Monday, March 24, 2014

He Cooperated with the Cops -- and is Paying the Price: The Ordeal of Mark Byrge

American Fork, Utah -- 

When Mark Byrge had a minor traffic accident on a street in American Fork, Utah, he did the “responsible” thing by reporting the incident to the police. He has never stopped paying for that mistake.

Within a few minutes of receiving Mark's call, a pair of American Fork cops arrived to document the damage to Byrge's delivery truck from a collision with a tree branch that protruded into the street. Mark was cooperative – and he put up no resistance when the lead officer, Andres Gianfelice, placed him under arrest for an outstanding traffic ticket (as well as citing him for not providing proof of insurance). 

Byrge submitted without complaint to his officially sanctioned abduction, including the demeaning injury of being shackled. He politely made a single request of his captors: Owing to several back surgeries and the implantation of a $50,000 Spinal Cord Stimulator (SCS), Mark asked that the officers cuff him in front. 

While explaining his condition, Mark very slowly and carefully lifted his shirt in order to display an iPod-sized rectangular lump in his lower right back.

Neither Mark's cooperation nor his explanation made an impression on Gianfelice.

"Don't tell me how to do my job – put your hands behind your back!” barked Gianfelice, instructing his trainee officer, Jennifer Nakai, to apply the cuffs. Before being shackled, Mark called his wife Tina to tell her he was being arrested. 

He didn't disconnect the call – which means that Tina was able to hear everything that would happen over the next several minutes.

Despite the fact that he was obviously in pain, Mark placed his hands behind his back. Local resident Bob Cardon, on whose property the untrimmed tree was located, expressed concern over Mark's treatment.

"Do you really have to handcuff him that way?” the elderly man asked the officers.

"Shut up, or you'll be put in the car next to him,” snarled Gianfelice. 

After Mark was stuffed into the back seat of Gianfelice's cruiser, he leaned away from the cuffs, attempting to prevent any damage to the expensive medical appliance embedded in his back. 

Ignoring Mark's protests, Gianfelice shoved him against the seat to buckle his seat belt. As that happened, Mark later recalled, “I could actually feel it [the stimulator] breaking.”

"You stupid son of a bitch,” Mark gasped, “you just wrecked my back.” He didn't know at the time that Tina was listening to this exchange over an open phone line.

Tardily realizing that he had made a terrible mistake, Gianfelice relented and used a “belly chain” to cuff Mark in the front. This allowed the officer to claim in his official report that he had “accommodated” Mark – but by that time irreparable damage had already been done.

The SCS was designed to send electrical impulses along Mark's spine in order to neutralize pain receptors. This allowed him to ramp down his dosages of narcotic prescription pain medications. This, in turn, is what made it possible for him to run his courier delivery business, which required both the physical capacity to load and unload cargo, and the mental acuity to drive his truck and fill out paperwork. Without the stimulator, Mark would either be too crippled to lift, or too doped-up to focus.

Subsequent medical scans of his stimulator documented that it went inactive on April 18, 2012 – the day that Officer Gianfelice, after arrogantly dismissing Mark's entirely reasonable request to be cuffed in the front, shoved him against the rear seat of his police cruiser.

As Gianfelice pulled away from the scene of the accident, Mark informed the officer that he needed to be taken to a hospital, and he eventually convinced the officer that the jail wouldn't admit him without hospital clearance. When they arrived at the hospital, Gianfelice parked about fifty yards away – significantly, in one of the few spots concealed from security cameras.

By this time, Mark's right leg was already convulsing – a tell-tale indication that the SCS had malfunctioned. Gianfelice dragged Mark out of the cruiser by his right arm and began walking him toward the hospital entrance. Mark's right leg had seized up and was refusing to cooperate with his own wishes, let alone the demands of his captor. In his subsequent report, the officer claimed that Mark began “pulling” and “jerking” away from him.

The officer didn't explain why a handcuffed man who was in obvious pain and who had asked to be taken to the hospital would “resist” being escorted to the emergency room. Nonetheless, in short order, Mark found himself face-down in the dirt of a nearby flower bed with Gianfelice on top of him, shouting the shared refrain of police and rapists: “Stop resisting! Stop resisting!”

