The Second Judicial District Attorney’s Office has filed a petition for an extraordinary writ, asking the New Mexico Supreme Court to overturn a trial judge’s ruling allowing a defendant in a murder trial to cross-examine a prosecution witness with the results of a polygraph examination, according to this report by Scott Sandlin in the Albuquerque Journal.
The DA’s Office contends that Ronald Santiago murdered John and Bernadette Ohlemacher in 2005.
Yesterday the United States Senate confirmed U.S. Attorney Kenneth Gonzales as a federal district judge in New Mexico. Michael Coleman has this report in the Albuquerque Journal, and Main Justice, a news site that focuses on the inner workings of the Department of Justice, has this report.
Congratulations to Judge Gonzales!
The Carlsbad Current-Argus has this report about a non-precedential opinion (State v. Lopez) issued last week by the New Mexico Supreme Court, affirming the first-degree murder conviction of a former Mexican police officer who killed a man in Carlsbad in 2009.
District Judge Alan M. Malott has this interesting article in the Albuquerque Journal about last week’s New Mexico Judicial Conclave.
The state’s judges heard from several experts on neuroscience and human behavior on how recent advances in scientific knowledge affect our understanding of culpable behavior, and the implications for human privacy. These are difficult issues that all judges, and many lawyers, will have to face, despite the fact that most of us in the legal community are not trained scientists. I think it is commendable that our hard-working state judiciary was able to spend some time thinking about these issues.
Last week, in Lockheed Martin Corporation v. Administrative Review Board, DOL (June 4, 2013), the Tenth Circuit, in an opinion by Judge Michael Murphy, dealt a blow to business interests who had been arguing for a narrow interpretation of the whistleblower protections in the Sarbanes-Oxley Act.
The case has garnered widespread attention, and here is round-up of links to stories about it:
“Sox And Whistleblowers — Any Fraud Will Do” by Catherine Foti at Forbes.
“Tenth Circuit Gives Another Win to Sarbanes-Oxley Whistleblowers” at the Whistleblower Law Blog.
“Tenth Circuit Upholds Broad Definition of Sarbanes-Oxley Protected Activity” by Jason M. Knott at the Suits by Suits blog (which is one of the best names for a blog we’ve come across in a long time).
“Lockheed Martin Did Not Protect Its Whistleblower, Says 10th Cir.” by Betty Wang at the FindLaw 10th Circuit News and Information Blog.
“Tenth Circuit Issues its First Decision Interpreting SOX: Offers Broad Reading of the Act” at Orrick’s Employment Law and Litigation Blog.
“Former Lockheed employee wins third round in whistleblower case” by Ned Hunter at the Colorado Springs Gazette.
The National Chamber Litigation Center’s page about the case is here.
If you are in need of CLE credits, and would like to visit the lovely Tenth Circuit, Justice Antonin Scalia and Professor John S. Baker, Jr. will be teaching a CLE course on the Separation of Powers on August 22-23, 2013 at the St. Regis Deer Valley in Park City, Utah.
This CLE seminar is being sponsored by the Federalist Society, and is open only to current, dues-paying members of the Federalist Society. If you are not a member and want to attend, the registration page provides information on how to join the organization.
Today the New Mexico Supreme Court issued the following decisions:
1. State v. Davis. In an opinion by Chief Justice Petra Jimenez Maes, the Court held that 72-year old defendant Norman Davis voluntarily consented to a search of his property for marijuana, despite the fact that six or seven heavily armed law enforcement officers carrying A-15 semi-automatic weapons confronted him while a police helicopter hovered overhead, and his home was surrounded by government vehicles to create a secure perimeter.
This case has previously received negative attention from critics of the Drug War due to the over-the-top, military style nature of the raid (see this post from the libertarian Hit & Run Blog, and this story by Vic Vela in the Albuquerque Journal from 2011).
UPDATE (June 14, 2013): Tom Sharpe has this story about the Supreme Court’s decision in the Santa Fe New Mexican.
UPDATE: (June 19, 2013): Mark Oswald has this story about the case in the Albuquerque Journal.
2. State v. Gurule. The Court held that where police learned that defendants were accessing child pornography over the internet, and obtained a warrant to search their home for evidence, the warrant allowed police to search images on a camera found in the home. The Court also held that certain out-of-court statements made against the defendants were not offered in violation of the Confrontation Clause, but remanded with instructions to determine whether those statements were admissible under the Rules of Evidence. This opinion was also written by Chief Justice Maes.
UPDATE: (June 14, 2013): Scott Sandlin has this report about this search & seizure decision in the Albuquerque Journal.
3. In re Naranjo. The Court held, in an “Opinion and Public Censure” written by Justice Charles Daniels, that a 90-day suspension would be imposed on Socorro County Magistrate Judge James Naranjo. When his stepson was arrested for nonpayment of child support, Judge Naranjo contacted the judge presiding over the case ex parte and asked that he reduce the stepson’s bail or release him from jail. This case also has been the subject of attention from the press (see this story by Laura London in the Socorro Defensor-Chieftain).
Yesterday, in State v. Schaaf, the New Mexico Court of Appeals affirmed a father’s conviction for “negligent child abuse by endangerment.” Five-year old triplets lived in the home, along with a teenager. In upholding the conviction, Judge Cynthia Fry‘s opinion notes that the parents kept several loaded and unsecured firearms in areas where the children were frequently present, frequently smoked methamphetamine around the house, left drug paraphernalia (such as used needles) around the house, and maintained (if that’s the proper word) their home in a state of disorder.
In addition, the sufficiency of the evidence was supported by the fact that the parents could not even exercise basic criminal skills, like trying to hide the evidence against them. Although they took five minutes to answer the door when police came calling, “they were unable to conceal the signs of their methamphetamine use, drug paraphernalia, or firearms from view of the officers, even where they seemed to take the time to do so before answering the door under threat of arrest.” The Court took this as a sign of the parents’ “impaired judgment.”
In State v. Rael-Gallegos, the defendant was convicted of possession of cocaine with intent to distribute. Defendant contended that the cocaine in her possession was for her personal use, not for distribution. At trial, the State presented the expert testimony of a police officer to show that the quantity of cocaine, and other evidence (e.g. $520 in cash, three cell phones) pointed to an intent to distribute.
The defendant challenged the admission of the police officer’s testimony on appeal, arguing that it failed to satisfy New Mexico’s Daubert/Alberico standard for the admission of scientific evidence, because the officer did not rely on published studies, and that her methodology was flawed.
In rejecting this argument, Judge Jonathan Sutin explained that the Daubert/Alberico standard did not apply to the police officer’s testimony, which was based on the officer’s experience, not on any application of the scientific method. Rule of Evidence 11-702 allows an expert to be qualified on the basis of experience. Judge Sutin reviewed the officer’s extensive experience (see Paragraphs 21-25), and held that the officer had sufficient experience and knowledge to qualify under Rule 11-702.
The decision makes eminent sense, because not all expertise consists in applying the scientific method to a subject. But if you disagree, please feel free to leave a comment and tell us why!
Dry ice bombs may be illegal at Disneyland, but not in New Mexico. That seems to be the lesson of the Court of Appeals’ recent decision in State v. Alverson.
When Alamogordo police searched Kevin Alverson’s car, they found two bottles of dry ice and two gallon jugs of water. Combining the two in a bottle can generate explosive gases. But police did not have to speculate about Mr. Alverson’s intent, because he admitted that he and a friend intended to go detonate them out in the desert. Mr. Alverson’s day of fun came to an abrupt end, as he was arrested and charged with possession of an explosive. Continue reading
