No Mayor Shall be a Judge in His Own Cause

We've been screaming about the Red Light Scam-era program for sometime now (read about it here and here). One of our first and most important observations was that the "hearing" system set up to "judge" STOP violation appeals was inherently biased towards the state (Mayor Marty and Co.). In other words, how can someone's due process rights be observed when they cannot appear before a fair and unbiased arbiter?

In addition to the class action suit that has been filed by the Branch Law Firm, attorney Paul Livingston contacted us with information about a client he is representing in one of Almighty Marty's kangaroo courts. The defendant in the case (or rather the person whose irresponsible vehicle became a "nuisance" in one of Mayor Marty's Money Makin' Movies) is Mary Patrick.

Ms. Patrick retained attorney Paul Livingston to represent her (and her no-good vehicle) at her "hearing." As part of the defense Mr. Livingston moved to disqualify hearing officer Marty Esquivel for conflict of interest; a point that should be patently clear to anyone above a single-celled organism.

Hearing officer Esquivel ordered Ms. Patrick's attorney, Mr. Livingston to prepare a brief supporting his motion for disqualification, and to have it back in 24 hours. (Read the full brief here.) In our opinion, the brief provides more than enough support for disqualification. Further, Mr. Livingston's argument would apply to each and every "hearing officer" employed by the City of Albuquerque.

According to the disqualification brief, "no man shall be a judge in his own cause" is the first principle when determining whether or not a "hearing officer" holds a fundamental bias towards one of the parties involved. In another case, the court found that "no man is permitted to try cases where he has an interest in the outcome." Yet a third case established that hearing officers "cannot be blind to the interest in that issue of the party which selected him or her and pays the fee..."

We don't believe that any sane person would argue against the principle of having an impartial judge. Mr. Livingston's brief establishes that the very fact that the hearing officer is in the employ of the mayor whose interest in the case dictates a finding of "guilty," precludes the hearing officer from rendering a fair and impartial decision. Therefore, the accused (and their dastardly Dodge, Chevy, Pontiac, Ford, or import of your choice) is "deprived of [his or her] constitutional due process right to a fair hearing conducted by an impartial hearing officer."

Naturally, Hearing Officer Esquivel refused to consider the brief because he didn't receive it within exactly 24 hours, which to Mr. Esquivel's esteemed legal mind meant the morning after the original hearing not end of the day. Of course, he didn't make that clear... could it have been intentional?

Our government requires the consent of the governed. Our consent should only be given when we have faith in those that run it; faith in their wisdom and faith in their impartiality. When those governing lose our trust, our consent for their continued governance in any capacity, should be rescinded. That's what elections are for.

The red light scam-era program and its attendant shadow court are proof that we should not trust those who continue to support it. Their arguments for public safety ring hollow when heard with the echo of partiality and bias. "No man shall be a judge in his own cause," and no mayor should be allowed to be judge, jury and prosecutor.

Trust Us!

The city and the Almighty Mayor have been telling us to "trust us" since the infallible red light scam-era system was implemented here in Albuquerque. It seems that the cameras are not as reliable as the city, the mayor, the chief of police, and APD spokesman John Walsh have led us to believe.

KOAT TV is reporting that one of their own received a citation from the scam-era at Carlisle and Montgomery (watch the story here). It turns out that the information provided by RedFlex was incorrect and the timing of the scam-era system was off. KOAT Production Manager Gary Williams proved that the system was creating erroneous citations by taking a broadcast camera to the intersection and timing the light.

(Sidebar)
How many other citations were erroneously issued? How many people simply paid up because they didn't have the ability to defend themselves?
(End Sidebar)

Mr. Williams was able to prove that the RedFlex scam-era system was not operating properly. The evidence was so convincing that even the Martyville Kangaroo Courts were unable to sustain the erroneous citation.

Before you go defending the red light scam-eras with the "system worked" argument... how many of you have access to the type of broadcast video equipment required to prove this type of case? The truth is that very few people understand the workings of the RedFlex system.

At a "hearing" there is no one available to testify as to the condition of and the calibration of the equipment installed at the intersection in question. The accused is simply shown a tape showing their vehicle violating either the speed limit or entering the intersection after the light has turned red. They are then pronounced guilty and are ordered to pay up.

The nature of the system presumes guilt by denying the accused the ability to defend themselves. The scam-eras are assumed to be infallible, ergo the defendants are guilty. Yet, as we now know, the city cannot prove that the red light scam-eras are operating accurately, just as you cannot prove that they are not. Even in a civil court where the standard is "preponderance of the evidence," we don't believe that the city's case would prevail. Of course, the city got around that whole judicial thing by setting up their Kangaroo Courts.

Now, after having bagged the wrong driver - a driver who had the ability to prove the all seeing, all knowing scam-era wrong - John Walsh has the nerve to tell us that APD will look investigate the Carlisle/Montgomery intersection to see if there truly is a problem.

In other words, "trust us" this is an isolated problem and doesn't really prove that the scam-eras are not working properly. "Horse hockey!" As Colonel Sherman T. Potter of M*A*S*H would have said. Without special equipment, the average defendant doesn't have the ability to effectively defend themselves in Marty's Kangaroo Courts. The city's position (who it just so happens the Kangaroo Judge works for) is that the cameras PROVE guilt. So, unless you work for a TV station, send in your money 'cause you're not going to win anyway.

We've been SCREAMING about the problems of due process that are inherent to this system. This story only proves our point. The scam-eras are NOT INFALLIBLE! You do not enjoy a presumption of innocence. And most importantly, you DO NOT APPEAR IN FRONT OF AN IMPARTIAL JUDGE. Why would ANYONE support such a clearly unfair and unjust system?!

