As some of you may know, I am working on editing Frog Gravy at the moment. Sometimes, I have difficulty locating my own posts in this site, because there are many, and lately, many are unrelated to incarceration, so believe it or not, I have to google to search for some of my own Frog Gravy writings.
If you are new, or if you are interested in reading about incarceration, here is a list of a few posts you may find interesting.
Before I begin, I would like to show you the GoodReads statement I made regarding Three Cups of Tea. My GoodReads list is in the lower left part of this site:
This book is controversial because investigations have greatly questioned its truthfulness. In fact, the author has been ordered to pay back some charities, due to accusations of misappropriation of funds and misrepresentations of activities.
The book remains on the list, and it is unrated at this site currently.
At this point, I would like to ask readers what, if anything, you would like to see more of. My site stats indicate that people are interested in incarceration, but also, in topics related to living in poverty. If you have specific requests, please do not be shy about asking. For example, if you once read a Frog Gravy and would like to see it again, but cannot find it, I will try to help with that.
As I said, I am posting this, because the story, Frog Gravy, is sort of lost in this site and takes some searching and back-surfing to find.
Just a brief note on the legal case: It is headed to the United States Supreme Court as a Petition for Certiorari. The United States Supreme Court rarely grants these petitions, and the issues are very specific. Of course, we believe the constitutional issues in this case [insert litany here] are significant, or we would not disrespect or waste the Court’s time in filing the petition, but again, such petitions are rarely granted. I will speak about the next step in the legal case at the appropriate time.
The Kentucky Supreme Court denied our Motion For Discretionary Review of the Frog Gravy legal case without opinion or comment. Here is a copy of the order:
This means we have reached the end of the road on the direct appeal in Kentucky and the published opinion by the Court of Appeals is the law of the case. The briefs filed by the parties will be available online at the Chase Law School in Kentucky at some point.
Documents in this case, including the briefs and the published opinion (pdf), are also available here:
1. Do nothing. The case no longer specifically impacts our day-to-day lives one way or the other. Fortunately, I am not on death row. The case will impact others in the future, because it is published and it sets precedent. One option is to do nothing.
2. Petition the United States Supreme Court for Certiorari, or review, of the decision. The issues are very specific in such a petition. Here is more information about Certiorari:
http://en.wikipedia.org/wiki/Certiorari
Judges use a legal expression when they decide to prevent the potential evisceration of a fundamental rule of law by exception. In denying an argument to recognize such a proposed exception, they point out that, if they were to accept it, the exception would “swallow the rule.”
Our fundamental constitutional right to due process of law is in danger of being swallowed up by the Obama Administration’s policies of assassinating and indefinitely detaining United States citizens, no matter where they may be located, without due process of law, if the president decides that the citizen is a terrorist, supports terrorism, or is a member of al-Qaeda, an affiliate of al-Qaeda, or an associated force.
For example, in a recent federal case in which Anwar al-Awlaki’s father sued President Obama, Secretary of Defense Gates, and CIA Director Leon Panetta seeking to prevent them from assassinating his son without due process of law, the Department of Justice persuaded the judge to dismiss the case because, nothwithstanding the Due Process Clause of the Fifth and Fourteenth Amendments that explicitly prohibit the government from depriving a person of “life, liberty, or property without due process of law,” the judicial branch of government has no constitutional authority to question or review decisions by the president as Commander in Chief of the Armed Forces to assassinate U.S. citizens on his say so anywhere in the world at any time pursuant to the Authorization to Use Military Force (AUMF), passed by Congress in response to 9/11, and the president’s authority under Article 2 of the United States Constitution.
Anwar al-Awlaki and Samir Khan, both U.S. citizens, were subsequently assassinated in Yemen last September by Hellfire missiles fired from a U.S. drone. Mr. al-Awlaki’s 16-year-old son, Abdulrahman, was assassinated by drone two weeks later.
As Glenn Greenwald points out today, the Obama Administration hypocritically uses the CIA drone assassination program to publicly congratulate itself on removing targeted individuals like al-Awlaki “from the field” without due process of law while at the same it refuses to admit or deny that it has a list of targeted individuals and a drone assassination program. With the exception of Mr. al-Awlaki, whose name was confidentially disclosed to journalist Dana Priest as a person targeted for assassination, we do not know whether the president has targeted anyone else and, assuming that he has, we do not know if such person or persons have been assassinated. We also do not know what criteria the president uses to decide whether to put someone on the list. For all we know, any one of us already could be on the list or at risk to be added to it. Since we do not know whether we are on the list and we cannot find out if we are, we cannot challenge the president’s decision to add us to the list, assuming for the sake of argument that he did. We, by which I include every U.S. citizen no matter where situated in the world, are left with no choice except to trust the president to never make a mistake and never succumb to the temptation to use the assassination program for political purposes.
