Please Unseat this Judge

Pretend you're a Judge. Now, pretend this predator ends up in your court (subscription):

An Albuquerque man agreed to plead guilty to a dozen child pornography charges, provided that he be allowed to perform his civic duty and vote.

Patrick O'Hara, 66, had been facing 180 years in prison if convicted of the 70 charges of sexual exploitation of children he was indicted on in November.

His son, Timothy O'Hara, 42, was also indicted on 20 similar charges.

If he asked you to let him vote in the upcoming election, would you? Me Neither. Unfortunately, we're not sitting on the bench. However, District Judge Charles Brown is, and here is how he ruled:

Before accepting the plea, O'Hara had a question for state District Judge Charles Brown.

"Prior to your sentencing, can I vote in the June election?" he asked, referring to the June 3 primary election.

O'Hara added that he is "working on" obtaining an absentee ballot.

Brown approved the request, partly because O'Hara is not set to be sentenced until July 16.

There is good news here. District Judge Charles Brown is up for re-election on June 3rd:

State District Judge Charles Brown, also appointed in August, will oppose longtime Albuquerque attorney Gail Prosser in the criminal division.

New judges must stand for the first partisan election following their appointments. After that, they are subject to retention races every six years.

As a Republican, I can't vote against District Judge Charles Brown, but many of you reading can. I don't know anything about Gail Prosser, but if she doesn't think its a good idea to grant special requests to child predators, I'd say she HAS to be better than District Judge Charles Brown.

Forget Commissions and Just Prosecute

An opportunity to follow up on yesterday's post and conveniently respond to Matt Brix's comment (can always count on Matt for civil discourse on the topic of ethics):

Days after he took office in January 2007, Attorney General Gary King told me, through a spokesman, that an investigation of the scandal that toppled most of the state’s affordable housing system in 2006 would be a top priority.

Sixteen months later, some are beginning to wonder.

It’s not that nothing has happened. The AG has successfully obtained court orders to boot three tenants from homes owned by the Albuquerque-based Region III Housing Authority because they didn’t qualify for affordable housing. Two were employees of the authority and one was a board member.

What do you think? Could this have all been avoided if only we had had an ethics commission in place to "provide training for public officials and public employees" involved in this scandal?

Yeah, somehow I don't think so either.

Here's what it boils down to for me. I believe that the vast majority people are good and lead their lives in an ethical manner. They'll find a wallet and return it to its rightful owner. Forget the wallet, they'll find a bag filled with $140,000 and turn it in because they know in their "gut that to keep that money would be wrong."

Unfortunately, there are those that choose to ignore their gut. Those people are criminal. Those people should be prosecuted and thrown in jail. We don't need a commission to educate them on what is ethical, we need a prosecutor willing to do their job.

Matt, my friend, the people's government can be held accountable every day. We don't have to wait until an election. We can draw attention to prosecutors who fail to prosecute. We can shine a spotlight on those who conduct their unethical behavior in the shadows. We can even demand justice.

But, what we must not do is create yet another government commission that makes people feel like they don't need to be diligent and civilly active because of the assumption that some third party is going to take care of it for them. Just because many other states have chosen to rely on this crutch, does not make it right.

Why It Makes a Difference Who Becomes President

A recent decision by the U.S. Supreme Court is a harsh reminder of exactly what is at stake when electing the next President of the United States.

The Supreme Court ruled Wednesday in a New Mexico case that convictions for drunken driving do not count as violent felonies for enhancing prison sentences.

The justices, by a 6-3 vote, said even though great harm can result from drunken driving, it is different from other crimes that involve purposeful action. Justice Stephen Breyer wrote the majority opinion.

"Great harm can result from drunken driving?" There's an understatement. Death occurs from drunken driving, and the more times someone drives drunk the more likely death is to occur. Exactly, how many times did Larry Begay drive drunk? Well, we know by examining the Supreme Court decision (pdf) that...

At the time of this incident, petitioner was a convicted felon. He had 12 prior convictions in New Mexico for driving under the influence of alcohol (DUI). While DUI is generally a misdemeanor under New Mexico law, the offense of DUI after at least three prior DUI convictions isa felony requiring a sentence of 18 months’ imprisonment. N. M. Stat. Ann. §66–8–102(G) (Supp. 2007).

And, according to Judge Alito's dissenting opinion the Supreme Court decision also had the following statistics available to them at the time of the decision:

Statistics dramatically show that driving under theinfluence of alcohol is very dangerous. Each year, approximately 15,000 fatal alcohol-related crashes occur, accounting for roughly 40% of all fatal crashes. Approximately a quarter million people are injured annually in alcohol-related crashes. The number of people who are killed each year by drunk drivers is far greater than the number of murders committed during any of the crimes specifically set out in the statutory provision at issue here,§924(e)(2)(B)(ii)—burglary, arson, extortion, and offenses involving the use of explosives.

