Committing War Crimes is a Duty; Reporting Them is a Felony

Bradley Manning is the only combat veteran of the Iraq war whose service is worth honoring. Like hundreds of thousands of servicemen, Manning carried out unlawful orders to participate in an illegal war. Unlike any of the rest, he took necessary action to expose discrete criminal acts committed in the larger context of that illegal enterprise.

While serving as an intelligence analyst in Iraq, Manning sometimes felt as if he were “watching nonstop snuff films,” according to a New York magazine profile.  His job consisted of sitting at a work station and evaluating Iraqis as targets. This meant “reducing a human being to a few salient points. Then he made a quick decision based on imperfect information: kill, capture, exploit, source.”

Unlike countless other U.S servicemen who took refuge in the idea that obedience to superiors immunizes criminal behavior, Manning tried to discriminate between “insurgents” and innocent bystanders, only to find that such distinctions do not exist when one is fighting a war of aggression. When he expressed concerns about this to his superiors, Manning was told to choke down such questions and get back to the task of killing people who resented being occupied by a prohibitively stronger foreign power.

In late 2009, Manning told a psychological counselor “about a targeting mission gone bad in Basra” in which an unambiguously innocent bystander was killed. That incident left Manning incapacitated with guilt and remorse. It’s quite likely that it also led Manning to confront the moral reality that every use of lethal force by U.S. personnel in Iraq was an act of murder.

Shortly after speaking with a psychologist about the Basra incident, Manning performed a heroic act in the service of his country and the rule of law by leaking the Iraq war logs and the notorious “Collateral Murder” video documenting the slaughter – by two U.S. Apache helicopter gunships – of twelve innocent civilians.

During the recently concluded show trial of Manning, the prosecution insisted that by publicizing the “Collateral Murder” video, the whistleblower had given material aid to the enemy. In fact, he had exposed a criminal policy imposed and carried out by the superior officers to whom he was expected to report such atrocities. Former U.S. Army Specialist Ethan McCord, who can be seen in the video attempting to carry two wounded children to safety – has testified that the crime documented in the video was the product of “standard operating procedure” dictating “360 degree rotational fire” in residential neighborhoods in retaliation for IED attacks on occupation troops. 

When Manning became aware of war crimes, he was legally and morally obligated to report them – not just to his superior officers, who were at best aggressively indifferent to them, but to the public from whom those officers derive their supposed authority. Tens of thousands of U.S. soldiers witnessed war crimes, but as far as we presently know, Manning was the only soldier deployed to Iraq who had the character and moral courage necessary to avoid silent complicity in them.

Although Manning was acquitted of the charge of aiding the enemy – which carried a potential sentence of life without parole – he was convicted of 19 criminal counts, including five espionage charges, and could still find himself facing the equivalent of a life sentence. Prior to his trial, Manning was held for nine months in an especially severe form of solitary confinement that involved forced nudity, sleep deprivation, and persistent abuse. His treatment, which constituted torture, won him a reduction off 112 days from the prison sentence he will receive for the supposed offense of exposing officially sanctioned crimes. 

If Manning had been a war criminal, rather than an honorable soldier who exposed war crimes, his pre-trial confinement would have led to dismissal of the charges against him – or his sentence being overturned.  

Like Private Manning, Sgt. Lawrence Hutchins served in Iraq. He committed war crimes of the kind Manning helped expose to the public. He led an eight-man squad that kidnapped an innocent Iraqi man from his home, took him to a ditch and shot him in the face. They then planted a gun and a shovel and claimed that the Iraqi, a retired police officer, was a suspected insurgent.

Hutchins was sentenced to 11 years for murder. A military appeals court has overturned that conviction, claiming that his rights were violated when he was unlawfully detained without a lawyer for seven days. Hutchins was released after serving roughly five and a half years in prison. Manning has already spent more than three years behind bars. His father described the convicted murderer as a “scapegoat,” insisting that he “was unfortunately in the wrong place at the wrong time.” 

