Monday, November 28, 2011

The Making of a Prison Society

"That's why you shouldn't bring kids to protests."

This taunt, which issued from the sneering lips of an armored riot policeman, struck Don Joughin with the force of a billyclub as he tried to comfort his children – a three-year-old and a newborn – after they had been showered with a chemical agent by a riot policeman.

That assault did not take place during any of the recent “Occupy”-inspired protests. It occurred in August 2002, during a fundraising visit by then-President George W. Bush to Portland, Oregon. 

In keeping with then-recently established “security” protocols, local police were deployed in riot gear to keep demonstrators confined inside "free speech zones" located several blocks away from the motorcade route. Joughin, who was accompanied by his wife and three children, was present when police unleashed a pepper-spray fusillade against a small group of protesters who had taken a few steps outside the designated protest zone.

After the police attack began, Joughin and his family attempted to leave, but found themselves penned in. Acting on the tragically innocent assumption that the police were present in order to keep the peace, Joughin politely asked the officer obstructing an exit how he and his family could leave the turbulent intersection. "He pointed and said to exit to the [northeast], into the spraying police opposite him," Joughin recalled.

Don Joughin comforts his son after the infant suffered a pepper spray assault by a Portland cop.
With his family in danger of being trampled by protesters fleeing the chemical barrage, Joughin asked the officer to let him and his family through. "He looked at me, and drew out his can from his hip and sprayed directly at me," Joughin recalled. He didn't bear the brunt of that criminal assault, but his three-year-old caught some of the blast. The assailant then turned on Joughin's wife and the infant "and doused both of their heads entirely from a distance of less than three feet," Joughin testified.

As his children were screaming in agony, Joughin pleaded with the cops to allow him and his family to leave and seek help. They responded by closing ranks and blocking the Joughin family's escape. They didn't relent until someone in "authority" gave them permission to set them free. The last thing Joughin and his traumatized family heard as they left the scene was the sadistic taunt hurled by one of the tax-devouring thugs who had assaulted the children with a chemical weapon. 

While millions of Americans have been horrified by recent incidents of armored police officers beating and pepper-spraying unarmed, unresisting protesters, those nauseating spectacles are neither novel nor particularly rare. In “Securitizing America: Strategic Incapacitation and the Policing of Protest Since the 11 September 2001 Terrorist Attacks,” a heavily sourced paper recently published in the journal Sociology Compass,  Patrick F. Gillham of the University of Idaho observes that current police doctrine dictates that public protests are to be treated as “security threats,” and dealt with using methods inspired by “a new penology philosophy.”

From that perspective, every public demonstration -- however peaceful and orderly it might be --  is to be treated as the equivalent of a prison riot. This means that police are free to employ every available means – pre-event surveillance, pre-emptive arrest, hostage-taking, and the use of incapacitating “less-lethal” weaponry – in order to “neutralize” people suspected of being “disruptive” elements.

Illegal mass arrest in St. Paul, Minnesota.
Under the “strategic incapacitation” model, Gillham notes, “police often refuse to communicate at all with possible or actual transgressive protesters except to issue commands once protest events have already begun.” (Emphasis added.) It’s not enough to confine protest to “free-speech zones”; the right to assemble itself is subject to modification or revocation without prior notice – even in the absence of disorderly behavior on the part of the protesters. 

Typically, phalanxes of riot police will appear and slowly herd protesters into a confined area. An announcement will be made that the demonstration has been designated an “unlawful assembly,” and shortly thereafter the attack will begin, typically culminating with either mass arrests, needless injuries, or some combination thereof. 

A September 2001 anti-war protest in Washington, D.C. offered the first opportunity to field-test this approach. A small group of anarchists were driven into an improvised holding area by riot police, where they were literally held as hostages: “After 2 hours of detention, police conveyed the terms under which protesters would be released to a neutral third party of legal observers and not to the detained protesters.”

Two years later, during the Free Trade Area of the Americas summit in Miami, “police not only pre-emptively arrested perceived transgressive protesters, they also arrested scores of union members and student activists walking to permitted events, as well as credentialed reporters and curious bystanders,” recalls Gillham. Most of those arrested had not been ordered to disperse, and had violated no law – including a draconian anti-assembly law that had been enacted by the city government just days prior to the summit. In addition, Gillham observes, “Bails were set high as a further way to keep those arrested off the streets.”

