New Mexico's "linguistic abomination" in the Courtroom

For more than 75 years jurors in New Mexico have been intentionally misled and confused.

When a potential juror answers the call to jury duty, the expectation is that the civic duty to be performed is a righteous one—for that is precisely how it's presented. What future jurors do not expect is to participate in something more deceitful and criminal than the case being presented. Which, based on how jury instructions are often presented in New Mexico—despite numerous reprimands from appellate courts—jurors are placed in impossible predicaments where the instructions before them are anything but clear or concise. Furthermore, when the instructions given are clearly for the purpose of confusion, and the lawyers in the courtroom (the judge, the prosecution, and sometimes the defense) draft or otherwise permit the contradictory and confusing instructions to be given without comment or objection, it becomes clear that not only is the defendant(s) being railroaded, but the jury members, too, are being, if not railroaded, then certainly sullied with the complicity of the complicit attorney(s). All of which happens when the "highly objectionable phrase and/or" is placed into jury instructions to confuse and misdirect, often leading a jury to "make a finding of guilt on a legally inadequate basis"¹ as the result of the misconception caused by the inappropriate "and/or" conjunctive term as part of the given instructions, ultimately leading to inconsistent verdicts.

Consider Jury Instruction No. 26 presented to the jury in my case:

In this case, there are two possible verdicts as to each crime charged and/or its alternative: (1) Guilty; and (2) Not guilty. Only one of the possible verdicts may be signed by you as to each charge and/or its alternative. If you have agreed upon one verdict as to a particular charge and/or its alternative, that form of verdict is the only form to be signed as to that charge and/or its alternative. The other form as to that charge and/or its alternative is to be left unsigned.(emphasis added)

The above instruction is not uncommon in New Mexico, which leads juries to find defendant(s) guilty of both the primary "Count 1" and the "alternative to Count 1," which can be counterintuitive when the two charges in question possess contradictory elements required for findings of guilt. As in my case, Count 1 was "First Degree Murder by a deliberate killing," and the step down alternative was "Felony Murder", which, though it is still first-degree murder, is elementally only a second-degree murder that is statutorily upgraded because it takes place in the commission of a dangerous felony. Granted, the salient observation when reading these primary and alternative counts is that both are first degree murder, so, where's the problem?

As mentioned, the problem arises in the fact that Felony Murder is only statutorily "first degree murder," as opposed to elementally first degree murder through the required element of deliberation. As previously discussed in A Statutory Scheme That Asks Jurors to Guess, New Mexico's statutory scheme on murder consists of two categories of intentional killings: those that are willful, deliberate, and premeditated; and those that are just intentional, without the element of deliberation. As the New Mexico Court of Appeals and Supreme Court have reiterated on numerous occasions, "for felony murder doctrine to apply, the killing must be second-degree murder, apart from any consideration of the underlying felony…the jury must find the mens rea (mindset) for second-degree murder before it can consider elevating the crime to first-degree felony murder."²

Unfortunately, New Mexico courts have adopted a devil-may-care approach to addressing inconsistent jury verdicts. Last year the state's high court reiterated its position on inconsistent verdicts to explain that "only inconsistent convictions and not inconsistent verdicts are reviewed."³ Meaning, that trial courts can resolve inconsistent verdict issues by just ignoring the lesser verdict and convicting and sentencing only on the more serious charge; a bypass that courts in Illinois took issue with: where the jury found the defendant guilty of first- and second-degree murder and the appellate court determined that "[w]hen a jury returns inconsistent guilty verdicts, the trial judge has a duty to send the jury back for further deliberations after additional instructions to resolve the inconsistency …" which is certainly reasonable. But, New Mexico, like Minnesota, hasn't always concerned itself with the jury confusion caused by inconsistent verdicts, given that its modus operandi has been to just vacate the lesser charge and convict for the more serious of the two. And while Illinois considered Minnesota's and New Mexico's resolution, it determined that it would be "improper for a trial court to enter judgement on one or more of the verdicts and vacate the other verdicts… [because] the trial court may not usurp a jury's function to determine innocence or guilt by second-guessing which guilty verdict was intended by the jury and which was the result of some misconception… Thus, a trial court's failure to send the jury back for further deliberations to resolve inconsistent verdicts mandates a reversal and a new trial on all counts."*¹ Obviously, for the jury in my case to have deliberated and determined that a defendant was guilty of an intentional killing—both with and without the key element of deliberation—suggests confusion, since the verdicts were inconsistent.

