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Election 2012

It’s been a while since I’ve written anything, so decided to just jot down some thoughts on the 2012 election:

Locally: It was a virtual coup d’tat at the Third Judicial District courthouse in Dona Ana County. First and foremost, District Attorney Amy Orlando was unseated by challenger Mark D’Antonio in what was probably the most contested local race in recent memory. Also gone are Judges Riedel, Goodin, and Palomino. All were appointed to their positions by Governor Susana Martinez, formerly District Attorney of Dona Ana County. Obviously the local Democrats came out to vote and took the county courthouse back. I believe nearly all of the state district judges here in Dona Ana County are Democrats and I think the only county office still held by the Republicans is Sheriff.

Statewide, it was a very bad night for Governor Martinez and the Republicans. Heinrich defeated Wilson. Martinez’s other judicial appointees to the Supreme Court and Court of Appeals were similarly voted out of office. And there’s the aforementioned disaster in Dona Ana County. It will be interesting to see how she responds to these setbacks, though I suspect the Democrats are in for a fight in the next few years.

National: President Obama wins. The presidential election ended up not being as close as I thought would be. I didn’t expect we would have a clear winner before midnight. So, Obama has another four years. Let’s just hope he can get this mess turned around. If he doesn’t turn the economy around, that will be his legacy.

Colorado and Washington legalized the recreational use of marijuana. I truly believe that this is the beginning of the end of the War on Drugs.

Remittitur: Or How Civil Procedure Can Save Your Ass

The recent case of Arturo Uribe reminds me of something my law school civil procedure professor, Ted Occhialino, used to say: “Good procedural moves turn bad cases into good cases and good cases into bad ones.”

After a presumably fair trial, the jury has spoken against Mr. Uribe and in favor of Helena Chemical Company. My understanding of the facts are as follows: Mr. Uribe, a resident of the village of Mesquite in southern Dona Ana County, was sued by Helena Chemical Company, a Japanese owned multi-national company that is among the “foremost distributors of crop protection and crop production inputs and services for agricultural, turf & ornamental, forestry, aquatics and vegetation management markets” in the United States. Helena has also recently “diversified into service areas such as lending, variable rate technologies, and tissue analysis to fine-tune product application techniques and increase productivity.” Those quotes come directly from Helena’s website.

It seems that Mr. Uribe lived across the street from a warehouse owned by Helena and went around saying some rather unkind and, according to the verdict of the jury, untrue and damaging things about Helena. Having not seen the evidence, I am in no position to judge the merits of the case.

Damages were set by the jury at $1 actual damages. Actual damages are just that–actual, proven damages from the evidence. If Uribe had unlawfully punched a Helena executive in the eye, he would be liable for the medical bills. The $1 damage award by the jury reflects what the jury thought of the economic harm that Uribe’s conduct caused Helena. It is obviously nominal and extremely minimal.

The real kicker against Uribe is not the actual damages award, but rather then punitive damage award in the amount of $75,000. As it stands now, Uribe is on the hook for $75,001. Shitty, huh?

But it’s not as bad as it seems. This is a perfect time for a Motion for Remittitur on the part of Uribe. Remittitur is the action by which a damages award can be reduced by the Trial Court. The party moving for Remittitur has ten days from the date of entry of judgment to file the motion. There is a progeny of cases regarding punitive damages at both the state and federal level. It boils down to this principle: punitive damages must be rational and in some sort of proportion to the actual damages. While no court has ever really given a bright line equation, Remittitur starts coming into play if punitive damages are in excess of three times the actual damages amount. In Uribe’s case, the equation is that the punitive damages award against him is 75,000 times the amount of the actual damages!

This is a classic case for Remittitur. The trial judge will have to make a ruling based on the law and the facts, but it is not inconceivable that Uribe will ultimately end up paying less than $100 in punitive damages. Either side can appeal the Judge’s ruling. If Uribe does not file for Remittitur within 10 days of the entry of judgment, he fails to preserve the issue and there is no appeal and his lawyer better hope his malpractice coverage is up to date. Alternatively, Uribe and Helena can settle on a different amount. Remittitur is requested for under Rule 59(E) of the Rules of Civil Procedure. Just as the law can take away under Remittitur, it can also add to it under Additur.

This case is certainly prime specimen of how good procedure can turn a loser into a winner. Not only that, Remittitur has traditionally been used by corporate defendants to get around jury verdicts for excessively harmful and sometimes atrocious conduct. It’s nice to see the little guy being able to take advantage of the law. The case is Helena Chemical Co. v. Arturo Uribe, cause number CV-2008-3038 in the Third Judicial District Court of New Mexico, the Honorable Jerald Valentine presiding.

C. J. McElhinney is a Las Attorney who had a great Civil Procedure professor in Law School.


Deconstructing Legal Education: Why Law School Is Not All It’s Cracked Up to Be

As the old saying goes, “In law school, time is meaningless. In time, law school is meaningless.”

Yes, this day would come. I knew one day I would write what you are about to read. Let’s face it, folks, just about everybody hates the legal profession. Honestly, I do not like most other lawyers. For the most part, I do not socialize with other lawyers. And I’m pretty sure a lot of other lawyers do not like me. I belong to one professional legal organization, the New Mexico Criminal Defense Lawyers Association and I steer clear of most other legal organizations and associations. Like Groucho Marx said, I try to stay away from any club that would have me as a member.

On the whole, the legal profession is bankrupt. In a profession supposedly centered on service to one’s fellow man, it is surprisingly devoid of humanity. And it all starts with law school. Some people love law school. I hated nearly every single minute of it. And now I’m paying interest on it for the next twenty-five years of my life for it. So this is my chance to have my say.

So, how does one become a lawyer in the United States? In nearly every jurisdiction in the United States, to be eligible to sit for the bar exam, a candidate must be morally fit (ha!) and must have a Juris Doctorate from an ABA-accredited law school. Nearly every law school in the United States is ABA-accredited, but there are some which are not and some which lose their accreditation. If you go to one of these schools, you are usually throwing your money out the window or limiting where you can practice law. Some bar associations will allow unaccredited law school graduates to sit for the bar exam in the jurisdiction where the school is located and, sometimes, those attorneys can later get licensed in other states, but it’s generally an uphill battle. The law school in Las Vegas (UNLV) was originally like this, but I believe it finally achieved ABA accreditation. So, achieving and maintaining ABA accreditation is a big deal. Rarely, some schools lose their accreditation and their graduates enter professional legal purgatory. So long as one’s school is ABA accredited when the student graduates, it’s never a problem.