In the mistake department, one need only consider the relatively frequent stories that pop up about innocent people, including young children, whose names inexplicably are added to the No-Fly List maintained by the Department of Homeland Security. I will not go into the category of assassinations for political purposes as it remains a raw and bleeding wound of grief and endless suspicion and speculation by many people. Think, for example of John F. Kennedy, Robert Kennedy, the Reverend Martin Luther King, Jr., Dr. Bruce Ivins and others too numerous to mention. The point is that many unscrupulous people of wealth and privilege covet the power of the presidency. We already know that this president is for sale and we cannot trust him. The question is whether, assuming you openly oppose him, you are willing to trust him not to target you for assassination. And if you trust him not to do so, would you also trust a Newt Gingrich, a Sarah Palin, or someone like them not to do so, if they should be elected president?
The answer to that question should be self-evident.
Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience.
This is not the first president and certainly will not be the last to seek to detain people indefinitely and/or target them for assassination without due process of law in the name of keeping us safe. Whether in good faith or in bad faith for political purposes in the pursuit of power, I feel much safer if his decisions and actions are constrained by the Due Process Clause and the right to habeas corpus.
Even though he said he would veto it, President Obama has announced that he will sign the National Defense Authorization Bill that gives him and the military the authority to indefinitely detain U.S. citizens suspected of supporting terrorist activity. I am not surprised because Obama lies all the time about everything and he already claims to have the power to order any person in the world assassinated, no matter where situated and whether or not a U.S. citizen, if he decides that person is a terrorist or has provided material support for terrorism.
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Emphasis supplied.
Nothing explicit or implicit in the Fifth Amendment creates or justifies an exception to the Due Process Clause that I italicized, and if you carefully listen with your heart, you can almost hear our Founding Fathers shouting, “NO.”
Using post-conviction DNA testing, the Innocence Project, which was formed by Barry Scheck and Peter Neufeld at the Benjamin Cardozo School of Law in New York City approximately 20 years ago, has exonerated 282 innocent people who were wrongfully convicted of crimes. 17 people were on death row awaiting execution when they were exonerated.
“The Disturbing Case of Eddie Lowery” will be shown tomorrow night (Friday, December 16th) on MSNBC at 10 PM. He is one of those 282 innocent people. Mr. Lowery falsely confessed to a rape he did not commit and spent 10 years in prison before he was exonerated. You can visit the website for the Innocence Project and watch a preview of tomorrow night’s show here.
The Death Penalty Information Center issued a report today entitled, “The Death Penalty in 2011: Year End Report, which you can read here.
The Center reports that, while 1277 people sentenced to death since 1976 in the U.S. have been executed, 139 people sentenced to death have been exonerated (this number includes the 17 people exonerated by post-conviction DNA testing). That is more than 10% of the number of people executed.
The high number of post-conviction exonerations does not inspire confidence in the ability of the criminal-justice system to only convict the guilty and always acquit the innocent, despite due process of law.
Researchers have identified seven causes of wrongful convictions. They are:
1. Mistaken eyewitness testimony;
2. Police misconduct;
3. Prosecutorial misconduct;
4. Forensic fraud;
5. Ineffective assistance of counsel;
6. False confessions; and
7. Jailhouse informants.
To the extent we have information about the people detained at Guantanamo, approximately 80 to 90% are innocent. Most of the people detained by the U.S. military there and other places were identified by paid informants as terrorists and many of them confessed while being tortured.
There is no evidence-based reason to believe that the military is any better at only convicting the guilty and always acquitting the innocent than the civilian criminal-justice system. In fact, given the kangaroo-court-style military tribunal process, there is good reason to believe that there is a much higher probability of wrongful convictions by military tribunals.
Despite all of the well-documented examples of the wrongful conviction of innocent people accorded due process of law in civilian courts and the identification of the causes of those wrongful convictions, President Obama apparently would have us believe that he and his review panel would never make a mistake and order the assassination of an innocent person.
And now the U.S. Congress has granted him the authority to order U.S. citizens, whom he suspects of providing material support to terrorists, detained indefinitely by the U.S. military without access to lawyers and the civilian courts.
This is an egregious and unpardonable sin against the U.S. Constitution, Bill of Rights, Rule of Law, and we the people of the United States.