The same was true of every other U.S. soldier who took part in the occupation of Iraq, including Private Manning. The difference was that Hutchins faithfully carried out orders to murder Iraqis, and Manning understood that the government that employed him is not exempt from the moral law. 

Sgt. Ray Girouard is another war criminal who was granted leniency by the government that had employed him. Like Hutchins, Girouard commanded a combat unit that committed an atrocity – in this case, the murder of three handcuffed Iraqi detainees. Like Hutchins, Girouard was convicted on the testimony of his comrades, all of whom were given lighter sentences in exchange for testifying against their squad leader. And like Hutchins, Girouard claims that he is a “scapegoat” who carried out orders and then covered up for his men “out of loyalty” when they “messed up.”

Girouard commanded a May 9, 2006 mission in which he was ordered to “kill all military-age males” in an area described as a terrorist training camp. His unit dragged three men out of a house, zip-tied their hands, and called for a chopper. Girouard claims that when he left the house, “I [heard] this volley of gunfire…. I run back and see these three bodies lying on the ground with their blindfolds half-off. My guys are shouting, `They tried to escape. We shot them. They were terrorists. They were going to come back and kill us.’”

It should be acknowledged that attempting to kill foreign invaders who have occupied your country is not an act of terrorism. It’s also worth underscoring the fact that this account, if taken at face value, marked the soldiers under Girouard’s command as incurable cowards. Their behavior is eerily reminiscent of the conduct of police officers who lose bladder control and gun down unarmed citizens who are seen as a threat to “officer safety.” This isn’t surprising, given that the crime in Iraq was carried out by another branch of the Regime’s fraternity of armed bullies.

According to Girouard, he covered up the killings by filing a false official report claiming that the victims had attacked his men. That would make him an accessory to murder. However, the soldiers who carried out the murders later testified that they had done so under Girouard’s orders. One of them, Specialist Juston Graber, claimed that he had “finished off” a wounded detainee after being explicitly ordered to do so by Girouard.

 

Girouard reviews his Army discharge papers.

After being found guilty of negligent homicide, Girouard was given a ten-year prison sentence. He spent three years in Ft. Leavenworth before his conviction was overturned and he was given a “general discharge under honorable conditions.”

“It’s such a blessing,” exulted Girouard after returning to his home in Sweetwater, Tennessee. “I get all my benefits and everything now.”

Such leniency is reserved for those who are faithful in carrying out imperial crimes. From the perspective of those who control the Regime, committing war crimes is a duty, but reporting them is a felony.

Dum spiro, pugno!

"I'm Going to Take Him Out"

“You’re dead, mother****r!”

Those were the last words spoken to 41-year-old Kamas, Utah resident Wade Pennington as he bled to death from two gunshot wounds inflicted at point-blank range. The man who hurled that sadistic taunt at Pennington, Brett Lopez, wasn’t the shooter; his role had been to trap the unarmed victim in the kill zone while his associate, Jared Nichols, pulled the trigger. 

Just minutes earlier, Nichols had been overheard saying that he intended to “take out” Pennington. He and Perez were well-acquainted with the victim; indeed, immediately after he pulled the trigger, Nichols called Wade by name. After shooting Pennington, Nichols seized the dying victim and attempted to make it look as if he had been the aggressor. In doing so, Nichols wound up with some of the dying man’s blood on his clothing. 

Both Nichols and Perez lied to investigators after the shooting. Their lies were contradicted by physical evidence at the crime scene and by video recordings of the incidents leading up to the homicide. A perfunctory investigation was wrapped up within twelve days without charges being filed against Nichols and Perez. 

There was abundant evidence that the death of Wade Pennington was an act of criminal homicide – arguably murder in the second degree. Neither Nichols nor Perez faced criminal charges, because they were police officers, and their victim was a man with a lengthy criminal record who was on probation at the time of the May 28, 2009 shooting. 

Pennington was killed in South Jordan, Utah at the end of a high-speed pursuit that was neither necessary nor authorized.

