Posts Tagged ‘KENTUCKY INCARCERATION’

First, since my camera batteries are dead today, here is Breaking: Some Bullshit Happening Somewhere:

Frog Gravy is a nonfiction account of Kentucky jails and prison in 2008 and 2009, and is reconstructed from my notes.

Inmates names are changed, except for nicknames that do not reveal identity. My name is real.

Frog Gravy contains graphic language.

Frog Gravy posts are all here: froggravy.wordpress.com, although to get to older posts will take a bit of backward scrolling through the “older entries” instruction.

This post is for Silverback66, who may be my editor someday but he does not know it yet. He races motorcycles, writes like a poet and he has a parrot, and there are pictures to prove it.

It is also a shout-out to jail and prison librarians, including McCracken County Jail librarian Jack, who made fun of me early on, saying “Pay attention to this one. She isn’t awake yet.” Well, Jack, I was awake actually so back at you, and thank you ever so much for keeping those law book pocket parts up to date. Also, the law librarian at KCIW PeWee Valley: you continue to make life better for a lot of people, every day.

KCIW PeWee Valley Ball field, sometime in winter, 2008-2009

I have lost my rocks.

I am on the ball field during recreation with the rest of Ridgeview Dormitory, walking laps at a quick pace because we are not allowed to run or jog. With each lap I select a small rock from a gravel walkway, carry it about fifty feet to a cement grate, and set it in a pile. At the end of recreation I count the rocks. This way, I know how much I walk each day, and can meet at least one personal goal during my stay here: keeping fit.

I am wearing khaki, with white Nike tennis shoes and a khaki knit cap called a “toboggan,” that is a cap and not a sled. On the outside you might mistake me for a lost hiker.

I have crumbs for my birds rolled and tucked into my cap and into my elastic band of my khaki pants. Birds follow me all around the field, even the one whose leg was amputated on razor wire.

But now my rocks are missing, and I have already spotted the guilty party, a picnic table of six friends who look just exactly like the cat that ate the canary; they can hardly contain themselves, seeing me notice my missing rocks. They want to laugh so bad, and so do I. I make a sadistic decision to take a couple of more laps and pretend not to notice the missing rocks. A couple of my friends might actually wet themselves with giddy anticipation of a confrontation with the non-confrontational Bird Lady.

The women’s penitentiary is eighty percent pathos. Even funny situations are laden with sadness. Almost everyone exhibits some form of mental illness- severe depression at the very least. Women’s prison is very different from men’s prison. The women’s penitentiary is not scary. It is pathetic, in a real sense. It actually matters to me that these women would include me in their fun. That they noticed my rocks becomes important to me because I actually mean something to someone.

During the torture laps, I study my notes that I also carry everywhere now. Thanks to the wonderful prison library, which has, by the way, inter-library loan, I am teaching myself Spanish and feeding my longstanding addiction to Mother Goose. I mean, try even finding “Fatty, fatty two-by-four” these days. The three little kittens they lost their mittens. The Little Red Hen. The Three Pigs. This library has it all. Absolutely fabulous. I am in heaven.

I suspect the reason that Mother Goose and other children’s books are so readily available in the women’s prison library is that illiteracy is over represented in Kentucky’s incarcerated population. To be clear, Kentucky locks up women who cannot read or write. There are no programs to correct this issue, but at least, thank God, the prison librarian has bent over backward to make these books available to women who choose to self-teach.

This excellent library has graduate-level literature as well. If you choose to wade through Chaucer, you can. The only thing missing is the internet, and I will exit prison two years behind everyone else in internet and cell phone technology.

The guilty friends with the stolen rocks are on their feet well in advance of my approach to the picnic table. I must choose my greeting carefully. I use a prison word that is used as different parts of speech: motherfucker.

“Motherfuckers.” I announce.

Comes the reply: “Bitch. You ain’t rocked that much.” Out comes, as if from vapor, a hand full of rocks. A round of laughter. High-fives. More laughter. The rocks are returned.

But the guards notice this bit of fun and ban ‘rocking.’ Because they can, I will no longer keep track of my laps with rocks.

At least we enjoyed the rocks, while they lasted.

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
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.

epidemic– A rapid spread, growth or development (ie: United States incarceration rates)

pandemic-epidemic over a wide geographical area.

silviculture– the cultivation of forests.

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.

Colorado State University Cooperative Extension
http://www.colostate.edu

US Department of Agriculture Forest Service, Record of Decision, Vail Valley Forest Health Project, March, 2006.

Brown, J., Report: Warming cuts trees’ life in half. 1/23/09.
http://www.denverpost.com

Bentz, B., Western US Bark Beetles and Climate Change. May, 2008. US Department of Agriculture, Forest Service, Climate Change Resource Center.
http://www.fs.fed.us/ccrc/topics/bark-beetles.shtml.

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.

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.

Cross posted from my new law blog: http://frederickleatherman.wordpress.com