Given the secretive manner in which senators Carl Levin (D) and John McCain (R) cooked-up this law behind closed doors without conducting any hearings or calling any witnesses, I cannot help but believe that this law was enacted with the OWS protests in mind.
Everyone who participated in drafting, supporting, and enacting this horrific law is unfit to serve in government. They should be immediately removed from office and forever barred from serving in public office in the future in any capacity.
Let December 15, 2011 forever be known as America’s National Day of Shame.
Hello everyone. This post is written by Masoninblue and cross-posted here full text with permission. His web site is frederickleatherman.wordpress.com. I encourage you to visit his site if you are interested in legal topics. His site does not include the incarceration aspect of Frog Gravy, but it does address legal aspects of the case. This site, Frog Gravy, has a mixture of both.
Thank you for visiting our sites, and we wish you a peaceful and blessed holiday season!
Empathy is the basis for true morality
by aerie under flickr Creative Commons
Randian neoliberals, as in Ayn Rand, believe in competition and social darwinism. They claim that human life is like a vast jungle and they have adopted “survival of the fittest,” formerly known as the law of the jungle, as the guiding principle of their lives.
They adopted Grover Nordquist’s advice to privatize government as much as possible and drown what little remains of it “in a bathtub” abolishing all laws, regulations, and regulatory oversight.
They claim they want to create the free marketplace that Adam Smith wrote about in the Wealth of Nations; a mystical place controlled by the “invisible hand” of self-interest that they declare to be maximizing short-term profits.
They have elevated greed to the status of not just any god, but the god of gods. That their interpretation ignores Adam Smith’s warning that the marketplace must be regulated to protect competition from the monopolies that inevitably will develop in a truly free marketplace is no trivial matter.
They have committed an egregious sin by creating a philosophy to justify stealing from others that they put together with disparate elements of philosophy, science, economics, and religion as though selecting from different columns on a Chinese menu to feed their ravenous greed.
Survival of the fittest is not a law; it is a description of what happens when a hungry apex predator hunts, kills, and consumes its prey. If there were no other laws at work after approximately 4 billion years of evolution, only apex predators would exist, and possibly none of them either as they would have extinguished themselves by cannibalism.
Natural selection is an evolutionary process that weeds out unsuccessful genetic adaptations. Natural selection is not survival of the fittest.
In a recent study published in the peer-reviewed journal Science, research scientists at the University of Chicago reported that lab rats can show empathy. Their experiment demonstrated that free rats will work tirelessly to free caged rats. Even when presented with chocolate chips, a free rat will continue to labor on freeing the caged rat until successful. Then they share and consume the chocolate.
While survival of the fittest may dictate the outcome in most battles between a hungry predator and its prey, unless its prey outsmarts it or it is fortunate to escape, empathy occupies a far more important role in determining whether a species survives. Empathy leads to survival of the wisest and validates the age old maxim that the meek shall inherit the Earth.
Empathy is the basis of the Golden Rule.
Randian neoliberalism is junk science at its worst and should be universally discredited and the legacy of its practitioners condemned to a mere footnote in the sorry history of human greed.
Written full-test here by Nasoninblue with premission.
Author’s note: In case y’all missed it or want to refresh your recollection, <a hrPart 1 is here.
Deputy McGuire testified at the suppression hearing that he was dispatched by 911 to investigate a call by a citizen who reported that, “There’s this lady walking around in my neighbor’s yard talking to my neighbor and writing stuff down in a notebook and she mentioned something about tar heroin and all that stuff.”
The caller identified himself and described the woman and her vehicle. He also reported that the vehicle had a WA license and provided the number. He did not indicate if he had spoken with the woman; if he was present when the conversation took place; who told him about it if he was not present; or what she was writing down.
When he arrived in the area, the deputy searched for but he did not find the woman or the vehicle and he cleared the call without talking to the 911 caller. As he was approaching the traffic-controlled Cairo Road intersection in the passing lane on Highway 60, he noticed that he was passing a vehicle with its left turn signal blinking. The vehicle had WA plates and both the driver and the vehicle matched the description provided by the caller. He decided to pull her over and investigate.
He slowed down, allowing her to move ahead, and then he fell in directly behind her. She reacted by activating her right turn signal and moved over into the emergency lane along the right shoulder of the highway. As she did, he activated his emergency lights, moved over with her, and stopped behind her.
Upon request, she produced her license, registration, and proof of insurance without difficulty.