New Mexico courts have not entirely ignored the issue of jury confusion apparent when jurors find guilt on multiple counts with contradictory elements—yes, like saying that a killing did and did not have the key element of deliberation. The state has adopted what is known as the Lewis mandate (2018) which "enables the jury to consider both the greater and lesser offenses under a count in any order it deems appropriate provided it returns a verdict of not guilty on the greater offense before the court may accept a verdict on the lesser included offense." An approach that follows Alaska and California into what is known as the "modified acquit first approach."³ What this approach looks like when instructions are presented to a jury can be seen below (borrowed from an actual New Mexico case)³:

You may not find the defendant guilty of an included offense until you have unanimously decided that the defendant is not guilty of the offense that includes the included offense. For example, you may not find the defendant guilty of second degree murder until you have decided that he is not guilty of first degree murder. However, you have the discretion to choose the manner and order in which you deliberate on these offenses.

The instruction is not ideal, but it doesn't present an "and/or" conjunctive term, permitting the jury to find guilt on both the primary count and the alternative. In my case, such an instruction would have omitted the inappropriate conjunctive term seen in Instruction No. 26, and would otherwise have instructed the jury that it could not present a verdict for the alternate count unless it was presenting a "not guilty" verdict on Count 1. Below are the actual instructions for the primary and alternate counts:

Instruction No. 3

For you to find the defendant guilty of First Degree Murder by a deliberate killing, as charged in Count 1, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime: 1. The defendant killed [the victim]; 2. The killing was with the deliberate intention to take away the life of [the victim]; 3. This happened in New Mexico on or about the 16th day of August, 2004.

A deliberate intention refers to the state of mind of the defendant. A deliberate intention may be inferred from all the facts and circumstances of the killing. The word deliberate means arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. A calculated judgement and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate intention to kill. To constitute a deliberate killing, the slayer must weigh and consider the question of killing and his reasons for and against such a choice.

As can be seen from the above instruction, the element of deliberation is the focal point for the jury to consider. You might be asking yourself, how exactly is a juror to know "beyond a reasonable doubt" the mental deliberations of a defendant? Sometimes there are clues presented, such as comments or specific actions that lend an impression of what the defendant was thinking, but in other instances jurors are just expected, to the best of their ability, to guess. Now, imagine for a moment that you are a juror considering the above instruction, now add to that the following:

Instruction No. 4

The defendant may be found guilty of First Degree Murder by a deliberate killing, as charged in Count 1, even though he himself did not do the acts constituting the crime, if the state proves to your satisfaction beyond a reasonable doubt that: 1. The defendant intended that the crime be committed; 2. The crime was committed; 3. The defendant helped, encouraged or caused the crime to be committed.

An instruction like the one you see above was given for every crime for which I was charged (both types of murder, armed robbery, and five separate counts of tampering with evidence). The State admitted in its closing arguments it's inability to prove that I was armed, fired a gun, or killed anyone. That being said, the prosecutor stood before the jury like a televangelist speaking in tongues, insisting that either I killed the victim, or was an accessory to the man who accused me of the same. It's relevant to note that New Mexico's criminal liability for an accessory can be applied even though the person who actually committed the crime is neither prosecuted or convicted. The theory behind the Court's reasoning in convoluted, in that, it insists that the accessory to a crime have the same punishment as the principal; but, a principal who is never prosecuted or convicted is given a punishment of zero, so then, the same punishment for the accessory should be the same—zero. Of course, that's not how the courts apply the dictate of "a person who aids or abets in the commission of a crime is equally culpable as the principal…and carries the same punishment as a principal."*²

What the courts mean to say, is that, sometimes it's politically convenient to not prosecute the actual perpetrators of crimes, but, rest assured that someone will be held accountable for whatever the crime may be. What's interesting, however, in the instance where the principal is never prosecuted or convicted (even though he's never unavailable to the state), is that there is no trial or legal venue where evidence is presented to the jury to prove the mens rea or criminal intent of the principal, since the principal is not on trial. How then is a jury supposed to effectively assume, "beyond a reasonable doubt," that the accessory shares the criminal intent of the principal? It's plausible to assume a jury's ability to do so in the instance of a joint trial, but not when facts against the principal have never seen the light of day.