"I'm not resisting – get off my back!” pleaded Mark. Indeed, given his physical condition, Mark didn't have the ability to resist.

Gianfelice claims that the crippled, handcuffed man somehow managed to drag the two of them down to the ground. Mark reports that the officer threw him down and to the right. However they wound up on the ground, the officer – knowing that Mark had a back injury – drove his knee into Mark's lower back, placing his entire body weight on the fragile and expensive piece of hardware embedded under Mark's skin.

This incident was witnessed over the open phone line by Mark's wife, Tina.

Officers Gianfelice and Nakai pulled Mark to his feet and escorted him into the emergency room. Once inside, Mark gasped out a complaint to the first nurse he saw:

"This officer just assaulted me. Please call for a third party officer to investigate.”

The nurse, who was legally obligated to report on an assault against a“vulnerable adult,” ignored Mark's request. The officer responded by “check-punching” the handcuffed victim in the chest.

"What the hell are you doing?” Mark exclaimed, his patience long since exhausted. “Let me f****ng go!”

"Don't use that kind of language!” snapped the nurse, suddenly alert to matters of decorum after being torpidly indifferent to the violence inflicted on Mark.

Gianfelice cited Mark for “disorderly conduct,” listing the offended nurse as a witness. Predictably, his report didn't mention his act of criminal battery against the handcuffed victim. That crime, however, was documented by the emergency room's security camera.

Significantly, Gianfelice did not charge Mark with "resisting arrest."

This was the only video record made of the encounter between Mark Byrge and the American Fork PD – despite the fact that the department takes extravagant pride in the fact that all 33 of its patrol officers are “wired” with VidCam units.

"The American Fork Police Department claims to be the first law enforcement agency in the country to outfit all of its officers with video cameras and microphones pinned to their uniform,” reported the Salt Lake Tribune in November 2007.

"We've been waiting. We've been looking for something like this to document the good work that police officers do,” explained Lt. Sam Liddiard. 

Last October, Lt. Liddiard told KSL news that “any time an officer deals with someone, they're required to be recording.” He offered unqualified praise for the video recording technology, insisting that the record usually cleared officers accused of abuse.

There were three wired officers involved in the encounter with Mark Byrge – Gianfelice and his trainee, Nakai, and their supervisor, Sgt. James Bevard. The officers either suffered an inexplicable simultaneous failure of their VidCam units, or they didn't bother to activate them. Nor was a dashcam recording made by either of the police vehicles on the scene.

Shortly before Mark was assaulted by Gianfelice, he had visited a local clinic to have his SCS calibrated. He went back to the clinic following the assault and was told that the leads connecting the device to his spine had shifted, rendering it useless. The device had stopped functioning on the morning of April 18 – while he was in the custody of the American Fork Police.

Since that incident, “the patient's pain as gotten worse and his right leg is now showing signs of possible Complex Regional Pain Syndrome,” observed Gary Child of the Utah Pain Relief Center in April 2013. CRPS is a serious degenerative condition that has left Mark unable to work – and is rapidly depriving him of the ability to walk.

Mark is a 43-year-old former football player and wrestler with a compact, muscular build and low center of gravity. He walks with the assistance of a cane as his right leg atrophies. Dark striations are inscribed in his right foot, ankle, and shin. His toes are splayed at wild angles owing to involuntary muscle contractions and spasms that convulse his right leg without warning or relief.

His body slowing cutting off circulation to his lower extremity “as if it is trying to break off my foot,” Mark explained to me. CRP Syndrome can lead to other severe complications, including major organ failure.

"There's a good chance that this could be what kills me,” Mark predicts.

It should be recalled that Mark was entirely cooperative in his dealings with the American Fork Police Department. As Gianfelice admitted in his report, he had the option of cuffing Mark in the front, rather than wrenching his arms behind his back. Why was he so intransigent?

Mark points out that Gianfelice was accompanied by a trainee officer, which “always creates a temptation to show off, be a hard case, and put the citizen in his place.” An officer will be especially prone to strut and show off when the trainee is an attractive blonde female, like Officer Nakai.

Prior to the arrest, Mark and Gianfelice did exchange words. While the officer was taking photos of the accident, Mark suggested that he get a few of the protruding tree branch, which should have been clipped by a city maintenance crew.

"You sound like someone who doesn't want to accept responsibility,” hectored the officer.