The moral fitness requirement is satisfied essentially by not having any felony convictions or incidents of moral turpitude which would reflect poorly on the candidate’s ability to practice law. For example, one cannot be an overt racist. One must demonstrate basic honesty. It is important to note that waivers can be obtained for many situations, though it may mean an investigation and/or a hearing into one’s background.

The problem with law school begins with how people are selected to attend. Every candidate for law school admission must have at least a Bachelor degree. Any given field will do. Most law students have a liberal arts background—political science, history, or english majors. But you do find a smattering of science and engineering degrees and a few truly depraved people that have medical degrees and then decide to go to law school. I have no problem with this requirement, though I think there should be streamlined programs for undergraduates to transition into law school. The real problem is with something called the LSAC, the Law Schools Admissions Council.

The LSAC administers the LSAT, the Law School Admission Test. The LSAT is the first of many exams that prospective lawyers will have to fear and take. One doesn’t pass the LSAT. One achieves a score and that score determines, firstly, whether the candidate will get into law school and, secondly (and ultimately more important), where the candidate will attend law school. The score range is 120-180, with 150 being the the average for any given cohort of exam takers. The competition starts here as any candidate’s score is based on every other score taken for that particular exam. If you’re taking an exam against a bunch of Einsteins, you’re at an inherent disadvantage. Hence, the old wisdom of “If you and I are being chased by a bear, I do not need to outrun the bear, only you” applies and will continue through law school and the bar exam.

Administering the LSAT is a business. It costs a candidate $118.00 to register (with a $60.00 late fee). But it doesn’t stop there because then there is something called the LSDAS (Law School Data Assembly Service). These people are nice enough to forward your LSAT scores on to law schools to which you want to apply and, conveniently, nearly every law school uses this “service”. This costs another $109.00 and gives you one gratis school application. It’s $12.00 for each additional school to which one wishes to apply. Want your LSAT score by phone three weeks after you take the exam? $10.00. Want a hard copy of your score mailed to you? $25.00. And the fees go on and on. To top it all off, nearly every law school charges a fee for the privilege of applying to that school, which can range anywhere from $50-$200.

Mind you, this is just to take the test that means a possible admission to law school. In order to have any shot at getting into a halfway decent law school, a candidate needs at least 155. Most schools won’t even consider applicants with a lower score. Want to go to Harvard Law? Better get at least a 170 and most likely you’ll need a higher score to be realistically competitive. I think I scored a 156 and have only lost three felony trials in my whole career.

So, what does the LSAT test? There are three principle areas of the LSAT: Reading Comprehension, Logical Reasoning and Analytical Reasoning. As best I can tell, the only portion of the exam that has anything to do with the practice of law is the Reading Comprehension portion. As a law student and as a lawyer, one will have to consume volumes of information. If you have problems reading in college, forget law school. You’ll be required to read hundreds of pages a week. The other two sections of the LSAT are akin to brain teasers. For example, you’ll be told that you have to arrange guests at a table at a dinner party, but Alan won’t sit next to Bob and Chris will only sit next to Danielle and Edgar will only sit at the head of the table. Or you’ll read a brief argument and be asked to spot the inconsistency. Like, if God is Love and Love is Blind, is Ray Charles really God?

The most important skill and ability to the practice of law, written communication, is a brief afterthought on the LSAT and isn’t even scored. A candidate will be asked to write a short one page essay on the merits of, say, Chevys over Fords. Or Apples over Oranges. Again, if you have trouble writing in college, forget law school. If you have trouble with the difference between your and you’re or its and it’s, go to Medical School or get your Master’s degree in Marketing. And there’s always Art School.

So, now you’ve shelled out the money and taken the LSAT, sent off your applications to all the law schools you want to attend and sit back and wait to hear the results. Here’s where who your parents are and what equipment God gave you at birth come into play. I remember when I was an undergraduate student, the UNM Law School admissions coordinator came to campus and I went up and told her that I was interested in attending her school. Without knowing anything about my GPA or LSAT score, she told me flat out to not get my hopes up because I was a white male. I’m not here to debate affirmative action programs; it’s a simple fact that who you are and where you come from, two factors that one has no control over, will play a huge role in deciding if you get into law school and what law school you get into.

Depending on the particular law school, your college GPA will comprise about 40% of the total decision for that school in deciding whether you are admitted. So, good students (probably the biggest predictor of future academic success) who score poorly on the LSAT are up the creek without a paddle. Bad students better ace the LSAT or consider something drastic to stand out in the crowd, like gender change, dressing up as the opposite sex, or following C. Thomas Howell’s strategy in the movie Soul Man.

Hopefully, you’ll get your acceptance letter to an acceptable school and the paper chase begins in earnest. Honestly, I only applied to one law school: UNM. And I thought I would not get in. So when I made it in on the second round of selection for my particular class, I was pleasantly surprised. Once admitted, it’s now time to figure out how to pay for the whole catastrophe. If you’re not independently wealthy or have a rich family, you’ll most likely be financing your legal education. Law School scholarships are few and far between. I came out of law school with around $70,000 in debt. Sometimes I wish had just bought a Porsche.

When you get to law school, you’ll find that you won’t be arranging people at a dinner table or debating whether Ray Charles is really God. You’ll be reading. A lot. 90% of of what you read will be cases, which are written by some of the driest and unimaginative writers one could ever imagine. They’ll generally spend ten paragraphs explaining something when one would’ve sufficed. You’ll have no say in what courses you take the first year. At nearly every law school in the United States, everybody takes criminal law, criminal procedure, property, torts, civil procedure, constitutional law, and contracts. There’s also usually a legal research and writing class. Sometime during your second year, you’ll also take your legal ethics and professional responsibility class, AKA “How to Not Get Disbarred”. Actually, I really like my ethics class because you learn all the lawyer rules, like when it’s permissible but not mandatory to rat out your client.