The same approach was used at both the Republican and Democratic national conventions in 2008. In one particularly memorable application, 284 people were arrested at a public park in St. Paul, Minnesota on Labor Day 2008 during the Republican Convention. A huge contingent of riot police – supplemented by the National Guard’s JTF-RNC, and equipped with chemical munitions and gas masks -- cut off access to the park, which was bordered on one side by train tracks and the other by a river. This turned the park, however temporarily, into a huge open-air detention center.

An amplified version of the same tactics was employed by police in Pittsburgh when the 2009 G-20 summit brought the crème de la scum of the world’s criminal class to that city.
As helicopters plied the night air and serried rows of armored riot police assembled, a robotic voice announced: “By order of the chief of police, this has been declared an unlawful assembly. I order all those assembled to immediately disperse. You must leave the immediate vicinity. If you do not disperse, you may be subject to arrest, and/or other police action” – the latter being a euphemism for summary punishment through “the use of riot control agents and/or less lethal munitions.” 

Once again, protesters were ordered to leave, and threatened with severe reprisals if they didn’t – only to find that the police already had them surrounded and were determined to arrest and assault at least some of them. 

Those crackdowns, in keeping with the “strategic incapacitation” doctrine, were not employed in response to criminal violence, or to deal with any impending threat of the same. Gillham points out that under the new approach “arrests are selectively applied to neutralize known or suspected transgressive actors often times before any crimes are committed.” 

The same is true of aggressive violence employed by riot police, notes Gillham: “Less-lethal weapons such as tear gas, pepper spray, Tasers, rubber bullets, wooden missiles and bean bag rounds are now the weapons of choice…. Evidence suggests that police use these weapons as a means to temporarily incapacitate potentially disruptive protesters and repel others away from areas police are trying to defend such as entrances and exits to secured zones.” 

Of course, once the riot police appear and the decree goes forth that a given protest is an “unlawful assembly,” the protest area itself is designated a “secure zone,” and those within it can only leave with the permission of their captors. 

Thugswarm: Riot police assault female student in Pittsburgh.

All of this is manifestly the product of a military mind-set – one better suited to a military prison camp than a battlefield. The behavior of domestic police in dealing with political demonstrations is nearly identical to that of specialized “Immediate Reaction” forces (IRFs) deployed  in military prisons such as those at Guantanamo Bay and Bagram Air Force Base in Afghanistan.

In his memoir, Five Years of My Life: An Innocent Man in Guantanamo, Turkish national Murat Kurnaz – who was kidnapped by Pakistani bounty hunters and sold into U.S. custody for $3,000 – describes his captivity in Gitmo (as well as Bagram) as a supposed “unlawful combatant." Any violation of the arbitrary -- and ever-changing -- rules of prisoner conduct provoked an attack by the IRF, a unit consisting of "five to eight soldiers with plastic shields, breastplates, hard-plastic knee-, elbow-, and shoulder-protectors, helmets with plastic visors, gloves with hard-plastic knuckles, heavy boots, and billyclubs." In other words, they were accoutered exactly like the domestic riot police who have become such a familiar presence in recent weeks.

Breaking a rule wasn’t a prerequisite for a visit from the IRF. The team would be summoned to inflict punishment for any act of defiance -- such as an insult hurled at an abusive guard, or even an attempt to exercise. Typically the IRF would soften up the target by infusing the cell with a liberal dose of Megyn Kelly’s much-discussed “food product” – weaponized capsaicin. Once the prisoner had been left entirely incapacitated, the IRT would swarm him to deliver a beating.

Former military interrogator Erik Saar provides a parallel account in his remorseful memoir, Inside the Wire.

“The five IRF-team MPs lined up outside the cell door,” writes Saar. “Starting in the back, they each shouted `Ready!’ and one by one slapped the shoulder of the next soldier up. The first soldier opened the door and directed a good dose of pepper spray at the detainee, then started to back him into a corner with his shield. But the captive managed to swipe the shield away and tried to kick the second soldier in line. He landed a good blow to the shoulder, but before he could put his foot down the third soldier, thinking fast, grabbed it and jerked. The detainee’s body rose in the air and came crashing to the metal floor.”

“All five MPs swarmed over him,” continues Saar’s account. “One was responsible for securing his head, and the other four were supposed to take one limb each. The detainee was kicking and squirming, fueled by his hostility. Mo [an Army translator] was shouting to him in Arabic to stop resisting. One of the stronger soldiers who had a solid grip on one arm was punching him in the ribs….” 

