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.]   



 

A Turning Point?

Differing beliefs are healthy.

Tricking vulnerable people into a situation where your beliefs have undue influence on them isn't.

Recently, a “pro-life” women's health center called The Turning Point (TP) put out, through columnist Jim Harbison, a very inaccurate portrayal of itself to encourage more women to patronize it. More pregnant young women full of angst and uncertainty.

Such women should gather as much information as they can, talk with good friends and family, and maybe meditate on what to do, then do what feels right.

According to “pro-life” folks, such women must exclude the option of abortion. They should, if that's how they feel; but what women don't need is to get tricked into visiting a “health center” that will mislead and even intimidate them to prevent an abortion, without regard for the pregnant woman's individual wishes and needs.

“Pro-life” is one of those misleading political phrases like calling a pro-logging bill “The Pristine Forests Act.” I'm incredibly pro-life. Thoroughly enjoy it. Nurture it when and where I can, among humans, animals, and plants. By contrast, some of the most vocal “pro-Lifers” are pursed-lipped judgmental sorts whose ideological view is rooted in an emotional fear that other people are having too much fun.

Harbison's plug for The Turning Point completely omits its strong anti-abortion mission.

There are numerous videos available in which similar “pregnancy crisis centers” draw in young women, often by misleading them, and then subject them to strong propaganda and even flat-out lies, such as that an abortion will leave a woman sterile or cause breast cancer. There's no evidence either statement is true. These places tend to be quiet, with comfortable furniture and many photographs of happy babies. In some, staff-members are not doctors or nurses, but untrained “counselors.” (As someone said, “Whom would you like to consult about a broken leg – a doctor who mends them or someone who merely has strong opinions about broken legs?”)

How precisely does TP follow that model? I can't know for sure; but in a recent Sound-off, one woman described her experience with TP as enduring pressure against abortion and being fed false and frightening information. Although Sound-offs are anonymous, her account certainly tallies with what others have documented about similar operations. (See my blog post for links.)

Many of TP's leaders or board-members are highly experienced anti-choice activists who must be well aware of this tactic. Both Gary Coppedge (notorious for his role in the recent municipal recall effort and for the loathing many folks in Oregon and Washington express toward him over a failed effort to sell a loading dock that people didn't want or need) and anti-abortion activist Dr. Anthony Levatino are on the the board. Levatino has said a doctor performing abortions is “a paid assassin.”

It's instructive that Harbison's promo never mentions the center's real purpose. He writes,

“Pro-lifers many times choose to disregard the life of the mother to give life to the baby. Turning Point seeks to value mother, child and father to the benefit of a healthier community.” That would seem to distinguish Turning Point from pro-lifers.

Who would guess from his column that the outfit has also called itself “The Turning Point Pro-Life Pregnancy and Medical Resource Clinic”?

It's also fair to add that this is a time for folks to take more than the usual care to be precise. Calling abortion “baby killing” and using fraudulently edited tapes to scream “selling body parts!” may be effective rhetoric; but neither is accurate, and a bozo like Robert Lewis Dear might believe you. And kill real and innocent people.

                                                           -30-

[The column above appeared in the Las Cruces Sun-New this morning, Sunday, 20 September, and will appear later today on KRWG-TV's website, under "Local Viewpoints."]

[I haven't much else to add, except (below) several URL's in case anyone wants to see how blazenly some of these "centers" or "clinics" mislead pregnant young women.  It's appalling; and sometimes they even locate near an actual clinic.
How closely The Turning Point follows that model is, as I say, unknown, although one Sound Off describing a patient's experience there sure contained similarities to the videos; but I'd urge anyone consulting the place to get a second opinion on any medical information received there.  
Obviously there's nothing wrong with counseling young girls on how to arrange adoptions, whee that's feasible, or even adding a religious or spiritual component, if the customer appears interested in that -- and hasn't come in under false pretenses.   Many of these places -- and, again, I can't say that The Turning Point does this -- mislead potential customers on the phone, either by purporting to do abortions, by waffling on that question when they know they do not perform them, or by leaving the impression there are actual doctors on staff when there are not.]

[I also want to mention -- sincerely -- that I'm sorry to see Jim Harbison retiring from writing columns.  I thoroughly disagreed with most of those columns, but they represent views held by a significant minority of our fellow citizens here.  But Jim's a gentleman.  I enjoyed having him as a guest on the radio show when I did one, and hope he'll appear on KTAL when we get that community radio station on-air early next year.   When I ran into Jim the other night at Luna Rossa, and told him this column would take issue with his, he cheerfully welcomed that news, just as I'd have done had our situations been reversed.   People often ask me if it's difficult to be attacked so often in the newspaper.  The short answer is, "No!"  If people insult or make fun of me, I read that with interest: occasionally there's useful criticism in the comment, though rarely; often there's mere invective or name-calling -- which means I struck some nerve -- and if the insult is reasonably witty I enjoy it for that.  As Jim said the other night, "It means they're reading me."]

