By Frederick Leatherman. Posted with permission. Photo provided and sized by editor at Firedoglake/MyFDL. To join an ongoing discussion about the Zimmerman case, please go here:
Let us assume, for the purpose of this exercise, that we are representing George Zimmerman and we are going to start selecting a jury to try this case tomorrow morning.
George Zimmerman
To keep it simple, we are going to focus on W9′s allegation that GZ sexually molested her multiple times during a period of 10 years that began when she was 6 and he was 8. The allegation is unlikely to come up at trial, but lots of people know about it and it might prejudice jurors against him.
This is what she said:
The sexual abuse consisted of digital penetration of her vagina and fondling.
She ended it when she was 16 and later told her parents. Her parents told his parents.
She was discouraged from reporting the crimes to the police and did not do so until after he was arrested for shooting and killing TM. When the police asked her why she waited so long (10 years) to report the crimes, she said it was the first time she felt safe.
Our client denies that he ever sexually molested her or anyone else.
We do not know if the allegation is true, but we do know that her tape-recorded statement was available to listen to over the internet and her story was broadcast all over the world and discussed by media pundits.
We know that many, possibly all of the people in the jury pool, have heard or read her story.
This article is written by Masoninblue and published full text here with permission.
Author’s note: This diary is part of the Frog Gravy legal case and will be posted in three parts beginning today and ending on Thursday, which is Thanksgiving. In this part I explain basic pretrial legal procedure that is common in criminal cases. Specifically, I explain suppression hearings, which most of you probably have heard about, but might not know some of the finer details. This information will be helpful to understanding the incredibly bizarre events that followed; events that will be the subject of the next two parts. Now, get comfortable, buckle your sealtbelt, and get ready for your ride down the rabbit hole.
If you have not already done so, I recommend you watch the embedded video, in which a 16-year-old white girl is ordered to stand trial for murder as a 300-pound black man, to get yourself in the proper frame of mind. And, now here is The Curious Case of the Three Suppression Orders
The Fourth Amendment prohibits unreasonable searches and seizures. The exclusionary rule prohibits the prosecution from using evidence against a defendant, if that evidence was seized by police in violation of the Fourth Amendment.
A suppression hearing is a pretrial hearing in which a defendant asks the court to suppress evidence that the prosecution intends to introduce at trial against the defendant. If the court grants the request and orders the evidence suppressed, the prosecution is prohibited from introducing it or referring to it during the trial.
Suppression hearings are held before trial to resolve legal issues relating to the admissibility of evidence allegedly seized in violation of the Fourth Amendment, because in many cases, especially drug cases, the prosecution would be unable to try the case, if the court were to order the evidence suppressed. If that were to happen, the prosecution would be forced to dismiss the case and there would be no need for a trial.
Normally, a court issues a written order granting or denying the motion to suppress and sets forth findings of fact and conclusions of law that support the order. Findings of fact, as the term implies, are findings regarding what happened. They are the facts of the case upon which the conclusions of law must be based.
For example, let us suppose that Archie testified that a traffic light was green and Gillian testified that it was red. Whether the light was green or red would be a disputed fact and the judge would have to find as fact one or the other. If both witnesses agreed that the light was red, that would be an undisputed fact and the judge would have to find as fact that the light was red.
Normally, there is only one suppression order and it is entered before the scheduled trial date. Usually, the prevailing party drafts the order and provides opposing counsel with a copy. If opposing counsel agrees to the proposed order, the trial court will enter it as an agreed order without a hearing, unless the judge wants to change something. When that happens, the judge will schedule a hearing to finalize the order. The prosecutor, defense counsel, and the defendant appear for the hearing, hash out their differences, and the judge makes a final ruling. In other words, the process is transparent and ex parte contact with the judge (by one lawyer without the other present) is prohibited.
When suppression orders are appealed, the appellate courts review challenged findings of fact to determine if they are “clearly erroneous.” That is, unsupported by any evidence. Appellate courts uniformly refuse to second-guess a trial court’s challenged finding of fact, as long as there is some evidence to support it, even if the appellate judges might personally disagree with the trial court. Their reluctance to second-guess the trial court is based on the well-founded notion that they are not in as good a position to judge witness credibility since they were not present when the witness testified.
Conclusions of law are reviewed de novo. That is, they are reviewed anew without any deference to the trial court.
Crane-Station’s lawyer filed a motion, which is a formal request, to suppress all of the evidence seized by police after she was pulled over while driving down the highway and arrested for driving under the influence of drugs. Her lawyer argued for suppression on the grounds that:
1. The stop violated the Fourth Amendment because police pulled her over without a reasonable suspicion to believe that she had committed, was committing, or was about to commit a crime; and even if they did have a reasonable suspicion;
2. The subsequent arrest violated the Fourth Amendment because police lacked probable cause to believe that she had committed a crime.
The suppression hearing took place on November 27, 2006. Only one witness testified, Deputy Eddie McGuire of the McCracken County Sheriff’s Department.
We have already recounted his testimony in some detail and will not repeat it here, except to briefly summarize and note that there were no disputed facts, since he was the only witness who testified. Therefore, it should have been relatively easy for a sentient being, especially an educated judge who took an oath to uphold the Constitution and impartially follow the law, to come up with a set of findings of fact that were supported by the evidence.
Written by Masoninblue, my husband, and published here, full-text, with permission.
An interesting Fourth Amendment issue arises from time to time regarding whether a police officer initiates a contact with a person operating a motor vehicle by pulling it over, or the driver voluntarily initiates the contact by stopping the vehicle and signals for assistance by turning on the vehicle’s blinking hazard lights, as might be the case for example, with a health emergency, a flat tire, or running out of gas.
