Opponents of Marriage Equality Seek Governmental Support for Intolerance

A local columnist recently promised “straight talk about gay marriage,” but instead wandered around in crooked circles.

He made the usual arguments against equality of marriage: he thinks his God doesn’t approve, it wasn’t done in the past, and it’s bad.

But our Constitution and traditions forbid basing governmental decisions on  religious belief.

Further, we don’t know how Jesus viewed gay love.  We do know He preached love and tolerance.   The four “official” gospels do not report Jesus discussing homosexuality. In certain gospels, though not those the Catholic Church chose to include in “the Bible,” Jesus not only approves of it but is said to lie with another man on at least one occasion.

The columnist, Neal Hooks, argues that gay marriage wasn’t traditionally permitted.

Mostly it wasn’t; but past conduct can be a treacherous guide to what’s right.  We enslaved people, sometimes honestly believing they were inferior.  We put married women’s property in their husbands hands.  We branded adulteresses with scarlet letters.

It’s also not quite accurate that marriage has always been between one man and one woman, with no dispute on that point in recorded history.  The 19th Century Mormons were pretty much at war with the United States over conflicting definitions of marriage.  In parts of Tibet where women were scarce, a woman could marry two brothers.   The Roman emperor Nero is said to have married men – twice.

Currently, thirteen countries have legalized same-sex marriage.

We learn as we develop, and develop as we learn, both as individuals and as a society.  We are learning that a non-negligible proportion of the population is naturally disposed toward homosexuality.  We are learning that gay unions can include love, and that a loving same-sex couple can nurture and raise wonderful children.  We are learning that what may seem “natural” to some need not define that word for science or society.

It’s true that during the 1960's we in the Movement did not speak up for gay rights.  Most of us were not even aware that some friends and comrades were gay, or of the angst our ignorance caused them.  I regret that, just as folks today who call same-sex relationships “unnatural” or “immoral” may someday regret hurting kids they know who are secretly gay.  A new book, Does Jesus Really Love Me? chronicles the author’s heartbreaking experience growing up gay in a fundamentalist family that viewed him as “lost.”

Why is gay marriage “immoral”?  Because opponents don’t like it?  Because their churches don’t?   No one faith defines morality for all of us; and laws change as our society grows.

There are numerous religions in the world.  In some countries it is illegal and immoral for a person to practice Judaism, or for a woman to walk with her face uncovered or speak to a man to whom she is not closely related.  Few of us would assume that because religion dictates those rules they are right.

At one point, after appearing to use evolution to prop up his argument, Mr. Hooks adds, “Not that I believe in evolution.”

That’s a curious view.  Your religion is something you believe in.  As others believe in theirs.  Even without objective evidence, you have faith.  That’s part of the beauty of religion.

Abundant evidence supports evolution.

Of course, the world’s best scientific minds could be wrong.  As retired NMSU professor Bud Wanzer once remarked, if our civilization died out and some future civilization’s archeologists studied it, they’d conclude that human beings got smaller between 1948 and 1978.   Otherwise why would our cars have gotten so much smaller?

Still, until someone presents a better explanation of the available facts –something more than “It must be wrong because it contradicts sacred texts” -- evolution looks like the smart bet.

As to the claim that studies show that among homosexuals there are more STDs, obesity, domestic violence, mental illness, depression, and suicide, some of that might be true.  Much of it seems highly dubious.  With regard to mental illness, depression, and suicide, mightn’t those trends be driven by precisely this attitude that being gay is abnormal, sinful, shameful, and dangerous?  As to obesity, let’s not look at people’s sex lives but at McDonald’s, Coke and Pepsi, and the strangle-hold Monsanto has on politicians in both parties.

The reassurance that “no one is taking away homosexuals’ rights to do whatever they want in the privacy of their own homes” falls a bit flat.   Quite recently, gays had no such rights.  A decision penned by Justice Kennedy, who’s still on the Court, told Texas it couldn’t jail folks for gay sex.  That was in 2003.   Folks argued against that decision in much the same words, that it was “immoral” and God didn’t approve.

  Hooks closes by claiming his opinions are based on practicalities and on “faithfulness to God . . . we are all sinners.  The only difference is I am not asking the government to justify mine.”  I’m not sure what his sins are, but if they include adultery or the consumption of alcohol, or even certain sexual practices with a consenting heterosexual spouse, they are sins our government, based in part on people’s religions, has considered criminal.