 

Sgt. Allen Crist, who saw Pennington in a dark SUV outside a sporting goods store, had radioed a description of the vehicle and its license plate number and asked for other officers to confirm the plate number. Crist suspected that Pennington might have burglarized the sporting goods store. He called for a K9 unit and conducted an inspection of the building, which turned up no evidence of a break-in. 

As it happens, Pennington was in the area to visit a friend. He had a court date in a week to deal with an alcohol-related parole violation and wasn’t inclined to get into any more trouble. He also had ample reason to avoid contact with the South Jordan Police Department, which had kept him under close scrutiny since his release from prison in 2005.

After being imprisoned for burglary in 2001, Pennington filed a Pro Se Habeas Corpus petition challenging the legality of his sentence. In July 2005, the Utah Court of Appeals granted his motion and ordered his release. 

“The day that Wade was released, there was a riot and a lock-down at the prison,” Pennington’s brother Dennis recalled to Pro Libertate. “Officials there considered Wade to be a troublemaker, because his petition was successful and it created a real stir among the inmates.” 

After Wade was arraigned on a new set of felony charges, he ended up under the jurisdiction of a drug court in Duchesne County. Those charges were filed by Sgt. Crist and Salt Lake County District Attorney Lohra Miller. Wade entered a guilty plea and was placed on probation under the jurisdiction of a drug court in Duchesne County. Dennis Pennington and the rest of the family believes that the Salt Lake County DA’s office and the South Jordan Police were angered by the leniency of the sentence and targeted him for special attention in the hope of sending him back to prison.

During that period, Wade started a successful handyman business and made what appeared to be an earnest effort to make an honest living. In early 2009, his probation was revoked for reasons never made entirely clear, but apparently had to do with alcohol use. He was taken to the Duchesne County Jail to await a transfer to Salt Lake County. 

State law required that a “show cause” hearing be ordered within 72 hours of Wade’s arrest. Instead, he was held for nearly 40 days before being brought in front of a judge. That hearing took place on May 17, 2009. Wade was scheduled for a sentencing hearing on June 2. He was killed on May 28. 

The dark 1994 Pathfinder Pennington was driving on May 28 belonged to his girlfriend, Kristi Russell, and it was certainly well-known to the South Jordan Police Department. During the past several years, police had stopped it no fewer than ten times. If Crist had found evidence of a break-in, it would have been quite easy to find Pennington – which is why he told his subordinates not to pursue the vehicle. Nonetheless, Nichols and Perez gave pursuit – and Pennington fled. 

The officers violated both the orders of their superior and their department’s vehicle pursuit policy by chasing Pennington. They committed another very serious infraction by “going to 3” – that is, covertly communicating on a radio channel that was not recorded or audible to the dispatcher. A lawsuit filed on behalf of Pennington’s parents and son asserts that this was done because Nichols and Perez had “decided to chase Pennington until Pennington hit one of their vehicles, which would justify a chase.” 

The officers switched back to an open channel and continued the pursuit.  Pennington entered a cul-de-sac, with Nicholas following him. Perez got out of his police car and drew his gun; Nichols later said that Perez went “gun-up” in order “to do a felony stop” – an action that wasn’t justified because Pennington was not suspected of a felony. Perez was standing in the street when Pennington turned around and drove by him. 

“He just tried to hit me with the car – aggravated assault on a police officer!” Perez shouted over the radio. The dashcam video on Nichols’s police car doesn’t provide any evidence that Pennington tried run down Perez. However, as Nichols later told investigators that Perez’s claim that Pennington had assaulted him “was a green light – let’s go ahead and pursue him.” 

The original dashcam tape of the subsequent pursuit isn’t available. The version that was eventually made public has had its time code removed, and about three minutes and seventeen seconds have been deleted from it. Nichols claims that on several occasions Pennington struck his vehicle, but no there is no video evidence to support his account. 

Shortly after Nichols announces that “I’m going to take him out,” he attempts what he described to investigators as a “half-assed pit maneuver” – that is, ramming the SUV in an effort to disable it. 

That tactic, as Nichols pointed out to investigators, is only to be employed in situations where deadly force is justified. So by his own admission, Nichols was using deadly force in an unauthorized pursuit. 