 Nearly identical tactics were used at “Camp Greyhound” in New Orleans, an improvised jail modeled after Gitmo and operated by FEMA in the wake of Hurricane Katrina. Among those imprisoned there was Syrian-American businessman Abdulrahman Zeitoun, who was seized in his own home by National Guardsmen, imprisoned on unspecified charges, and escaped with his life only because of the providential intervention of a Christian clergyman who happened to visit his cell after Zeitoun had been transferred to the Elayn Hunt Correctional Center

For Zeitoun and the other prisoners, the Camp Greyhound experience was one of tedium punctuated by sheer terror. The guards exploited any excuse to inflict exemplary "discipline" on the detainees, most of whom had been arrested for violating curfew or similar petty matters.

"Always the procedure was the same," recalled David Eggers in his book Zeitoun; "a prisoner would be removed from his cage and dragged to the ground nearby, in full view of the rest of the prisoners. His hands and feet would be tied, and then, sometimes with a guard's knee on his back, he would be sprayed directly in the face" with pepper spray. "If the prisoner protested," continued Eggers, "the knee would dig deeper into his back. The spraying would continue until his spirit was broken. Then he would be doused with [a] bucket and returned to his cage."

The victims of this pointless and whimsical cruelty included one disturbed man with the intellectual and emotional capacity of a child who was "punished" because he displayed the irrepressible symptoms of mental illness.

FEMA camp survivor: Abdulrahman Zeitoun with his family.

These ritual acts of sadism, Eggers observes, were "born of a combination of opportunity, cruelty, ambivalence, and sport." They were intended to torment the other prisoners, most of whom -- like Zeitoun – were possessed of more decency than their captors and thus left sick with rage by the spectacle of helpless men being tortured.

"Under any normal circumstances [Zeitoun] would have leapt to the defense of a man victimized as that man had been," observes Eggers. "But that he had to watch, helpless, knowing how depraved it was -- this was punishment for the others, too. It diminished the humanity of them all."

The same treatment continued once Zeitoun was transferred from the makeshift FEMA detention camp to a “regular” prison. For more than two weeks he and his cellmate were abused, insulted, humiliated, and treated to a visit from a Gitmo-style "Extreme Repression Force" (ERP). Swaddled in riot gear, wielding ballistic shields, batons, and other weapons, the ERP "burst in as if [Zeitoun] were in the process of committing murder," writes Eggers. "Cursing at him, three men used their shields to push him to the wall. As they pressed his face against the cinderblock, they cuffed his arms and shackled his legs."

After heroically subduing an unresisting man -- who by this time was dealing with an infected foot and a mysterious kidney ailment -- the ERP tore apart the cell before forcing the victim to strip and submit to another body cavity search. By some oversight, the ERP neglected to use pepper spray on the innocent and helpless man. All of the prisoner-control tactics used in Gitmo and "Camp Greyhound" have been employed against peaceful protesters in New York, Oakland, and elsewhere
Civil libertarians are understandably concerned about sections 1031 and 1032 of the proposed National Defense Authorization Act, which would authorize the indefinite military detention of Americans – including those seized here in the United States – who are suspected of terrorism. That abhorrent measure represents an enhancement of current policies and procedures, rather than an abrupt departure from them. Whether or not the Senate approves the NDAA, the people in charge of Regime Security already consider this country to be one vast military prison, and are willing to act on that assumption whenever the opportunity presents itself. 

Obiter Dicta 
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Dum spiro, pugno!

Saturday, November 19, 2011

Support Your Local Police State

Heroic local police at work.

"Which is better—to be ruled by one tyrant three thousand miles away, or by three thousand tyrants not a mile away?" –

Attributed to Boston physician Mather Byles, 1770.

“Do you see this soldier in this checkpoint?” Iraqi Wael al-Khafaji asked a Reuters reporter, pointing to a spot just a few feet from his Baghdad barbershop.  “He can do whatever he wants to me right now and I can't say a word. Is this democracy?”

Before the U.S. invasion, this businessman – like millions of other Iraqis – was ruled by a distant dictator who had little direct influence on his life. Today, everything he does takes place under the shadow cast by armed men who have given themselves permission to brutalize or kill anybody who refuses to obey them.