Now consider the jury instruction for the alternative to Count 1:

Instruction No. 5

For you to find the defendant guilty of Felony Murder, which is First Degree Murder, as charged as an alternative to Count 1, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime: 1. The defendant committed the crime of Armed Robbery under circumstances or in a manner dangerous to human life; 2. The defendant caused the death of [the victim] during the commission of Armed Robbery; 3. The defendant intended to kill or knew that his acts created a strong probability of death or great bodily harm; 4. This happened in New Mexico on or about the 16th day of August, 2004.

Obviously, there is no mention in the above instruction about the element of "deliberation"; but, there is also no stipulation explaining to the jurors that because there is no element of deliberation, it is therefore not a deliberate killing and, therefore, even though it's an intentional killing, it's elementally second-degree murder. How many reasonable jurors would inherently understand, from the above instruction, that the charge of this "alternative to Count 1" requires "that the jury must find the mens rea for second-degree murder before it can consider elevating the crime to first-degree felony murder"?² And, how is a lay juror to know—given the inappropriate conjunctive term "and/or" repeatedly used in Instruction No. 26—that it's contradictory to find that a defendant both killed with deliberation and without (not to mention the added convoluted nature of no less than eight accessory instructions that "even though he himself did not do the acts constituting the crime" the defendant can still be found guilty.)?

Which brings us back to the impossible predicaments in which jurors are intentionally placed when the consortium of attorneys present and accounted for in the courtroom permit, through action or omission, the inclusion of inappropriate conjunctive terms like "and/or" to sully the already muddy waters of jury deliberations. Recently, the New Mexico Supreme Court reiterated a ruling first issued in 1947, openly criticizing the use of and/or in the context of jury instructions¹:

[T]he highly objectionable phrase "and/or"… has no place in pleadings, findings of fact, conclusions of law, judgements or decrees, and least of all in instructions to a jury. Instructions are intended to assist [j]urors in applying the law to the facts, and trial judges should put them in as simple language as possible, and not confuse them with this linguistic abomination.

The question that should have us scratching our heads is, how is it possible that after seventy-five years the "linguistic abomination" and/or is still finding its way into jury instructions? Aside from maybe physicists, scientists, doctors, or mathematicians, lawyers are probably the most intelligent of our species. Therefore, the inclusion of and/or in jury instructions after repeatedly being told not to do so by the state's highest court implies deliberate intent. Where the intent is to confuse the jurors. The confusion of jurors is to make the conviction of defendants more probable. And attorneys understand that jurors are under a great amount of stress, as it is, and confusion coupled with the juror's inherent desire to complete their civic duty and return to their lives as soon as possible will likely see "and/or" as a godsend of expediency and seize it as such.

Consider a jury deliberating on a case such as my own. Count 1 is first-degree murder (deliberate) and the alternative to Count 1 is felony murder (no deliberation required). Let's further assume that even a lay juror is not an idiot and can therefore appreciate what the word "alternative" means: used as a noun, going back to the 17th century, as "one of several mutually exclusive things which can be chosen"; a century later, to the present, it's defined as "the remaining option; something available after all other possibilities have been exhausted."(http://en.wiktionary.org) There is no reason to believe that reasonable jurors would believe that "alternative" is a synonym for "primary option." They would only consider it as such because Instruction No. 26 told them so. And that, coupled with jury Instruction No. 1, that "[t]he law governing this case is contained in these instructions, and it is your duty to follow that law. You must consider these instructions as a whole. You must not pick one instruction or parts of an instruction and disregard others." In other words, even though jurors inherently know what the word "alternative" means, if the almighty instructions tell them that it means "primary option" they have no choice but to adhere to that definition.

Now consider that some of the jurors are potentially not convinced about the deliberation element in Count 1. They say something like, "the State didn't prove any connection between the defendant and the victim prior to meeting at the residence in question, and what could we possibly go on for a finding deliberation? If he did do it, he didn't tell anyone anything, and the only person who saw him with the victim said there was nothing out of place or strange." So, the jurors look at the alternative count in hopes finding a solution to their dilemma of needing unanimity. They see that both counts are considered first-degree murder, they then discover the "inappropriate injunctive term" and/or, and suddenly a solution presents itself: since we can't agree on Count 1, or the alternative to Count 1, let's agree to use the and/or injunctive term and all vote for both Count 1 and the Alternative and thereby let the court resolve the problem. To a lay juror the solution seems harmless, especially since both counts are first-degree murder; and even if they see the contradiction it doesn't matter because Instruction No.1 clearly tells them to follow the entirety of the instructions.