[These are four of the websites I looked at for background, in writing this column.  All, as I recall, contain footage shot inside these "crisis centers" or tapes of initial phone calls in which the "crisis centers" were misleading or evasive on what services they offered.  Since it was a few weeks ago, I just refer to a couple of them by numbers.  I've inserted a few notes I made at the time.  None of these were taken inside The Turning Point or necessarily reflect what goes on there.
Video I
Video II 
California abortion crisis center
New York Pregnancy Crisis Centers

According to my notes on the California-oriented video, it does include at least one pregnancy center alleging that abortions are linked to breast cancer, and we hear from a woman who consulted the place and says,"no matter what I said, the answer was always the same, 'Keep the Baby!'"; another was told, “stop whoring around.”  A woman also says, "Most women I saw there were young like me, I wanted to tell them to run away, 'You're not going to get the help you need here.'”]

Crazy Week in County Government Raises More Questions Than It Answers

*Should Doña Ana County jailer Chris Barela have been arrested?

Yes. I don't say Barela should be convicted. I haven't seen all the evidence; and conviction requires proof “beyond a reasonable doubt.” I have seen enough to believe he should be charged. I'd seen enough years ago. (So had county officials and the state police. Someone's inaction let the statute of limitations pass on some of Barela's alleged crimes.) 

*Will Others Be Charged? Investigators note “the investigation is ongoing,” but they also note that charging documents mentioned some other names. We know that folks including John Caldwell and eventually Julia Brown received reports on Barela's alleged misconduct and didn't have him prosecuted or, apparently, discipline him. (Did they stop some alleged misconduct?) Does that mean they've “obstructed justice” or become “accessories”? I'm not a criminal lawyer and haven't investigated fully.

*Did the Sheriff Act Prudently and Lawfully in taking over the jail? Tougher question than either side will concede.

Sheriff says yes, as a conservator of the peace under Section 4-41-2. Two supporting arguments: (1) that prisoners might riot upon hearing that their jailer was accused of misusing their money, and Barela hadn't implemented contingency planning for his absence, so that action was required for safety; and (2) jail was a crime scene, with others (perhaps including Barela's superiors) possibly involved in wrongdoing, so that not to act would be turning the jail over to suspects.

County Attorney Nelson Goodin says, “We didn't believe he had the authority” and that if Vigil felt he had to take this action he could have applied to the court, as for control of any crime scene. County also says contingency planning was in place and adequate; but a DASO source says interviews with jail personnel proved otherwise. DASO also notes the Sheriff's “team” included experienced corrections personnel, current and retired, approved by the State Director of Corrections.

*Didn't the Judge Find the Sheriff Acted Illegally? Yes and No. The County applied for an Order ex parte (with the Sheriff not represented). Judge Arrieta watered down the order, signed it, and set a December 18 hearing on whether to continue the order. Technically, he found that the County was “likely to prevail” – but without hearing the Sheriff's side. Probably no one will bother to argue December 18 because the issue will be “moot”: whether the Sheriff was right or wrong in taking over the jail temporarily will be academic. 

 

*Should County Commissioners have delayed renewing County Manager's contract after being forewarned that Barela would be arrested soon and that other arrests were possible? The vote was 4-1. 

*Did the Commissioners violate the open meetings law? Depends: was this an “emergency meeting?” Legally, an emergency requires “unforeseen circumstances that if not addressed immediately will likely result in injury or damages to persons or property or substantial financial loss to the public body.”

Certainly the situation was unforeseen. Did having DASO in charge of the jail for 48-72 hours threaten to do the requisite damage?

Goodin said “we looked at it fairly extensively” and that he was “pretty confident” they'd reached the right answer. (One commissioner was insufficiently reassured by Goodin's expression of confidence and refused to participate.) Goodin added that law requires a report to the AG within ten days, and the County will do that. 

*Why can't reasonably intelligent public officials, presumably of good will and with our interests in mind, cooperate a great deal more effectively than this? Beats me. Everyone on both sides makes very strong arguments why s/he's right; but county government still threatens to become a sideshow.

                                                                 -30-

[The above column appeared this morning, Sunday, December 13 (which would have been my mother's 95th birthday, and I wish she were hear to read the column]) in the Las Cruces Sun-News, and will appear later today on the KRWG-TV website's "Local Viewpoints" section.]

It's odd to feel, moments after sending off a column, that although everything I've written is accurate, to the best of my knowledge, the column seems decidedly more sympathetic to one side in the controversy than I feel. But that's how I felt with this one.

Why? First of all, because while I discussed a lot of issues and legal points and what-not, and faithfully reflected what some people said on each side, I didn't voice some gut feelings. One of those is that Billy Garrett and Wayne Hancock are damned good public servants. Whether I agree with them on every issue or not, they're dedicated, hard-working, open-minded, and caring – and neither is in it for the money or for his political future. Neither deserves the shit that gets hurled at him.  (In fact, both Hancock and I initially reported to law enforcement certain allegations of criminal conduct by Mr. Barela.)  I would hate to see the conflict with the Sheriff distract from their work.
Secondly, although I support DASO and agree with some of the Sheriff's complaints, and have great personal trust in some of the officers working with him, there's just an extra level of truculence in the discussions we've heard lately. Usually that kind of extra truculence means something more is going on than simply a debate about policy. One side (or both) has some hidden agenda or motive. Could be as simple as long-suppressed anger by deputies that they aren't as well paid as they feel they should be, or that they're stretched too thin in a rather vast county. Could be something more. I don't claim to know. I just smell something. Don't know what it is yet.