With few exceptions, the first situation is prohibited by the Fourth Amendment, unless the officer has a “reasonable suspicion” that the motorist has committed, is committing, or is about to commit a crime. A reasonable suspicion is more than a mere hunch because it must be supported by an articulable set of objective facts and circumstances that would cause a reasonable person to suspect that the individual being observed had committed, was committing, or was about to commit a crime. In the standard drunk driving case, for example, an officer would have a reasonable suspicion to believe the operator of a motor vehicle was impaired by alcohol if the vehicle was weaving, crossing the center line, exceeding the speed limit, and speeding up and slowing down erratically. The courts apply a flexible totality of the circumstances test in determining whether the officer’s suspicion was reasonable in any given case. The courts will not consider information acquired after a stop because the officer did not know it prior to the stop and could not have relied on information he did not know.
The second situation is not subject to the Fourth Amendment because there is no seizure when a police-citizen contact is initiated voluntarily by the citizen, or the citizen appears to require assistance. This means that an officer does not have to have a reasonable suspicion to contact a citizen who initiates the contact, or otherwise appears to require assistance. This distinction certainly makes sense when one considers, for example, the plight of a motorist who may have suffered a heart attack, turned on the hazard lights, pulled over, and stopped the vehicle before lapsing into unconsciousness. It would not make any sense to require a police officer to have a reasonable suspicion to believe that the apparently unconscious person was committing a crime to justify stopping to check on the person.
Unfortunately, however, the distinction between an investigatory stop that requires a reasonable suspicion under the Fourth Amendment and the voluntary citizen initated contact with a police officer that is not subject to the Fourth Amendment is not always easy to determine. As with the reasonable suspicion test, the courts consider the totality of the circumstances and ask whether a reasonable person in the same set of circumstances faced by the person in the case under review would have believed that he was free to terminate the contact at any time and drive away rather than remain and submit to the authority of the law enforcement officer until released.
This issue was raised by the prosecution in Crane-Station’s case. The trial judge agreed with the prosecution and ruled that the arresting officer, McCracken County Sheriff Deputy Eddie McGuire, did not require a reasonable suspicion to pull her over because she had voluntarily initiated a citizen-police contact to which the Fourth Amendment did not apply.
Consider the following evidence, apply the legal rules that I have set forth and explained for you, and see if you agree with the trial judge’s conclusion.
At the suppression hearing on November 27, 2006, Deputy McGuire testified that he was dispatched to investigate a 911 call. After he arrived, he checked the neighborhood for a few minutes looking for a dark blue Buick LeSabre with Washington plates that was described by the caller. When he did not find it, he cleared the call and headed back toward town on U.S. Highway 60.
(Note: The content of this call has been discussed in a previous article (link). Briefly, the caller told the 911 dispatcher that the driver of the vehicle had mentioned “something about tar heroin and all that stuff” while talking to his neighbor in the neighbor’s yard and writing in her notebook. Since this information, even if true, describes what someone said to another person that may or may not have been witnessed by the caller and it does not describe a crime or an attempt to commit a crime, the call was insufficient to cause a reasonable person to suspect that the person described by the caller had committed, was committing, or was about to commit a crime. To conclude otherwise would be to hold that police officer may lawfully seize and investigate any person who mentions the name of a controlled substance to another person. Such a rule not only would dispense with the requirement that the suspected behavior be criminal in nature, it would violate a person’s right to freedom of speech under the First Amendment.)
As McGuire approached the traffic-light controlled intersection at U.S. Highway 60 and Cairo Road, he suddenly realized that he was passing a vehicle that matched the description provided by the 911 caller. After admitting that he did not know how fast he was driving as he approached and drew alongside her vehicle (Suppression Transcript p. 13), he said,
As I was passing the vehicle she had her left blinker on as if she was going to turn out in the passing lane, but she never did.
And then as I was going to go ahead and go past her, I noticed that the license plate – it was a Washington license plate was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me, and then when I pulled in behind her, she pulled over.
(Suppression Transcript p. 6)
The prosecutor asked him when he turned on his emergency lights and he said,
I just pulled in behind her, and she started to pull over. That’s when I lit her up.
(Suppression Transcript p. 6)
On cross-examination, defense counsel asked McGuire if she “was driving appropriately.” He said,
I was going – yes. She didn’t bring my attention as far as weaving or nothing like that. Speed wasn’t a factor.
(Suppression Transcript p. 13)
Defense counsel focused on the blinking left-turn signal with a few questions.
Q: Okay. And apparently, your testimony is that she had on her turn signal?
A: She had her left-turn signal on as if she was going to come into the left lane. That’s what brought my attention to that vehicle to begin with. And then as I was passing her, I noticed it had Washington tags.
Q: So I guess there’s at least a possibility she was going to move into the left lane and –
A: Right.
Q: – saw your vehicle and elected not to?
A: Correct. That’s possible.
(Suppression Transcript pp. 12-13)
Defense counsel asked him to describe when she activated her right-turn signal. He said,
A: She turned her other turn signal on when she was going into the emergency lane just to stop.
Q: When she was getting ready to pull over?
A: Yes.
(Suppression. Transcript p. 15)
When defense counsel asked him if he activated his lights “even before she came to a complete stop,” McGuire answered, “Correct.” (Suppression Transcript p. 14)
Q: So, technically, you did stop the vehicle?
A: I was going to, anyway, yes. When she started to pull over, I just went ahead and turned my lights on.
Q: When you fell in behind her, she pretty much –
A: She – yeah. I suppose she assumed I was going to stop her, so she went ahead and pulled over anyway.