When he ordered her to get out of her vehicle, she did so without stumbling, and she followed his instructions without exhibiting any confusion or mental impairment. Other than “glassy” eyes and nervousness, he saw no signs of possible impairment. He administered a portable breath test (PBT) that she passed, effectively ruling out alcohol intoxication. Although she “failed all six clues” on the horizontal gaze nystagmus test (HGN), he administered the test improperly, according to the National Highway Transportation and Safety Administration (NHTSA) because he positioned her facing the headlights of oncoming traffic and his patrol cruiser’s emergency lights. NHTSA, which developed the test, warns police not to do that because the lights produce a false nystagmus.
The deputy conceded that he did not witness any bad driving and her blinking left-turn signal could have been due to her intending to move into the left lane, but his approaching vehicle in that lane prevented her from doing so.
After he placed her under arrest for DUI, he transported her to a hospital for a blood draw and discovered an apparent rock of crack next to her watch in the seatbelt crack of his back seat next to where she was sitting.
Author’s note: In another post we discussed his prior testimony under oath at the preliminary hearing and the grand jury in which he said he found her watch and the rock of crack under his back seat. In other words, he did not find it in plain view on the seat beside her. He said he pulled the back seat forward to look for her watch after she told him that it had fallen off and slipped behind the seat. She asked him to retrieve it because she was handcuffed and could not do it herself.
The trial judge entered three suppression orders.
1. The First Order.
On January 11, 2007, Judge Clymer issued his first order denying the motion to suppress evidence. Although all of the material findings of fact and conclusions of law were clearly erroneous, one finding of fact and its corresponding conclusion of law merit special consideration. In Finding of Fact 5, Judge Clymer wrote,
When Defendant first exited the [her] vehicle the Deputy observed a wristwatch in close proximity to a baggie with apparent controlled substance inside the car. Defendant denied the apparent controlled substance was hers but acknowledged the wristwatch was hers.
This did not inspire confidence as one can only wonder how the judge forgot or became confused and thought that the rock of crack was discovered in her vehicle rather than the police cruiser.
Not to worry, we thought. We pointed out that and other errors and asked him to reconsider his order, which he agreed to do.
2. The Second Order
On January 18, 2008, Judge Clymer entered his second order concerning the defense suppression motion. He found that while driving “in a right hand traffic lane with her left turn signal activated, [the appellant] did not turn but pulled to the right side of the roadway and stopped.” (Finding of Fact 3) “The deputy pulled in behind the stopped vehicle and activated his emergency lights.” (Finding of Fact 4) He concluded that the arresting officer “did not conduct a stop of the appellant’s vehicle” because she “pulled off the roadway and stopped” before “he pulled in behind her and turned on his emergency lights so as to investigate.” (Conclusion of Law 1)
Author’s note: We have already discussed whether this was an investigatory stop initiated by a police officer or a voluntary citizen initiated contact with a police officer. This was an investigatory stop.
Judge Clymer also concluded that “[t]he combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway to the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.” (Conclusion of Law 2)
Author’s note: A person who calls 911 to report a possible crime is presumed to have provided reliable information if he identifies himself and provides a current address. Since the caller in this case provided the requisite information, he would be presumed to have provided reliable information. However, even if one assumes that his information was accurate and reliable, he did not describe criminal activity. In addition, the judge’s findings of fact conflict with the information provided by the caller and the deputy’s testimony, which described an alert driver operating her motor vehicle in compliance with the traffic laws. He could not have cited her for “improper signal” because no such statute exists. Since the information provided by the presumptively reliable caller and the deputy described lawful activity, the judge erroneously concluded that the deputy had a reasonable suspicion “to investigate and possibly cite for improper signal.”
Regarding the appellant’s arrest, he found as fact that the appellant admitted that she had taken several prescription medications, including Clonazepam. (Finding of Fact 6) He also found that “[t]he maker of Clonazepam warns that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” (Finding of Fact 7) He concluded, “[d]efendants inquiring about heroin, failing an HGN test, signaling a left turn and pulling off the road to the right, and stating she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” (Conclusion of Law 4).
Author’s note: We have already discussed the HGN and Clonazepam issues noting that the product insert does not warn “that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” It advises physicians to warn their patients for whom they first prescribe Clonazepam to be careful because the drug might cause drowsiness and impair their ability to operate a motor vehicle or other machinery. If that happens, the dosage can be lowered to avoid impairment. This is actually a common warning given for many drugs that are prescribed to improve functioning. Clonazepam is such a drug and it is prescribed to enhance function by reducing anxiety and to control seizures. Dosage is critical. Assuming the judge was honest, the rest of the finding establishes that he was thinking of a different case when he crafted this effort.
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.
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…)
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.
Frog Gravy: The Incarceration Experience 