From the perspective of my religion, which preaches love and tolerance, the folks opposing marriage equality are doing just what Mr. Hooks denies doing: they are asking the government to justify their intolerance by continuing to forbid gay couples to marry.

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[The column above appeared this morning, Sunday, April 28, in the Las Cruces Sun-New.  For those who did not see the op-ed column cited in mine, go to Sun-News blog and search Neal Hooks.  I believe it was published April 12th. ]

Special Prosecutor Finally Drops Felony Charges against Former Judge Michael Murphy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Spring

At dawn the other morning the birdbath was nearly empty from the previous day’s high winds, and what was left in it was frozen.

Yet the ocotillo beside it was shyly displaying little buds, the first sign of the bright red display it has planned for the return of the hummingbirds in a few weeks.   An old man who lived alone in Derry for a quarter-century kept records, and the first hummingbirds arrived the same day each year until a couple of years ago.  The ocotillo doesn’t keep notes, but knows very well when the hummingbirds will be around to assist in its reproductive cycle; and the ocotillo produces plenty of inviting nectar – and undoubtedly chose red not for our delight but to make sure the hummingbird didn’t neglect its duties.

I guess it must be spring.  Certainly the green-budding ash trees and a very few yellow wildflowers think so.  So does the dark iris that opened this morning, braving the winds.  Last night, as we watched the full moon peek over the mountains, the season’s first sphinx moth grazed my hand.  And swimming laps at NMSU’s outdoor pool is a suddenly wonderful again.

Spring, when Florida Gulf Coast University delights the sporting world by being this year’s Virginia Commonwealth, but more so, the baseball Giants’ Brandon Belt is tearing up the Cactus League, Las Cruces High is state basketball champion, and Austin Trout will unify the light middleweight boxing championship.

Spring, when an old man almost too stiff to walk limps around a rodeo arena photographing young cowboys and cowgirls roping calves, and cowboys riding broncs and bulls in preparation for rodeos.

Watching these young folks is a delight, partly because almost no one else is doing so.  A roadrunner prowls the nearby desert, and a few saddled horses stand around looking bored.  The Organ Mountains catching the afternoon sun, and bulls and broncos stand on the hill, outlined against the sky, waiting for their turns to toss riders around..

Part of the pleasure is the enjoyment of any athletic event, even one in which I’ve no knowledge of the skills and techniques involved.

Part of it is the mix of past and present.  A hundred years ago, most everyone could ride a horse.  In this part of the world, riding bucking broncos or bulls was a sport most young men at least tried.

Forty-some years ago, when I first arrived in Las Cruces, probably two-thirds of the male students in Corbett Center had cowboy hats on, although already a lower percentage of them could actually do the things these fellows are doing.

(That first autumn here I went to a rodeo.  At some point they had an audience-participation event: they placed a ribbon on a bull’s horn and let the bull go.  Anyone who could get the ribbon won a prize.  I was ready to try it, but the woman with me, from Aztec and wiser about these things, suggested I just watch.  A line of men stretched from one side of the arena to the other.  They released the bull.  The line parted, everyone ducking to one side as the bull raced down the center of the arena, then the line closed again with folks  showing their courage by running after the bull at a safe distance.  The bull ran straight across the arena and jumped the fence, much to everyone’s surprise, and they found him the next morning grazing outside Corbett Center.)

As a rancher told me at a branding a few months ago, “Used to be that when you needed extra hands you could walk into any decent-sized town and get ‘em off the street.  Now, the kids just don’t know much.”

Ranches are islands of tradition in a sea of Burger Chefs, nail salons, and office towers.

These kids are just having fun, testing themselves as we all do at that age, ribbing each other about failures and slapping hands over successes, exercising a skill they probably learned young – like a friend’s ten year old son at that branding, proud of his father roping calves from horseback and learning the skill of turning the roped calves over and holding them down.  At first he stood back tentatively, trying to look eager but visibly uncertain, but soon he was right in the middle of it, doing his part.

These kids are also a link to a past that grows more and more distant for us as a nation and for each of us as individuals.   Sadly.  It’s a special part of our past – for the country, because the frontier contributed mightily to the distinctiveness of our culture, even after it had disappeared, and for each of us who dreamed in childhood of the West.  Of the wide-open spaces, starry skies, and horses we still enjoy here in Doña Ana County.