The main classes in law school are taught by something called the Socratic Method, supposedly invented by the Greek philosopher of the same name. Socrates was a master at it—he would never actually teach anybody anything, but would rather ask his students questions that would ultimately bring them to the answer. Socrates, after all, is the man that thought he really knew nothing. Done well, it is amazing. Done poorly—and it usually is—and it will leave you confused and insecure. Each professor does it differently. With some professors, you never know when it’s your turn in the hot seat. Others are merciful and assign what days a student will be called upon. Call me sadist, but I always preferred the former. Having been in the Marines, I was used to authority figures coming up to me out of nowhere and asking me random questions about how long my rifle was or what my fifth general order was or where I would place a machine gun in a defensive position. Most of my classmates didn’t have that experience and it showed. I would often take quiet pleasure in their meltdowns. It’s amusing when the bear takes a huge chunk out of someone’s ass. Just remember that it won’t mean anything in a few years and very rarely will anyone remember a particular episode of academic destruction.

In the first year, you’ll spend a lot of time sizing up every one else in your class. The competition begins. Remember what I told you about outrunning the bear? People will be judged smart or stupid depending on whether they speak, what they say, and how they say it. Can’t explain the Rule Against Perpetuities? (and I still can’t) You’ll be judged a moron by your peers. Do you one day wax poetically about Mens Rea? Your fellow students will be begging for your criminal law outline for the final exam.

This brings us to the all important process of law school grading. In nearly every class, most especially in the first year, a student’s entire grade will boil down to one thing: The Final Exam. And I do mean FINAL. There are usually no quizzes or mid-terms. Law school exams are radically different from what most students experience in their undergraduate education. And here’s the real kicker. The exam is usually one or two questions, a few paragraphs long. And no professor will ever ask you what the Rule Against Perpetuities is or to explain Mens Rea. Rather, it will most likely be a long and convoluted fact pattern through which you’ll have to apply the “rule” of the law to the facts and the facts to the “rule” of the law. There’s no right or wrong answer. You’ll fill blue book after blue book (hopefully) with your drivel in the hopes that you spot all the issues the professor has tried to conceal. Hopefully you’ll analyze the facts and law in a coherent manner with which either the professor agrees or can at least understand. Most law school exams last three to five hours and are graded anonymously. Each student receives a number prior to the exam period and that number is used for identification purposes.

I heard that one time, a law student, upon reading the exam and being impossibly stumped to formulate an answer, wrote a simple two word answer: “Who knows?” Reportedly, he received an A+.

Are you sick the day your exam is scheduled? Suck it up. Break up with your girlfriend the day before? Too bad, so sad. It’s do or die and law professors are generally the most unforgiving kind of person. They’ve not only outrun the bear in the past, they now take perverse pleasure in being the bear.
And they all want to be the grizzly, not a cuddly panda. I’ll never forget in the first year when one of my particularly eager classmates, one who loved law school and who thought she was God’s gift to law school and the legal education process and knew the answer to everything and wanted everyone to know it, raised her hand and shifted and shuffled in her seat until finally the professor—the oldest, crustiest, professor at the school who had a reputation for spiking students in softball games in his younger years and brawling with umpires over bad calls—called on her. She began her answer with, “Well, I think…” and he cut her off right there. “Sweety, maybe your mom cares what you think, maybe your sister cares what you think, maybe your dog cares what you think, but I don’t give a damn what you think.” Then he threw a piece of chalk in her direction and furiously chewed his nicorette gum. God damn, he was a magnificent bastard. It’s only fitting that they named a a wing of the UNM law school after him.

Another thing that distinguishes law school exams is that each student is permitted to bring in what is called an “outline”. It’s basically what normal people would refer to as a cheat sheet. You can put nearly anything you want in your outline. You can use other people’s outlines. Before exam period, people are busy running around collecting this outline or that outline. Particularly popular were the outlines of second and third year students who were “smart” or who had aced a particular exam. The hope was that the magic would rub off. It usually didn’t.

The bear decides who gets what grade. Probably about 60% of the class will be in the C+ to B range. About 20% will be in the A range and C range and everybody else is scattered throughout. I know 60% and 20% do not add up to 100%, but why the hell do you think I went to law school to begin in the first place? Once again, you are graded against your peers. If someone spots one more issue than you, that’s points they got and you didn’t. We used to joke that the professors would take the exam blue books to one of the staircases at the law school, throw them up in the air and whatever step they landed on determined your grade. For all I know, that’s how it really worked.

I quickly learned that one of the worst things I could do was to discuss my answer with anyone else after the test was over. If they brought up something in their answer that I had completely missed, I would spend the next month convinced I had failed the exam. Many a night of hellish, catatonic introspection would result.

So, now the first year is over. The class rankings come out and now you know where you stand against your peers. Sometimes the know it all people who were the most talkative and active in class end up getting the worst grades and they finally shut the hell up. That mousy girl that sat in the corner and said barely two things all semester is actually a Property law idiot savant. The best advice I can give is that in another couple years, you’re not going to remember who got what grade, let alone your own. And if you do, you should probably commit Seppuku.

There is one grade I remember from my first year and I’m pretty sure all the other students in that class remember their grade also, particularly if you were male. It was my legal research and writing class and I ended up with a C+. The professor was a “progressive” Native American woman who made it a point to tell the class that while she had a male as a partner, she was bisexual. This class was not graded anonymously and it’s one of the only classes where students get feedback from their professor throughout the semester. There were about sixteen students in the class, about half male and half female. It’s kept small so that the professor can hopefully spend a lot of time on each student and develop their legal writing ability. I remember my C+ because only one other male in the class scored higher than me (with a B-). This means that, most likely, only one female scored lower than me. When I conferred with the other male students on our final paper, which had our final grade written on it, we strangely noticed that we all had the same comments from the professor on our paper: It was great having you in class. You’ve shown improvement over the semester and best of luck in the future. Yada, Yada, Yada. We actually had to talk one of my fellow male students, who had received a D+, out of physically confronting the professor. The next semester, in my Advocacy class, which is the second part of the written education component, and with the same cohort of students, I received an A- from another female professor who, while also progressive, was also much fairer and didn’t seem to grade along gender lines. In speaking with other students who got my first professor for their second semester Advocacy class, it seemed as if the males fared as equally bad as my cohort, even if they had good grades in their legal research and writing class. Something was definitely rotten in Denmark…

The second year begins and things become more relaxed. You have greater freedom in choosing your classes. The real challenge began for me and that challenge was boredom. Law school became very banal. I quit going to class unless attendance was mandatory and it usually wasn’t. I would show up for the final, take it and pass it. My grades weren’t bad the first year, but they got better in my second and third year. Obviously, I had learned how to game the system and developed the skills necessary to navigate law school. Reading cases became easier. I was able to figure out what was important and what wasn’t in a case. What would sometimes take me an hour and two read throughs usually would take me about fifteen minutes. I could sit down twenty minutes prior to a class and breeze through the five or six cases I was supposed to have spent reading the night before. I, like everyone else, became fluent in the language of the law. This is the one great piece of learning that only law school can give a person.