For Mr. al-Khafaji, it makes no material difference whether the checkpoint is manned by U.S. soldiers, State Department-employed mercenaries, members of Saddam’s Republican Guard, or elements of a local sectarian militia. The problem is the presence of people who claim the right to use aggressive violence to force him to submit to their will. The problem is not one of geography or affiliation; it is a matter of institutionalized immorality. 

Americans who supported the Iraq war would be scandalized by Mr. al-Khajafi’s ingratitude. They would be wise to ponder his insight while examining the extent to which our own country is becoming a garrison state. They would also do well to emulate his habit of looking with acute suspicion – and no small measure of resentment – on the oddly dressed armed men who presume to exercise authority over us. 

 Democracy is the art of inducing victims of government power to focus on the question of who controls the government, rather than what it does. The same can be said of the perspective encapsulated in the slogan “Support Your Local Police” (SYLP)

As sociologist David Bayley pointed out, “The police are to the government as the edge is to the knife.”  The police are an implement of coercion wielded by the political class, whether they are operationally under the control of Washington, D.C. or City Hall. 

From the SYLP perspective, the police and the “criminal justice” system they serve exist to protect life and property against criminal violence and fraud. If this were true, it would follow that most of those arrested and punished would be found guilty of crimes against person and property.

According to the most recent available statistics regarding incarceration, however, people convicted of actual crimes compose a very small minority of America’s vast and growing federal prison population. As of 2009, crimes of violence accounted for roughly eight percent of that total, and property crimes contributed a bit less than six percent. More than half of all inmates were convicted of non-violent drug offenses, and thirty-five percent were caged for what are called “public order” offenses.

 Libertarian activist Michael Suede points out that eighty-six percent of all federal inmates were punished for what are called “victimless crimes” – that is to say, offenses not properly described as crimes at all. It is reasonable to assume that similar trends exist at the state and local level as well. 

There are instances in which police act in defense of persons and property. Those are genuinely exceptional, because rendering that service is not part of their formal job description: The Supreme Court has repeatedly ruled that police have no enforceable duty to protect individual rights. This helps explain why, as economist Robert Higgs pointed out roughly a decade ago, “there are three times as many private policemen as there are public ones.”

In choosing to pay for private security assistance, Americans freely spend more than twice the amount stolen from us each year to pay for the government’s armed enforcement caste. This is because the government that takes our money fails to provide the promised social good – protection of life and property.

Writing nearly a century ago, when our contemporary police state was in its infancy, the immortal H.L. Mencken protested that the government supposedly protecting him was actually the most rapacious and tenacious enemy of liberty and personal security. While it is possible for the typical American to repel the aggression of private criminals, “he can no more escape the tax-gatherer and the policemen, in all their protean and multitudinous guises, than he can escape the ultimate mortician. They beset him constantly, day in and day out…. They invade his liberty, affront his dignity, and greatly incommode his search for happiness, and every year they demand and wrest from him a larger and larger share of his worldly goods.”

 The one refinement we can make to this otherwise flawless polemical gem is to note that the terms “tax-gatherer” and “policeman” are functional synonyms. Both offices exist to extract wealth from the productive at gunpoint on behalf of the political class. The only substantive difference between them is that the latter are granted slightly wider latitude in inflicting aggressive violence, and equipped to do so. 

As Carl Watner pointed out in “Call the COPS – But Not the Police,” a seminal 2004 essay published by The Voluntaryist, gathering taxes has been a core police function since the institution was first imposed on the Anglo-Saxons following the Norman Conquest. The feudal order implemented by William the Conqueror was built upon the “frankpledge,” which was the institutional foundation for a a police system designed to collect revenue for the monarch. 

The Anglo-Saxon tribes had provided security through kinship-based groups called “tithes” and “hundreds,” who defended cattle herds and other property and acted as posses to apprehend thieves. Anglo-Saxon courts emphasized restitution, with any punitive damages being used to compensate volunteers who had tracked down the offenders. Under the frankpledge, however, the “justice” system diverted all revenues into the king’s treasury. 

Royal courts worked tirelessly to expand the king’s jurisdiction, which was enforced by royal appointees called shire-reeves (from which the term “sheriff” is derived). Eventually, royal enactments criminalized efforts by victims to seek private restitution; since such arrangements deprived the treasury of revenue, they were seen as a form of theft. This concept of the “King’s Peace” could be considered the distant but recognizable ancestor of the modern notion that the disembodied abstraction called “society” is a victim of criminal offenses – even those in which no individual has been injured. 