The officers succeeded in trapping Pennington in a cul-de-sac in West Jordan. Nichols, who had T-boned the Pathfinder, was separated from Pennington by about three feet. Perez, who got out of his car, approached the vehicle from the passenger side with his gun drawn. Perez – who saw that Pennington was unarmed -- shouted at him to “get out on the ground. Stay 

where I can see you.” 

Perez told investigators that “I didn’t hear Jared” screaming orders at Pennington, because “Jared’s window was closed.” Perez also testified that Pennington was moving away from him in an effort to get out of the car – that is, to “get out on the ground,” as the officer had demanded. 

When interviewed on the scene following the shooting, Perez said that he “didn’t perceive a threat” from Pennington, and that if the driver put up resistance he was prepared to “tackle him and take him down.” While Pennington started to exit the vehicle, Perez moved around the front of the car in order to avoid a crossfire with Nichols. 

A second or two later, Nichols fired two shots that struck Pennington in the chest. Immediately after shooting Pennington, Nichols shouted: “Freeze, Wade! I’m going to shoot you. Get down on the f*****g ground!”

Why was Pennington shot for complying with Perez’s orders? Why did the shooter tell the victim both to “freeze” – that is, stay put in the car – and to “get on the ground” – which would have required that he exit the vehicle? And why did Nicholas sputter those self-contradictory demands after he had shot Pennington twice in the chest?

In describing the incident to investigators two days later, Nichols said that Pennington “made a lunge towards me.” Supposedly shocked and traumatized by the victim’s aggressive behavior, Nicholas claims he “said something like, `Why’d you do that, f****r?’ or `Why did you make me do that?’”

Both of those statements are demonstrable lies. 

During his testimony – which was given two days after the killing, with the aid of police union attorney Jeffrey W. Hall, and after Nichols had reviewed the dashcam video – the officer said that he had to shoot because Pennington was non-compliant, and that “he was doing something to evade, still.” He also insisted that “the vehicle was still a threat,” despite the fact that it was boxed in and disabled. By this account, Pennington wasn’t a threat to officer safety, but rather a flight risk. That “threat” would have been neutralized if he had left the vehicle. But Nichols also said that the driver’s attempt to leave the Pathfinder made it necessary to shoot him.

While neither of the rationales offered by Nichols for the shooting made any sense, the most mystifying aspect of his testimony was the self-pitying rebuke he supposedly flung at Pennington. Speaking immediately after the shooting, Perez said that while Pennington “was hanging” lifeless from the window of the Pathfinder, he and Nichols “didn’t even talk.” That would mean that he didn’t hear the other officer’s anguished outburst. 

However, Nichols’s body microphone did pick up a very similar complaint – which was made by the dying victim: “I’m f*****g shot. Why did you shoot me? You bunch of a**holes.”

Perez lied about that detail, as well, telling investigators that Pennington “never, you know, made a sound, nothing” after being shot. 

What this means is that Nicholas and Perez knew that Pennington was alive, and yet neither did anything to help him. Rather than rendering medical aid, Nicholas and Perez tried to pull the victim from the vehicle, and then quit when his feet were “hooked up” in the car. With the dying man hanging half-way out of the driver’s side window, Perez reported the shooting and then “walked over to the street sign to see where we were.” 

Nichols went back to his vehicle and shut off his recorder. Within minutes other officers arrived. Unaware that Perez’s dashboard camera was still operating, Nichols gestured at Pennington and muttered, “There goes my job.”

That remark prompted Perez to point to his vehicle and say, “I’m sorry, man.” In a different context this might have been construed as condolences for the officer’s involvement in a fatal shooting. By gesturing toward his dashboard camera, Perez was clearly apologizing for the fact that Nichols’s callous, self-pitying comment was now on record. 

The report issued by the Salt Lake District Attorney’s Office on June 30, 2009 is replete with clumsy, deliberate misrepresentations. It claims that Sgt. Crist ordered that “the vehicle be stopped”; in fact, he specifically instructed that it was not to be stopped. It also recites the disproven claims that Pennington “attempted to run over a pedestrian law enforcement officer” and that he rammed Nichols’s police vehicle “numerous times.” 