The classes I enjoyed the most were the classes where I actually did something, like Trial Practice and an Externship. In this Trial Practice, students learn how to be a lawyer. Students would take turns being witnesses while others would practice direct and cross examination skills and how to deliver opening statements and closing arguments. These classes were taught by real lawyers, not law professors. Why? Because law professors do not know how to practice law, let alone the much valued skill of examining a witness. Sure, they may be able to deconstruct a student’s analysis of Pierson v. Post, but they only how to teach law school. I relished the contact with real attorneys who did real cases and had real clients. I was also lucky enough to land a summer externship with a criminal defense lawyer hundreds of miles from the law school. He threw me into the ocean without a raft and I learned how to talk to child molesters and drug dealers. I learned that prosecutors overcharged cases and some people went to prison that either did not deserve to be there or got way too much time for what they had done. I got to actually go to court and practice under his watch. I tried two cases, cross examined real police officers on the stand and delivered arguments to real juries and judges. I learned that judges are unfair and that the law is not a computer in which when you put in the facts and apply the law, the perfect result spews forth. I got to see the sausage being made. I came back to the law school after that summer with more practical experience than anyone in my class and most of my law professors.

This is my main criticism of law school: Law school is not lawyer school. And it should be. I can understand the first year focus on academics and theory, but in my opinion, the emphasis in the second year needs to shift to the skills required in practice. And the third year should be entirely spent working with a real attorney doing real things, like a physician’s residency after medical school. The truth is that law professors are the chosen few, the academic elite. They rarely practice and instead are annointed in law school by other law professors to bear the academic burden. Those who practice law are taught by those who never have practiced and never will practice. Would you want your doctor to be taught by a teacher who never had a patient in their life and never saw a case of the mumps? That’s the situation in which most baby lawyers, and their clients, find themselves.

And let’s not fool ourselves. Just like administering the LSAT, legal education in the United States is a business. Students are willing to shell out ridiculous amounts of money to go to law school to have the opportunity become the next Ally McBeal. Law schools are relatively simple set ups. No expensive lab equipment is necessary to educate prospective lawyers. The pedagogy is essentially the same as it was one hundred years ago. All a school needs is asses in the seats. And there’s plenty of those to go around. In many law schools, a third or more of the first year class is washed out by the grade curve at the end of the first year. They don’t make the cut and get their walking papers. And their tuition is pocketed by the school. The hapless failures have the difficult choice of trying to transfer to another school, which is probably more expensive than the one they just got booted from, or making a go as a barista at Starbucks or joining the French Foreign Legion.

Law school is decidedly anti-capitalist. This is ironic because you quickly realize in practice that law is a business, not a calling, and you’re not going to save the world. No professor ever taught me about the business of practicing law. Of course, it was because they themselves had no clue. No one ever taught me about setting up a law practice, how to do taxes, how to bring in new clients, etc. Of course, most of my classmates only aspired to clerk for a judge right out of law school or land a job with the perfect firm and become a part of the collective. To them, legal perfection was becoming an associate at Dewey, Cheatem, and Howe for $70,000 a year starting salary, working 80 hours a work churning out billable hours for their firm (and making the firm’s partners rich), carrying a partner’s briefcase for six years and maybe getting to ask a couple questions in a deposition, play firm politics and hopefully get picked to be a partner themselves one day. Or sometimes they are mercilessly tossed out out on their ass after rendering years of service. This is where your soul gets crushed and you become just another cog in the machine. If had to choose between practicing at a big firm or not practicing at all, you’ll most likely soon find me greeting you at the local Walmart. Again, I don’t want to be associated with a club that would have me as a member.

As with any entrenched institution, change will be difficult and slow coming, if it comes at all. Those in the institution have little incentive to change what currently exists. I began to see the wizard behind the curtain when I signed up for my bar exam review course and was taught by practicing attorneys everything I needed to know for the bar exam in about six weeks. They were especially adept at breaking down the law into common sense nuts and bolts that anyone could understand. Sure, having the legal education helped me digest it much faster, but in all honesty, if you gave me a reasonably intelligent individual, I could teach that person everything they needed to know to pass the bar exam in about six months.

I always remember what a wise third year law student once told me in my first week of law school: The A students become law professors, the B students become judges and the C students make all the money. Also, one my favorite law professors told me that if he was ever charged with a crime, he would rather have a lawyer that was a C student in law school rather than an A student. So, remember that the next time you need a lawyer.

C. J. McElhinney is a Las Cruces criminal defense attorney who graduated barely in the top half of his law school class.

Copyright © 2010 by C. J. McElhinney. This material may be reproduced for non-profit educational or informational purposes only.

I Got Pulled Over, Now What? Practical Advice From a Criminal Defense Attorney.

When you’re a lawyer, a lot of people will come up to you ask you questions. Like, “If I’m drunk in the passenger seat with a forty of Mickey’s between my legs but I have my twelve year old kid as my designated driver, can the cops really bust me for having an open container?” Or, “It’s not armed robbery if the gun isn’t loaded, right?” By far, the most common law enforcement contact the average citizen will have is the routine traffic stop. Routine for the officer, but not for you.

I’ve advised and represented hundreds of people who have found themselves sitting on the side of the road with a cop slowly approaching their vehicle. Some would end up going home and some would end up going to jail. I’ve read several police training manuals, interviewed dozens of police officers in preparation for trial and cross-examined more than a few police officers at trial.