A heavy residue of Anglo-Saxon tradition endured into the 18th Century. A French visitor to London in the mid-1700s was astounded when none of the local residents could direct him to the police – or even recognize the term. “Good Lord! How can one expect order among these people, who have no such a word as police in their language?” he exclaimed.

In fact, the term was familiar to educated 18th Century Britons, who – as historian Leon Radzinowicz points out – considered it to be “suggestive of terror and oppression.” A 1785 Police Bill proposed by William Pitt the Younger shattered against an iron wall of opposition to what was regarded as a “dangerous innovation.” Until the second decade of the 19th century, the British government’s ambition to create a standing police force was confined to its Irish colony, where its heavily armed Royal Constabulary field-tested methods that would later be imported to the homeland. 
The First Modern Police Chief: Fouche.

During the same period, Napoleon Bonaparte, the armed evangelist of the Jacobin revolution, created the first modern police force. Bonaparte’s ascent to power began with a brutal police action: The massacre of 13 Vendemiaire (October 5, 1795), during which the young Corsican general used artillery to slaughter Royalist protesters on the streets of Paris. 

By 1812, writes David A. Bell in his book The First Total War, large areas of Europe under Bonaparte’s rule were afflicted with “pervasive bureaucracy, particularly new agencies for tax collection and conscription…. To implement the new order, there came new police forces, often staffed largely by Frenchmen.” 

Presiding over this apparatus of regimentation, extraction, and coercion was secret police Chief Joseph Fouche, the Jacobin fanatic who prefigured Felix Dzherzhinsky.

Bonaparte’s star was in eclipse by 1814.  However, as British historian Paul Johnson observed in his book The Birth of the Modern, “the golden age of the political police” had just begun. The Congress of Vienna gave birth to what one contemporary critic called “All sorts of wild schemes of establishing a general police all over Europe.”

At the same time, Robert Peel, the military governor of Ireland, introduced the so-called Peace Preservation Police, a centrally controlled paramilitary auxiliary to the 20,000-man military force garrisoned on the island. Peel explained that the force “was not meant to meet any temporary emergency” but rather intended to become a permanent institution. In 1829, Peel was England’s Home Secretary. With Parliament’s resistance at low ebb, Peel proposed the creation of the Metropolitan Police.

“The new police institution had many supporters in government, but opposition was to be found in the wider society,” wrote Watner in The Voluntaryist. “The fundamental principles behind the force were seen as … anathema to Whig political principles, which emphasized `liberty over authority, the rights of the people against the prerogatives of the Crown, local accountability in place of centralization, and governance by the  “natural” rulers of society instead of salaried, government-appointed bureaucrats.’”

Populist parliamentarian William Cobbett, an outspoken foe of “tax-eaters,” was among the fiercest critics of the Metropolitan Police, which he saw as the vanguard of a country-wide army of occupation.

“Tyranny always comes by slow degrees,” Cobbett declared in an 1833 speech in Parliament, “and nothing could tend to illustrate that fact [better] than the history of police in this country.” Less than a generation ago, Cobbett pointed out, the very term “police” was “completely new among us.” Now, owing to Peel’s innovations, London was now overrun with “Blue Locusts” – “a police with numbered collars and embroidered cuffs, a body of men as regular as the King’s service, as fit for domestic war as the redcoats were for foreign war.”

In 1783, the last of King George’s occupation troops were evicted from New York. In 1844, New York City’s municipal government became the first in America to embrace Robert Peel’s system of paramilitary police. This amounted to exchanging Redcoats for “Blue Locusts.” Other major cities – New Orleans and Cincinnati in 1852, Boston, Philadelphia, and Chicago in 1855 -- soon followed. State police agencies began to appear in the last decade of the 19th century, and first decades of the 20th

While those police agencies were locally controlled, they were not servants of the public; they were instruments of the political class that created them. On the western frontier, where political power was either radically decentralized or entirely theoretical, security for person and property was “protected by private policemen who were paid by – and, so, responsible to – the community where they served,” notes libertarian writer Wendy McElroy

Unlike the European gendarmes and royal British “shire-reeves,” McElroy points out, “Western sheriffs did protect people and property; they did rescue schoolmarms and punish cattle rustlers. Their mission was to keep the peace by preventing violence.”