Do these kids know that what’s usual for them ain’t at all usual for most of the population?  I haven’t asked, but  have guessed that in the way they walk I see at least a hint of defiant pride that they’re practicing these old-time skills in their walk and manner.

But mostly they’re intent on doing what they’re doing, and on doing it better today than yesterday.  By the way, their last rodeo here this spring will be April 26-28.

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[This column appeared today, Sunday, March 31 in the Las Cruces Sun-News.  There are a variety of photographs from the rodeo practice arenas below, if  you page down past this blog -- or click on Riding and Roping II and Riding and Roping I ]

Note: If it's geographically and otherwise convenient, and you're interested, in April I'll be showing photographs from Japan at the Aralia Gallery.  The images were shot in Japan last April, during Cherry Blossom Season, though they're not all of cherry blossoms.  Some feature a monastery, rickshaws, kimonos, and other traditional aspects of the culture there.  The show opens Friday, April 5, and I'll be there from 4-9.
The gallery is at 224 North Campo, just North of Las Cruces Avenue -- across Camp from the parking lot of the old city hall.

I'll be showing photos from Perú at the Branigan Cultural center from June 7th through July 27th.  In 2008 I spent more than six months driving around Perú, mostly in relatively untraveled areas.  It was a wonderful experience, and some of the images are worth a look -- not because I'm any great photographer, but because I was lucky enough to be in some beautiful and remote places most people don't get to.  On Saturday, June 22nd, at 1 p.m. I'll show slides of additional images and talk about the journey with whoever's there.]

Riding and Roping II

The bulk of this post is more recent images of young folks riding and roping.

I should mention again the upcoming photo show of some of my images from Japan during Cherry Blossom Season (though few of the images are actually of the cherry blossoms, while others feature monks, kimonos, rickshaws, and other people and things reminiscent of old Japan.  Show opens at Aralia Gallery on April 5 -- we'll be there 5-9 p.m..  That's at 224 North Campo Street in Las Cruces.   

That is, of course, a very different world from the one below.

To me, of course, they are no different.  Just a world surrounding me, waiting to be turned into images.  Like a llama or an alpaca or a yak grazing all over the valley in search of nutrients, I graze all over the world ingesting images, with no more real thought or conscious purpose than the yak.  "Don't make me no never-mind," as they used to say in another long-ago world I knew.

And both the Japanese and the rodeo riders are a whole lot more polite than I normally am.

Each world, too, has one foot in the past and one in the present.  That's obvious in the images of Japan.  It's also true in the rodeo ring.  These young folks are very much of the present, not only in their spirit and energy but with their cell-phones and such.  What they are doing is very much of the present, preparing for imminent competitions.  But the West, and the ranches where you grow up learning to ride and rope, are stubborn islands in a modern sea filled with fast-food restaurants and office towers.  As a rancher was saying to me months ago before a branding, in earlier times when you needed extra hands you could go into any decent-sized town and grab off the street young guys who knew how to ride horses and drive cattle and rope anything that moved.  Now, he said sadly, it just ain't so anymore.  

Our frontier is part of us, as a people, and the West is part of many of us, from boyhood dreams; but we lost  the frontier more than a century and a quarter back, though it's still a strong influence; and my boyhood dreams were nearly as long ago.  What these young folks are doing is plenty of fun, and exhilarating, but it's also something I'm glad someone is still doing.  

Note: to view as slide show, click on first image [ or double-click ] and then use arrows to move through the enlarged images.  Please also note that a half-dozen earlier images were in the March 14 post -- to reach 'em, just page down through the newspaper column below.  Also: if you're in one of these images, and either want a copy or want me to take it down, please let me know.  If you're not in one of the images, but want to purchase one or more, contact me.

A Question Regarding County Management

When a county gets sued, it hires lawyers to represent it. Normally, the county’s risk management official consults with county counsel and the New Mexico Association of Counties (NMAC) to select a lawyer. That lawyer then reports to the risk management person or in-house lawyer.

But suppose the county counsel is kind enough to agree to handle some of the cases himself, at $150 per hour, and NMAC appoints him. He’s then in the ethically challenging position of overseeing his own work.
As a county official, can he judge his performance as trial lawyer objectively? If the county loses a big case,  how does he evaluate whether the county should sue pat him on the back for a good try or sue him for malpractice?

The outside lawyer defending Doña Ana County in Slevin was County Counsel John W. Caldwell.