Q: Safe assumption under those circumstances?
A: Right.
(Suppression Transcript 14-15)
Consider also that Deputy McGuire wrote in his Uniform Citation and Offense Report that he stopped her, which he confirmed in testimony under oath at the Preliminary Hearing and before the Grand Jury.
In addition, on October 17, 2006, Assistant Commonwealth’s Attorney (now a McCracken County District Court judge) Christopher B. Hollowell prepared and filed the Commonwealth’s Bill of Particulars declaring in pertinent part under penalty of perjury that Deputy McGuire “stopped” her vehicle.
(Note: this is also admissible non-hearsay as a declaration by a party opponent that arguably should be dispositive of the legal issue. See Part 1 of my four-part series on the hearsay rule.)
The critical question then is whether a reasonable person in Crane-Station’s position would have pulled over into the emergency lane and subsequently stopped her vehicle after a police officer, who had pulled alongside her, slowed down, fell in immediately behind her, and activated his emergency lights as she moved over into the emergency lane?
We do not believe the answer to this question is reasonably debatable, especially since the officer who pulled her over wrote in his report and consistently testified under oath at three different pretrial hearings that he “stopped” her. Finally, in the suppression hearing, he testified that he intended to stop her and he conceded that her reaction to his behavior by pulling over and stopping was reasonable under the circumstances.
He was the only witness who testified at the suppression hearing.
We believe that only outcome driven judicial mendacity by the trial judge and the Court of Appeals, aided and abetted by a strong dose of prosecutorial legerdemain in formulating an argument unsupported by the police officer, who was the only witness, could conclude on this set of undisputed facts that Crane-Station voluntarily initiated a citizen-police contact.
Author’s disclosure: Crane-Station is my wife. We were married and I was a law professor when this incident intruded into our lives.
If you are newly diagnosed with blindness and wish to read a book, menu or map in braille, who was the translator for the book, map or menu?
If you are in need of a vested service dog to assist you at all times in your daily living, who trained that dog?
Who are the men and women caring for babies born in captivity to inmate mothers in Kentucky?
Three programs at KCIW PeWee Valley Women’s Penitentiary are worthy of mention: the braille translation program, the Paws With Purpose program, and the Galilean Children’s Home.
In association with the American Printing House for the blind, KCIW inmates translate print materials into braille. I had a fascinating conversation with an inmate who was involved in braille translation; she had advanced her expertise such that she was currently working on map translation.
There are about thirty such programs nationwide. At KCIW, some of the women are certified literary transcribers through the National Library Service of the Library of Congress. If you come across a braille textbook, there is a chance that an inmate did the transcribing.
To qualify for admission into the braille program at KCIW, an inmate must meet honor status, but also must be quite a ways from meeting with the parole board. The learning-intensive program takes time and so, inmates participating in the program are serving lengthy sentences.
My eight-year sentence was so long it was absurd (my judge sentenced a knife-point cab driver robber to less time than me), yet not long enough to gain admission into one of the learning-intensive training programs. In other words, my sentence length was problematic because it was too long for some things and not long enough for others, leaving me in a void. Hence, it is actually possible to be jealous of people serving lengthy sentences. I really admired the women in these programs.
The Paws With Purpose puppy prison program is another wonderful intensive program, where women train service dogs. Barkley, the doodle, was one such dog, too cute for words. The dogs stay with the inmate trainers pretty much around the clock during the week. Sometimes the dogs take breaks to go into the community with volunteer program trainers, so the dogs can be exposed to traffic, malls and the like. Usually the dogs-in-training on the KCIW campus are vested, which means that inmates other than the trainer are not allowed to touch, pet or play with the dogs.
Again, an inmate must be something like two to five years to the parole board (I am not sure which) and must have attained honor status. Honor status is achieved through good behavior over a long period, and has perks such as desired housing in Pine Bluff Dormitory, as well as eligibility to apply for admission to programs such as Paws With Purpose of the braille translation program.
The Galilean Children’s Home (video above) is a wonderful program, supported by private donation and non-profit, that was founded by Mennonite couple Jerry and his late wife Sandy Tucker.
Babies born to inmate mothers at KCIW are often cared for in the Angel House division of the large Galilean Children’s Home, which also houses and cares for other orphaned children.
Each week, the women of the Galilean Home, which is located in Liberty Kentucky, Casey County, bring the babies to a visiting nursery in the chapel at the prison, for a bonding session with the inmate mothers. Please have a look at the video, as I believe this program is unique to Kentucky.
We need more programs such as these, but unfortunately they seem to be disappearing. Kentucky is turning jails into prisons, in the name of money, and warehousing Class D nonviolent offenders in cement with no programs, so they return to the community with nothing but a new criminal skill set in hand. Would it not make more sense to have inmates parole to the community with job skills and references in hand? Would it not make more sense for a Class D nonviolent offender to be able to state, proudly, that she had given something back to the community during incarceration? That she had put some thought and work into goals and planning for the second part of her life?
One of my goals is to get books into jails and prisons, but this will be difficult because some Kentucky jails ban educational materials outright, as I have previously mentioned. It makes absolutely no sense to ban education to the largest incarcerated population that will parole into the community the soonest: Class D nonviolent offenders.
Written by Masoninblue and published full text here with permission
The term “criminal banksters” has become an established part of our language to refer to the people who operate the too big to fail (TBTF) multinational Wall Street banks that practice an especially virulent and destructive form of worldwide predatory capitalism in which their profits are privatized to pay multimillion dollar bonuses to their CEOs disbursing the rest to investment managers and bank shareholders while their losses are socialized. That is, covered by the United States taxpayers without their consent.
