken as improper ex parte communications about a zoning-change request that might be made at some future date.

But when public officials aren't too confident in their abilities, and suspect they'll screw up, they try to err in what seems the safest direction.

NMSU also doesn't respect free speech or the Constitution. It brought three criminal charges against a some-time student who attended a job fair open to the public and stood quietly out of anyone's path beside the NSA table with a sign suggesting “If you want to work for Big Brother, apply here.” The next day, another student lightly tossed a copy of George Orwell's 1984 onto the NSA table. That's a succinct political statement, but it ain't a crime.

More lawsuits waiting to happen, because of official arrogance, incompetence, or testosterone.

                                                                           -30-
[The column above appeared in the Las Cruces Sun-News today, Sunday, 27 October.]

[One difficulty at 845 Motel Boulevard is that the place seems to be run by the lawyers.  More than once this year they've put the commissioners in a tough spot, because none of the commissioners are lawyers themselves and thus can't fully judge the advice they get -- or, if they suspect something's off-kilter, understandably have a tough time disobeying their lawyers.  Further, I have a strong feeling that as to a couple of commissioners the lawyers have either been involved in questionable action against them or have threatened them.  There are also rules -- put in place to keep commissioners from meddling in matters left to the county manager's discretion and judgment -- that hamstring those commissioners who might like to take action regarding the lawyers.   We can only hope that one retires soon and a new city manager doesn't promote from within to replace him.
With regard to the ETA incident: I'd like for it not to end up in court.  However, the initial response by the county offered no legal support for the county's position, but merely asserted that the county lawyer was right and we were wrong.  That's unfortunate, but further discussion might lead to a resolution.]

some thoughts from tuesday morning

I drafted this column before the polls closed, not knowing how things would play out Tuesday; but naturally I can’t resist updating it to acknowledge the results.

What I saw most clearly, thinking Tuesday morning about the future, was that whichever party won the Presidency shouldn’t get comfortable. The U.S. still faces some very real problems, some of which may not have widely acceptable solutions.

Our economy has not fully recovered, the deficit remains dangerously high, and we’re rapidly approaching a deficit-related "cliff." Longer-term problems include: past inattention to education and infrastructure; the aging of our population combined with rising health-care costs; climate change; energy costs and dependence on foreign oil; and the fact that we spend vast sums to protect military bases and interests around the globe.

If Republicans won, they’d lose in 2016.

The party has moved too far to the right to stay relevant in the 21^st Century. That point was clear before the election; but Election Night illustrated it neatly, as networks intercut between the largely young and ethnically varied supporters waiting for Obama and the older, mostly white group supporting Romney.

A Romney victory would have given us several more far-right U.S. Supreme Court justices. With their help, President Romney could have delighted the Tea Party and angered many women by making abortions illegal, and could pursue the fight against gay marriage, which is laughable to the young and loses support among older folks every year. Election Night illustrated this too: in two states, voters for the first time voted their approval of gay marriage, while two other states voted to legalize recreational marijuana.

Romney’s economic promises were wholly inconsistent with each other. Four years would have revealed that unmistakably to the voters who believed in 2012 that maybe he could work magic; and after four years President Romney could no longer blame Obama for not getting us out of the Bush recession fast enough.

Meanwhile, just as Hurricane Sandy pushed climate change back into the electoral conversation, other extreme weather events are likely to make Republican denials sound even hollower.

Republican extremists, emboldened by success, would have pushed Romney to extremes unpalatable to the rest of us – forgetting that Romney narrowed the 2012 race only by denying at the last minute everything he’d said for two years. No etch-a-sketch would have been big enough to wipe four full years from the collective memory.

But the Democrats also have reason to worry about 2016.

Four short years after Bush left office, as we’re still struggling to dig our way out of the mess, the Republicans nearly won. They nearly won with a candidate whom even Republicans couldn’t make themselves like, advocating the policies that helped create our financial problems. Fair or unfair, by 2016 Democrats will own those problems in the public mind.

This was also the first presidential election since Citizens United. Nationally and locally, PACs used abundant, untraceable funds to say increasingly outrageous things without fear of liability. The 2016 elections may become even more determined by money and Madison Avenue’s creativity.

Republicans, controlling many state governments, will continue their carefully planned effort to restrict voting among the folks most likely to vote Democratic. Fewer early-voting opportunities, more photo-I.D. requirements, and other "minor reforms" will subtract from the Democratic vote totals in 2016.

On the national level, Tea Party Republicans (and party leaders who fear them) greeted Obama’s initial election by deciding that destroying him was more important than doing the best they could for the country. Will they greet his re-election as a warning to work with him toward solving problems? One hopes so; and one hopes that if they continue their obstreperous course their constituents will see them for what they are; but it’s more likely that Republican House members will automatically call the sky red if Obama says it’s blue, and then try to blame him for not getting a consensus on the sky’s color.

Republicans will again play "chicken" with the nation’s economy the way teenagers do with cars. They’ll gamble that Obama will drive off the road to avoid disaster – or that if he doesn’t the public won’t be able to see whose fault the disaster is.