I am not saying that he committed malpractice, or that even Clarence Darrow could have won the case.
But serious questions were raised more than two years ago about the situation.

In Alvarado, the plaintiff was a deputy sheriff who drove his patrol car into an irrigation ditch. He claimed he’d been chasing a speeding car. A witness saw him drive into the water but saw no other car. He was terminated, and sued the County.

Sounds like a strong case for the County. Mr. Caldwell wrote on April 15, 2010 "Discovery is over. I think we should prevail at trial."

The County did not even get to trial on the procedural due process claim. The court granted plaintiff summary judgment because although Mr. Caldwell knew that the fired deputy was represented by a lawyer, the County sent an arbitration letter to the man without sending a copy to his lawyer. Mr. Caldwell says the Law Department didn’t send the letter, that Human Resources probably did – and also questions the court’s decision, noting that the plaintiff was a union-member with the assistance of the union, which was obligated to advise him..

The case settled for $42,000.

When an attorney or client misbehaves, the judge can order that client or attorney to pay money, including reimbursement of attorney fees.

In Bravo, the strip-search class action, the County was sanctioned $7,394 because Mr. Caldwell didn’t inform the judge or the opposing lawyers who traveled here for a pointless settlement conference about an settlement idea that the County Commissioners had decided against six days earlier. The Court based the sanction on "the total failure of defense counsel to notify Plaintiffs before the settlement conference."

Mr. Caldwell, who received more than $150,000 for his work on Bravo, disagrees with the order. He notes there had been no order that the county notify anyone, and also that the sanctions were against the county, not against him personally.

Sanctions and plaintiffs’ summary judgments occur in only a small percentage of the cases where litigants request them.

The County’s risk manager sent a memo citing these facts and questioning the relationship to top county management (but apparently not to the County Commission) in 2010, well before the Slevin trial. County Manager Brian Haines later ordered the risk manager to report directly to Mr. Caldwell. As one outside lawyer put it, "The guy who’s usually your quality-control person is reporting to [Mr. Caldwell.]" Mr. Caldwell says that he was not involved in this decision and that it was made months later, for unrelated reasons.

Slevin resulted in a huge judgment against the County. Mr. Caldwell should not necessarily be blamed for that. If he had some fault, so did many others.

Public documents and private comments raise other questions about Slevin. Shortly before trial, Mr. Caldwell filed an untimely motion asking the judge to recuse herself. She declined, both because the motion was so late and on substantive grounds. After trial, Mr. Caldwell renewed this motion, seeking a new trial. The judge denied it again, accusing the County of seeking "a second opportunity . . . to rehash arguments and to dress up arguments that previously failed." As to one county argument, the judge wrote that "to describe it as a stretch would be overly generous." (Mr. Caldwell says that he did not write the post-trial motion.)

If disqualifying Judge Vasquez was important, the County should have moved for it a year earlier. If it wasn’t a good motion, making it later risked irritating the judge for nothing, Mr. Caldwell says he was acting on instructions both in foregoing the motion early on, when it would have been clearly timely, and in filing it later.
More importantly, it appears that Slevin could have been settled before trial within insurance policy limits. It wasn’t. Hindsight is 20-20, so I’m reluctant to second-guess the county here; but there’s a strong appearance that the County didn’t take this case as seriously as it should have.

Even if Mr. Caldwell did a top-notch job on Slevin, the situation isn’t healthy. Although management received an independent legal opinion that the arrangement didn’t violate law or ethical rules, it’s unwise. Having an in-house lawyer help commissioners or management evaluate what the trial lawyer is telling them is important. County counsel or a risk manager can independently evaluate the trial lawyer’s work. They can help keep that work excellent and help the trial lawyer advise decision-makers clearly and effectively.

This unfortunate situation is part of a wider county management problem I’m looking into.

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[The foregoing column appeared in the Las Cruces Sun-News this morning, Sunday, 17 March, headlined "County Counsel Shouldn't Also Be Handling Court Cases."  (Probably a better title than the one I typed in above.)  Since I uploaded a not-quite-final draft, there may be minor differences between the column as it appeared in print and the column as it appears above. 
Anyone interested in reading further should go to the Sun-News web-site and read Diana Alba Soular's article.  She gives a good, balanced account, including quotes from an interview with Mr. Fridenstine (the former risk manager mentioned above) and, with more space thant there is in a column, was able to quote extensively Mr. Caldwell's views, which (not surprisingly) differ substantially from mine.   Secondly, to anyone who looks to this site Sundays to read my column, apologies.  I was in the mountains, far away from newspapers and my computer, until this evening.]