"Well, you sound like a city employee who's worried about financial liability,” Mark replied. 

The officer responded by ordering Mark into the cab of his truck – before ordering him out to arrest him.

As Mark attempted, unsuccessfully, to recover from the trauma inflicted on him by Officer Gianfelice, he filed complaints with the American Fork Police Department. He collected witness statements from several people who had been on the scene, as well as his wife and brother, who had overheard the incident over the open cell phone connection. He assembled statements from health care professionals about the damage done to him by Gianfelice's assault. When the AFPD didn't respond, Mark took his evidence to the Utah County Sheriff's Office.

Mark's persistence didn't endear him to AFPD Chief Lance Call.

You've run to every agency on the Wasatch Front,” groused Call when Mark contacted him to demand that action be takenr against Gianfelice. “I already investigated it – and I cleared the officer.”

"You didn't talk to any of the witnesses or review any of my evidence,” Mark plaintively replied. “How can you `clear' him just by reviewing his side of the story?”

"I told you `no'!” Call responded, hanging up.

"After this happened, I called the mayor's office, even though it was after five o'clock,” Mark recounted to me. “I left him a message describing what Call said, and why I needed him to support an honest investigation.”

Unexpectedly, Mark received a reply the first thing the following morning.

"The mayor called at about 8:00 and left a message on my answering machine, telling me that he was going to have the Utah County Attorney's Office conduct an investigation,” Mark relates. “The fact that this literally happened the first thing the morning after my call indicates that the mayor and other officials had been discussing what to do about my case.”

Before the county attorney's office began its inquiry, Mark received another official visit from the AFPD.

"An American Fork officer showed up at our door – a really big guy I hadn't seen before,” Mark attests.

"I'm here to tell you that if you pursue this it will not go well for you,” the officer growled at Mark, taking care to cover his badge with one hand.

"What's your name?” Mark asked. “Are you threatening me?”

"You should just know that this isn't going to go well for you,” the officer said, ignoring Mark's question and turning to leave.

The official inquiry, which was conducted by Sgt. Scott R. Finch of the Utah County Sheriff's Office, was the typical preordained exercise in validation. In his interview with Finch, Gianfelice repeatedly claimed that he “could not recall,” “could not remember,” or “could not recall from memory” several critical details of the incident.

Among the matters that eluded the memory of this trained observer was whether “he was shown anything that would indicate Mr. Byrge had a back injury”; whether “he or someone else did the handcuffing of Mr. Byrge”; whether “he handcuffed Mr. Byrge in front initially or if he was cuffed behind his back at first”; or if “any other citizens [were] present or approached them at the scene of the accident.” He offered the unqualified statement that Mark “did not complain of injury when they were on the scene.”

Two witnesses one the scene – Bob Cardon and Jason Wilde – testified that Mark complained of his back injury. This was confirmed by two witnesses who overheard the encounter via cell phone.

In his initial statement to Sgt. Finch, Gianfelice claimed that “he will evaluate or estimate a person's flexibility and size and help them out by handcuffing them in front” and that he told Mark “he had a belly chain ad he would allow Mr. Byrge to be cuffed in front.”

After Finch provided Gianfelice with a copy of his report “to refresh his memory,” the officer changed his original story, admitting that he did initially cuff Mark behind his back before transferring the cuffs to the front.

This is the crux of the issue: Gianfelice ignored Mark's pleas to cuff him in front until after the damage had been done, then he lied about doing so during the subsequent investigation. He did this despite clear and detailed warnings about what this would do to the victim.

In the original reports from Gianfelice and Nakai, Mark was described as “not combative.” In their revised versions, he was described as “out of control, angry, loud, and yelling.” Significantly, in her initial account of the “scuffle” at the hospital, in which Gianfelice wound up with his knee in Mark's back, Nakai said she “was not sure what caused Mr. Byrge to fall” because “she was on the other side of the car” – yet despite the fact that she didn't see what happened she insisted that this was caused by “Mr Berge jerking his arms away and he lost his balance.” She conceded that Gianfelice might have used a “touch-push” to deal with a supposedly uncooperative detainee.

Despite these abundant and crucial self-contradictions, Finch pronounced the expected benediction on his fellow officers, concluding that “After conducting this investigation I believe the officers' actions were legal and responsible.”