Third, in interviewing both sides I should have explored with Sheriff Vigil whether or not he should now recuse himself from the investigation, or should have done so. Investigating Mr. Barela is one thing. I'm unaware of any bad history between the two. The State Police didn't seem to have gotten much done, for reasons I haven't yet identified. Someone needed to carry the investigation forward. 

Maybe the same is true as to Ms. Brown and others; but there, at least arguably, Vigil shouldn't be supervising the investigation. There's been a very public history of Vigil's quarrels with Debra Weir (Human Resources), and with Ms. Brown when she jumped in on Weir's side. Now it isn't as if Sheriff Vigil were the judge in this matter, where he would obviously have no choice but to step aside. He's investigating. Maybe it's okay, because the ultimate decision on any charges would be made by D.A. Mark D'Antonio, not Sheriff Vigil. 
But although I've disagreed with Ms. Brown often enough, and my mind is surely not closed to the possibility she could have acted illegally, I'd feel more comfortable if someone were investigating her who had neither been sitting in her lap nor poisoning her coffee last week. Nothing in the foregoing should be taken as reflecting doubt on Vigil's integrity. He just ought to remove himself from having that integrity unnecessarily tested. It would look better.

At the same time, certain aspects of the Sheriff's side of this needed expression. One was that although they may be wrong, his investigators honestly and probably reasonably see other county officials as persons of interest. Another was that although I don't know whether or not whether the statute cited by the Sheriff authorized his action in taking over the jail, it was unfair to let unknowing readers assume that Judge Arrieta had acted after hearing each side make its best arguments. Rather, as Mr. Goodin readily acknowledges and most trial lawyers would know, the order was issued after only one side's story got told, and was intended as a temporary order pending a fairer and fuller examination of the facts and the law. 

Too, I'm put off by some of county management's tactics -- such as removing information officer Kelly Jamison, whom all sides agree is a great asset, from DASO temporarily -- ostensibly to prevent her from experiencing a conflict-of-interest but obviously to punish the Sheriff in a petty way.  Remind him who's boss, legally, over DASO employees.  Fortunately she's been returned to DASO.

Another observation worth making is that just as wars drown out a lot of subtle differences in people's pre-war positions on whether or not there should be a war, folks who get drawn into battles (like this current one in county government) quickly find themselves pushed toward the extremes, not only less and less able to accept opposing arguments but less and less able even to listen meaningfully to anyone “on the other side.” Inevitably that saddens us non-combatants. Not only because unnecessary friction is not conducive to a harmonious and peaceful life but because truth also tends to be an early casualty, and each side's inability even to realize the possible sincerity of opponents makes productive discussion awfully difficult.

I'm not on either side, although I have friends and people I trust on both sides. 

Sheriff's Lawsuit is the Wrong Answer to Some Serious Questions

The “investigation” of Sheriff Enrique Vigil was a sad joke, rivaled for silliness only by Vigil's lawsuit against two county commissioners.

Sparked by some now-departed county employee, the investigation accused Vigil of saying bad things about the County's HR Department and “contributing to a toxic environment for county employees.”

Hilariously, the investigator “found some support for the allegation of a perception of a toxic environment, but could not limit the cause to the sheriff.” Unambiguous decisions by several juries have confirmed the existence of that “toxic environment,” as have sources for several of my columns. That atmosphere was toxic before Vigil's election, and many employees would point to HR as a major reason.

Vigil was charged with speaking “badly about the human resources department without providing a factual basis.” Well, he spoke plenty bad to me about HR around the same time, but provided factual support. I'm just not seeing the factual basis for the investigation, unless the ex-employee's complaint required the County to conduct it. Waste of money.

But Vigil's responsive lawsuit strikes me as nonsense. It tries to allege that the “investigation” not only was improper but could intimidate Vigil from speaking out.

“Could intimidate?” Most lawsuits allege actual damage. Your car hit mine, or ran over my donkey and killed it. Not, “I'm suing you because you drove too fast and could have hit my cat.”

But if Vigil claimed flat-out that he'd been intimidated, jurors would laugh. A sheriff in Pat Garrett country alleging he was intimidated by some investigator asking him if he said any bad words? Vigil has spoken out long and loud to everyone who'd listen, and didn't stop when someone started “investigating” him. His lawyer, Gene Chavez, told me Vigil was speaking in his constituents' interest and that “attempts to intimidate him from that will have the opposite affect.” So the lawsuit can't allege they've shut him up.

A little research showed that the Workman's Comp Board suspended Chavez in 2012 for a long list of violations including “false statements to a tribunal” and “failing to communicate with clients.” When he appealed, the NM Supreme Court affirmed. (Chavez said the experience taught him a lot and made him a better, more careful lawyer.)

