Wednesday, August 27, 2014

Shielding the Executioner: Shaun Cowley, Paul Cassell, and the Murder of Danielle Willard

During a lengthy career that includes stints as a federal prosecutor and judge, Paul Cassell has devoutly upheld the vision of 18th Century arch-authoritarian Joseph de Maistre, who taught that “all greatness, all power, all social order depends on the executioner.” The figure dispensing lethal violence on behalf of the state is both “the terror of human society” and the “tie that holds it together,” Maistre insisted. “Take away this incontrovertible force from the world, and at that very moment order is superseded by chaos, thrones fall, society disappears."

For Maistre, the executioner is a high priest presiding over the arcane ritual in which lethal violence is transubstantiated into public order. Paul Cassell shares that view. Removing procedural impediments to execution has been one of two causes that have largely defined Mr. Cassell’s legal activism. The other is a campaign to overturn Miranda v. Arizona and the “Exclusionary Rule” buttressed by that decision. Cassell has distinguished himself by his zeal to allow police to brow-beat people into confessions, and executioners to ply their trade more energetically.

Cassell has dismissed as an “urban myth” the belief that innocent people have been sentenced to death – a characterization that is impossible to sustain as the roster of now-exposed wrongful convictions expands. He has denounced the Miranda ruling as “the most damaging blow inflicted on law enforcement in the last 50 years,” insisting that the 1966 ruling led to a deluge of “unjust acquittals.” 

Clearly, Cassell considers the current legal system to be too deferential to the rights of defendants, insisting that we shouldn’t let our concerns about due process undermine the rights of crime victims.

Owing to his background, Cassell is perhaps the last person we should expect to see surrendering to civil libertarian impulses. However, the case of accused killer Shaun Cowley has cooled Cassell’s ardor for swift punishment and prompted him to question the legitimacy of compelled confessions. This is because of the identity of the killer, not the nature of his act: Cowley is a former West Valley City Police Officer accused of manslaughter in the November 2, 2012 shooting death of Danielle Willard

When Cowley pulled the trigger, he was behaving as the executioner ex officio. That is the only reason why Cassell, who is currently a law professor, has volunteered his services to the ex-officer’s defense team. 

“My concern is that a guilty verdict in this case will jeopardize the safety of the community by making police officers fearful of defending themselves against criminals who are themselves threatening deadly force,” Cassell wrote in a letter to Brent Rawson, an attorney for the Utah branch of the Fraternal Order of Police. The killing of Willard, Cassell declared, was “a case of justifiable homicide on the part of Officer Cowley – and obviously, at the very least, a case in which criminal charges should never have been filed.” 

Willard, a slightly built 21-year-old Vancouver, Washington native, had relocated to Utah to attend a drug treatment program. A few days before she was killed, Willard had called the police to report a break-in at her apartment  the apartment where she was staying temporarily. This suggests two things – first, that she wasn’t trying to conceal illegal activity from the police, or she wouldn’t have invited their attention; second, she was concerned about a potentially fatal threat to her personal safety. That mindset would explain why Willard panicked at the sight of two armed strangers in street clothes whom she may not have identified as police officers.

When Cowley and his partner, Officer Matt Salmon, approached Willard in the parking lot of her apartment complex, she locked her car and refused to roll down the window. After Crowley obtained a crowbar to shatter the driver’s side window, Willard put the car in gear and attempted to flee the parking lot, backing her Subaru Forrester into a police cruiser (or, in one account, a car belonging to one of the residents) and then allegedly injuring Cowley as the car brushed against him. 

Cowley, who was not seriously injured, shot Willard twice, once in the top left-hand section of her head, while he was standing beside the car, rather than in front of it. The DA’s investigation concluded that at the time Cowley fired the shots, Willard was not driving fast enough to endanger the officer’s life, or that of his partner, who also fired several shots without hitting Willard.

If Cowley and Salmon had been members of a private sector narcotics gang, both of them would face capital murder charges. The investigation into the Willard killing revealed that the agency employing the shooter was a privileged criminal syndicate: The killing of Danielle Willard should have led to a RICO prosecution of the narcotics division, if not the entire department. 