Mandatory Legal Ethics Caveat: The information and opinion I am about to impart is relevant most especially to the jurisdiction of New Mexico. While federal law provides a base floor of constitutional rights and most of these doctrines have a basis in federal law, individual jurisdictions may vary. For instance, New Mexico law treats automobile searches much differently than federal law. If you have any questions for your particular jurisdiction, contact an attorney licensed to practice in that jurisdiction. If you are contemplating something illegal, like putting eighty pounds of marijuana in your car and driving through a Border Patrol checkpoint, or if you’ve actually taken the initiative and have loaded the marijuana into your vehicle and are a few miles away from the checkpoint, you should immediately stop, meditate on your life and existence, reconsider your actions, and possibly turn yourself into the authorities.

Okay, now that that is out of the way, let’s get down to the brass tacks.

In the United States, police officers can stop you when they reasonably suspect that you have committed or are committing a crime. What the hell does that mean? Basically, you’ve got to be doing something wrong, something against the law. An officer can’t pull you over because he feels like it or has nothing else to do or had an argument with his girlfriend and now wants to talk it out with you. This would give the officer unfettered discretion and he might be pulling you over unnecessarily when he could be thwarting a bank robbery somewhere. Thus, the reasonable suspicion doctrine gives police officers some guidance in carrying out their duties, namely don’t mess with people unless they’re up to no good. Police officers are professional witnesses trained to look out for violations of the law by you, the citizen. For the average person, this will probably involve a motor vehicle code violation. The most basic example is that you are exceeding the posted speed limit and the officer watches you zoom by. Or the officer observes you fail to use your turn signal before making a turn. But it could also be that you happen to be driving a car that looks an awful lot like one fleeing a bank that was just robbed two blocks away from where the officer sees you drive by. These situations would generally justify the officers stopping you and investigating further.

One exception to this rule is in the use of a traffic checkpoint, the most common example being a DWI sobriety checkpoint. How can they stop you? Well, sobriety checkpoints need to meet certain legal requirements in order to pass constitutional muster. There are many factors for a court to weigh, including whether the checkpoint was publicized in advance and whether they are properly set up and operated. Of course, telling the officer when you pull up to the checkpoint that it is not constitutionally sound will most likely result in you being invited to the secondary inspection area and an opportunity to meet Sparky, the drug sniffing police dog. Keep your legal opinions to yourself.

As the officer approaches your vehicle, his primary concern will be his own safety. The officer has been trained to consider you a possible threat at all times. This will color the interaction you are about to have with him. Roll down your window, shut your car off and keep your hands on the steering wheel. Show him you are going to play nice.

Professional officers will usually say something like, “Hello, I am Officer Jones of the Las Cruces Police Department. I pulled you over because you were exceeding the posted speed limit. Can I see your driver’s license, vehicle registration and proof of insurance, please?” Other officers may say, “I need your license, registration and proof of insurance” and then snatch the documents from you and return to their patrol vehicle without uttering another word.

Other officers may try to get you to say something against your interest. For example, the officer may ask you, “Do you know how fast you were going?” Most people think that honesty is the best policy at this point, but the best answer is probably something like, “I think I was going the speed limit” or that you are not certain. If you say, “Well, I think I was maybe going a little fast,” guess what the officer is going to write on your citation?

This brings us to the first rule of how to deal with the routine traffic stop: Keep your mouth shut. Say as little as possible. Try to answer the officer’s questions in a yes or no manner. While you are required to provide proof that you are licensed to drive the vehicle you are in, that it is properly registered and insured, you have no obligation to provide the officer with any other information. However, failing to cooperate with the officer may result in a change in his demeanor toward you and may result in harsher consequences. It’s a fine line to walk.

While the officer is first making contact with you, he will use every opportunity to observe your demeanor. He will look for signs that you are impaired—slurred speech, slow or clumsy movements, bloodshot watery eyes, odor of alcohol, etc. He will try everything he can to look into your vehicle to see if you have anything you’re not supposed to have, like an open container of alcohol, a marijuana pipe or a bag of money you’ve just stolen from a local bank. If the stop is at night, he will undoubtedly shine his flashlight into the cabin of your vehicle. He is exercising his prerogative under the plain view doctrine to look for anything that will permit him to expand the scope of his investigatory detention and try to nail you on something much bigger than what you were originally pulled over for. For instance, in DWI cases, it is not uncommon for the ensuing police report to read something like, “I observed the Defendant going 75 MPH in a 65 MPH zone and initiated an investigatory stop. Upon making contact with the Defendant, I observed him speaking with slurred speech, fumbling with his license, and bloodshot, watery eyes and I detected an odor of alcohol emitting from the Defendant’s breath as he spoke with me through the window of his vehicle. I also observed an open can of Keystone Light beer between the driver’s legs. Based on these observations, I expanded my investigation from speeding to DWI.” This is an example of how things can go from bad to shitty in eight and a half seconds.

Therefore, the second rule of dealing with traffic stops is to be wary of the plain view doctrine. First off, if you are going to have something illegal in your car, don’t do it. If you do happen to have something that you are not supposed to have, don’t leave it lying on the backseat for the world to see. This is based on the right to privacy. In New Mexico, an automobile has been held to have the same protections as your home—legally, it is an extension of your house, your private domain, and must be treated as such by the officer.

So, hopefully, at this point all you are receiving is a traffic citation and you’ll be on your way. But, you may not be out of the woods yet. It is not entirely uncommon for the officer to come back to your vehicle with your citation and say something like, “Okay, here is your citation and promise to appear in court and I’ll need your signature here. By the way, you don’t have any drugs, illegal aliens or rocket launchers in your car, do you?” Regardless of the actual circumstances, most sane people reply, “No.” At this point, the officer is likely to say, “Well, you don’t mind if I look in your car then, do you?”

You have now reached the threshold of constitutional overreaching by the officer. First off, why would the officer ask you something like that? Because, at that particular point in time, he does not have probable cause to search your vehicle. If he did and he wanted to search your vehicle, he would just do so. He is seeking consent to search, which is an exception to the legal requirement that all searches of private property need to be from a validly issued search warrant. By getting your consent, with a few brightly drawn exceptions, you have now waived any challenge to the search in court. If he is a smart officer, he will likely have you sign a “Consent to Search” form, but keep in mind that verbal consent is legally sufficient. While you may say (truthfully) that you never gave consent to search your vehicle, the officer may have a slightly different recollection of events later in court. He may testify that he asked you for consent to search and that you readily gave it to him. You can then testify that you did not say any such thing. Absent some other compelling evidence, how do you think most judges, a good portion of which are former prosecutors and pro-government in worldview, will rule?