Carrying the Almighty's Water

Have you ever noticed that right when Mayor Marty starts to feel the heat about something, the folks over at the Yellow Pages (Albuquerque Journal) come riding to his rescue? For instance, when Councilor O'Malley publicly criticizes the Almighty Mayor for soliciting $80,000 for his MyCentennial Towers (ABQ Journal - Subscription Required) February 19th; by February 22nd The Yellow Pages reports that "Council President Takes Developers Cash." (ABQ Journal - Subscription Required) Three days later the Journal comes to the rescue. Read our take on it here.

They're at it again today... Just over a week after Councilor Winter's Red Light Camera Town Hall, D'Val Westphal of the Journal comes out with an Op/Ed that purports to debunk the "Myths" of the Red Light Camera Program (ABQ Journal - Subscription Required). Her "opinion" piece could have been written by someone in the Chavez administration. (We don't know... Maybe it was.)

In a vain attempt to explain reality to someone who chooses to believe otherwise, we'll take a shot at debunking the debunker.

"Myth" no. 1 - Big Brother is watching you.
Big Brother is watching you! Just who the heck does she think is watching these intersections? Whether or not you believe that public places should be monitored, and whether or not it will lead to bathroom cameras, the people watching you are from the government (and Red Flex). Specifically, from the executive branch here in Albuquerque.

"Myth" no. 2 - There's no due process.
Ms. Westphal points to every part of the process from receiving a citation to your administrative hearing. She makes the argument that the citation is reviewed twice, once by APD, once by Red-Flex before the citation is even sent. Then if a hearing is requested, the citation is reviewed again by APD and then heard by (and this is the tricky part) an "officer of the court." Technically she's correct. The Hearing Officer is an officer of the court. In fact, every attorney is an officer of the court. The difference here is the "Officer of the Court" is an attorney that works for the prosecution! There's a reason that our judicial system includes an independent judiciary and while there's a lot of process involved here it's not due process by any stretch of the imagination.

"Myth" No. 3 - The city's rolling in camera dough.
True... not a "myth" at all. Except for $32 that goes to Red Flex and a "processor" the balance of the citation goes to the city. Many of the "costs" associated with the program simply go to the city itself. Now they are currently using profits to drive expansion, but eventually those capital costs will go away making this a great business deal for the city and for Red Flex.

"Myth" No. 4 - Camera-wary drivers are slamming on their brakes and causing more rear-end accidents.
The jury's not in on this one (especially if you are relying on the "due process" provided by the Red Light Camera program). However it's very easy to find studies that show that rear-end accidents do increase at intersections with photo enforcement. The city's data itself is less than complete and shouldn't be used to definitively assess the program.

"Myth" No. 5 - The cameras target the rich parts of town.
True... We told you about it here. It's called Economic Profiling. The city did not install these cameras in order of the most crashes to the least crashes. They installed them in the areas that have high traffic and are most likely to have the offenders pay the fine.

"Myth" No. 6 - The state doesn't get its fair share of fines because cops aren't writing as many criminal citations.
Another one where the jury is not in yet and 1 year of data isn't nearly enough to determine levels of enforcement. Government usually works with restricted resources. If APD no longer needs to police these intersections, then you can bet the first time money gets tight in the department or staffing gets too low (a real and dangerous problem for APD), the first thing to go will be criminal enforcement of red light violations at intersections where there are cameras. The former costs money the latter makes money.

"Myth" No. 7 - The fines are too high.
It's simple... They are too high! Running a red light is a petty misdemeanor. This civil nuisance system is designed to empty pockets as punishment and fill the coffers down at City Hall. The two year fine period proves that it's all about the money. How many of the 1st time offenders will end up with a second offense within that time frame? How many even a 3rd? The system is designed to keep you buying at the company store by keeping you in debt with at least one violation.

"Myth" No. 8 - The radar isn't calibrated/checked.
The reason that traffic cops have to calibrate their radars before and after each shift is to ensure that the evidence that they obtain will stand up in court. (Here calibration doesn't matter because guilt is assumed... but I digress.) These systems are self-calibrated. How often are they independently verified? The answer we hear is never.

(Sidebar)
Ms. Westphal... whether it's radar or a set of magnetic loops, both systems are doing a time and distance calculation based on movement. Both systems are computer driven and subject to changes in accuracy over time.
(End Sidebar)

"Myth" No. 9 - Yellow signals have been shortened.
We don't know... and neither does Ms. Westphal. Quoting the Almighty One (Mayor Marty) on whether the timing has been changed is like asking the thief standing there with your stereo whether he took it. The fact is, the Traffic Engineer and APD both work for the same person!

"Myth" No. 10 - Drivers are ticketed if the signal turns red while they're in the intersection or they speed just 1 mph over the limit.
Again, who knows? There's no independent judiciary to determine whether or not a citation was issued incorrectly and no police officer to stand witness to the "infraction."

The problem with carrying the Almighty Marty's water is that the pail often gets T-Boned by the facts. And so it is with this ten point piece of propaganda.

----- UPDATE -----

We've never had any doubt that the Red Light Camera Program was about Marty's Cash Cow. We even heard that Councilor Winter's cell phone lit up during his town hall last week apparently because of an unidentified auto dialer sent to his district. (Read about it here.)

No one's saying who paid for the "campaign," but we're told that these types of auto dialers must be accompanied by a disclaimer that indicates clearly who paid for it. One of the dialers featured Councilor Craig Loy. We suggest a few hundred emails asking him to disclose who paid for the dialer that featured his voice supporting the program.

Craig Loy (cloy@cabq.gov)

P.S. - Councilor Loy is up for re-election this year. No word yet on whether he'll run but...