 

Former Salt Lake County DA Lohra Miller

According to the DA’s summary of the case, “Perez stated he could not see the suspect’s hands” and that Pennington “refused to comply with his commands.” Perez actually testified that he could see both hands on the steering wheel, and by trying to leave the SUV Pennington was complying with Perez’s orders. 

Predictably, the report regurgitates the familiar refrain uttered by every police officer who murders an unarmed citizen by claiming that Pennington “made a furtive movement towards the pursuing police officer,” thereby placing the intrepid paladin of public order “in fear of his life” and thereby justifying the use of “deadly force to stop the threat by the suspect.” 

Perhaps the most important of the many intentional oversights by the DA’s office dealt with the ballistics report on the shooting. The State Medical Examiner’s Office reported that the bullets fired by Nichols passed through Pennington’s torso from left to right and took a slightly downward trajectory. This wouldn’t have been possible if Pennington had been “lunging” or “leaping” from the driver’s side window, causing the valiant Officer Nichols to fear for his life. What clearly happened is that Nichols shot Pennington while the driver was shifting in his seat attempting to get out of the vehicle, as Perez had ordered. 

After being exonerated by the DA’s office, Nichols was given a promotion, and he remains on the South Jordan Police Department. Brett Perez, ironically, was fired for violating the department’s vehicle pursuit policy. Apparently it is a firing offense to conduct an unauthorized high-speed pursuit – unless you’re willing to kill the unarmed suspect once you’ve chased him down. 

West Jordan Police Sergeant Michael S. Leary, the protocol officer who headed the investigation, had filled the same role about two years earlier in a very similar case involving the fatal police shooting of white supremacist Darren Neil Greuber in a Salt Lake City parking lot. Grueber attempted to flee when a SWAT team from the Metro Gang Unit arrived at about4:30 a.m. to serve a search warrant. Grueber wasn’t in the apartment when the SWAT raid took place. When he arrived, officers boxed in his vehicle – and Greuber tried to escape by ramming his Chevy Blazer into parked police cars.  One of the officers, who was on loan from the South Jordan Police Department, shot the unarmed Greuber twice. 

Like Pennington, Greuber was out on probation at the time of the shooting, and he had filed an appeal challenging his conviction. Law enforcement officials claimed that Greuber’s history made him an acute threat to “officer safety,” even though he was unarmed at the time of the shooting.  And the officer who pulled the trigger was Jared Nichols. Sgt. Leary, who had investigated the July 2007 shooting of Greuber, never asked Nichols about the similarities between that incident and the killing of Wade Pennington. 

“Since Lohra L. Miller took office … police-caused homicides have increased significantly in Salt Lake County,” asserted the Pennington family’s lawsuit. “Officers know that if they do shoot a person without justification, the district attorney and her investigators will not, in all likelihood, prosecute them. In fact, Nichols knew this firsthand, having been exonerated by Miller in a homicide two years prior.”

After entering the DA’s office in January 2007, one of Lorha Miller’s first acts was to dismiss criminal charges against a police officer named Richard Todd Rasmussen, who had fatally shot a suspect following a high speed chase. In explaining that decision to Salt Lake NBC affiliate KSL, Miller seemed to be reading a script prepared by the police union: “The suspect was unarmed, but had a history of being aggressive toward law enforcement officers, had a history of possession of weapons, and in this particular case tried to run the officer off the road. And at the time the officer was shot, [the suspect] was lunging at the officer at close range.”

Miller’s decision prompted her predecessor, David E. Yocom, to publish an op-ed column describing her action as “a disgrace to the criminal justice system.”

Yocom elaborated on that critique in an interview with KSL, saying that Miller, who had been supported by police unions in her election campaign, dropped the charge “to please the law enforcement groups that supported her…. [O]ne way to please them is to take a law enforcement officer off the hook on a very serious charge.” 

