Eighteen years ago, a man accused of armed aggravated assault found himself in front of then District Court Justice Gene Franchini.
The state legislature had recently passed a mandatory one-year sentence for all crimes involving a gun, and the man — who in an act of road rage threatened a fellow driver with a pistol — was the sole breadwinner for his family.
In an essay entitled “Conscience, Judging and Conscientious Judging,” Franchini described the position he was in when faced with sentencing the man.
“My conscience, and sense of justice on the other hand, will not allow me to sentence to the New Mexico State Penitentiary a 26-year-old man who has no prior record, has been honorably discharged from the U.S. Navy after three years active duty … at the time of this offense was supporting his 41-year-old widowed mother, and who acted on the spur of the moment,” Franchini said in the essay. “To do that is to fly in the face of every thought I have had about justice and the right thing to do.”
Franchini said the legislature’s mandatory sentence law breached the separation of powers, and — being bound by the law — he felt the only moral thing he could do in such a situation was resign.
In the end, the man was found to have acted rashly momentarily before composing himself, and he received a year of probation and no jail time.
Last Wednesday, 40 minutes into a speech to first-year UNM Law students, Franchini, 74, collapsed and died while trying to instill a sense of conscience and justice into the next generation of lawyers. Rob Schwartz, a law professor who was present at Franchini’s speech, said Franchini enthralled those in attendance.
“Everyone was with him,” Schwartz said. “He really had the students in the palm of his hand. Everyone was really excited with where he was going with this, and he collapsed.”
Franchini’s speech was given at a classroom in the UNM School of Law. Schwartz said the class, called “Practicum,” is required for all first-year law students but is a credit/no credit evening class. He said the majority of the 120-student class attended Franchini’s speech.
“You wouldn’t expect to have such a good attendance. People knew he was such an inspiring teacher,” Schwartz said. “He was doing just a wonderful job explaining how you deal with conflicts in what the law requires and what your conscience requires and how he had dealt with them.”
First-year law student Kevin Nault said Franchini had an obvious passion about the talk he was giving the law students when he died.
“He was really enjoying himself and clearly enjoyed having an audience and sharing his experience, which was substantial,” he said. “Honestly, I found him to be something of a kindred soul. I think he was a troublemaker in the best possible sense of the word. He had a very big heart and cared deeply about the people around him. I don’t think he could have died doing something he loved more.”
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Schwartz said Franchini’s character kept the law students captivated during his speech.
“He was a very straight shooter. He could not always control his language,” he said. “He could see hypocrisy from a mile away, and he would let people know when he saw it.”
Schwartz said Franchini spent much of his career examining the similarity between personal and professional conscience.
“He’s such a thoughtful person that actually thought about what it means to have a conscience that you care about and also be a good lawyer and a good judge,” Schwartz said. “He thought about that more deeply than most anyone else I know.”
The program distributed at Franchini’s funeral Saturday featured a quote about the former New Mexico Supreme Court chief justice’s view of law and lawyers.
“If getting a job and keeping the job becomes more important than doing the job, then the job is not worth having,” the program quoted Franchini.
Over 500 of Franchini’s friends, associates and family members attended the funeral. Cars lined the streets for eight blocks surrounding Our Lady of Fatima Catholic Church on Morningside Drive and Lomas Boulevard.
Board of Regents President Raymond Sanchez — a long-time friend of Franchini — gave the eulogy at Franchini’s funeral. Sanchez was unavailable for comment this weekend.
According to the funeral program, Franchini received a Bachelors of Business Administration degree from Anderson School of Management. He spent 32 years as a trial lawyer, six years as a District Judge and 12 years on the New Mexico Supreme Court.
He had spoken annually for over 20 years at UNM and was the School of Law commencement speaker two years ago.
