A Plea From Dona Ana County

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A. Case No. 31053  The first of the six cases had two parts .

The petitioner alleged in a neat penmanship an " inability to comprehend the English Language at the arraignment and during the trial. "The lower court did not address the Fact that no attorney used an interpreter prior to trial or For discovery. No copy of the indictment was provided in Spanish. There was no interpreter at the June 27, 2005 arrainment. (sic) No interpreter is identified by the transcript. The transcript identifies an unknown female speaker who claimed the petitioner waived his right to arraignment. This is not true.

The second part of the petition concerned "the ineffective assistance of Counsel claim. " the lower Court ignored all Facts concerning the language problems asserted in the habeas corpus."Then it continues " The lower Court ignores the importance of two alibi witnesses. The Court proffers that the Petitioner does not know their testimony. The point is defense attorney did not know either. The attorney had no obligation to actually interview these two people. Without the investigation, Counsel cannot make legitimate trial decisions. These would testify to the Fact that the Petitioner was not present at the time of the crime, but somewhere else.

The record indicated a response including an "order summarily dismissing petition for writ of habeas corpus". It included a recitation that the "defendant was charged with Kidnapping in the First Degree, Battery Against a household member, and interference with communications. The District's summary order goes on to state that the Defendant was sentenced on the same day. It furthers that he received his constitutional right at the arraignment and at the trial with respect to the translator issues.

There is also a terse response to the question of effective legal counsel. " 7. The defendant claims that he received ineffective legal counsel because counsel failed to investigate two exculpatory witnesses. 8. However the Defendant does not say who the witnesses are or what they would say. The Defendant merely states he was at a party with a "friend" and a "neighbor". The response than concludes that the habeas should be dismissed because the Defendant has not shown what a reasonably competent attorney would do.

A memorandum to the Court recommended that the effective counsel issue be granted review. It considered the effectiveness of counsel , especially as witnesses were not called , as intrinsically interwoven with the habeas issue. Presumably, when a defendant wants to call witnesses for testimony , he is doing so because they can provide an alibi or a factual accounting to the events. As the Defendant claims a desire for witnesses, it is only reasonable that they would speak to his defense.

The Court therefore granted certiorari. But there seems to be much more to it. The Courts granting of review upon the counsel issue may be correct and arguable as issues before the Court. Effective legal Assistance could be "defined" in several manners. But such limits the totality of circumstances and focuses in a misdirection. First of all, the counsel handling the trial for the Defendant may have thought better of exposing the "friends" to cross examination. While he may have provided a "witness list" and affidavits regarding the incident, the reasonableness in proceeding vital to that question. In light that on the "charge of kidnapping in the first degree", the Defendant was found not guilty, the sufficiency of the trial counsel speaks for itself. Kidnapping was a felony. The Battery against a household member charge--for which he was found guilty-- is a misdemeanor. That he was found not guilty of the "interference with communications" charge ( a misdemeanor) also enhances the position that trial counsel, despite the "language differences" met the threshold of practices as effective. That being the case, that would tend that when argument is all done, and briefings come before the Supreme Court for an opinion, it may well not go to the favor of the Petitioner. As argument, it offers no compelling reason for the Courts intervention and thus restore his liberty--which is his point in filing the habeas.

With a totality of circumstances approach, more than the question presented to the Court can be resolved. There is a more inclusive means for justice.

For example, the language issue and the presentation of the petition in itself presents contradiction. The claim of the necessity for a translator and for translation of the charges to Spanish directly contrasts with the organized and articulated presentation of the Petition for habeas both before the District court and the Supreme Court. It seems obviously written by a separate hand than that of the Defendant if the claim is true--the Defendant does not speak or write in English.

From the origination of the case in Dona Ana county, there may well be merit to the necessity for Spanish translations. According to the US Census Bureau, the characteristics of Dona Ana County , New Mexico shows some characteristics that make the language issue a vital criteria of equal justice. The percentage of people who speak a language other than English in the home is 55% of the population . In this case, it is Spanish. As for the citizenship status, a full 26% of the population are not a US citizen, while 9 % are naturalized citizens, and 64 % are native population US Citizens. 41% of the population that speaks Spanish primarily in the home do not have a high school diploma-- the largest block of educational attainment. 29% of the primarily Spanish speaking in the home fall on or below the Federal poverty level. Of those where the primary language spoken in the home is Spanish, 22% 'speak English less than very well' ( Profiles of Selected characteristics: Factfindfinder. US Census Bureau)

Taking the characteristics of the habeas petition being of another hand ( "jailhouse lawyer") and a likelihood that the Defendant falls within the population that primarily speaks Spanish in the home, the question of translation may be more than "harmless error". In the instant case, the charges appear to be stemmed for a domestic issue, in which the defendant was arrested, and thereafter "charged with kidnapping". This was not spelled out in the arraignment, as the appearing counsel ( no record of appearance) 'waives the reading of charges' and the bond amount then set and the defendant was held over.