Of course, with all the instructions given on primary and accessory culpability for each charge the jurors could have been split and fractured any number of ways. But, in answering the question of why trial courts knowingly permit confusing and/or contradictory jury instructions: obviously it's because it's easier to get a conviction that way; and, there are no consequences for such inappropriate behavior—at least, not to them or their careers.

Legal commentators Bryan A. Garner and Professor Ira P. Robbins have both espoused the view that either the expression "and/or" should never appear in any "legal writing, document or proceeding, under any circumstances" or, at the very least, "should not be used in jury instructions" because it presents the "risk of jurors making decisions they are not allowed to make." And the New Mexico Supreme Court agreed with the commentator consensus, ruling that " a trial court should not ask a lay juror to unravel such a complex syntactical problem. This fraught endeavor can only serve, and needlessly, to sidetrack a jury from its critical fact finding role."¹

But, if the state supreme court was ignored seventy-five years ago, what's to say that it won't be ignored now? What's to say that trial courts throughout the Land of Enchantment will desist from a practice that has made deadlocked juries much more improbable, thereby making their jobs easier?

It's highly probable that if the Lewis mandate of the "modified acquit first approach" had been adopted by New Mexico courts prior to my trial in 2006, I would not have been wrongfully convicted; and that, coupled with the "linguistic abomination" used to intentionally misdirect and confuse my jury—I would not be where I am now. That being said, the obvious remains, in that, even if the jury wouldn't have convicted on both Count 1 and its alternative, since both are statutorily-speaking first-degree murder, what difference does it make?

It matters because New Mexico's statutory murder scheme, as it relates to felony murder, requires that the predicate felony and the murder be part of a unitary criminal transaction. In my case, however, one of the prosecution's theories was that the armed robbery was subsequent to the act and crime of the murder: not just subsequent in the time-sequence of events that transpired in an otherwise single transaction, but as an altogether separate element and crime, a reality reiterated by the trial court at the conviction and sentencing stage of the proceedings when it overruled my double jeopardy objection, and also apparent through the judgement and sentence issued by the same court. Which presents the question of whether a felony can simultaneously be considered "subsequent" for the purpose of sentencing and "predicate" for the purpose of upgrading what would otherwise be second-degree to that of first-degree murder. The prosecution's theory takes us outside of the legal parameters and the legislative intent of both armed robbery, and, in this specific case, felony murder. Furthermore, I believe that these issues, coupled with the "linguistic abomination" issue, amounted to fundamental error at trial—none of which have ever been presented through direct or collateral appeal proceedings.

The most salient observation that I can make after two decades of studying legal decisions from state and federal courts across the American judiciary, coupled with all the stories I've read, seen, or experienced is to say that there is a fatal divergence between how the law appears on our most sacred documents, treatises, and legal decisions, and how that same law is experienced and lived in the day-to-day enterprise of life. It's not enough to observe that the system is unfair, biased, prejudicial, or even evil—because none of these produce the clarity needed to fully internalize and understand what it is to navigate the criminal justice system from a state of powerlessness. Whether that state of powerlessness is because the color of one's skin, ethnicity, race, religion, or because they lack buying power is irrelevant; what matters is that the powerlessness is just as prevalent as it is predictable; and so long as powerlessness is a growing part of the American narrative equality or justice in any measurable, quantitative state will only exist for those who, for whatever reason, are favored with the power to buy it, or are otherwise a part of an American subset of society that naturally possesses it, a reality that must be challenged by me, you, and everyone.

Image Courtesy of: Bernalillo County.org

FOOTNOTES: 1. State v. Taylor, 2024-NMSC-011, ¶13, 548 P.3d 82 (N.M. 2024); State v. Smith, 1947-NMSC-048, ¶¶7-8, 51 N.M. 328, 184 P.2d 301(N.M. 1947)

2. State v. Duffey, 967 P.2d 807, 126 N.M. 132, ¶53, 1998 NMSC 14 (N.M. 1998)

3. State v. Veleta, 538 P.3d 51, ¶1 (N.M. 2023)

*1. People v. Porter, 659 N.E.2d 915, 168 Ill.2d 201, 213 Ill.Dec.569 (Ill. 1995); Fields v. State, 733 N.W.2d 465, 469 (Minn. 2007)

*2. State v. Carrasco, 946 P.2d 1075, 124 N.M. 64, ¶6, 1997 NMSC 47 (N.M. 1997)