An audit of the West Valley PD ordered by Salt Lake County DA Sim Gill led to the discovery that the narcotics unit that employed Cowley had stolen money, drugs, and “trophies” from narcotics suspects. Interviews with “cooperating informants” weren’t recorded properly, and officers regularly violated the Fourth Amendment by attaching GPS monitors to vehicles without warrants.  

In addition to rampant larceny and routine due process violations, the drug unit was engaged in something strongly resembling human trafficking. The Provo Daily Herald recounts that the audit discovered “that officers improperly used confidential informants and some of them may have been in the country illegally….”

As a result, Gill dismissed 125 drug-related criminal cases and the department disbanded the drug unit. Amid accumulating revelations of systemic corruption within the department mounted, Chief Thayle Nielsen suddenly retired, citing a previously undisclosed “health” issue. Cowley was fired as well -- not for killing Willard, but for “misplacing” drug evidence that was found in the trunk of his car.

Earlier this summer, Attorney Mark Geragos, who is representing Willard’s family in a lawsuit, filed a motion alleging that an officer other than Cowley had been given a “hush money” buyout when he left the West Valley PD in order to dissuade him from revealing corruption within the department. Nielsen’s successor as chief, Lee Russo, admitted that the officer had been fired after being accused of sexual contact with potential suspects, and that he had received a severance payment after signing a nondisclosure agreement, but insisted that it was “in no way, shape or form” a hush money arrangement.

“The assertion that we still have criminals [in our] department is offensive, irresponsible, and inaccurate,” protested Russo, offering an oblique admission against interest that did nothing to reassure the public.

Remember that admission; we’ll revisit it anon.

For lancing this malignant carbuncle on Salt Lake County’s body politic, Sim Gill earned effusive praise from the upright and public-spirited personages who compose Utah’s political establishment and law enforcement community.

Well, not exactly.

The ripening controversy prompted Cassell to descend from the Olympian realm in which he resides to act as a defense attorney for the first time in a career otherwise uniformly devoted to expanding state power at the expense of the defendant’s rights. 

Condemning a foreign-born "cop hater": The bilious Bennion.
In 2000, Cassell filed amicus briefs in Dickerson v. United States in the eager expectation that the Supreme Court would the Miranda ruling and reinstate Section 3501, a statute that would allow admission of “voluntary” confessions by suspects who had not received the Miranda Warning. The High Court upheld Miranda and found Section 3501 to be unconstitutional. This prompted Cassell and congressional allies to redouble the efforts to enact a “victim’s rights amendment” to the Constitution

The Clinton administration, which was not notable for its devotion to due process, proposed four changes to the draft amendment, one of which would add the following language: “Nothing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by the Constitution.
“To put that language in would have perpetuated the very problem we were trying to solve,” complained Cassell – the “problem” being that suspects are considered innocent until proven guilty of an offense, rather than being regarded as offenders by virtue of being put on trial. 

In addressing the charges against Cowley, Cassell has neatly inverted the priorities he had followed for decades. This is a case in which there is no dispute regarding the identity of the shooter and that of the victim. Yet Cassell has pointedly declined to solicit input from the victim’s family, or argue that they have a role to play in the legal proceedings. His priority is to dispose of the matter before it can come to trial by suppressing statements Cowley made to officers investigating the violent death of Danielle Willard. 

Cassell accuses Gill of making improper use of statements made by Cowley after he invoked his supposed “Garrity” privileges. As I’ve explained before, under the special immunity established by the Supreme Court’s ruling in Garrity v. New Jersey, an officer suspected of misconduct cannot be prosecuted on the basis of statements made during an internal investigation. 

The only leverage investigators have against an uncooperative suspect in that context is the threat of termination. That sanction doesn’t involve an injury to an actual property right, since a police officer cannot legitimately claim a property right to a position subsidized by plundered wealth. 

A criminal defendant not protected by Garrity, on the other hand, faces immediate and acute threats to his person and property. Furthermore, any contradictions between the first version of the suspect’s story and the one that emerges from a lengthy interrogation can be used as evidence against him. This is why the Exclusionary Rule, and the right against self-incrimination it protects, are indispensable. 

