What kind of legal ‘reasoning’ is this?

The incredible Kevin Ogden murder ruling.

     Kevin Ogden shot and murdered Farmington Police Community Service Officer Vicky Chavez in cold blood, while she was on duty 9 July 1992. As a C.S.O., Mrs. Chavez wore a police uniform, and drove a marked police car. Her duty was to enforce the law, particularly property, and misdemeanor cases. Her orders that day were to check on a vacant house owned by Ogden’s mother. Before she got out of her police car, Ogden shot and killed her with a shotgun.

     The D.A.’s Office charged Ogden with 1st Degree (Capital) Murder, which requires proof of an “aggravating circumstance,” in the murder. Under the capital murder statute, murdering a “peace officer” while he is in the course of his duties is such an aggravating circumstance.

     After a pre-trial hearing, Onuska ruled that Community Service Officers, because they are not fully certified police officers, are not “peace officers,” and therefore the murder of C.S.O. Chavez while she was going about her police duties in police uniform, was not a factor that could cause her killer to get the death penalty!

     The D.A.’s Office and the New Mexico Attorney General’s Office appealed this ruling. The N.M. Supreme Court unanimously reversed Onuska. The Supreme Court held that Community Service Officers have many of the same duties as fully certified police, are in police uniform while on duty, drive marked police cars, and are under police supervision, and thus they are “peace officers,” who are entitled to the same protection of the law that fully certified officers enjoy. (See State v. Ogden, 118 N.M. 234; 880 P.2d 845).

     Good district judges get reversed from time-to-time, so the mere fact that Onuska was reversed is not significant. What is disturbing is the lack of common sense and legal reasoning in his application of the facts to the statute at hand. That he could not figure out that C.S.O.’s-- who do nothing but police work, are under police department discipline, wear police uniforms and drive marked police cars--are “peace officers,” is quite astounding. Did he really think the legislative intent behind the capital murder statute was to provide special protection for fully certified officers, but to heck with C.S.O.’s who do the same work, and are just as exposed to the dangerous criminal element? The fact that not a single member of the very liberal N.M. Supreme Court agreed with him on this issue is further proof how far out his opinion is.

     The court also noted that Onuska denied another of Ogden’s motions, “but the basis of its (i.e. Onuska’s) decision is not clear from the court’s record. We therefore remand this matter to the district court so that it may revise it’s order or conduct further proceedings consistent herewith.”

     In other words, Onuska’s order was so poorly written the Supreme Court couldn’t figure out why he made the decision he made. They sent the case back for Onuska to explain himself–ouch!

     Don’t think that Onuska's foolish decision and poor writing and reasoning ability are without costs. The Ogden case was delayed while his decision was appealed, which meant Mrs. Chavez’s family and loved ones had that much longer to wait for justice in her case. The hearing had to be transcribed, and attorneys had to brief and argue the case. The Supreme Court had to spend time addressing this case, while other cases waited.

     We faxed and mailed Onuska a letter on Sept. 5, asking him to explain his reasoning in this case, and asking if he believes he is right or if he now accepts the Supreme Court’s view of the law. So far we have not received a reply (see "Questions for Onuska")