Charged with “disorderly conduct,” Mark – who was forced to represent himself -- attempted to obtain sworn statements from officers Gianfelice and Nakai.

"Sgt. Finch said that this wouldn't be necessary, because they were sworn officers already under oath,” Mark informed me. “But all of my witnesses were required to make sworn statements under penalty of perjury. And then when I attempted to enter the officers' statements as evidence in my trial, I was told that they weren't admissible, because they hadn't been made under oath. So I was deprived of any opportunity to demonstrate that the officers had contradicted themselves – which meant that I had no defense.”

Fully disabled and unable to make a living, Mark is pursuing a civil rights case against the AFPD. He is also a candidate for the Utah State Legislature.

"My campaign is going to focus entirely on abuse of power by public officials, especially the police,” Mark told me. “I'm in constant pain, and my body is literally devouring itself. I want to do anything I can to prevent this from happening to somebody else.”

Meanwhile, the assailant who left Mark an invalid, Andres Gianfelice, is receiving a total compensation package of $83,682 a year as part of a 33-officer force patrolling a city of 21,000 people with a negligible violent crime rate. Officer Nakai, one year after finishing her probationary term, is drawing salary and benefits of $63,932 – a pretty decent rate of compensation for a job open to anybody with a GED and a capacity for casual sadism.

(Note: In the original version of this essay I described the officers' compensation as "salary," which wasn't strictly accurate. I apologize for that error, and thank the commenter below for the correction.)

(This is the first in a series of stories describing rampant police abuse in Utah.)

Dum spiro, pugno!

Monday, March 17, 2014

One Unjustified Arrest, One Permanent File, and One Corrupt Sheriff: The Ordeal of Mark Patterson

Any day that begins with a visit from police will probably turn out badly. Mark Patterson’s day got off to that kind of inauspicious start, and grew worse in crescendo. 

The officers let themselves into Mark’s home in Tampa without knocking. Displaying the type of restraint that has all but disappeared in this age of gratuitous SWAT raids, the officers were so stealthy that they didn’t wake up Mark’s eight-month-old Doberman puppy, Thor. They told the startled 21-year-old that a woman had made allegations against him, and said he needed to “come downtown” to “clear things up.” 

If he had been an older and wiser man, Mark would have demanded that the cops come back with a warrant, and told them he wouldn’t say anything else in the absence of an attorney. Like too many other people, however, Mark allowed his response to be dictated by an alloy of anxiety and misplaced confidence in the integrity of police officers. He didn’t know that police who offer to take someone “downtown” are looking to cage the suspect, not clear him.

At the station, as detectives began asking questions about a middle-aged woman Mark had met the previous night, Mark made his second critical mistake by offering honest answers to people who are trained to lie. Before the end of the day he was behind bars and accused of rape as a result of giving a ride to a troubled woman he claims never to have touched. 

No audio record was made of Mark’s interrogation. He never signed a statement. There was no eyewitness testimony to corroborate the accuser’s account. As Mark later recalled the interrogation, he admitted to giving the woman a ride, and that she had been at his home, but denied having sexual relations with her. She had been crying when Mark offered to give her a lift, and at the end of the ride she demanded money from him. When he declined, she got angry and left. 

The investigating detective’s report claimed that Mark admitted to taking the woman to bed, but maintained that the act was consensual. No physical evidence was ever produced to confirm that a sexual encounter ever occurred. 

The Cynical Charade: “Just one more thing….” 

Protracting the cynical pretense of seeking to exonerate Mark, the detectives said that he would have to undergo a polygraph examination. Once again, the purpose of this ritual – the results of which are not admissible in a Florida court – is to contrive a pretext to charge the subject or to extract a confession. One of the detectives composed a list of six questions for the examiner, which included a subject that hadn’t been raised during the interrogation – namely, the woman’s claim that Mark had threatened to turn his Doberman loose on her if she didn’t submit to him. 

This supposed attack dog was the same torpid puppy that hadn’t been roused from slumber by the sudden appearance of several uninvited strangers just a few hours earlier. 