Petitioner’s qualifying offenses, moreover, fell within the statute only because he had been convicted of DUI on at least three prior occasions. As noted, petitioner had a dozen prior DUI convictions. Persons who repeatedly drive drunk present a greatly enhanced danger that they and others will be injured as a result. In addition, it has been estimated that the ratio of DUI incidents to DUI arrests is between 250 to 1 and 2,000 to 1.6 Accordingly,the risk presented by a 10th, 11th, and 12th DUI conviction may be viewed as the risk created by literally thousands of drunk-driving events. That risk was surely “serious,” and therefore petitioner’s offenses fell squarely within the language of the statute.

This repeat drunk driver was a violent crime waiting to happen. Actually, considering what brought him to court in the first place, it was only by a sheer stroke of luck that Larry Begay did not commit a violent crime:

In September 2004, after a night of heavy drinking,petitioner pointed a rifle at his aunt and threatened to shoot if she did not give him money. When she replied that she did not have any money, petitioner repeatedly pulled the trigger, but the rifle was unloaded and did not fire. Petitioner then threatened his sister in a similar fashion.

So, when you think about it who to elect as President, remember, they get to select the judges to fill open Supreme Court slots.

Making Business the Scapegoat

I think what happened to Elizabeth Garcia is terrible, and I truly feel for her children who have had their mother taken from them in such a brutal way. However, I don't understand how a business is held accountable for the actions of a criminal:

Jury deliberations in the case began Monday. Minutes before the jury was to award Elizabeth Garcia's three children $51 million in damages, Ortiz told jurors the parties had reached a settlement.

Allegra Carpenter, an attorney representing the children—Xavier Mendoza, 13; Jerome Mendoza, 11; and Cene Mendoza, 10—said the terms of the settlement are confidential.

Garcia was working alone overnight in January 2002 when she was abducted from the Hobbs store and later found dead, with more than 55 stab wounds. According to the lawsuit, she had been raped.

Attorneys for Garcia's family said Allsup's failure to protect clerks working the graveyard shift make the near-minimum-wage jobs the most dangerous in New Mexico. They had asked the jury to award $60 million in damages.

The criminal in this case went on to do this again:

Paul Lovett, 27, was accused of killing Elizabeth Garcia, 26, in January 2002, and Patty Simon, 35, in May 2003. He was convicted last month of first-degree murder in both cases and of criminal sexual penetration in the Simon case.

Allsup is a convenient scapegoat for society's anger against the criminal element, but I just don't understand how we can hold a business responsible for a criminal's actions. The attorney for the children in this case argued that this all could have been prevented if there had only been two clerks on duty instead of one. You don't have to search far to know that is not the case. Predators will commit crimes and holding a business responsible is just wrong.

NEVER Should Have Been Prosecuted

Yet, another case that should have NEVER been prosecuted:

The clerk accused of selling alcohol to an intoxicated Dana Papst shortly before a deadly crash that claimed six lives was found innocent by a Sandoval County jury Wednesday.

Shanna Renee Lovato, 31, sobbed when the six-person Magistrate Court jury, four men and two women, returned with the verdict after deliberating 11/2 hours.

Lovato was suspected of selling Papst a six-pack of beer at the Chevron Redi-Mart in Bernalillo before he drove the wrong way on Interstate 25 east of Santa Fe and hit a minivan, killing five members of the Gonzales-Collins family. Papst also died. The wreck occurred in November 2006.

What befell the Gonzales-Collins family is a tragedy. However, there are only two parties to blame here, Papst and our legal system. Papst was a menace to society and the death of this family was completely preventable had he been where he belonged, behind bars:

Papst was convicted of auto theft in 1984 and of driving while intoxicated four times -- in Adams County in 1982, in Westminster in 1987, in Adams County in 1990 and in Eagle County in 1991. His license has been suspended numerous times for other driving offenses; he was cited 12 times for speeding, driving with a suspended license and equipment violations, among other things.

Instead, the state decides to try to make everyone else responsible for preventing the actions of criminals - everyone, but the criminal. Of course, the irony of all of this is that in an unrelated case one man is being sent to jail for preventing future criminal actions by a habitual criminal.

The Bigger Threat to Society

Now you tell me who is the bigger threat to society? The decorated marine that the District Attorney's office had thrown in jail for protecting his family and his property or the six-times-convicted drunken driver (subscription) STILL swerving around on our streets :

Ignition interlocks are supposed to keep convicted drunken drivers off the road if they drink any alcohol.

That didn't happen Saturday night, when a six-times-convicted drunken driver got behind the wheel of his interlock-equipped pickup, started it and hit the streets.

Dan R. Gallaher, 38, of Albuquerque was driving with a blood-alcohol level more than twice the presumed level of intoxication when police pulled him over on Montgomery NE, according to a criminal complaint filed at Bernalillo County Metropolitan Court.

Gallaher has six prior DWI convictions, according to the New Mexico DWI Resource Center. He had an ignition interlock and an interlock license, the criminal complaint says.