This relationship basically functions like a super efficient vacuum cleaner sucking all the wealth out of the economy and redistributing it among the wealthiest 1% of the population, and especially the top 0.1%. As such, it imperils the economy and constitutes a clear and present danger to the Rule of Law, particularly the notion of equal justice under law, the Constitution, the Bill of Rights, and democracy itself. (more…)
This is the third and last part of the Mountain Pine Beetle epidemic series. If you are just tuning in now, no worries, there is a bit of interesting information here.
I would like to give another shout-out to the JCTC Biology instructor by name, but I cannot quite recall his name (it may be Burke- not sure), so if someone knows it, please tell me, so that everyone in the blogosphere will know about his good work and dedication to prison education. I think his wife may also be involved in prison work as well.
That inmate education for nonviolent Class D Kentucky offenders is being eliminated is tragic. I wonder what the rationale is for eliminating education, treatment and job skills training and ability to exit incarceration with vouching work references in hand is. Class D nonviolent offenders will be released into the community. As a member of the community, what would you prefer: an educated person, with references in hand, who is excited about turning the second half of her life into a positive, or a warehoused, traumatized person who has spent several years on the cement floor of an overcrowded jail cell learning a new criminal skill set?
note: Frog Gravy is a nonfiction incarceration account in Kentucky.
Rocky Mountain Vista by Krossbow on flickr under Creative Commons.
Mountain Pine Beetle Epidemic Related terms Of Interest
boreal- of or pertaining to the North (think Aurora Borealis). Forest areas of the North Temperate Zone.
endemic-of animals. Prevalent in a particular region.
carbon sink- a natural carbon vacuum or reservoir.
xeriscape- water-conserving landscaping.
defensible space- The area around a structure that is treated or cleared, to reduce or slow a fire.
verbenone- a “no vacancy” pheromone sign.
chlorotic- yellowed or brownish red due to diminished chlorophyll and cell death in leaf tissue.
Carbon and temperature
As atmospheric CO2, in parts per million, rises, so does the earth’s surface temperature. This, in turn, leads to drought and stresses trees, making them more susceptible to infestation. Killed trees then become a fire-prone fuel source, susceptible to intense-heat fire. In cyclic fashion, more fire leads to more CO2.
The Canadian Forest Service no longer lists its huge forests as a “carbon sink,” because at the moment, the opposite is true: they have changed from natural carbon vacuum (sucking up 55 million tons per year) to producer (245 million tons per year).
Silviculture, human perception and intervention
In terms of forest management, who or what caused the current forest decline is irrelevant. Nature is taking its course without regard to political views. Since humans are an integral part of our North American forest ecosystem, forest management is a necessary and responsible activity, and not a waste of time or money. Any cascading event such as a forest beetle pandemic will affect current and future timber and recreation industries, raise safety concerns, and motivate further study.
US government grants to the US Department of Agriculture, US Forest Service, can promote meaningful research and forest management. Since no known activities will stop the natural course of the current outbreak, we may need to accept the fact that our future forests will reflect a radical shift from past decades. With that in mind, damage control, safety and public education are primary objectives.
Management efforts include:
-Removal of hazardous trees.
-ongoing public education.
-management and rules for temporary roads and trails, to prevent civilian misuse and injury.
-thinning and reducing fuel load.
-managing fuel breaks.
-monitoring natural regeneration.
-conducting prescribed burning.
-putting blue-stained wood to use.
-continued study, data collection and evaluation.
Summary
Ironically, “beetlewood” has created a temporary sawmill industry boom. Beetles have killed so many trees that some officials have “more than doubled their allowable timber harvest” (Struck, Washington Post). This economic industrial boost will ideally lead to long-term balance and consistency, for environment and industry alike.
References
Campbell, N., Mitchell, L., Reece, J., Biology Menlo Park, CA, 1997. 38.13, Carbon dioxide and other gases added to the atmosphere may cause global warming.
Amman, G., McGregor, M., and Dolph, R., Mountain Pine beetle. Forest Insect and Disease. US Department of Agriculture, Forest Service, “Forest Insect and Disease Leaflet.” 1990.
Marcus, N., and Halford, M., Our Future Forests 2008 Guide for the landowner. NW Colorado Forest Health Guide, 2008.
Fox, M., Pine Beetles May Affect Climate Change- Study. April 23, 2008. http://www.reuters.com
Struck, D., ‘Rapid Warming’ Spreads Havoc in Canada’s Forests. March 1, 2006.
Washington Post Foreign Service. http://www.washingtonpost.com.
Clayton, M., Carbon Sink Springs a Leak. March 11, 2009. Christian Science Monitor.
Glick, Daniel. The Big Thaw. National Geographic., September, 2004.
Once again, a hat-tip to my amazing nephew and Vail resident Ray, who provided references. He has worked to help control the epidemic in his area. Plus he is the most amazing extreme skier I have ever seen in my life. He does things on skis that would leave me talking through an electronic voice box for the rest of my life, including, but not limited to being towed, on skis, by a galloping horse, my hand to God, and there is a photo.
Author’s note: There are a good many saints working in our prisons today, despite the atmosphere and despite the low pay. These people show up every day and essentially minister to the broken and marginalized segment of American society.