A major point Mr. Caldwell makes in rebuttal to the foregoing is that not every entity (public or private) has an in-house counsel or can afford one.  That's true.  However, I'm not sure a large and growing county like Las Cruces should adopt questionable procedures just because some smaller counties may do so or have to do so; and if you have Mr. Caldwell, an experienced litigator, as in-house counsel, and a long list of $150/hr. trial counsel, why wouldn't you rather have someone else handling a major case and Mr. Caldwell coordinating with him or her as needed?  There are several good reasons you'd want to separate the roles, as most any experienced trial lawyer can tell you.

In any case, this is (regrettably) not the only question I have right now about county management.  I'm hearing some allegations that are too consistent and too credible to ignore, and I'm trying to check them out.

Meanwhile, on the drive back we crossed White Sands Missile Range just before sunset and saw not even a single hawk.  Used to be, as our friends kept mentioning during the drive, you'd see a hawk sitting on about every sixth telephone pole, scouting for supper.  If I had time (and more columns) I'd write one called "Where Have All the Hawks Gone?" -- a question we also heard discussed at a recent Audobon Society meeting we attended.

Riding and Roping

Shot the roping and riding images below one afternoon this week.  Fun.

P,S.: Show of images from Japan at Cherry Blossom season opens April 5, 5-9 p.m.. at Aralia Gallery, 224 North Campo St.

Very different world from those below, I guess.

Some Thoughts on the Current NM Legislative Session

The present legislative session in Santa Fe has seen some sensible bills and some startling idiocies.

Proposing a pipeline carrying water from the Gila River to our area is beyond stupid, economically and ecologically.  It would destroy one river valley, cost zillions of dollars, and barely impact our long-term water problem.

If the bill is meant to spur folks over by the Gila to assert water rights that might otherwise go to Arizona, there’s gotta be a better way.

On sensible side, HB 286 would modernize penalties and fees oil companies pay.  The fees were set in 1935 - when the average annual wage was $1,108.   A dollar in 1935 was equivalent to about $16 now.  I’m not allowed to pay my speeding fines at 1935 rates.  (HB 286 would also strengthen enforcement by moving away from “self-enforcement” – the coyote guarding the chickens method.)

I liked Jeff Steinborn’s proposal (HJR 9) to have the UNM and NMSU Board of Regents consist of three elected and two appointed regents, plus a student-chosen student member and a faculty member chosen by the regular regents. (I’d prefer the faculty have some say.)

Rep. Mary Helen Garcia has publically explained her recent committee votes  against proposed constitutional amendments regarding same-sex marriage and the minimum wage.

Garcia explained that the legislative process should be respected, that it provided the best chance for citizen involvement, and that the constitutional amendatory process should be reserved for rare cases that require it.

Folks often use such “process” arguments to justify a vote that’s against fairness or likely to be controversial, but we don’t need a 600-page constitution.   Initiatives and constitutional amendments are great populist tools, but their overuse can be disastrous.  Citizens end up with too many ballot issues, most generating  battles between expensive, superficially persuasive, and wholly misleading TV commercials.

The minimum wage amendment would protect poor folks against inflation; I’d prefer that; but leaving the legislature free to decide when changes are warranted isn’t unreasonable.  I hope Rep Garcia votes for HB 416 (a one-time increase from $7.50 to $8.50) and that the Legislature will remove the amendments that would substantially limit its affect.

Gay marriage isn’t subject to changing economic factors and trends.  There’s a simple progression: marriage was once permitted only between a man and a woman of the same ethnicity, then was broadened to include mixed marriages, and will eventually include same-sex marriage.    Each year, same-sex marriage is favored by higher percentages of poll respondents , and recognized by more states.  As old fogies die off, the “controversy” will eventually evoke yawns.  New Mexico should get on with marriage fairness now.

The only two arguments against gay marriage are that “it wasn’t done in the past” and that “God doesn’t like it.”  Both arguments supported anti-miscegenation laws.  The argument based on God’s views doesn’t pass Constitutional muster, given our deep commitment to separation of church and state.  Jesus’s views on the subject unclear.   If God doesn’t like same-sex marriage, s/he doesn’t have to enter into one – or officiate at one.   HJR3's proposed amendment specifically protects religions that disapprove of such marriages from having to celebrate them.