By the time Wade Pennington was killed, Miller had made it clear that she wasn’t interested in prosecuting cops for any reason – from homicide to circulating pornography through an office e-mail account. The police reciprocated by refusing to investigate complaints that the BYU graduate’s household was used for drinking parties by her teenage children and their friends. Miller served a single term before being ousted by Sim Gill. 

Since November 2, Gill has been immersed in investigating the shooting death of 21-year-old Washington native Danielle Willard by two West Valley City narcotics investigators. The officers claimed that Willard, who was receiving treatment for a drug addiction, endangered their lives when she backed her Subaru Forrester into a police cruiser while trying to escape the parking lot. 

Gill’s investigation of Willard’s death led to the dismissal of 19 criminal cases that had been filed by Detective Shaun Cowley, who shot the young woman. It also led to the discovery that the narcotics unit that employed Cowley had stolen money, drugs, and “trophies” from narcotics suspects; that led to the dismissal of 125 drug-related criminal cases and the dissolution of the unit. As revelations of systemic corruption within the department mounted, Chief Thayle “Buzz” Nielsen suddenly retired, supposedly for health-related reasons. 

Willard’s parents have filed a wrongful death lawsuit against West Valley City for the “assassination-style” killing of their daughter. Cowley and Officer Kevin Salmon, who killed Danielle, remain on paid vacation.  Gill is continuing his investigation of the shooting, but given the precedents set by his predecessor, there’s little cause for suspense. After all, it’s well-established policy in Utah that police are permitted to “take out” unarmed suspects, rather than going to the trouble of arresting them. 

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Dum spiro, pugno!

The State: Always the Accuser, Never the Defendant

Jessica Nelson and Philemon Ellis were killed instantly when a car driven by Eddy Bustos blind-sided them at an intersection in Ogden, Utah. Bustos, who was trying to elude a police officer, plowed his vehicle into Nelson’s car at nearly 80 miles per hour. 

Bustos would be sent to prison for manslaughter. Ogden City officials would quite thoughtfully find a way to cut the victims in for a share of the blame for the incident as a way of insulating themselves from liability for the actions of Officer Matt Jones, whose unnecessary pursuit led to the crash. 

Jones, who has involved in police surveillance of a “known gang member” at what was called a “known gang/drugs/weapons hangout,” gave pursuit when Bustos left the area – apparently on the assumption that his presence in the area created reasonable suspicion of criminal activity. A federal court ruling notes that Jones “was aware of the residential address of Mr. Bustos and could have waited at that address to arrest Mr. Bustos for any crimes he may have committed.” Thus no exigent circumstances existed to justify pursuing Bustos, which is why “the officers were advised and ordered by dispatch to disengage from the pursuit.”

It was later discovered Bustos was driving while intoxicated. Officer Jones was under the influence of an even deadlier narcotic – a cocktail of adrenaline and power lust – as he blew through five stop lights, ignoring an order to terminate the chase.  After being ordered to stop a second time, Jones turned off his siren and running lights and ceased pursuit. A few seconds later, Bustos collided with Nelson’s vehicle. 

Two years after the fatal car crash, Bustos pleaded guilty to two counts of vehicular manslaughter and is currently serving a potential thirty-year prison term. By the time Bustos was sent to prison, Ogden’s ruling political clique and the police force that serves it had already dealt with the problem posed by Officer Jones, who was, in effect, Bustos’s accomplice. 

Although Jones’s actions met the criteria for a charge of automobile homicide – which involves causing “the death of another person” while operating a vehicle “in a criminally negligent manner” – he was not prosecuted or disciplined for that offense. Instead, he was purged from the force because he had become an irritant to the mayor and police chief. 

On July 27, 2006, about eight months after the deaths of Nelson and Ellis, Jones was put on paid administrative leave after then-Mayor Matthew Godfrey complained about the officer’s involvement in a police protest over the city’s new pay policy. The new guidelines included a ticket quota as one of the 18 criteria for pay increases. Jones and other members of the Ogden Police Benefit Association – the local police union – had rented a moving van and decorated it with a banner reading: “Welcome to Ogden City, home of Godfrey’s ticket quota. If you disagree, call your city councilman.”