Most importantly, in the Old West, sheriffs and marshals didn’t claim a monopoly on the legitimate use of force. Thus when corrupt sheriffs like Montana’s Henry Plummer or Idaho’s David Updike used their office as cover to operate as “road agents” (horse thieves and highwaymen), they were arrested, tried, and punished by private “committees of vigilance.”

The only legitimate role for a peace officer is to interpose himself on behalf of individuals threatened by aggressive violence. That is a role that can (and should) be carried out by any law-abiding individual – including instances when the purveyor of aggressive violence is a police officer or other state official

In the recent nationally coordinated police crack-downs on “Occupy” protesters we have seen the following scenario play out numerous times: Peaceful demonstrators confront riot police; individual riot policeman commits physical aggression against protester, then immediately escalates the conflict by using potentially lethal force; when the crowd reacts, the other police officers – rather than coming to the aid of the victim – form a protective barricade (I call it a “thugscrum”) around the assailant. 


It is all but impossible to find an example of a police officer who interposed himself on behalf of the victim of criminal violence inflicted by a fellow officer. This isn’t surprising: A policeman can refuse to render aid to a crime victim without legal liability, and abuse innocent people without alienating his professional peers – but “going rogue” by intervening to prevent a criminal assault by another member of the punitive priesthood is a career-killer. Former Austin Police Officer Ramon Perez can supply the details.

Anytime a police officer commits an act of aggressive violence he is engaged in a criminal assault. If his fellow officers won't intervene to stop him, law-abiding citizens have the moral authority to do so. But this simply won't do, tut-tuts the program manual for the national Support Your Local Police campaign:

"The local police are not your enemy. Your committee is not here to attack them, blame them for violating the Constitution or your civil liberties because they are enforcing a measure of the Patriot Act or conducting a joint Federal and State anti-terror drill. Those are federal issues, which the local police in some cases may have already have little to no say if they are to continue receiving their additional Homeland Security funds, new equipment and weaponry.... We urge all responsible citizens in this community to work with us to ...[s]upport our local police in the performance of their duties [and] oppose all harassment or interference with law enforcement personnel as they carry out their assigned tasks.... [We must accept] our responsibilities to our local police, to defend them against unjust attacks, make them proud and secure in their vital profession, and to offer them our support in word and deed wherever possible." (Emphasis added.)

Their "assigned task": Local Police grab guns in New Orleans.

It apparently didn't occur to the author of that passage that claiming citizens have "responsibilities to our local police" is to assume that the people exist to serve the government, rather than the reverse.  Furthermore, it's pretty clear that from this perspective, the police have no reciprocal "responsibilities" to the citizenry.

Does that "responsibility" to defend the police and "make them proud" extend to supporting local police when they carry out lethal paramilitary raids, like the one that resulted in the murder of Jose Guerena? Would it include support for firearms confiscation of the sort carried out by local police (as well as National Guard personnel) in post-Katrina New Orleans

At the very least it would mean refusing to interfere when an armored bully carries out his "assigned task" of brutally assaulting a helpless, unarmed citizen, rather than carrying out the moral duty to do whatever is feasible to prevent the crime or end the attack.

"When law and morality are in contradiction to each other," observed Frederic Bastiat, "the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing respect for the law -- two evils of equal magnitude...." The "Support Your Local Police" perspective undermines morality by enshrining unconditional support for the police -- who are, as SYLP admits, simply local affiliates of a nationalized Homeland Security system -- as a supposed civic duty. 

No individual or institution has the moral right to use aggressive force. That principle applies not only to the Federal Leviathan, but to the loathsome little replicas of that vile beast found in every city, county, and state. Rather than helping to consolidate the existing police state, supporters of the rule of law should work to end their local government's monopoly on the police power -- with the ultimate objective of abolishing it outright. 

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Dum spiro, pugno!

Friday, November 11, 2011

Where Justice Goes to Die

Federal Court is in session.

Ten years ago, a 21-year-old woman named Tonya Hart was shot to death in a Moscow, Idaho trailer court. Two years later, a local man named David J. Meisner, who confessed to the crime during a recorded police interrogation, was convicted of murder and sentenced to life in prison. Last month, the Idaho State Supreme Court ruled that trial judge John Stegner committed a reversible error when he refused to allow the defense to present evidence that someone else might have pulled the trigger on the gun used to kill Miss Hart. 