Now may be the time to start asking the officer questions. The first should be, “Am I under arrest?” He will likely say no, that he merely is conducting a non-custodial investigatory detention. The next question should be, “I have somewhere I need to be and since I am not under arrest and you have given me a citation for which I have signed, am I free to leave?” He will probably then ask you again for consent and may be much nastier about it. You must stand firm. “No, I do not give you consent to search my car.” Most officers usually say something like, “Well, I can go get a search warrant.” Tell him to do so. Then ask to speak to his supervisor. If this is going to get serious, you want more witnesses of you not consenting to any search your vehicle. If the supervisor shows up, tell him that you are now seriously late for where you were heading, that you don’t want anyone to search your car and that you’re not consenting to anything.

At this point, if the cop is going to search anyway (and some do) and finds something and you are charged with it, there’s nothing you can do about it. But you need to put yourself in the best possible position to legally challenge the search at a later point. If you are arrested, do not fight the officer. Do not threaten him. Do not threaten his family. Do not threaten his job. If you do, he will dutifully note these statements in his report and then tell the judge all about it later. Just keep your mouth shut and hope you’ll make bail.

I saw so many of my clients get themselves into these bad situations that I had the following written on the back of my business card so that they would not forget: “I do not wish to answer any questions or make any statements without my attorney. I do not consent to any search of my person or property. I wish to contact my attorney.” Some have successfully used these words to get themselves out of bad situations.

If you are really serious about protecting yourself, consider keeping a digital voice recorder in your vehicle and turn it on before the officer approaches. In New Mexico, you do not have to tell him you are recording the interaction. Most likely, the officer is doing the same thing to you. Most officers carry small digital voice recorders in their belt and will activate it prior to approaching your vehicle. Many officers carry these recorders for investigation purposes but also protect themselves should they later be accused of misconduct. You should consider employing the same tactic. Recordings, both audio and video, are powerful evidence in court. Unless they have been altered in some way, they provide the most accurate record of what happened and, unlike memories, they do not degrade over time.

So, let’s review:

1. Keep your mouth shut.
2. The plain view doctrine is a bitch.
3. Never consent to anything.

Before I forget, this is a good time to note that you should make sure your car is in good working order. Make sure your headlights, tail lights and turn signals are in good working condition so you won’t be pulled over unnecessarily. Consider removing from your car any stickers like “Legalize It” or “Cops Suck”. Follow these simple rules and you’ll put yourself in the best possible legal position should something go seriously wrong when you are pulled over by the police and you end up having to go to court.

C. J. McElhinney is a criminal defense attorney who has defended hundreds of cases ranging from traffic tickets to first degree murder. He lives in Las Cruces, New Mexico and can be contacted at

All material contained herein is © 2010 by C. J. McElhinney, however this article may be reprinted for educational or informational non-profit use and proper attribution is given to the author.

The Death of Pat Garrett: Self Defense or Cold Blooded Murder?

Pat Garrett (1850-1908)


Pat Garrett is best known as the man who killed Billy the Kid in 1881.  The Billy the Kid.  And everybody knows who Billy the Kid is, right?  Billy was the reality celebrity of his day.  No two ways about it, Billy was a criminal.  He stole horses and cattle.  People had a nasty habit of dying in his presence, some by his hand in questionable circumstances. Sometimes he found himself on the right side of the law, but more often than not he was on the wrong side.  This was not all that unusual in his time as people living in territorial New Mexico did not depend on the government to solve their problems and were not averse to engaging in self-help remedies.

Pat Garrett was born in 1850 in Alabama, the son of a slave owner.  He slowly drifted westward before finding himself voted in as Sheriff of Lincoln County, New Mexico, in 1880.  Before becoming a lawman, Garrett lived a quasi-criminal existence and had already killed a man during his buffalo hunting days on the frontier.  Garrett captured Billy the Kid. Twice.  The second time, on July 14, 1881, he ended Billy’s life in Fort Sumner, New Mexico.  Both men entered American folklore soon after.  The United States government was determined that political change was coming to New Mexico and Garrett was one of the blunt instruments of that change.  The lawlessness had to go and Billy the Kid, who was robbing and killing his way through the territory, was the poster boy of lawlessness.

In many ways, Pat Garrett gets relegated to playing second fiddle to Billy the Kid.  However, after killing Billy, he went on to live an interesting life, serving first as Sheriff in Lincoln County and then, later, Sheriff of Dona Ana County, where he eventually settled.  He was later appointed as a customs agent in El Paso, Texas, by President Theodore Roosevelt.  He was married to a hispanic woman and had eight children.  However, the sad fact is that Garrett reached his zenith with Billy.  No matter what anybody says about Garrett, he was a man who did his duty and believed in the law and in justice.  Reportedly, in Las Vegas, New Mexico, at the train station there while transporting Billy and his gang to Santa Fe after first capturing him, a mob demanded that Garrett give them Dirty Dave Rudabaugh, a member of Billy’s gang and a particularly cruel man, because Rudabaugh was wanted in Las Vegas for gunning down a Las Vegas jailer while trying to bust his friend out of jail there the year prior.  Garrett told the mob, which included the local Sheriff, that he was executing federal warrants and that he would arm the prisoners himself should they attack the train car in which Garrett and the prisoners were riding.  They all reached Santa Fe safely.  That was the kind of man Pat Garrett was.  He drank heavily most of his life, loved to dance and played cards for hours on end.  But he also loved his family and was deeply devoted to them.  Pat had a lot of friends, but just as many enemies.

Pat Garrett was undoubtedly a legend in his own time and his death is much more interesting than Billy’s demise. Garrett met his maker on February 29, 1908, in the desert east of Las Cruces, New Mexico.  To this day, his death remains controversial.  I wanted to find out for myself what really happened the day Pat Garrett died.

First, I would need to locate the actual murder site.  As a criminal defense attorney who has investigated and defended numerous cases, I can tell you that going to the scene of an event is key to understanding it.  The historical marker erected by the State of New Mexico is of little help in locating the murder site as even it says, cryptically, the actual location is “nearby”.  I drove to the marker armed with another clue, that the murder site is directly southeast of the marker, but no idea how far.  Unfortunately, traveling directly southeast of the marker will take you into a quaint residential neighborhood and several dead ends.  I got out and walked around for a bit to get a lay of the land.  There were no signs anywhere saying “Pat Garrett Murder Site” or anything you might expect of a place of this historical significance.  Unfortunately, the only living person I saw while walking in the neighborhood drove off in her car before I could ask her some questions.  This was going to be more difficult than I thought.