Of course, the District Attorney's office is more interested in sending "messages" to law abiding citizens than to protecting us from criminal predators:

Noting the victim's two prior burglary convictions and making reference to recent car theft statistics, [Assistant District Attorney Theresa Whatley] said the court should send a message to people about being overly zealous in protecting their property.

Well, I think the District Attorney ought to take a close look at what people are saying about this message. The District Attorney has gotten a free ride for too long:

"I feel like I'm in Heaven," exclaimed a giddy Bernalillo County District Attorney Kari Brandenburg from her downtown ABQ office . She was giving me her reaction to the news that she will have no Dem primary opponent and no General Election foe either. A free four year ride is a rarity in the high-profile DA's job, and Kari was relishing the moment.

This is an elected position and the escalating crime rate combined with the persecution of heroes is a wonderful reminder of why it is an elected position.

Based on a press release I received late yesterday afternoon, it looks like we are going to be able to do something about the ongoing failures of this office:

Lisa Torraco today announced her candidacy for the office of Bernalillo County District Attorney.

"I can not in good conscience stand by and watch as our legal system continues to fail those it is designed to protect and prosecute those whose greatest crime is protecting their families and property from criminal predators," Torraco stated during a press conference on the steps of the District Court.

At a recent Crime Convention Conference sponsored by the Greater Albuquerque Chamber of Commerce, it was noted that everyday 17 houses are broken into and every 95 minutes a car is stolen.

"Crime is an ever increasing problem in our city," added Torraco. "Yet, the District Attorney's office is focusing their efforts on sending message to law abiding citizens that it is not okay to protect their families by throwing a decorated Marine behind bars for protecting his family from being burglarized by a twice convicted felon.

"The DA zealously pursues cases against law abiding citizens and dismisses others against repeat offendors – there seems to be no rhyme or reason." Torraco adds "The police are doing their jobs, we deserve a District Attorney that does hers.

"I am stepping up to the plate to do the job that needs to be done. I live here, I'm raising my children here, and I will fight to throw criminals, not heroes behind bars."

Lisa Torraco is a 1991 graduate of University of New Mexico School of Law. Upon graduation Torraco worked as an assistant district attorney for the Second Judicial District. In 1993, she worked for the Santa Fe District Attorney's office where she was appointed to lead the Child Abuse Division for Santa Fe, Rio Arriba and Los Alamos Counties. A career prosecutor, Lisa Torraco has prosecuted all levels of felony and misdemeanor cases and was awarded "New Prosecutor of the Year" in 1993.

Disclosure: I have signed Lisa Torraco's petition to get on the ballot and had the pleasure and honor of joining her on the Jim Villanucci show yesterday afternoon during the 3:00 hour.

Three Strikes You're Out

Our legal system is broken when an honorably discharged veteran is sent to jail for protecting his private property from being burglarized by a twice convicted felon (subscription):

Elton John Richard II made split-second decisions— good ones— as a member of an elite Marine reconnaissance unit clearing towns ahead of the invasion of Iraq in 2003.

But District Judge Albert "Pat" Murdoch ordered Richard to spend two years in a New Mexico prison Friday for a decision that propelled him into a fatal pursuit of a man he thought was breaking into his home in 2004.

Richard, then working a Department of Energy courier with a Q clearance, fatally shot Daniel Romero, 34, after chasing him from his yard to Paseo del Norte.

That was taken from a Journal article over the weekend. Today's article makes it even clearer that sending Mr. Richard to jail is nothing short of a travesty of justice (subscription):

Police later located a friend of Romero's, who told them he needed parts for his Bronco and dropped off Romero in the neighborhood with a screwdriver and a hammer thinking he was going to steal a Bronco.

According to a police report, the friend parked on the street near a Dumpster and saw Romero come running from a house where a Bronco was parked in the driveway with a man running after him "beating him up."

Confirmation that there was criminal intent and the twice convicted felon was indeed caught in the act of burglarizing the private property of a law-abiding citizen - a citizen who had put his own life on the line numerous times in service to our country. Service to insure that we have the right to protect our private property.

How is this service repaid?

Assistant District Attorney Theresa Whatley said the case was one of a good man doing a bad thing.

Noting the victim's two prior burglary convictions and making reference to recent car theft statistics, she said the court should send a message to people about being overly zealous in protecting their property.

It's time to send a message to the District Attorney's office that criminals belong in jail, not people protecting their property.

Judicial Travesty

It's a sad day when justice takes a back seat to the law (subscription):

A Bernalillo County district judge ruled Monday that Albuquerque police illegally searched the home of Ronald Santiago, who is accused of killing the couple in their home in August 2005.

A bullet casing found in Santiago's South Valley home connected him to the double homicide.

Santiago was indicted in August 2006 on two counts of first-degree murder and other charges in connection with the deaths of John and Bernadette Ohlemacher, both 46.

The couple were found shot to death in their bedroom early in the morning.

Judge Albert S. "Pat" Murdoch said APD's search was illegal because it was executed after 10 p.m. with a daytime warrant. Searches after 10 p.m. need special authorization from a judge.

Gee, thanks Judge Murdoch.