When Mark was asked about that accusation, he reacted with vehement incredulity. The examiner – as he was expected to – interpreted this response as evidence of “deception.” It was on this basis that Mark was booked on a charge of “forcible rape.” The only other “evidence” supporting that charge was the uncorroborated word of the accuser, whose testimony wouldn’t have withstood a nanosecond’s worth of cross-examination. 

According to the police report, the 46-year-old woman claimed that before being assaulted she had told Mark about a “sick child at home who needed medicine.” He allegedly parried that pathetic comment by sneering, “Let him die – he don’t belong to me.” 

Roughly three paragraphs later, the report discloses that the supposed victim contradicted herself: 

“[She] further related that she had three (3) children, whom she had recently signed papers relinquishing them for adoption and two (2) others in other states that she had given up.”
The woman supplied the name of a social worker, a Mrs. Swanson, who confirmed that the alleged victim had scattered five children from more than one biological father across at least three states. Mrs. Swanson “further stated that [the accuser] had emotional problems and had been confined in a mental hospital in North Carolina at one time. She further stated that [she] had been separated from her husband approx. 2 weeks ago and living with a man in the Hyde Park area.” 

Forcible rape, or assault of any kind, is a terrible crime, whether the victim is a doe-eyed ingĂ©nue or a troubled and dissolute middle-aged woman. What matters is not the identity of the alleged victim, but the evidence that an actual crime occurred. In this instance, the only “evidence” of the supposed crime was the unsubstantiated, self-contradictory account of a clinically unbalanced and demonstrably irresponsible woman

The police should have contacted local charitable organization to see that the woman received some help, and consigned the criminal case to the dustbin. Instead, they “cleared the case” by sending Mark to jail, where he was attacked several times during pre-trial detention and constantly threatened with rape. 

An Extorted Plea Bargain 

A few weeks later, understandably terrified of what could happen if he spent any more time in jail, Mark accepted a deal: In exchange for pleading guilty to “assault with intent to commit rape” – a charge, significantly, that wouldn’t require proving sexual contact – he would receive a withheld judgment and five years of probation, with the promise of having the conviction permanently removed from his record. 

“My attorney emphasized to me that once the probation was finished, if I didn’t get in trouble again, the charge would literally disappear,” Mark recalled to me recently. “It would be as if it had never happened, as far as my legal record was concerned. I wouldn’t have to mention it in job applications, or in any other context that might involve a background check. Where the law is concerned, I would be innocent and free of charges.”

Under Florida law, a withheld judgment means that “the court declines to convict (adjudicate guilty) the defendant…. If the defendant successfully completes his probation, he is not a convicted person.” According to the Florida Bar Association, a defendant who received “the benefit of a withhold of conviction could traditionally deny having a conviction, even when subject to deposition or while testifying in court.” 

Circuit Judge Harry Lee Coe, who issued the withheld judgment in May 1974, was widely regarded as a stranger to the concept of leniency. His habit of imposing maximum sentences earned him the not-at-all friendly nickname “Hangin’ Harry.” He was not the type of magistrate one would expect to treat an accused rapist with a light touch. Nor would he be expected to vacate the judgment less than half-way through the appointed term of probation “in his own best interest.” Yet this is precisely what Judge Coe did in July 1976, after a private investigator hired by Mark’s father provided evidence that the supposed victim had recanted her accusation.

In that same year, Mark faced a second rape accusation that was dismissed in a bench trial after an eyewitness confirmed that the alleged victim – who displayed no physical evidence of experiencing such a horrible crime -- was lying.

“She was a temp worker in the Hamilton County clerk’s office, and she became aware of the case in Florida,” Mark says of the accuser. “My family was wealthy, and I think she believed it might be possible to take advantage of me. She was completely drunk. I tried to get her to leave, because after the experience down in Florida I didn’t want any trouble of that kind.”

The woman claimed that Mark had choked and then sexually assaulted her, and that there were no witnesses to the supposed assault. In her condition she was oblivious to the presence of Mark’s roommate, who witnessed the entire incident. Although he had not been convicted of the alleged offense in Florida, the prosecution “tried to depict me as a repeat offender,” Mark points out. Acknowledging that the prosecution didn’t have a case, the judge disposed of the case within a couple of hours.
Mark Patterson with his wife and daughters.
Some might believe that recurring difficulties of this kind indicate that Mark Patterson was an undisciplined young man who created trouble for himself.  There is nothing in his personal history since 1976 that would validate that characterization. 