  Reducing penalties for recreational use of marijuana makes sense.   Jail sentences for folks with small amounts are stupid: people doing no harm end up in jail, and taxpayers’ dollars feed, house, and guard them at a time when we must reduce unnecessary governmental expenditures.  (Would you rather educate kids or put hippies in jail?) This is one both leftists and the Tea Party ought to support!

The House Consumer and Public Affairs Committee voted along party lines to recommend HB 465.  Republican Jason Harper is worried that with lighter penalties more people would drive under the influence of marijuana.

That’d beat having folks drive drunk.  Back in the 1960's a Scientific American article pointed out the vast difference: drunk drivers are more impaired than stoned drivers; and as the hours pass, the drunk driver’s impairment grows, while the stoned driver’s driving improves.  Many of us have witnessed this.  Democrat Emily Kane, a legislator and professional firefighter.  She says she’s responded to many accidents caused by alcohol, but none caused by marijuana.

Governor Martinez opposes liberalization; but a majority of New Mexicans favor small civil fines and no jail time for marijuana possession, while a narrow 52% majority favor legalizing grass for adults, and then regulating and taxing it.

And the two hot issues of holding back third graders and giving drivers’ licenses to undocumented foreigners?

Regarding third graders, I don’t see this as a one-size-fits-all cookie-cutter, or whatever other banality you want to throw at it.  Kids certainly ought not to progress very far in school without becoming literate; but some sensitive or slow-developing kids could be psychologically damaged by repeating a grade, when some of them would probably catch up to their companions in a year or two if promoted.  I’d encourage schools to limit “social promotion”; but neither social promotion nor holding kids back is the right answer in every situation.

I’m not sure why the driver’s license is such a big deal, either way.

It makes some sense to give them licenses and make them insure their cars.

I also favor making restaurants selling out-of-state chile confess that mortifying fact on their menus.  Since the House approved that one unanimously, it’s probably unnecessary to opine on that.  But, jeez, I love our chile!


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[The column above appeared this morning, Sunday, 3 March, in the Las Cruces Sun-News, under a livelier headline: "The Good, the Bad, and the Ugly in the NM Legislature."]

Time will tell whether the column is overly kind to Mary Helen Garcia.  Votes against letting the people vote on amendments for same-sex marriage and a minimum wage that rises with inflation, as well as sponsoring the unsuccessful try to mandate holding kids back in the third grade if they don't read at a specified level, she does seem out-of-step with her party and much of her constituency.  

The rationales offered in her written explanation vary.  I'm not sure I agree that legislation -- rather than letting us vote on an amendment -- offers the best opportunity for citizen participation.  On the other hand, a "sound off" comment this morning criticized her statement that she believed constituents elected her to use her own judgement.  In general, I'd agree with her.  Part of the idea of having legislators is that it's too cumbersome to have everyone vote on everything, because if we all took the time to get educated regarding each issue, we'd never have time to make shoes or write columns or grow chiles.  Therefore we elect folks we trust and respect, and who share our values generally, and I agree with her that she should vote what she thinks is right, not what her constituents necessarily want, particularly on complex issues that not all of her constituents understand.   I would also urge her to use her judgement to vote for fairness and equality, even if her constituents were no sufficiently enlightened to share that judgement.  It's specifically her judgement with which I disagree here; and equal access to marriage ain't such a complex issue that she knows more about it than we do.

If you're interested in reading the texts of some of the bills discussed in the column, here's some help.  Checking on a few details for the column, I found myself at Legiscan, which seems a convenient place to learn sponsors, details, and the status of a bill or resolution -- in any state or in Congress.   Conveniently, you can search by bill number or key words.   At any rate, the following are links to download as pdf's the texts of bills you may want to read through:

For example, to download the full text of HB 286 click on its name and, in the new window that comes up, click on the orange text following the word "Download."  You can then view, print, or save the full-text.

To read SB 416, raising the minimum wage from $7.50 to $8.50 per hour, click on: SB416

HJR6: http://legiscan.com/NM/text/HJR6

To download full text of HB 426, click on HB 426 . Similarly:

HJR3

HJR6

HJR9

Or for any other legislation, just go to the Legiscan site and search by the bill's name or a key word.