There is no construction of the facts leading to the arrest, but the records of the New Mexico courts presents originated in an incident in December , 2003. The trial was held at an 8am morning hearing in June 2005 before a jury. Sentencing done that day was upon the charge of battery of a household member was 364 days, within the authority for a misdemeanor offense. The record then appears a warrant issued with Probation Services in October, 2007 with the originating charges stemming from the 2003 incident date. By that measurement, the current status of the issue and incarceration may well exceed the vitality of prohibitions.

Of course the use of the 'jailhouse lawyer" writing a boiler plate inmate petition is not likely to produce a petition which can substantiate the necessity that language was and is a barrier nor that the current arrest status stems from the 2003 case nor an effective timeline to produce the issuance of a writ.

A summary sheet of events before the District Court shows that "order summarily dismissing petition for writ of habeas corpus " was entered 01/21/08. The criminal charge detail provides: statute, charge, class, charge date , Disposition, and disposition date

30-4-1 Kidnapping (1st Degree) F1 12/18/2003 CRB Dismissed by prosecutor 11/11/2005

30-3-15 Battery Against A M 12/18/2003 CRB:GUILTY/NO CONTEST PLEA

Household Member 11/11/2005

30-12-1 Interference with M 12/18/2003 CRB: Dismissed by prosecutor 11/11/2005

The case Detail notes that on December 10, 2007 a motion for free process was made by the defendant (pro se) for a petition for writ of habeas . The prior event, dated October 10, 2007 shows a "warrant arrest return, warrant for arrest, arrested, reason :to answer charges, Bond $60,000 secured executed 12/23/03.

The next prior event is a certificate of conviction dated 1/13/2006, so it may be measured to the events as they began.

1.

3. 12/19/2003 Criminal Summons issued mailed to Deft Appear 01/05/04 8am

4. 12/23/2003 Warrant issued for Arrest Bond $60000 Answer to Charges

5. 12/30/2003 NCIC Verification Verification of Entry in NCIC

6. 01/05/2005 Arraignment setting Arraignment 8am

7. 01/05/2003 TAP: Arraignment Tape Log Arraignment-Warrant

Date 1/5/04 tape No: 04/11 #1

12. 06/27/2005 Arraignment setting 8am

13. 06/27/2005 Arraignment Hearing date 6/27/2005 tape 5/1737

21. 09/09/2005 Certificate of Disclosure to Inform Cert of Disclosure OBO Deft

24. 09/14/2005 Disclosure Disclosure ADA

25. 09/14/2005 Demand for Alibi/ Entrapment defense Information

26. 09/14/2005 Witness list List of the State's witnesses

28. 11/03/2005 witness list Amended Witness List ADA

29. 11/07/2005 witness list Amended list of State's Witnesses ADA

30. 11/09/2005 Entry of appearance / amended appearance additional ADA

31. 11/09/2005 Certificate of Disclosure of Information

32. 11/10/2005 Cal: Jury trial Setting 1 Day

33. 11/10/2005 Certificate of Jury selection

34. 11/14/2005 Jury Instructions Court's Instruction to the Jury

35. 11/14/2005 Misc. Entry questions to the Jury

39. 11/17/2005 ASM: DV Treatment Fee Count 2-1 Sentenced $5.00

41. 11/21/2005 Stenographic Certificate Proceeding: Jury Trial/ Sentence 11/10/05

42. 11/21/2005 Misc. Entry Questions from the Jury

43. 11/21/2005 Exhibit Receipt receipt for Exhibits Receved State's Exhibit's 1-26

44. 01/13/2006 NTC: Entry of Judgement Notice of Entry of Judgement and Disposition or Sentence

47. 12/10/2007 MTN: Motion for Free Process DEFT Pro Se

4 years. These periods can be identified as:

A. Period of Incident and Initial Arraignment ( Dec.03 -Jan 04)

B. Period of Trial ( June 2005- Nov 2005)

C. Period of Current Incarceration ( Oct.2007- present)

To demonstrate a habeas is proper a defendant must make a showing that the due process rights . The error must be substantial, and effecting the liberty and rights of the citizen in the outcome. That is, it cannot be harmless but of the significance to be of consequence to the fundamental rights of the accused..