He continued his studies, found gainful employment, taught automotive mechanics to inner-city youth as part of a trade school program in California, and eventually started a very successful manufacturing company in Boise.

Wanting to be financially secure before starting a family, Mark deferred marriage until middle age, eventually wedding a lovely woman and having two disarmingly beautiful young daughters. He became active in a local church in Boise and gravitated toward the local Tea Party movement when it sprung up in 2010. Two years later, he ran for the state legislature as a Tea Party-aligned independent conservative Republican. He won the race in a bit of an upset without receiving any financial support from the familiar menagerie of entrenched special interests.

Enter the Corrupt Sheriff

During the 2012 race, Mark was subjected to a thorough background investigation by the Associated Press. As Mark’s attorney had promised back in 1974, the withheld judgment was nowhere to be found in the public record. However, it was included in the “raw” file maintained on him by the FBI’s National Crime Information Center (NCIC).

When Mark applied for a concealed weapons license in 2007, his NCIC file – an austere and unspectacular document roughly two-and-a-half pages long – came into the possession of Ada County Sheriff Gary Raney, who has held that office since 2005. Raney, who has known about Mark Patterson’s withheld judgment since 2007, approved his CWL application without complaint. Five years later, on April 27, 2012, Raney readily renewed Mark’s CWL, because he had no legal authority to do otherwise.

According to Idaho Deputy Attorney General Paul Panther, a withheld judgment “is not a conviction under Idaho law… If a person receives a withheld judgment for a felony, he may still obtain a license because no Idaho or federal law disqualifies him from owning a firearm.” This means that Mark Patterson was legally qualified to have a CWL, given that Idaho has a “shall-issue” concealed carry law.

Raney had no legal right to reject Mark’s CWL application or to revoke his concealed carry permit. Yet on May 22, 2013, Raney sent an official letter to Mark informing him that “we have initiated administrative proceedings to revoke this license” because “We received information that you were charged with the crime of forcible rape on May 15, 1974, in Hillsborough County, Florida,” and that he had entered “a guilty plea to the crime of Assault with Intent to Commit Rape…. The court records also show that you received a withheld judgment in that case.”

The only source from which Raney could have “received” that information was the same NCIC file the sheriff had twice consulted before granting Mark’s CWL in 2007 and 2012. In his letter of notification, Raney claimed that Mark had committed “fraud or intentional misrepresentation” in his application by stating that he “had never had an entry of a withheld judgment for a criminal offense which would disqualify you from obtaining a concealed weapons license.”

As is demonstrated by Deputy AG Panther’s statement, Raney’s claim was a conscious misrepresentation of the law: Once his probation ended four decades earlier, Mark was not required to disclose the withheld judgment to Sheriff Raney or anybody else. Raney had ratified Mark’s choice by twice approving his CWL applications. His announcement that he was revoking Mark’s license was not dictated by the law, or an act intended to serve the public interest. It was a petty, opportunistic act of retaliation against a legislator who had caught the sheriff and his allies in a violation of Idaho’s lobbyist disclosure law in their efforts to defeat a gun rights bill.

During the 2013 legislative session, Patterson had sponsored HB219, which would have made it a misdemeanor offense for an Idaho peace officer to aid in federal confiscation efforts. The bill passed the House without difficulty, but died quickly in the Senate – in large measure because of a frenzied, and patently dishonest, pressure campaign waged by Raney and his lobbyists, Mike Kane and Vaughn Killeen.

Gary Raney is on record stating that he would dutifully enforce confiscatory federal firearms laws. In addition to being Sheriff of Ada County and Chairman of the Idaho POST Council, Raney is the president of the Idaho Sheriffs Association (ISA). Kane is the group’s official lobbyist, and Killeen – a former Ada County Sheriff and one of the state’s most influential advocates of civilian disarmament – is the group’s executive director.

Without troubling themselves to file the proper disclosure forms, Kane and Killeen worked behind the scenes to defeat HB219, telling state senators of the terror that would descend on Idaho if the legislature offended the Feds. Among the purportedly ruinous consequences of the bill would be an end to the orgy of officially licensed plunder called “civil asset forfeiture,” and federal withdrawal of funding to combat sex crimes against children and gang violence. Interestingly, both Idaho’s Fraternal Order of Police and the rank and file of the ISA supported HB219 despite the putative parade of horrors it would produce.