An earlier Chavez case arose from a late-night incident at a McDonald's. A 19-year-old girl was in her car in the drive-thru lane. A McDonald's customer, not entirely sober, found the girl attractive and made this known to her, then continued pressing his attentions on her after she signified her lack of interest. Her car allegedly dragged him a little ways. 

Chavez filed suit for the rejected would-be lover against McDonald's for not having had a security guard on duty to prevent such incidents. The jury quickly decided against the Plaintiff. 

Is his current case more promising?

Vigil has Chavez answering local reporters' questions. Yo, Kiki: we elected you, not an Albuquerque lawyer. 

Vigil's lawsuit could prove costly for us taxpayers. Even if it's thrown out at an early stage, some lawyer gets well-paid to file the papers to make that happen.

Further, it contributes to a stupid and unproductive polarization – also costly.

It also distracts us from some real issues: are DASO deputies underpaid? What can and should we do about that? Is HR as bad as almost everyone claims? Did HR folks indeed get a string of consultant-blessed raises that deputies and road department crews didn't see? Was that justifiable? As regards DASO, is HR being unnecessarily uncooperative or providing a useful check against imprudent hires?

These serious issues should be examined fairly and openly – not litigated.

                                                -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 6 December.  As it turned out, Sun-News Editorial Page Editor Walt Rubel had already written his own Sunday column before receiving mine, and they were on the same subject.  Both, independently, criticizing both the "investigation" of Sheriff Vigil and the lawsuit on Sheriff Vigil's behalf against two County Commissioners.  Both Walt and I regretted the way such steps hinder communication between county offices, and urged the combatants to get back to a reasonable and fact-based discussion of the original issue: how to ensure the County finances local law enforcement adequately.  Both sides want that.  So do most citizens.   (I'd include a link to Walt's column, except that I couldn't find either his or mine on the Sun-News website this morning.)]

 

[The lawsuit alleges“retaliation and measures designed to chill and inhibit [Vigil] in that exercise [of First Amendment free-speech rights].”  It adds that: “46. The degree and type of actions taken by Defendants and by others at Defendants behest against Plaintiff Sheriff Vigil have been sufficient to chill a person of ordinary firmness in the continued exercise of his or her First Amendment rights.”

I asked the Sheriff's lawyer whether the Sheriff was alleging he'd been chilled in expressing his views.  Mr. Chavez stated to me that the Sheriff had been faced with a very difficult situation, with the County “whittling down the department's budget” over time, and had spoken up because it was duty to his constituents, and that the response he'd gotten was consistent with the “culture of bullying” County management had exhibited. Asked point-blank whether the pressure had in fact dissuaded Vigil, he said that Vigil “won't be dissuaded, because he has the good of his constituency in mind.  Attempts to intimidate him will have the opposite affect.”

I also asked him about the three-month suspension (October 2012 to January 2013) from practice before the Workman's Comp board. Initially he said, “I have no comment on that,” adding that it was “something that happened in 2012” and that he'd been practicing successfully, without such problems, ever since. Eventually he added that he had learned a lot, that the Supreme Court might have been not only upholding his suspension but sending a more general message to other lawyers, adding that “since that time I have not only double-checked but triple-checked every letter and every pleading to make sure that it is not only accurate but ethical. I've been down that road, and don't want to go there again. I think I'm more cautious and careful than some lawyers who haven't had that experience.”

The Supreme Court opinion denying his appeal states that the WCA alleged against Chavez "seventeen separate violations of the Workers' Compensation Act [including] that Chavez willfully refused to participate in the mediation process in three (3) different instances; that Chavez willfully disregarded the rights of the parties in eight (8) different instances; that Chavez advocated meritless claims in four (4) separate instances; and that Chavez behaved in a non-courteous and disrespectful manner in two (2) separate instances."  He was penalized $17,000 and suspended for three months.  However, he states that his record has been clean since then, and I believe him.

Chavez pretty much declined comment on the McDonald's case, except to say he remembered it vividly but wondered why I considered it relevant.  Fair question.  I had questions about this lawsuit, just from reading it.  A few minutes' research disclosed his 2012 problems with the Workman's Compensation Board (including alleged false statements to a tribunal) and news stories on the McDonald's case.  That raised the question of whether there was a pattern here.   Lawyers get paid to argue cases, which involves presenting the facts in the best light for their own clients.  There can be a fine line between an aggressive, imaginative argument and one that strays into falsity or unethical conduct.  Most lawyers never go through what Mr. Chavez did.

He's right that this additional information about Vigil's lawyer wouldn't be admissible in a trial of Vigil's case; but where that case is brought by an elected official against two other elected officials, he information seems of public interest.

His comments to me were reassuring.  That whatever may have been true earlier in his career, the Workman's Comp situation had taught him something, he said.  I take him at his word.  I'm in no way alleging that bringing this case is in any way unethical.  I just doubt it will ever end in a judgment for Vigil; and I certainly doubt whether upping the ante this way is going to help fix the County's problems rather than exacerbate them.