The fundamental rights of accused is that no person shall be held to answer for a capital, felonious or infamous crime unless on a presentation or indictment of a grand jury or information filed by a district attorney, or attorney general or their deputies, except in cases arising in the militia when in actual service in time of war or public danger. No person shall be so held on information without having a preliminary examination before an examining magistrate or having waived such preliminary examination. ( NM Constitution Art. II, sec 14.

The initial period of incident and arraignment , along with the judgment would lead to a reasonable premise that in December 2003, the Defendant was involved in domestic event. He was arrested, jailed and thereafter, arraigned. No other activity in the case occurred until 17 months later.

The language barrier may or may not have been vital at that phase. The summons and arrest would lend to a reasonable accused the nature of the charges be that in English or Spanish. At the arraignment there may have been an understanding that it would "go away"; hence the hiatus of prosecution.

"In all criminal prosecutions the accused shall have the right to appear and defend himself in person, and by counsel; to demand the nature and cause of the accusation; to be confronted with the witnesses; to have the charge and testimony in a language he understands; to have compulsory process to compel the attendance of necessary witnesses in his behalf, and a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed. ( NM Constitution Art II, Sec 14).

The second period was initiated when the state appears to have been holding the defendant in custody in unrelated charges. The initiating of the second period with a motion to transport and criminal summons and reestablished itself in an arraignment setting.

In the transition between Period One and Period Two is a substantial question which was not raised in the jailhouse petition. That is the understanding and circumstances of the hiatus of prosecution. The summary record does not list any event such as a motion by the Deft, or a Failure to Appear summons, or a Motion to extend. Simply, over the period of 17 months , for whatever reason , a failure to prosecute. And 17 months without any prosecution exceeds the "180 day rule" assuring that a trial be conducted in a "speedy manner".

As a resurrected charge and arraignment it may well violate that portion of the State constitution which bars putting a person in jeopardy for the same offense. ("double jeopardy") ( NM State Constitution Art II Sec 15).

As for the issue of the translator at the time of trial, the "August 2005, Motion to

Appoint Attorney by Deft" and the subsequent Motion to Dismiss (pro se)" a

necessity of proper translation and counsel. Clearly the record shows that the defendant was in custody on an unrelated issue during the period. That in itself is a barrier to advancing one's defense. Add to that a personal language barrier and the resources at hand, there may well be a translation to the events that the motion, the logical and as is

the petition for writ itself , done of the hand of a jailhouse lawyer reciting a boiler plate

Answer or filing.

The entrance of counsel of record and the appearances of assistance district attorneys

with their motions of standard brand does not help clear the murkiness by any word or deed. Absent specifics in the record with the contrast between the jury finding and record detail "plea no contest' pleading, it is only speculation that the "jury was impaneled, heard some testimony, and thereafter witnessed a plea. From the record, the interpreter request filed a week following indicates that there was a call made for an interpreter, but that the availability was for a different date. The absence of a full interpretation or its availability at this phase of the trial process is much more serious than at the process of the arraignment ( 20 months earlier.) The hearing of the trial before a jury is the most vital of the judicial process-- and its clarity with can be used to confront or question witnesses may well be a significant factor in the determination between guilty and innocence. In the event of a plea agreement arising from the proceedings, the language barrier is direct upon an "informed consent".

As for the quality of the services rendered of the attorney for not calling witnesses, there is the rebuttal that they were not necessary. The counsel may have focused the efforts in the "kidnapping" charge ( which was successful) and not as much upon the battery of household member ( misdemeanor) charge. As it falls within the New Mexico standard of practices of a reasonable attorney, it seems of vitality .

However, there should be the thought that the counsel did not provide objection or

address to the 15 month hiatus prior to the trial and at the onset of his appearance. Time

had expired without any order of extension beyond the 180 rule, much less a second extension. With a 'motion to dismiss for failure to prosecute" , the defendant would not

have faced the trail nor been found guilty.

What is clearer from the petition is that the due process rights and equal protection that the defendant should enjoy includes "Spanish language notices' and "translations of vital course of trial"--and so should enjoy the other 54 % of the population that speaks Spanish in the households of Dona Ana county.