Civility and compromise are at a pretty low ebb in the political world. That’s partly because of the Republican flight to the right, but also because we live in a time when every political sneeze is analyzed ad nauseum in cyberspace, and on talk radio and TV, before anyone can say "God Bless You." Gridlock will leave voters even more disgusted with both parties in 2016 than it did this year.

I didn’t have to know who won Tuesday to know that politicians in both parties need to relearn some manners, and be more flexible and creative in seeking practical solutions to very serious problems.

Part of that change needs to start with each of us. As I wrote Tuesday morning: "Wrongheaded as some of us will think he is, the next President is neither a traitor nor a devil. At some level he believes his policies are good for the country, although his view of the country may differ sharply from ours. We owe him frank but fair criticism and more respect publically than some of us will think he deserves."

"Could you do that?" someone asked. Had Romney won, I’d have tried.

                                         -30-
[The foregoing column appeared this morning, Sunday, 11 November, in the Las Cruces Sun-News, under heading "Either Side Would Have a Tough Four Years Ahead."]

Beyond the barebone facts -- that Obama won more comfortably than expected, despite the bad economy, and that Democrats picked up a few seats in House and Senate -- there are some grounds for hope.
One of those is the resistance voters showed to the heavy-handed tactics and generous financing of the "super PACs."   For example, casino billionnaire Sheldon Adelson, the largest single political donor in history, invested heavily in backing eight candidates, including Mitt Romney.  He gave tens of millions of dollars to super PACs supporting them.  None of the eight won.   All Karl Rove could say to the fat cats who invested $300 million in his two pro-Romney super PACs was that "Without us the race wouldn't have been this close."
In fact, Rove was beside himself.    He'd talked a lot of rich folks into parting with a lot of cash, making big talk about turning his Crossroads PACs into a "permanent presence in U.S. politics," working alongside the Republican Party.  His American Crossroads super PAC spent at least $1 million in each of ten Senate races, and saw its candidates lose in nine of the ten; or, as someone else calculated, when you counted its support for Romney and various others, just one per cent of the money the PAC spent accomplished its desired result.  No wonder Rove screamed at his Fox pals not to call Ohio for Obama!  Wednesday another conservative activist called Rove's PACs "ineffective" and  wrote that "in any logical universe he would never be hired to run or consult on a national campaign again."
In New Mexico, the super PAC run by a Martinez lieutenant and funded largely by Oil & Gas backed quite a few candidates, but in many instances voters seemed able to see through the misleading fliers and ads.  Martinez actively sought to retire several long-time Democratic legislators, and actually got rid of only one, despite heavy spending by the super PAC.
Unfortunately, we haven't seen the end of the super PACs.  With all that money, the Republicans will be able to buy a few brains capable of identifying better and more persuasive ways to spend.  (I won't offer any specifics!)  I'd like to think that folks will still shake off that shit like the proverbial water off a duck's back. 


One slight correction, or amplification, too:
I wrote that two states voted to legalize same-sex marriage.  A third, initially too close to call, also turned out to have done so; and Tammy Baldwin became the first openly gay person elected to the U.S. Senate.
During the campaign, her sexual preference apparently was the non-issue it should have been.

The other night at a political meeting, a white-haired gentleman got up to speak about the election; and after praising a progressive candidate who'd lost, he added that it was also wonderful that three states had approved gay marriage, Minnesota had rejected a DOMA, etc., and at that point it was clear that he was tearing up with emotion.   When he sat down, his white-haired companion put his arm around him, affectionately, and complimented him on his brief talk.  It was moving.  There was a certain sweetness to them.
I thought of a friend I'd known here in the early 1970's.  We'd been in the initially small minority strongly questioning the wisdom of the war in Viet Nam.  At some point in the 1980's, visiting NMSU, I ran into him in Corbett Center and we talked awhile.  He told me then that he was gay, and had been gay back then, but had feared letting even his fellow progressives know about it.  He spoke a little bitterly about watching me sit on the lawn at a meeting with a girlfriend, maybe holding hands or whatever, when he knew very well that if he did that with his lover someone would have stomped them.  It was sad that he had thought even we would reject him -- and sadder that some might have.   I thought also of a retired English professor I met again recently, a fellow I'd vaguely understood was gay back in the early 1970's, and whose long-time companion was and is a professor from a more conservative department.  I've never had to hide for decades a major part of my life, and undoubtedly can't fully appreciate the pain it would cause if I couldn't reveal my love for Dael to even many of my closest friends -- and if just turning on the TV or reading a newspaper, or getting a drink at the water fountain at work, could at any moment provide some zinging reminder that much of society thought we were somehow disgusting.

By the way, I heard that as of Satuday morning the race between incumbent Terry McMillan and challenger Joanne Ferrary is a tie.  It'll be certified that way, I'm told, but subject to a mandatory recount anyway because it was so close.  Should be interesting. 

Finally, congratulations again to Evelyn Madrid Erhard for running hard and well against a highly-favored opponent.  She carried the County, and made the final tally a lot closer than I'd have guessed when she started the race.   I called her this morning, just to thank her again for trying and congratulate her on running so well, with no initial name-recognition and not much money against the darling of New Mexico's oil and gas industry.  A reader called her "Don Quixote" in this morning's "Sound-Off" column in the Sun-News.  She deserves our thanks.