A new trial for Meisner is currently underway in Moscow. The prosecution has finished presenting evidence, and the defense is expected to take at least two weeks presenting its case. The first witness summoned to testify on Meisner’s behalf is Dr. Richard Ofshe, an emeritus professor at the University of California-Berkley, a nationally respected expert in the field of false confessions. 

The taped confession is the central piece of evidence against Meisner in what the prosecution characterizes as a case of “murder for hire.” 

Hart’s ex-boyfriend, Jesse Linderman, supposedly offered to pay Meisner $1,000 to murder the young woman, with a $100 bonus if the killing took place before Christmas. The charges against Linderman were dropped for a lack of evidence. As the state supreme court noted, the only evidence tying Linderman to the crime was Meisner’s disputed confession.

During the trial, Judge Stegner refused to permit the defense to present evidence that a man named Lane Thomas, who had repeatedly confessed to the murder, was the individual who had shot Miss Hart. Stegner didn’t explain why Meisner’s confession was uniquely credible. The Idaho Supreme Court ruled that by granting the prosecution’s motion to exclude Thomas’s confessions, Judge Stegner had violated Meisner’s right to present a defense, as protected by the Sixth Amendment. 

In this “murder for hire” case, the supposed triggerman was convicted on the basis of a confession that was considered inadequate to establish the guilt of the alleged instigator of the plot. However, in the new trial the defense will have be permitted adequate time to present its case; this includes testimony from expert witnesses like Dr. Ofshe.

The Tonya Hart murder case is practically a photographic negative of another high-profile murder for hire case from northern Idaho: The supposed plot by attorney Edgar Steele to hire a handyman named Larry Fairfax to murder his wife Cyndi by planting a pipe bomb on her SUV. 

In the latter case, however, the confessed bomber, who acted as a “cooperating informant” with the FBI, was sentenced to a mere 27 months in what amounts to a halfway house for possession of an unregistered firearm. Mr. Steele, a 66-year-old man who has survived prostate cancer and a nearly fatal coronary aneurysm, was sentenced on November 9 to 50 years in federal prison. While Meisner wasn't permitted to mount a defense in his original trial, the re-trial offers him a chance to exercise that right. Steele will most likely die in prison before he is afforded a similar opportunity. 

Edgar Steele, who describes himself as the "attorney to the damned," has made a career out of defending reviled clients, such as the Aryan Nation. His political views and professional associations have made him a widely reviled figure -- but they do nothing to establish his guilt. The same is true of the supposition-rich and substance-poor case presented against him in court.

The prosecution’s case against Steele depended entirely on two mutually dependent pieces of defective evidence. The first was the accusation of the confessed bomber, Fairfax, who was accused by Steele and his family of stealing a large quantity of silver and then framing the controversial lawyer in order to conceal his crime. The second piece of evidence was a third-generation copy of a digital recording made by the FBI of a conversation in which Steele and Fairfax supposedly discussed the plan to kill Cyndi. 

Fairfax’s guilt is demonstrated by a huge volume of physical evidence, including the defective pipe bomb whose existence he concealed from the FBI until it was discovered on the undercarriage of Cyndi’s vehicle during an oil change. Absent the recorded conversation between Fairfax and Steele on June 9, 2010, the murder for hire case against Steele would disintegrate. 

Prior to the trial, the FBI recording was examined by Dr. George Papcun, a forensic scientist who has advised numerous law enforcement and intelligence agencies. Dr. Papcun discerned hundreds of “transients” and other anomalies in the pre-trial version of the FBI recording. He concluded that there was “a reasonable degree of scientific probability that [the recordings] do not represent a true and valid representation of reality and they are unreliable.” 

Winmill (l.), seen here, appropriately, with a Soviet-era Russian Judge.
 This expert assessment would have been devastating to the prosecution. This is probably why Judge Winmill, during Steele’s Sovietesque trial in federal court last May, exerted himself to prevent it from being shared with the jury. 

At the time of the trial, Dr. Papcun was vacationing in Bora Bora. On May 2, Winmill ruled that Papcun would be permitted to offer testimony by way of a video teleconference at a U.S. Consulate the following day. 

That ruling caused Traci Whelan, the federal commissarina presiding over the prosecution, to stomp off into a corner, stick out her lower lip, and began to sniffle. Winmill – who either believes in mystical bilocation, or (more likely) subscribes to a totalitarian view of the law -- reversed himself, ruling that Papcun had to be present in the Boise courtroom no later than 8:30 a.m. on May 4.