It’s important to understand that the police union was not taking a principled stand in opposition to the ticket quota; those officers certainly understood that extorting money at gunpoint was the most important element of their job. The officers involved in that protest were seeking an increase in pay and benefits without the imposition of performance criteria, and they were cynically exploiting public disgust over the ticket quota to that end.

Godfrey saw the van outside the Ogden Municipal Building. Noting that the person behind the wheel was a female who wasn’t a member of the Ogden PD, the Mayor lurked in the driveway long enough to see the driver picked up by a police officer he recognized on sight but whose name he didn’t know. He took down the license plate number of the officer’s car and called then-Chief Jon Grenier to demand that something be done. The Chief contacted a dispatcher and ran the license plate number. One hour later, a police lieutenant was knocking on Jones’s door to present him with notice that he was on administrative leave. 

It’s worth noting that Jones faced no discipline for his actions in precipitating a fatal car crash. The death of two Mundanes was scarcely worth notice. But criticizing the Mayor and confirming the existence of a ticket quota were firing offenses – and, sure enough, Jones’s paid vacation led to termination the following January.

When the internal investigation began, Jones insisted that he would not be treated fairly – and interesting assessment of the integrity of the department that employed him. After he was fired, Jones told the media that he was the victim of official retaliation, which is almost certainly the case. The Ogden PD replied to that criticism by publicizing the fact that Jones had failed a lie-detector test (a finding not admissible in court) concerning the theft of two wallets from “undocumented immigrants” who had been the subject of traffic stops. 

According to the department, the internal affairs investigation “demonstrated that Jones fit the description of the officer involved in the two thefts, that he was in the vicinity when the thefts occurred, that Jones had a pattern of targeting Hispanics, and that Jones had a pattern of manipulating and misrepresenting information about his activities and whereabouts on the job, thereby creating blocks of free time during which he was unaccountable to his employer.”

All of this may very well be true, but it doesn’t address some salient questions: Why didn’t Jones come under scrutiny until after he had offended the Mayor and Chief of Police by criticizing the ticket quota? Why didn’t the department investigate the possibility that Jones was profiling and shaking down Hispanics immediately after he had illegally pursued a Hispanic driver in an unnecessary car chase that led to the death of two innocent people?

Six months after Jones was fired by the Ogden PD, he was decertified by the Utah POST Council, which found that he had engaged in a “pattern of misconduct,” “sexual misconduct with a co-worker,” and general dishonesty.  In 2011, Jones and another former police officer named Daniel Kotter were found guilty of  trying to bribe a Utah Highway Patrol Officer who had arrested Jones for drunken driving. 

By this time, Ogden’s municipal government would have forgotten about Matt Jones – but for the fact that he figured prominently in lawsuits filed on behalf of the families of Jessica Nelson and Philemon Ellis, who had died because of Jones’s actions. 

The suit filed by Ellis’s family was quickly dismissed. The suit filed on behalf of Nelson’s daughter, who was 18 months old when her mother was killed, went to trial. The legal team defending the city persuaded the trial judge to exclude evidence regarding the reasons for Jones’s termination – that is, dishonesty, official misconduct, and criminal behavior that included preying on vulnerable Hispanics like Eddy Bustos. That evidence was of obvious and urgent relevance, but it was deemed inadmissible. 

Robert Sykes, the attorney representing Jessica Nelson’s family, filed a motion in limine prohibiting the City from trawling through the personal backgrounds of the victims. The trial judge responded by granting that motion – and then proceeding to ignore it as attorney Heather White, acting on behalf of the City of Odgen, fired a fusillade of greasy insinuations about the character and activities of both Jessica Nelson and Philemon Ellis. 

In her questioning of Theresa Nelson, Jessica’s mother, White insinuated that Jessica was a drug-addicted prostitute and that Ellis – a family friend – was among her clients. At one point White simply disregarded the order in limine outright and asked the grieving mother: “Did you know that [Ellis] had a criminal history dealing with prostitution?”