I cannot remember all of their names, but they made a lasting impression on me. A few examples are: Miss Heavren, the JCTC Horticulture teacher; Vannessa Kennedy, the counselor who was later promoted to Deputy Warden at Western Kentucky Correctional Complex for Women; The Librarian at PeWee Valley KCIW; the JCTC Carpentry program instructor; the Mennonite men and women of the Galilean Home, who care for babies and children of inmate mothers; the Priest and lay Deacon of the chapel; Mary, the Ridgeview Dormitory ‘house mother’ and her husband; most of the guards at Ricky’s World, including Wendy, who started the Class D road crew program for women; Father Al and his intern Priest at Ricky’s World; the guard I call ‘Sally,’ who was the only person to send flowers to the funeral of Ruthie’s mother and other kind guards at McCracken; and again, the night JCTC Biology instructor; my case worker at PeWee in Ridgeview Dormitory; the behind-the-scenes workers in Inmate Records at PeWee.
As if they answered a calling, these good people are members of the 99, and they should all be making more money than our professional criminal white collar banksters.
Mountain Pine Beetle Epidemic Part 2
A tree destroyed by Mountain Pine Beetle, photo by photokayaker under noncommercial, attribution, no derivative works creative commons on flickr.
Beetles are themselves hosts to a blue-staining fungus, that is conveniently delivered to the tree. The fungal spores develop and spread throughout the phloem tissue, interrupting osmotic water movement and decreasing the tree’s natural defense of pitching out attacking beetles.
Unable to circulate nutrients due to fungal infection, dying trees become chlorotic and weakened, their leaking sap stained by blue fungal spores. The combined dual fungal infection and beetle infestation on concert is especially devastating to trees.
Blue-fungal-stained sapwood is problematic to the timber industry, due to public perception that blue-stained wood is damaged or substandard. However, unlike mold or decaying rot, blue stain fungi is harmless to people and can be used in the same markets as unstained timber, with some constraints.
Endemic versus epidemic and conditions that favor epidemic
Endemic means that MPBs ordinarily exist in harmony with, and play a role in, forest health. They are a stand-replacing mechanism. Since they need lots of resin in order to establish their broods, MPBs tend to attack older, larger-diameter, over-mature trees, thinning stands and making way for younger replacement trees.
At epidemic levels, however, tree mortality is massive, overtaking the forest’s ability to mount a defensive response.
Warmer temperature trends favor beetle success by 1) extending its range to higher elevations; 2) increasing the number of beetle growing seasons (broods) from one to two or more per year, and 3) placing the trees in a drought-stressed state, weakening their ‘immunity’ to attack. Also, the MPB seems to have an evolutionary edge in surviving freezing conditions: it begins to expel water in the fall, essentially becoming a bag of antifreeze by winter. At the same time, it enjoys the insulation that the bark provides. Absent a severe, early freeze while the water is still in the insect, it survives the winter cold.
MPBs have natural predators. Woodpeckers feast on the larvae and, when they bore large holes to get the larvae, the infested area aerates, killing the broods. Nuthatches and other insect-eating birds eat adult beetles. Other natural beneficial MPB predators include parasitic wasps and checkered beetles. Other beetle species’ larvae can out-compete MPB for tunnel space. Beneficial organisms provide a natural biological control to an endemic pest, but are ineffective in epidemic infestation.
Bugworm Burn 1 by Ian BC North under creative commons on flickr.
The role of fire
Fire ecology is a complex dynamic and a highly specialized subject that exceeds the scope of this descriptive paper. Forest fores are a necessary and natural disturbance to boreal ecosystems. Some plants have evolved to depend on fore to, for example, disrupt their seed coating and allow germination. Fire is a thinning mechanism, that removes old material and makes way for new growth. Although it seems counter-intuitive, our own past forest fire suppression practices may be partially responsible for thickened, over-mature and drought-stressed pine stands that are akin to a MPB salad bar.
However, retired US Forest Service silviculturalist Wayne Sheppard, PhD, does not attribute epidemic-level MPB outbreak to human fire suppression alone. Sheppard explains that, as far as our brief frame of reference is concerned, the magnitude and scope of this outbreak is unprecedented; however, from an evolutionary standpoint, such devastating disturbances probably occurred in the past.
Increased older, mature tree densities are an initial condition for both fire and for MPB infestation. CO2 is an end product in both decomposing respiration and combustion.
Author’s note: In the next part I will discuss carbon and temperature. In future Frog Gravy posts I will discuss some of the positive, wonderful prison education, work and treatment programs, that seem to be disappearing faster than money in Iraq. Another shout-out to the ’99′ prison workers who stick with God’s work, even in the face of adversity, discouragement, privatization and cuts.
Cross-posted at FrederickLeatherman.wordpress.com and republished at this site full-text with permission.
In Crane Station’s case, the Court of Appeals said,
In the present case, we hold that Deputy McGuire had probable cause to arrest Leatherman for DUI. Deputy McGuire testified that Leatherman appeared to be under the influence of something, despite his observation that she was not driving erratically or weaving. Furthermore, Leatherman failed the HGN test, which reveals intoxication by alcohol or some other drug, although she later passed the breathalyzer test. Finally, the product information for Klonopin (Clonazepam) attached to Leatherman’s brief states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.” Therefore, the observation of Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication that included a warning about driving was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Therefore, Deputy McGuire’s warrantless arrest of Leatherman did not deprive her of her constitutional rights against illegal search and seizure.
As we shall soon see, this conclusion is unsupported by the evidence and makes no sense.
The Court begins its analysis of the evidence by noting that the deputy
testified that Leatherman appeared to be under the influence of something, despite his observation that she was not driving erratically or weaving.
. So, the Court concedes that there was nothing improper about her driving and it does not say that she was unsteady on her feet, smelled of alcohol, or that she exhibited any mental confusion. In other words, she exhibited no physical or mental impairment.
The Court continued,
Furthermore, Leatherman failed the HGN test, which reveals intoxication by alcohol or some other drug, although she later passed the breathalyzer test.