On the other hand, some of the discovery in the case could be interesting.]

Somewhere in Time

Happens we were somewhere else for two weeks in late October.  Visiting people we love who live on 40 acres in the woods, in a great straw-bale house they built, where they grow much of their own food, home-school their children, and take in rescue cats, horses and ponies.  By choice, they live simply, without Internet or television.  Although I did sneak out to a Starbuck's a few miles away to drink coffee and send and

Buttercup

receive emails and columns, our lives there largely involved cats, baseball, walks, and a couple of excursions to buy blueberry bushes from a wonderful old man who was selling them cheap.   There was also lots of laughter, apples to be picked nearby, a few long talks, and extensive discussion (among the females in the house, anyway) running up to the daughter's first professional haircut, which went swimmingly according to all the reports I received.

Meanwhile, the New England foliage was putting on its annual show.

The View from Home

Leaf cluster above the Batting Cage

Foliage near the Pond

Soft Landing

 

Their 12-year-old son is obsessed by baseball.  No matter the weather, the big field out front, sloping and uneven and littered with horse dung as it may be, serves as a practice field and the site of a variety of games -- wiffle-ball, something like what we used to call one-a-cat, and a game called "two-ball" I'd never heard of before.   Just to the far end of the house was a battery-operated electronic batting cage the boy had purchased from money made selling food at a small stand by the road, self-made slingshots at crafts fairs, and what-not.  At 12 he's so capable and so diligent that he had enough money to lend his older sister part of the money she needed to buy her first car.  His father works well with his hands, and the boy's

accomplishments are legend: given a drawing of a horse, he turned it into a wooden sculpture that took "Best of Show" at a regional 4-H gathering.  On another occasion, when his mother and sister were going outside to paint, he retreated indoors and quickly fashioned an easel for them.

He's also addicted to baseball.   Saturday mornings we froze our tails off attending Fall League

double-headers.  Some evenings we ended up at practices at a huge indoor athletic facility in a nearby town.  But while we were there his stats from his previous league came in, and he'd hit .750 or something.

The Saturday morning games featured more walks than they should have, and a rather uneven level of talent, but lots of energy, paid coaches, and the familiar feel

of baseball in autumn with fans' encouraging patter and the between-games memories and tall-tales exchanged by men who'd played baseball here in their own youths, and now watched their sons play.   This fellow had been drafted by the Yankees, this one had once stood on that mound and thrown the ball over the center-field fence, etc.  I thought of Don, the boy's grandfather, who had played in the Cape Cod League -- a mark of excellence here -- and been drafted in his turn, but now lives in Osaka, watching Japanese baseball.

It was like stepping back in time, because I too was so obsessed with baseball many years ago, but also because my life has drifted away from baseball, from any community remotely like the one we visited, and from New England autumns.

Mandy's New World

Too, the life we lived for two weeks was from another time: although of course there was power (solar-power backed by a generator when necessary), much of the household went to bed earlier than most 21st Century human beings do.

The kids -- mostly the boy -- made breakfast every morning.  At 12 I probably could have boiled water for coffee, and maybe could have fried a couple of egg if for some reason I'd had to, but he's starting to bake pies.  And they do all this on an old wooden stove, the sort that folks their grandparents' age have seen only in old photographs.

The adults, both capable, bright, college-educated folks, chose this life and live it.  They could have professional jobs elsewhere; but he fixes and

occasionally builds houses, working hard, and she coaches athletic teams (like her father), teaches art, helps a jewelry craftsman sell his work at fairs, and plows the snow in the winder.  And they sell firewood.  And educate the kids.

Besides their little road-side vegetable stand, the kids were busy making money by parking cars for a barn dance we went to, and the girl babysat a couple of kids a few miles away a couple of nights a week.   My own interest was in capturing what I could of autumn in New England in images.

"Ain't I picturesque?"

Maybe Tomorrow

The New Arrival

I kind of fell in love with the old folks we bought the blueberry bushes from.  Bare-root things in a nursery cost a bundle.  These were mature bushes, mostly taller than I am, of various species, in excellent condition -- at $30 apiece.

We went over to the farm one afternoon in the family pickup.  The farmer, 81, was an interesting man.  He knew blueberries, and had had great long rows of them, but was committed to getting rid of them all.  He needed to care for his wife, and

they were going to have to move soon.  He said selling the blueberry bushes gave him something to do; and I like to think he wanted to find good homes for them, too.   His wife, he told us, had baked a wonderful apple pie the previous day.  Then, this morning, she had come in with an apple and mentioned baking a pie.  He hadn't had the heart to remind her she'd baked one the previous day, and just told her the apple looked so very beautiful that maybe they should just enjoy it the way nature brought it to them.  She agreed.

He takes care of her -- and she of him.

There was a sweetness to them.  I respect folks who've maintained a long and caring marriage, which seems an important accomplishment in a time when concentration and consistency seem as rare as truly fresh air and pure water.  I respect 81-year-old guys who are still clambering around on uneven ground, explaining the different bush varieties, and driving a Kubota around to dig up the bushes and drop them with great precision into the truck-bed or trailer.