This prompted Sykes to object that “[Mr.] Ellis is dead, and his history has nothing to do with this, and [White is] trying to besmirch Jessica Nelson by using this improperly, and she knows it.” 

For what little it was worth, the trial judge upheld that objection, but White’s tactic had the desired effect: It placed the onus on the victims to explain why they were at an intersection at 3:00 a.m., rather than on the City of Ogden to defend the criminal actions of the disgraced police officer who had helped bring about their deaths. The jury played the expected role of upholding the city government’s claim that both Jones and the political junta that employed him were shielded by “sovereign immunity.”

 

“According to our laws and social values, prostitutes are criminals who should be punished, not rewarded with a verdict,” Sykes pointed out in a motion for a new trial. “There is a reasonable likelihood that the jury would have viewed the evidence in favor of Plaintiff’s case more favorably had [the City of Ogden] not planted the seed, without any basis, that Jessica and her passenger were involved in criminal activity” (which would have been more accurately described as consensual indulgence in vice, assuming any such activity occurred). 

The Utah Supreme Court agreed, ruling that Jessica Nelson’s “presence in the intersection was tragic and random. What she was doing in the intersection was irrelevant, what she had been doing that night was irrelevant, and any prior life history of either Jessica or Mr. Ellis was irrelevant. The questioning therefore … served only to prejudice the jury.” Attorney Heather White, the court observed, “surrendered, without resistance, to the impulse to win her case by bludgeoning the character of the dead.”

Those who belong to the political class assume that their natural and proper role is that of the accuser or the prosecutor, never the defendant. In the case of Nelson and Ellis, the Ogden political clique demanded that the long-dead defendants explain their actions, thereby inviting a credulous jury to make unwarranted and irrelevant inferences. 

This same mindset is at work in the Regime’s defense of drone strikes overseas in which dozens or hundreds of innocent people are killed – or in the notorious “Collateral Murder” video in which a US helicopter pilot who had just committed a war crime derisively blames the Iraqi victims for “bringing kids into a battle.” 

Both at home and abroad, the Regime’s armed emissaries are adept at the use of the “Texas Sharpshooter Fallacy” – essentially, shooting first and drawing a bull’s-eye around the bullet hole. This is how the people in charge of the “targeted killing program” can claim that drone strikes are a practically infallible method of killing militants: They simply redefine all “military-age” males (those at least 14 years of age) in a targeted zone as suspected “militants.”

A similar method is used by police who seek to justify patently indefensible shootings: The officer perceived a “threat” on the part of the poor schlep up was holding a garden hose, or a pair of underwear, or a cellphone, to kill whenever they consider themselves at risk, which is why pants-wetting cowardice is a job qualification, rather than a liability, for police “work.”

 

Heather White

In some police homicides – such as the deaths of Nelson and Ellis -- the claim of “officer safety” makes a poor fit. Thus the only suitable tactic is to do what Heather White did: Traduce the character of the dead victims in an attempt to convince the jury that they must have been guilty of something. 

Although White’s assault on the memory of Nelson and Ellis happened several years ago, the tactic she employed acquires new relevance in light of recent revelations regarding the Regime’s omnivorous surveillance program. 

The Regime and those who serve it have insisted that the NSA’s eavesdropping activities are benign because they “only” involve the collection of “metadata,” rather than content. Leaving aside the fact that this is a lie, the Regime’s collection of metadata is a totalitarian exercise. Through metadata analysis it is possible to extrapolate a detailed account of any individual’s daily life, his acquaintances, his habits, and his vulnerabilities. 

As Harvey Silverglate points out, each of us commits at least three acts each day that could be described as felonies by any reasonably ambitious prosecutor.  By using NSA-provided metadata to conduct a “pattern of life” analysis of a targeted individual, law enforcement agencies could probably contrive an excuse to arrest practically anybody at any time. This capacity will dramatically expand opportunities for official retaliation against Mundanes who seek redress for abuses committed by police – including family members of deceased victims. 

Bad as things are in this respect right now, it will get much worse, very soon.

Dum spiro, pugno!