So, in other words, she passed the breathalyzer test ruling out alcohol intoxication. (Actually it was a portable breath test, or PBT, that the deputy administered to her at the roadside before he handcuffed her and placed her in the back of his patrol vehicle.)
Therefore, with the exception of the HGN test result that I will discuss next, the Court has conceded that the deputy did not see any bad driving or physical evidence of alcohol or drug impairment.
What about the HGN?
HGN is an acronym for horizontal gaze nystagmus. The test was described recently by the Supreme Court of Illinois in People v. McKown, 924 N.E.2d 941 (2010):
Nystagmus is “an involuntary, rapid, rhythmic movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed, i.e., of two varieties.” Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003). The medical dictionary lists 45 types of nystagmus. For example, ataxic nystagmus is unilateral and occurs in individuals with multiple sclerosis. Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003). Congenital nystagmus “may be caused by or associated with optic atrophy, coloboma, albinism, bilateral macular lesions, congenital cataract, severe astigmatism, and glaucoma.” Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003). Gaze nystagmus, which is at issue in the present case, is “made apparent by looking to the right or to the left,” as opposed to fixation nystagmus, “which appears only on gazing fixedly at an object,” or latent nystagmus, “which occurs only when one eye is covered.” Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003).
The methodology employed by law enforcement officers for conducting an HGN testing as a part of field-sobriety testing is explained in detail in our earlier opinion. In brief, the officer first questions the subject to determine whether he or she has any medical condition or is taking any medication that might affect the results of the test. If not, the officer performs a preliminary test to determine whether the pupils of the subject’s eyes are of equal size and whether the eyes “track” equally as an object is moved, at eye level, from side to side. If so, the HGN test itself is performed. The officer looks for three “clues,” assessing each eye separately. The three clues are lack of smooth pursuit, distinct nystagmus at maximum deviation, and the onset of nystagmus at an angle less than 45 degrees. One point is assigned for each clue that is present in either eye. Thus, the maximum score is six, which would indicate all three clues present in both eyes. A score of four or more is considered “failing” and indicative of alcohol impairment. McKown I, 226 Ill.2d at 249-50.
After reviewing all of the evidence presented by the prosecution and the defense relative to the HGN Test and whether it is generally accepted as an indicator of alcohol or drug impairment [the Frye test or standard for the admissibility of scientific evidence], the Supreme Court concluded,
1. HGN testing satisfies the Frye standard in Illinois.
2. HGN testing is but one facet of field sobriety testing and is admissible as a factor to be considered by the trier-of-fact on the issue of alcohol or drug impairment.
3. A proper foundation must include that the witness has been adequately trained, has conducted testing and assessment in accordance with the training, and that he administered the particular test in accordance with his training and proper procedures.
4. [Testimony regarding] HGN testing results should be limited to the conclusion that a “failed” test suggests that the subject may have consumed alcohol and may [have] be[en] under the influence. There should be no attempt to correlate the test results with any particular blood-alcohol level or range or level of intoxication.
5. In conjunction with other evidence, HGN may be used as a part of the police officer’s opinion that the subject [was] under the influence and impaired.” (Emphasis in original.)
(Emphasis supplied)
What exactly must a police officer do to properly administer the HGN test? The Illinois Supreme Court details the NHTSA procedure in its earlier decision remanding the McKown case to the trial court with instructions to conduct a Frye hearing. People v. McKown, 875 N.E.2d 1029, 1032 (2007):
Because alcohol consumption can cause nystagmus, police officers have been trained to check a person’s eye movements when attempting to determine if a driver has been driving while impaired by alcohol. The National Highway Traffic Safety Association’s (NHTSA) DWI Detection and Standardized Field Sobriety Testing Instructor Manual sets forth the procedure for administering an HGN test in the field. First, the officer is required to ask the subject if he or she wears contact lenses or has any medical impairment that would affect the test results or prohibit the subject from taking the test. If the subject claims to wear hard contacts, or have natural nystagmus or any other condition that may affect the test results, the officer should note the condition but still administer the test if possible. NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Manual, ch. VIII, at 6-18 (2002).
After these preliminary questions, the officer asks the subject to focus on an object, such as a pen, held just above eye level, about 12 to 15 inches from the subject’s nose, and to follow the object as the officer gradually moves it from side to side.
While conducting the test, the officer looks for six nystagmus “clues,” three in each eye, that, according to the NHTSA Manual, indicate impairment. If four or more clues are present, the subject is determined to have failed the test and be impaired. The clues are (1) lack of smooth pursuit; (2) distinct nystagmus at maximum deviation, meaning any nystagmus exhibited when the eyeball is looking as far to the side as possible; and (3) angle of onset of nystagmus prior to 45 degrees, meaning any nystagmus that occurs before the object reaches a point that the officer determines to be 45 degrees from the center of the suspect’s face. No measuring apparatus is used in the 45-degree test. The officer is then instructed to have the subject perform the walk-and-turn field-sobriety test and the one-leg-stand field-sobriety test, compile the results of the three tests, and then make the decision whether to arrest the subject. NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Manual, ch. VIII, at 6-18 (2002).
How did Deputy McGuire administer the HGN test? This is how her lawyer described it in the brief she filed in the Court of Appeals:
McGuire should not have administered the test in the first place. McGuire did not testify to any clue Rachel Leatherman gave that she was impaired. She drove in compliance with traffic laws. She produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She was not scratching as some persons who inject drugs might. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert.
McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. Unfortunately, even assuming arguendo that other indicators had been present, McGuire improperly administered the test.