Cassell regards Miranda to be inimical to public order because it can deter suspects from confessing. Not surprisingly, he insists that Shaun Cowley must be spared the blessing of such compelled soul-cleansing, or anything akin to it. Cassell, who treats Miranda as a profanation of the state’s punitive rituals, regards Garrity to be sacred and inviolable because of the role played by the people it protects. 

Owing to alleged violations of the Cowley’s Garrity privilege, “the entire investigation and prosecution team is tainted,” he asserts. “The burden is on the state to prove there has been no taint. We do not believe they will be able to meet that burden.” 

Would Cassell be similarly fastidious about a “tainted” prosecution if Cowley and Salmon had been two drug dealers who shot at Willard in otherwise identical circumstances – or if, in that scenario, she had actually attempted to run down Cowley? Of course not: Because of their affiliation with a narcotics unit that the current West Valley PD Chief admits was a criminal gang, Cowley and Salmon were privileged aggressors.

In this instance, Cassell maintains, the supposed rights of the killer are of immeasurably greater social worth than the interests of the victim, because “Effective law enforcement is critical to preventing victimization of society.” 

“Effective” enforcement of the “law,” from Cassell’s perspective, requires that the executioner enjoy a special exemption from it. 

Dum spiro, pugno!


rkshanny said...

1st: In the 10th paragraph, 2nd sentence ". . . at the time Willard fired the shots . . . ": I believe you misname Willard as the shooter. FYI Will.
2nd: when Cassell yammers about jeopardizing the community by making coppers fearful of defending themselves, blah, blah . . . as a concealed weapons permit holder in UT, we better damn well be fearful of shooting if it is not as a result of fear of imminent grievous bodily harm or death. Otherwise we have blown the Rules of Engagement/Use Of Force Code and will be criminally liable. What makes this special badge-toting personage think he's above the laws of proper self defense . . . that's just a rhetorical question of course. Our self-described betters are always above the law as well as above us tax-cattle by virtue of their lofty legal pedestal, from which they preach their "higher standard" protocols.

kirk said...

cassell is an authoritarian slug who does not believe in our republican form of govt, instead subscribing to vicious fascism, where the state (and its representatives) are always correct and we, the schmucks, are always wrong.

perhaps he should apply for a job with the N. Koreans, our friends in Kiev, etc. he would fit in quite well in a position in those places.

Anonymous said...

Did Ms. Willard have a father? If so, why is Cowley still alive?

Anonymous said...

This is another perfect example that we are headed to hell on earth. Thats where its going to end up and the signs along the road to hell on earth are clear, we are headed in that direction.
Thats what its really all about, parasites using government as a weapon against decent hard working Americans families.
I had someone tell me a few days ago. Its like our country is being controlled by another country and its out to destroy us all. Its called, Government Gone Wild.
A government that lies to its people is not a government for the people. Period!

Anonymous said...

Notwithstanding the story at hand, I believe there should be laws prohibiting cops who are fired because of documented criminal wrongdoing from EVER applying for a law enforcement job in anywhere. And, there should be a public data base on these bad cops. Also, given it is almost impossible to prosecute bad cops for ANYTHING, I'd submit if these SCOTUS rulings are any indication, I'd also submit, given a choice of getting illegally shot by a cop or shooting first is a no least in my universe.

Anonymous said...

Evil prospers in that good men do nothing.

"The People-the people are the rightful masters of the legislature and the courts. Not to overthrow the Constitution but those men who pervert it."
Abraham Lincoln, 1859

In the Declaration it stated that when government becomes destructive to the rights of the People that it is "their right", "their duty" to throw off the yoke. Now whose right and duty is it???? Are you all spinless Political Welfare types and have to have your butts wiped??? You all every man of you know. But it is not me that looks into yuour hearts, it is God who wants justice not sacrifice.

When the prophet spoke to the congregation and said that the reason for the ills of the country were because, the people no longer followed the law, that taking strange wives-those who would not adopt the manners and customs of their new home and strangers perverting the law. Every man of then got up and went and did their business. The country then recovered.