The Marker isn't much help in finding the actual murder site.

I went home and I retrieved some aerial views from Google Maps and got a much better idea of where the site was located.  Additional research turned up two photos taken of the area a few years back and I discovered that I needed to look for power lines.  Using the maps and information, I refined the search area and realized it would be easier to take another road into the area as opposed to the one by historical marker.

Area Map

I returned the next day and, using the information I had gathered, I was able to locate the actual murder site.  It is indeed remote, located about a mile or so into the desert almost directly south of Onate High School.  A four wheel drive is required to access the area.  I surveyed the area and took some pictures and two videos.  The date was February 28, 2010, nearly 102 years to the day that Pat Garrett was killed.  It was a cloudy, overcast morning, not unlike how conditions were described on that day in 1908.  The growth of Las Cruces (it’s currently about twenty times the size of its 5,000 residents in 1908) is slowly encroaching on the area from the west and I could see a few houses about a half mile away in that direction.  But, in 1908, there was nothing out there except the arroyo, which, except for a few power lines and four wheel vehicle tracks, has remained relatively unchanged in the last century.  I climbed the steep rise directly to the south of the murder site to get a good view and was able to envision what happened on the day Garrett died.

Looking North and down onto the murder scene

Garrett was traveling that day with two men, Carl Adamson and Wayne Brazel.  Brazel was a local boy who was in tight with W.W. Cox, a prominent Dona Ana County citizen and rancher.  Garrett was heavily in debt to Cox, whose ranch adjoined Garrett’s property.  At this point in his life, Garrett was in desperate financial straits.  No longer Sheriff, he had also been fired from his customs job in El Paso in 1905 and had turned to ranching as his main source of income.  As good as a peace officer as he was, he did not have nearly as much luck ranching.  A few months prior to Garrett’s death, Brazel and his business partner, Print Rhode, approached Garrett with a proposition.  Brazel and Rhode would lease a portion of Garrett’s ranch for grazing purposes for a period of five years.  They also would pay some cash up front to sweeten the deal for the desperate Garrett.  The cash which was reportedly provided by Cox.   Cox was also related to Rhode, having married his sister.  Garrett, no doubt realizing his financial peril, agreed to the offer.

The lease quickly went sour.  Brazel and Rhode moved in a herd of over one thousand goats onto the property.  Garrett became livid as apparently he had been told that only cattle would be grazing on the property as opposed to the much more destructive goats.  He filed suit against Brazel and Rhode in attempt to have lease voided.  The suit was thrown out by the Justice of the Peace in Organ.  At the end of his life, it seems as if Pat Garrett was on a long, slow losing streak.

Enter Carl Adamson.  Adamson, from Texas, approached Garrett with another offer.  He reportedly had some cattle that he was moving through the area from Mexico and wanted to purchase Garrett’s ranch as a stop while moving them to market.  Garrett realized this could be his financial savior, but still had the problem with the lease with Brazel and Rhode and their damned goats.  Garrett explained the situation and Adamson reportedly offered to purchase some or all of the goats from Brazel and Rhode.  Apparently, the men were unable to reach agreement as to the sale price on the goat herd and the deal fell through.  Garrett, desperate, agreed to a meeting between the men in Las Cruces in the hope that a successful mediation could be reached.   So, on the morning he was killed, he and Adamson boarded Garrett’s horse drawn wagon at Garrett’s ranch.  Garrett had two items with him: his Burgess shotgun and a check in the amount of $50.00 from New Mexico Governor George Curry.  They made a quick stop in Organ to water the horses.

Garrett and Adamson ran into Brazel in Organ and, according to witnesses, Garrett and Brazel began arguing almost immediately about the goats.  The three men continued their journey to Las Cruces, heading westward along the Alameda arroyo, Brazel on his own horse and Garrett and Adamson on the wagon.  According to both Adamson and Brazel, the arguing between Garrett and Brazel continued.  Sometimes Brazel rode next to the two men, but also sometimes kept his distrance, and when he was near the arguing would begin again.  According to Adamson, at one point Brazel spoke briefly to a horseback mounted cowboy some distance ahead of the wagon.  The unknown cowboy then rode off.

Adamson would later say that he needed to urinate and stopped the wagon in the Alameda arroyo.  Garrett apparently had to go also and he jumped off the wagon and walked a few steps away, still arguing with Brazel.  Adamson said that while his back was turned to the pair, he heard two shots ring out in quick succession and turned to see Pat Garrett fall dead.  Brazel would later state that he believed Garrett was going for his gun and, fearing for his life, he shot Garrett down.  Brazel turned himself in to the Sheriff and was charged with murder.

Here’s where things get interesting and, in my opinion, shows that the fix was in.  Cox quickly secured Brazel’s release on bail.  Albert Bacon Fall, the most notorious defense attorney in the territory and close friend of Cox, was retained to represent Brazel.  Adamson testified at the preliminary inquiry, but not at the subsequent trial, though he was available as a witness.  The trial lasted one day.  The prosecuting attorney did not seem to zealously present his case.  He put physician William Field on the stand.

According to Dr. Field, who reached the site a few hours after the killing, Garrett was found lying on his back, arms outstretched to his sides and one knee drawn up, with a blanket or robe partially covering his corpse.  The fly in his trousers was unbuttoned and he was wearing one riding glove, the right one, and his left hand was bare.  Garrett’s Burgess shotgun was lying on the ground, disassembled and incapable of being fired, still in its leather holster a few feet from his body.  Dr. Field noted no disturbance to the sand around the holster, as one might think would occur if someone suddenly dropped the weapon onto the ground.  That is, unless it was placed there, which is what Dr. Field believed had really happened.

Dr. Field also performed the autopsy on Garrett.  Garrett had two gunshot wounds.  The first and fatal shot was a bullet that had entered at the bottom rear of Garrett’s head and exited above Garrett’s right eye.  The second bullet entered the front of his abdomen and was found by Dr. Field lodged in one of Garrett’s shoulders, meaning the bullet had traveled upward after entering through Garrett’s body.