The National Highway Traffic Safety Administration (NHTSA) is an administrative agency housed within the United States Department of Transportation. NHTSA oversees and regulates all matter related to traffic safety. Since 1977, NHTSA has studied various field sobriety tests in order to develop a standardized set of field sobriety tests. As a result of those tests, NHTSA warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement.
The field video shows that McGuire positioned Rachel Leatherman facing the blinking cruiser lights and the oncoming traffic. The test was neither administered properly nor documented [he never documented what he did and any of the angles when nystagmus occurred; he simply testified that "she failed all six clues"].
McGuire testified that Leatherman told him she had a prescription for Metoprolol because she had hypertension. Documentation for Metoprolol shows that a side effect can be nystagmus. Under those circumstances, McGuire finding “all six clues” should be found legally meaningless.
As if the Court had not even bothered to read her brief, it ignored her powerful and outcome dispositive legal argument without comment.
Instead, the Court focused on Clonazepam.
Finally, the product information for Klonopin (Clonazepam) attached to Leatherman’s brief states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.”
Notice that the warning does not say that Clonazepam causes physical or mental impairment and no one who takes it in any dosage should ever operate hazardous machinery, including automobiles.
Clonazepam is a benzodiazepine that is routinely prescribed as an anti-seizure medication and to control anxiety. In other words, it is prescribed to make people feel normal so they can lead a normal life doing normal things like driving motor vehicles. The warning only applies to the initial dosage that can be adjusted if it’s too strong. There was no evidence in this case regarding the dosage or how long she had been taking it.
The Court’s refusal to mention, discuss, or distinguish her argument regarding the legally invalid HGN test and its reliance on a misinterpretation of the warning on the product insert for Clonazepam borders on mendacity.
The Court of Appeals concluded,
Therefore, the observation of Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication that included a warning about driving was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI.
Well, excuse me. Odd behavior. What odd behavior? Deputy McGuire testified at the suppression hearing that he did not witness any odd behavior, or he would have noted it in his report. There was no reference to any odd behavior in his report and he was the only witness at the suppression hearing.
Apparently, operating a motor vehicle in full compliance with all traffic laws without speeding, weaving or swerving, and quickly pulling over and stopping in the emergency lane beside the road when signaled to do so by a police officer in a marked police vehicle constitutes probable cause to arrest in Kentucky.
As we like to say in the blogosphere, the Court of Appeals has some splainin’ to do.
Author’s note: People v. McKown is an Illinois Supreme Court case and not binding legal precedent in Kentucky. I used it because it is well written and it lays out the NHTSA procedure for conducting the HGN that Crane-Station’s lawyer included with her brief, together with the NHTSA publication that explicitly warns law enforcement officers not to position suspects facing police cruiser lights and oncoming traffic. See: Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement. Kentucky follows the same rule, but the opinion is not recent and not well written.
Photo by Forest Service Northern Region under Creative Commons on flickr, with description:
“Spraying Ponderosa Pine with Carbaryl in May, 2011 in Bitterroot National Forest Campgrounds to prevent Mountain Pine beetle damage. Contractor sprays entire bole of tree to 50 feet high. Carbaryl is a pesticide (Sevin).”
I wrote this descriptive, generalized paper while I was in prison at PeWee Valley (KCIW), for a night Biology class, offered through the college JCTC. While I have a degree in Biology, it had been 30 years since I had taken an introductory course, so I enrolled in this class on “canteen scholarship.” It was taught by a Kentucky Department of Transportation worker who was in charge of managing the side of the roads. This is a huge job. The strips bordering the roads can mean the difference between life and death for travelers, because vines such as the pernicious kudzu can block views. Also, the instructor spoke at length about the multi-million dollar cleanup effort that Kentucky faced, after the ice storm. After his work during the day, the instructor continued in God’s work by donating his teaching to the college and to the prison inmates. It was one of the most delightful classes I have ever taken.
Unfortunately, the prison eliminated education to nonviolent Class D offenders and, in the interest of money, shipped these inmates back into the jails, where there was no hope of college education or treatment of any kind.
Because of my unusually long eight year sentence, I was not transferred with the other Class D inmates. This placed me into a Class C sort of category, and I “grandfathered in” to continue my schooling. I am thankful.
This paper is edited for this site, and I would like to hat tip my nephew Ray, who lives and works in Vail. He was a volunteer in the effort to control the epidemic, and he helped me with some articles, because I had no internet access in the prison. Ray, thank you.
A mountain Pine Beetle, by WBUR under Creative Commons, attribution, noncommercial, nonderivative on flickr.
The Pine Beetle And Its Life Cycle
The Mountain Pine Beetle (MPB), Dendroctonus ponderosae Hopkins, is an insect of the largest animal Order, Order Coleoptera (beetles). Its life cycle consists of four complete metamorphic stages: egg, larva, pupa and adult. The life cycle lasts about a year, and is completed almost entirely under the bark of host evergreen trees that include ponderosa, sugar and whitepines (major), as well as limber, coulter, foxtail, whitebark, pinyon, bristlecone and Scotch pine.
The MPB larvae are parasitic herbivores with biting and chewing mouthparts; most tree damage occurs during the 10-month-long larval stage.-snip-White legless larvae feed on the host phloem tissue from August of one year to June of the next year. Fattened larvae then excavate additional cells for the pupa stage, which lasts about a month. Adults then eat and burrow an exit to the surface, whereupon they fly, sometimes as far as six miles, to neighboring tree stands, where the cycle is repeated. During this flight, often helped by winds, females secrete male-attracting pheromones, bringing more beetles and concentrating attack numbers.