Shall I paint pictures for you?????

Anonymous said...

Yet again, someone invoking the constitution and evil while quoting Lincoln?!?!?

Anonymous said...

Lincoln is one of the main reasons that blogs like Will's even exist. The destruction of the constitution and current police state can easily be traced back to Lincoln.

Anonymous said...

Why is it we must be bashed with Mosaic laws and commandments when we ourselves are not Israelites? Time to put some historical perspective in place. And, yes, it's high time to overthrow the regime currently lording over us filled with hypocrites of both Republican and Democratic stripes. They're both equally evil.

voluntaryist said...

One can be against the Miranda Act and still be for justice. Miranda was SCOTUS trying to avoid punishing authorities for violating rights. Instead it punishes the people by letting a criminal off. Why not convict by the evidence, however obtained, and then prosecute the officers for breaking the law, i.e., violating rights? Miranda lets both the officers and the suspects off, punishing only us, and obstructing justice. Miranda is a classic example of punishing a wrong (cops violating rights) with a second wrong (excluding evidence).

Anonymous said...

Miranda is invalid from the perspective of how the constitution was written because the federalists swore up and down during ratification that no federal court would ever rule on a state law. Federal courts would only rule on federal laws. The Tom Woods liberty classroom has a great course explaining this by Kevin Gutzman and Brian mclonahan.

William N. Grigg said...

I've never been a fan of the "incorporation" theory, which was used to expand federal power in the guise of extending due process guarantees to individual defendants.

Miranda was a product of incorporation, which means that its origins were problematic, even if its impact could be considered favorable.

While there are problems with some aspects of the Exclusionary Rule, I think the requirement of a warning against self-incrimination is a sound precaution.

Cassell seems to think that a suspect should be considered guilty by virtue of being interrogated by the police -- unless the suspect is a law enforcement officer himself.

voluntaryist said...

"Miranda" is invalid..."

It does not matter what the constitution says. TPTB say we are ruled by the constitution, as propaganda. TPTB claim that Miranda is a protection. It is not. I speak from personal experience. In 1980 I invoked Miranda as a defense against an incriminating statement to Customs Agents. The prosecution claimed Miranda was not violated because I was not yet under arrest, just suspicion, when questioned. In my case the lie I told was not important, it was trivial and of no consequence, but that did not matter. Any lie told to any federal agent is a felony. So why would anyone lie, or even talk to the feds? I talked because I did not know the law. I was not warned that answers not truthful, however trivial, or even if you consider the question an invasion of privacy, as I did, are felony offenses. To belabor the point, if a woman is stopped and asked her age, she must answer truthfully or not at all, otherwise she commits a felony. And the feds were not required to inform me that I could refuse to answer, but lying would be a felony.

The Appeals Court upheld the conviction, 2-1. The Supreme Court refused to hear the case, in spite of many cases where other Appeals Courts had ruled the opposite. One would think the confusion needed clarification, if justice was the goal. When you stop presuming justice is a goal, and expansion of power is the goal, contradictory or irrational decisions suddenly make sense.

William N. Grigg said...

why would anyone lie, or even talk to the feds?

... or to any law enforcement official, for that matter?

As with the Constitution itself, "Miranda" is useful primarily as a way of demonstrating the cynicism, hypocrisy, and predatory nature of those who presume to rule us. As you say above: One we understand that power is both the means and the end, everything done by our self-appointed rulers makes sense -- including the seemingly contradictory actions of Paul Cassell and people of his depraved ilk.

Anonymous said...

A few of your "facts" are incorrect. First, Danielle did not live in these apartments. She hooked up with her dealer around the corner and parked her car here to do her drugs. Second, it was not a police cruiser she hit. It was residents vehicle that she parked next to.

William N. Grigg said...

The claim that Miss Willard "hooked up with her dealer" is one I cannot independently verify, and one I won't report on the basis of an anonymous comment.

Both of the errors you mention widely reported in the local press. I've supplied the proper clarifications. Correcting Cowley's act of criminal homicide will prove a bit more difficult.