I guess I'm also grateful to them for these images:

Hands

Leaving the Farm

Once the blueberry bushes have been loaded, he takes her hand and they walk back to the house, holding hands, with their beloved corgie happily accompanying them.

At any rate, I wanted to post this so that our photographer friend Hanz can show it to the kids next time they're over there visiting him.  A few quick images from a great couple of weeks.

Mandy

Refugees

The “Islamic State” (IS) is very close to beating my country into submission, and I'm ashamed. 

We're a country of immigrants. We take pride in our “melting pot” where traditionally a poor, young immigrant could use diligence, imagination, and a bit of luck to succeed brilliantly. Even our oldest families came here within the past four or five centuries. Our movies often feature some statue in New York of a lady with a lantern, saying “Give me your tired, your poor.” 

We are a country of ideals and equality. Our father or grandfathers fought heroically against a grossly misguided country that made an ethnic group wear yellow stars. My father would be appalled to hear some pompous real estate guy suggesting we should make an ethnic group wear some sort of badges. 

I do not agree with President Obama's mocking of anti-refugee folks as being afraid of women and children. I doubt his program would keep all adult male Syrians out, breaking up families. If I were IS, I would try to slip a few terrorists in among refugees, despite our careful vetting – or recruit terrorists from among young refugees. I can't say there is absolutely no danger in admitting Syrian refugees, even though, so far, refugees have been well vetted.

But I'm damned if I'll kneel to IS. IS can never subjugate us, but it seems dangerously close to scaring us into abandoning our values. Are we a nation of cowards? 

Further, we have a special responsibility. 

“You break it, you bought it!” reads the sign in a china shop. We broke Iraq, for no good reason, and predictably generated a recruiting boom for terrorist groups. If you supported Bush II in invading Iraq, you bear some responsibility. (So do I, despite my futile opposition. It's my country.) Yes, it's inconvenient to pay up. But pay the cashier on the way out.

Here in Las Cruces, many of the loudest protesters against taking in Syrian refugees are Christians. Clearly my anti-refugee friends aren't honestly asking themselves “What would Jesus do?” If they can muster some sketchy argument that Jesus would favor keeping the refugees homeless or in camps, I'd like to hear it. 

The Christian course would be to admit refugees. Freely. Christians who can't support that course shouldn't try to rationalize being too frightened or too selfish to live up to their belief system. That happens to all of us, more often than we like to admit. It's part of being human. Nor should we be ashamed of fear: there's no courage without it. Courage is transcending fear – not fear's absence.

Some folks say their Christian beliefs mandate rescuing women from choosing abortion, or denying gay couples the right to marry. Those same Christian beliefs would mandate standing up for the admission of refugees. Jesus never said, “Follow me except when it gets hard.” 

Jesus had courage. In a far less democratic society, he spoke truth to power, knowing that bad things could and would happen to him. But he knew fear would cause even Peter to deny him. 

Jesus also said that turning away a needy person was like turning him away. Christians should be among the loudest voices for admitting refugees. 

So should U.S. Citizens who understand what made this country great. Folks whose patriotism means just waving a flag on Veterans' Day, without honoring our ideals, should keep their flags in a drawer and stay home next November 11.

I share people's concerns. I don't relish placing another burden on our dicey economy or our health system. But it's the right thing to do.

                                                            -30-

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 29 November.  Two days after Thanksgiving and weeks before  Christmas, both of which holidays have generated their share of ironic comments on the opposition to accepting some Syrian refugees.]

[On one side my family was here at least by 1648. Walter Powers, then 14.  Ancestors fought in the Revolutionary and Civil Wars, and farmed land in New England for generations.  On the other side, my family arrived in the late 19th Century, I think.  Jews from Lithuania, mostly.   I'm proud of all these folks.  I'm grateful they were able to come here.  So, yeah, I recognize the advantages of being born here -- and the temptation to slam the doors shut.]

[But this is a tough question, for many.  (Republican Congresspeople, whose prime imperative has been to oppose Obama even when he's articulating their own ideas, don't matter; but everyday people do.)  Several times this week when someone commented that they appreciated and agreed with last Sunday's column on County Manager Julia Brown, I asked the speaker about this refugee issue.  (I'd already drafted the column.)  It was interesting. Few found it an easy question.  One, who looked for a moment as if he might speak of the problems, said instead, "Well, given who my uncle was, . . ." and told me his uncle was Simon Wiesenthal, the Nazi Hunter, and that Wiesenthal (down to 90 pounds when liberated) had been allowed to come here right after he was rescued from Mauthausen concentration camp.  A friend in the construction business noted that we'd all come here from somewhere, but now the shoe was on the other foot, and he didn't think that with all the crime and terrorism there already is in our world we could take the risk of accepting these refugees.  But he wasn't comfortable saying that.]

[I do think "Christians" who invoke Christ as an excuse for hating gays or protesting women's right to choose how they'll deal with a pregnancy ought to stop doing that if they don't dare take the obviously Christian position on the refugee problem.  I'm sure someone will stitch together some flimsy rationalization, maybe that Christ (who said to render unto God what is God's and to Caesar what is Caesar's) would tell us to treat this as a secular political decision.  But come on, folks!]