The Trees And Their Life Cycle
Pine trees are gymnosperms (meaning that their seeds are not contained in fruit) that evolved long before flowering plants. A pine contains both male and female gametophytes, a tree’s equivalent to sperm and egg. Female pine cones are fertilized by small male cone pollen. An embryo encased in a seed coat develops, and is dispersed by wind or by animals.
Pine trees extract water from the soil and pull it upward, against gravity, in the xylem tissue, through transpiration- a tree’s equivalent to sweating. Photosynthesis in the needles utilizes sunlight to convert CO2 and water into sugar and oxygen. This process utilizes chlorophyll, a green molecule that is similar in structure to animal hemoglobin. Sugar then moves, in solution, from the needles to other tree parts that require energy, by way of the phloem.
Since sap-containing phloem cells contain sugar, they are a good beetle food source. When osmotic water flows into high-sugar-concentrated resin-filled cells and tissues, a balanced hydrostatic gradient is established. In healthy trees, a copious flow of sap can actually “pitch out” a beetle attack, such that the beetles drown in the pitch. The tree must not, however, be in a state of stress in order to mount this important defense.
I am presenting this in parts, because I believe the entire discussion is too lengthy for the internet.
Next: Endemic versus epidemic and conditions that favor epidemic, and the role of fire.
First, “The death penalty is hella fuckin’ balls-to-the-wall awesome…”:
The religious symbol Wine, Wheat, Sea, Grapes by Crane-Station on flickr. Jail Art: colored pencil, magazine ink and eye shadow. Drawn in Ricky’s World.
Frog Gravy is a nonfiction incarceration account in Kentucky in 2008 and 2009, in jails and in prison, and is reconstructed from my notes.
Inmate names are changed, except for nicknames that do not reveal identity.
Frog Gravy contains graphic language.
McCracken County Jail, Spring, 2008, Cell 107
After some frantic searching in the cell, Ruthie finds the photograph of her mother, who passed away. She finds it, finally, during a trip to the toilet; she had sat on it, and it was stuck to her ass.
Ruthie wants to know if her mother is in heaven, and if she is, will she be sending a signal to Ruthie, like when the lights in the cell flickered this morning. She asks me. I am not an expert in heaven (In fact these days I think I am more an expert in Hell), but I tell her that I believe in a spiritual realm, and I believe we will see our loved ones when we die.
Tina, who takes a literal view of scripture, says, “She’s just asleep, until He comes to judge. You know, like when you go to sleep and…and that’s where your mother is…And the devil will reign for seven years. And, if you don’t have that number, you won’t be able to buy things, or eat things…”
I hear this, and cannot get the words out of my head: And he shall reign forever and ever…For Ever and Ever, Hallelujah, Hallelujah… and I wonder if it is indeed true that Handel wrote the Messiah in, like forty-five minutes during a manic psychotic break. At any rate, the man is a genius, and even though he writes of God’s reign and not the Satan that will be scanning our computer chips for the mark of the beast to see whether or not we can shop at the WalMart In The Sky, the Messiah is one of the most beautiful pieces of music ever written.
In this cell, in this mixture of madness and sadness that is condensed as though cooked under reflux, I adjust the towel on my head, and continue working on the jailhouse dictionary we are composing. Down the hall, Harry shouts from his isolation cell, “PLEASE! Let me OUT!! Help me! HELPMEhelpmehelpmehelpmehelp.” I am reminded of the acronym GOMER, which means “Get Out Of My Emergency Room,” but if you read House Of God by Samuel Shem, you will know this, of course.
Spork: a jailhouse eating utensil that is a plastic hybrid of fork and spoon.
No-shank pen: a flimsy, short version of the ballpoint that has been rendered useless as a weapon.
Hot on the walk: A very good looking Class D nonviolent male working the hallway, such as the one who, from time to time graces us with a view of his erect penis from the broom closet down the hallway. You have to get on tiptoes and strain a bit to see this, but it’s worth it.
Kentucky taxpayers spend something in the neighborhood of $30,000 per year per non-violent war-on-drugs inmate for us to sit in a cold cell, composing a twisted urban dictionary and gazing at the occasional male specimen of perfection. Kentucky. Fuck yeah.
Christie explains trick writing to me in a bit more detail. Trick writing has afforded her the opportunity to pay restitution to her check-writing victims and obtain canteen supplies that she needs to live, such as shampoo and other hygiene products. I am fascinated, and although I have never trick written myself, I would venture to guess that trick writing alone is a multi-billion dollar industry in this country.
There are a good many men who are interested in contacting and developing correspondence relationships with locked up women. Contrary to popular belief, the men are not always interested in sex, or in sexual letters. They are more interested in having a pen pal. There are many sites on the internet that advertise for prison and jail pen pals. Many relationships are long-lasting, and often, particularly if the female inmate has no viable family ties any more, the pen pals are all she does have. Not infrequently, the pen-pal relationships evolve into long-term relationships and marriages.
Christie’s pen pals come from all over the country: Maine, Oregon, Colorado, New Mexico. A nudist in Indiana (who looks like he came straight out of the movie “Revenge Of The Nerds”, she points out). A marathon runner in Texas. A professor who speaks French and Italian.
We eat lunch: chicken breast, one slice of white bread, carrots, broccoli and vanilla wafers. After lunch I go into the toilet and climb onto the steel sink, and look through the tiny, scratched out slit in the ghosted-out, bullet proof window. There are the dumpsters.
And a bird! Oh my God a bird! What a blessing. I got to see, even if for a fleeting moment, a bird.
And this is the highlight of my day. If God could bring me just one bird to see each day, I will be happier than ever.