 This wasn’t the end of Winmill’s corrupt solicitude for the prosecution. The Judge also permitted Whelan and her comrades to present the videotaped and translated testimony of a Ukrainian woman named Tatyana Loginova, who claimed that Steele was conducting an online affair with her. Steele maintained that his online conversations with Loginova – who advertised herself as a mail-order bride -- were research for a book about international sex trafficking. Implausible though that account might seem to some people, it was validated by Steele’s friends and family – including his wife Cyndi, who has loudly and consistently protested that her husband is innocent. 

Lying by headline: The "victim" is alive, and supports her husband.
 Cyndi’s role – indeed, her very presence – underscores the most critical contrast with the Tonya Hart murder. In the Edgar Steele case, the “victim” is alive and well. Indeed, there is no victim, at least as that term was used by the prosecution. 

“We have a great marriage,” Cyndi Steele told Winmill during the sentencing hearing. “I am not a victim of my husband because my husband did nothing wrong. I am a victim of the government.”

When it was announced that Edgar Steele’s murder-for-hire trial in Boise would be heard by Judge Winmill, informed court-watchers in Idaho knew that the proceedings would be a show trial – a spectacle scripted by Franz Kafka and directed by Andrei Vyshinsky.  Lynn Winmill’s courtroom is where justice goes to die. The family of the late Verl Jones, who owned a family ranch near the Montana border, can testify that his description is untainted by hyperbole.

For many years, Judge Winmill has been a stalwart ally of the Western Watersheds Project (WWP), a foundation-funded radical environmental group that has played a key role in the eco-Jihad against property rights in Idaho. WWP has filed several lawsuits intended to shut down human use of lands that – in defiance of the Constitution – are owned and controlled by the federal government. 

Writing in the Spring 2008 issue of Range magazine, State Representative Judy Boyle described Winmill as the “WWP’s sugar daddy who very seldom rules against them, often incorporating pieces of WWP’s briefs to justify his decisions.” In fact, when the WWP files a claim under the Endangered Species Act, Winmill generally won’t even require the group to present evidence before ruling in its favor.

This was what happened in the case of Mr. Jones, who was sued by WWP in 2001 over an irrigation ditch he had dug forty years earlier. Exercising his federally recognized right to use water from Otter Creek, Jones dug the ditch on his own property to grow hay.  The WWP claimed that the diversion of water harmed the endangered bull trout, despite the fact that none existed in Otter Creek. Without requiring the WWP to show evidence to support its claims, Winmill ordered Jones to stop irrigating his hay fields, and to pay the WWP’s legal fees. 

"I'm a victim of the government": Cyndi Steele.
The requirements imposed by Winmill on the 85-year-old Jones were akin to Pharaoh’s spiteful order that the Hebrew slaves be required to make bricks without straw. 

The loss of Jones’s hay crop threw the ranch into a fatal economic tailspin. Unmoved by the rancher’s plight, Winmill ordered him to provide the WWP with a list of all his assets, which the eco-radical group sold in order to pay its court costs. The stress and frustration literally killed the elderly rancher.

Seattle-based litigator Russell Brooks of the Pacific Legal Foundation took the case before the 9th Circuit Court of Appeals, which overturned Winmill’s decision. 

“The 9th Circuit judges ruled that actual evidence of a species being harmed must be presented, not just alleged, before a judge can legally order an injunction,” recalls Rep. Boyle – a principle that Winmill is intelligent enough to understand, but sufficiently corrupt and arrogant to ignore. 

Winmill’s behavior in the Edgar Steele case was of a piece with his treatment of Verl Jones, and any honest federal appellate court -- a species last seen keeping company with the unicorn -- would overturn the conviction and order a new trial. It’s quite reasonable to suspect that Winmill, a recidivist persecutor of sick, powerless, elderly defendants, has cynically calculated that Steele, like Jones, will expire before being granted an actual trial.  

Obiter Dicta
The next issue of Republic magazine -- for which I serve as managing editor -- will have a detailed cover story examining the Edgar Steele case. 

Grateful as I am for the Republic gig, I'm compelled to point out that it doesn't offer an extravagant paycheck -- so your help in supporting Pro Libertate is still desperately needed and emphatically appreciated! 

Dum spiro, pugno!