[Too, Cuban refugees, two of whom are running for President, ought to reflect on the fact that although folks from other Latin American nations had problems immigrating, and although when Castro allowed Cuban refugees to flee here our leaders shouted that he was sending us the criminals and idiots, rather like the current refrain about Syrian refugees being terrorists, Cubans were let in without the usual care because of our nation's political position on Cuba.]


Many Jewish groups have stepped up to support admission of refugees

County Manager

Tuesday the Doña Ana County Commission will discuss its sole employee, County Manager Julia Brown. Following a closed-door discussion, the Commission will vote on whether or not to extend her contract, by how long, and under what conditions.

Like the Commissioners, but with less firsthand knowledge, I thought Ms. Brown was a very promising hire. Like the Commissioners, but with less firsthand knowledge, I've been somewhat disappointed. 

I'd guess that none of the Commissioners gave Brown high marks at evaluation time. I'd also guess they'll steer clear of either a two-year extension or termination (despite some sentiment for each), and extend her employment for a year that could become six months if there isn't perceptible progress on certain perceived shortcomings.

Before Brown was hired, there appeared to be a clique of county officials (named in earlier columns) that looked out too much for their own and each other's power and security and too little for the best interests of the County. Many county employees and ex-employees felt their fortunes depended on kissing butts and making no waves, not on competence or top-notch public service. It sure looked that way to me.

The County also needed to do some serious long-range planning that the previous manager might not have been too keen on getting into.

Brown brought a great resume, a greater smile, and all the right verbiage. 

HR weeded out the bulk of the candidates, based on commission criteria, to save the Commission time. That sounded good, but meant HR, with an inherent conflict-of-interest, could affect the process. (I'm told that at least one applicant who promised to get rid of the county attorney and HR director didn't make the cut. Perhaps he didn't meet the Commission's standards.)

Brown's performance cleaning up the place (and being seen to have done so, to reestablish trust among county employees) has been mixed, at best. Some people are gone who probably should be gone. On the other hand, after the Stewart trial broadened our knowledge of problems the Granados trial had revealed, Brown made an incredibly tone-deaf speech to employees. Many employees have wondered whether, as two juries found, management retaliates if one presses valid complaints. Brown told them that people had lied on the stand in Stewart, that she knew the trial's result was wrong, and that many employees make complaints when they're just about to be disciplined or fired for cause, to delay or avoid consequences of poor performance. But at the end she insists she wants employees to know she's 100% against retaliation and discrimination, and they can always come to her. 

Many viewed her hiring as folks in the Middle East greeted the Arab Spring. Some of the same people feel nothing has changed. Many feel that Detention Center Director Chis Barela and HR Director Debra Weir should be gone by now.

Brown works hard, I'm told; she has attacked projects like the Comprehensive Plan that make normal people's eyes glaze over but can prove important. Although her communication with the Commission leaves something to be desired, it's fair to say she's working on the issues, that fixing things would take anyone a long time, and that a year is a significant investment in her. She has such a promising resume that some folks feel it'd be a shame to give up on her prematurely.

One observer suggested that increasingly frequent “work sessions” symbolize micromanagement by the Commission and use up a lot of management's time, undermining Brown's ability to do her job.

A two-year extension would seem unwise; but if Brown stays, the Commission should clearly articulate its concerns and desires.

                                                                  -30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 22 November, 2015, and will appear today on KRWG-TV's website as well.   I invite comments and criticisms.]

[I don't have much to add to the column.  I did have one more example of what I've called tone-deafness, although this one would qualify as just plain dumb.  Brown's office announced an office-decorating contest among different departments of county government, with someone judging it and offering a prize, and said the County would allow each employee to work five hours on the decorating, paid.   A clever guy I know worked out the math, and at current rates and assuming every employee used his or her five-hour allotment, that'd cost the county upwards of $200,000, if I recall correctly.   This at a time when county government is experiencing a civil war over pay in the Sheriff's Office!   I called a County Commissioner, and this thing hadn't been run past them.  I called Brown's office, and her office confirmed the idiocy.  I left a message asking Brown herself or HR Director Debra Weir to call me back, hoping there was some sane explanation, or we'd all misread the memo.  Never heard any such thing, but the five-hours' paid allotment per employee offer was retracted.   
Never did hear back from Brown.  She may have decided I'm a trouble-maker.  I can never figure out how public officials get that impression!]
[Oh, and I did go take a look at the correspondence between the DA and Sheriff's Office, on the one hand, and Brown and County Attorney Norm Goodin, on the other, regarding documents about alleged bad conduct in the Detention Center.  The real joke was some of what former County Attorney John W. Caldwell had held back from investigators based on the attorney-client privilege.  Included an email in which a jail employee had sent an unsolicited complaint about misuse of County resources.  It's pretty basic that there's no attorney-client privilege there.  But Caldwell withheld it.  Anyway, the upshot was that the Judge ordered documents turned over to investigators but imposed on both sides a County-requested gag order so that they can't give us those documents or say publicly what's in them.]