Interestingly enough, Field was never asked by the prosecutor to explain Garrett’s wounds or his other observations at trial.  Adamson did not testify at the trial.  Brazel testified that he feared for his life and shot Garrett down while Garrett was going for his own weapon.  The jury deliberated for about fifteen minutes before pronouncing Brazel not guilty, apparently believing the self-defense claim.  Cox would later purchase Garrett’s ranch from his widow, further consolidating his New Mexico land and ranch empire.

The physical evidence at the scene is inconsistent with self-defense.  The first shot into Garrett came from behind, killing him instantly.  The second shot most likely came while Garrett was falling or already on the ground, as it moved upward through his body from his abdomen before stopping in his shoulder.  But with his trousers unbuttoned and one glove removed, his head tilted forward, it becomes clear that Pat Garrett was killed at a time when all men are most vulnerable.  He was killed while urinating.  The shotgun was later placed next to him to bolster Brazel’s self defense claim and the blanket was draped over him to preserve some of his dignity.

Reportedly, within a week of Garrett’s murder, law enforcement officers found a Winchester shell casing not far from where Garrett was killed.  Some surmise that someone waited in ambush, possibly the unidentified cowboy that Brazel spoke with.  Deathbed confessions by people in the know in the mid-20th century would identify that cowboy as Print Rhode, Brazel’s business partner and Cox’s brother-in-law.  Print Rhode would later kill a man, another brother-in-law, in Arizona.  After being convicted, his case was, in a most unusual manner, transferred to New Mexico where Cox was able obtain a pardon from the governor.  It’s certainly possible that Rhode was out there that day and could have been lying in wait for Garrett, but it’s also possible that the shell casing had nothing to do with Garrett’s murder or had perhaps been planted there by the investigating officers.  Modern forensics could help put the issue to rest, but those facilities did not exist in 1908.

A big question is whether Adamson was in on the scheme or whether he was just someone who knew when to keep his mouth shut in the company of dangerous men.  Adamson was related to James “Killer” Miller, a Texas assassin who would later be lynched after engineering an assassination that bore a striking resemblance to Garrett’s murder and Miller was rumored to have done the same in the past.  Some speculate that Miller may have been the man waiting in the brush to kill Garrett.  Without any hard evidence, it is merely speculation.

Besides financial gain, Cox had other reasons to want Garrett dead.  About ten years before his murder and while still Sheriff of Dona Ana County, Garrett had investigated the disappearance of Colonel Albert J. Fountain and his young son near White Sands.  Fountain, who at the time was the Third Judicial District Attorney, had obtained indictments against associates of Albert Fall (Oliver Lee and William McNew) and others a few days prior to his disappearance and Fall is thought to have engineered Fountain’s disappearance.  Cox was also believed to be possibly involved in Fountain’s disappearance.  Subsequent to Garrett’s thorough investigation of the Fountain case, Lee and McNew were tried for  Fountain’s murder (though no bodies were ever found) and they were represented by none other than Albert Fall, who would later go on to defend Brazel in Garrett’s murder trial.  Can you guess what the verdict was in the Fountain case?

Based on the evidence, Brazel’s claim of self defense can be ruled out.  Pat Garrett was murdered, plain and simple.  You don’t shoot a urinating man in the back of the head in self-defense.  Garrett’s Burgess shotgun was not capable of being fired in the condition in which it was found.  Garrett’s killer knew Garrett was a dangerous man and took no chances in dispatching him.  It really comes down to who pulled the trigger on Garrett.  Even money is on either Brazel or Rhode. Most people who knew Brazel thought him incapable of murder, but it is obvious that Rhode was more than capable and had also apparently tried to goad Garrett into a fight during their court case for the lease.  A longshot guess is James “Killer” Miller, but I think this is nothing but sensational speculation.  But as to a wider and larger conspiracy, all signs point to W.W. Cox and, possibly, Albert Bacon Fall.  However, other than some innuendo and hearsay, not much directly connects Cox and Fall to Garrett’s murder, but these men were adept at engineering heinous plots and getting away with it.  In all probability, there was a conspiracy that existed to murder Pat Garrett.  However, the size and extent of that conspiracy has been lost to history and will likely remain one its great mysteries.

Rest in peace, Pat.

Garrett Murder Marker

Map and GPS Coordinates of Pat Garrett Murder Site

Interesting New Mexico trivia: Wayne Brazel was supposedly the uncle of Mack Brazel, the man who reportedly first discovered the infamous Roswell UFO crash site in 1947.

C. J. McElhinney is a criminal defense attorney in Las Cruces, New Mexico.  An erstwhile history major in college, he switched his major to Government when he realized he would have to take less math to graduate.


Gardner, Mark Lee. To Hell on a Fast Horse. New York: HarpersCollins Publishers, 2009.

Kutz, Jack. More Mysteries & Miracles of New Mexico. Corrales: Rhombus Publishing Company, 1998.

Nolan, Federick. The West of Billy the Kid. Norman: University of Oklahoma Press, 1998.

Recko, Corey. Murder on the White Sands. Denton: University of North Texas Press, 2007.

To visit Pat Garrett’s murder site:

Take Highway 70 east out of Las Cruces.  Get off at the Mesa Grande Exit and make a right.  Turn right onto the first street.  On your left, you will notice a dirt road on the left before reaching the Mesa Grande housing subdivision.  If you don’t have a 4 wheel drive, park your car here and walk south along the road.  As you walk south, you will see some large power lines on the left (to the east) and some smaller power lines to the right (west) of those larger power lines. Follow the smaller power lines south—a bumpy dirt road runs underneath them.  You will walk into Alameda Arroyo and will soon approach a steep rise to the south. The death marker is located on this beaten dirt road just underneath one of the power line poles.  If you go in the summer, watch for rattlesnakes and bring sufficient water.  I estimate approximately a 30 minute hike from the main road.  GPS Coordinates are 32.366203 N, -106.717152 W.

All written materials, pictures and video contained herein are © 2010 by C. J. McElhinney (Material may be reprinted or reproduced by permission only)

Inaugural Post

With much fanfare, my blog is officially launched.  Briefly, I hope to blog about law, politics, and history–and anything else that comes to mind.  The first topic is tentatively set to be “I got pulled over by the Cops, NOW WHAT?” or something like that.  You’ll just have to wait and see.  I’ve got a lot of time to write and hopefully it will help keep me sane.