Avoidable Jail Beatings: Wrong and Costly

This is a tough column to write, and maybe to read.

Sex offenders have not only violated the law, but have sometimes done things most of us find unimaginable. Messing sexually with children is unimaginable to me. 

But people who commit such crimes do not give up their humanity, or their entitlement to the protection of our laws. Unfortunately, it may take fresh lawsuits and more huge jury verdicts to get that point through the skulls of the folks who run the Dona Ana County Detention Center.

We've all heard how sex offenders are often treated by other prisoners. Therefore they're housed separately; and when they're in contact with others, you watch carefully; and you don't let other inmates know that a particular inmate is a sex offender. These are the rules.

CASE: Mr. A writes me that after his arrest (for an unspecified sex crime) a jailer placed him in a holding cell with a regular inmate and let that inmate see what he was in for. Mr. A was beaten to within an inch of his life. (Call me if you're a lawyer who has time and the skills to represent him.)

CASE: Mr. B had just returned from court. Completely shackled, he sat on a bench, helpless, waiting for the guard to remove his restraints. The jailer first unlocked a maximum-security inmate who had apparently heard the charges against Mr. B in court. The other inmate beat Mr. B so badly that Mr. B was beyond the capabilities of our local hospitals and had to be transferred to El Paso. 

Sorry, but that's just wrong.

We're not talking about a father or brother so angry over the rape of a sweet, innocent girl (or boy) that he attacks the rapist. (I'll admit having said and meant that if someone molested a certain innocent, creative, and loving 11-year-old female relative, I'd kill him myself. Even though I understand that most such molesters have first been victims.)

We're talking about the deliberate indifference of a jailer who likely hasn't met the victim, but dislikes sex offenders or gets some jollies watching a beating. Or is so careless that he should find some job where people's lives aren't at stake.

Meanwhile, “sex crimes” have expanded far beyond what most of us realize. Some poor soul who never touches anyone but watches a couple of pornographic films with underage kids in them could be locked up for decades. Such films aren't to my taste; and I understand the theory that jailing customers diminishes the market for such films. But the penalties can be draconian.

Too, an 18-year-old having a fling with a 15-year-old who says she's 17, and looks and acts it, could be jailed on a charge that sounds worse than it was. 

I concede that the two incidents cited above are allegations, not yet tried in any court of law, civil or criminal. 

But note that I don't do criminal law or hang around the jail a lot. If I know of these two cases, from the past few months, how many more might there be that we know nothing of?

As a tax-paying citizen, I don't want jailers conducting themselves this way: it's legally wrong, and it risks a Slevin-size jury verdict. Folks complaining about alleged waste at the County should sure complain far more loudly about this stuff.

These problems illustrate why we need a Citizens Advisory Committee here. Ethically or financially, we cannot afford to view our jails as septic tanks into which we need not look.

                                                       -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 15 November.and will appear later today on the KRWG-TV website.]

A point worthy of a column itself is the draconian nature of the penalties for watching porn on the Internet. A first offense of watching child porn on the Internet could carry a 10-year statutory minimum sentence.  We could be talking about some troubled fellow who has never touched a child and never would -- or even someone who stumbled onto a site by accident or out of curiosity about what all the fuss was about.   Congress has vastly increased the penalties in recent years not based on any science or studies or sense of justice, but out of irrational revulsion and quite rational political calculations.  

Many judges are appalled by the sentences they have to hand down.    I've read several essays by lawyers, and surveys by the U.S. Sentencing Commission have confirmed that.  According to one organization:  according to one organization:

According to a survey conducted by the U.S. Sentencing Commission, federal judges believe that many child pornography sentences are too long – 71 percent of respondents believed that the mandatory minimum for receipt of child pornography was too high.25 . . .  70 percent of the judges surveyed respond[ed] that the guideline ranges for possession were too high. Additionally, 69 percent believed that sentences for receipt of child pornography were excessive.  Unsurprisingly, federal judges are responding to this excess by handing down sentences below the guideline range when they are able and when they believe it is appropriate. In 2010, less than 55 percent of child pornography sentences fell within the guideline range or below it pursuant to a government-sponsored departure, while nearly 43 percent of offenders received nongovernment-sponsored below-range sentences.  In 2008, Robert W. Pratt, a U.S. district judge in Des Moines, Iowa, wrote that the sentencing guidelines for child pornography crimes “do not appear to be based on any sort of [science] and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses.”   Since then, other judges have spoken out, including Judge Jack Weinstein, of the Federal District Court for the Southern District of New York. In an interview with The New York Times, Judge Weinstein said of child pornography sentences, “We’re destroying lives unnecessarily.”  

In any case, a Detention Center prisoner is in our care.  A jail-sponsored beating (or one in which jailers acquiesce, or one our jailers' carelessness facilitates) is both wrong and potentially costly.  To us.  Arguments about how much we spend on transportation or how much we pay our deputy sheriffs should not be complicated by allotting money to pay huge jury verdicts to prisoners.