After the legislative session ended in May, Mark – in this context, he should be referred to as Rep. Patterson -- filed a complaint against Kane and Killeen. Following an inquiry by Idaho Secretary of State Ben Ysursa, Kane grudgingly provided an amended lobbying report on May 15 – but in that document he didn’t mention his work on HB 219. After Rep. Patterson submitted a second complaint, Kane was compelled to fill out a second amended report and register as a lobbyist.

Mark wasn’t finished.  On May 21, he filed a complaint with Secretary of State Ysura about Raney’s lobbying. He also dispatched a letter to Raney’s office demanding “the accounting records for the Idaho Sheriffs’ Association” dealing with expenses incurred by the organization’s lobbying effort, in order to determine if taxpayer funds had been illegally used to defeat the bill.

Gun-Grabbers Retaliate

The following day, Raney suddenly announced his “discovery” that Mark hadn’t disclosed his withheld judgment from 1974. 

In his letter, Raney said that the revocation would be effective on June 6, and that he could request an administrative hearing to challenge that decision. The hearing was scheduled for August 26, and Mark was told that he would learn about the ruling within two weeks. Without explanation, disclosure of the results was postponed until October 29. 

Although Raney didn’t provide a reason for the delay, a reasonable inference can be made that the sheriff and his little clique of anti-gun zealots were coordinating an effort to remove Rep. Patterson from office. In August, former U.S. marshal for Idaho Patrick McDonald announced that he intended to run against Patterson in the Republican primary. 

According to press accounts, “McDonald … told former Ada County Sheriff Vaughn Killeen that he was running” before he filed the necessary paperwork with the secretary of state. Killeen, recall, had lobbied against Patterson’s gun rights bill, and was the subject of the state representative’s investigation into potential misuse of tax funds. 

Prior to the hearing, State Representative Judy Boyle, an ally of Patterson, sent a letter to the Attorney General’s office requesting clarification about the state CWL law as it pertains to the matter of withheld judgments. That inquiry resulted in the letter from Deputy AG Panther confirming that a withheld judgment is not an impediment to receiving a CWL. 

Rep. Boyle told me that this issue “was raised by several of my constituents, who like Mark Patterson had withheld judgments in their past and wanted to know how this would affect their concealed carry status. Sure, this is relevant to Mark’s situation, but it wasn’t limited to him, and as a legislator I am constantly in touch with the Attorney General’s office regarding all kinds of issues.”

Since 1990, Judy Boyle has been deeply involved in what are commonly called Second Amendment issues, and she is very familiar with Vaughn Killeen’s antipathy toward an armed citizenry. 

“He’s one of those people in law enforcement who really think that citizens should be disarmed,” she commented to me. “When he became Ada County sheriff years ago, one of the first things he did was to stop issuing CWLs, apart from the bare minimum required by law. That’s one reason why we changed the law to make Idaho a `shall-issue’ concealed carry state.”

Another important reform, Rep. Boyle points out, was to exempt personal information disclosed in a CWL background check from the public records law. This was done, in large measure, “because the Idaho Statesman got ahold of a huge amount of information on people with concealed carry permits. It didn’t publish the information, but it made a point of letting the public know about it.”

The material in an NCIC background check is protected by both state and federal law. Yet somebody in the Ada County Sheriff’s Office – either Raney himself, or one of his underlings – made the information in Patterson’s NCIC file available to Idaho Statesman writer Dan Popkey. 

As noted above, none of the information about Mark’s withheld judgment from 1974 was available even through the most comprehensive public records search. The police report was inscribed on fading microfiche and buried in the dusty depths of a warehouse in Florida. Yes, it could be found – but only by someone who had been told where to look for it by an official with access to the legally protected information in Mark’s NCIC file. 

On October 24 of last year, Popkey contacted the Clerk of Florida’s 13th Circuit Court to request the information about Mark Patterson’s 1974 case. That material was in his hands no later than October 28 – the day before Mark would learn the results of the administrative hearing. 

Propagating a smear 

This could be described as circumstantial evidence of coordination between Raney and Popkey – albeit of the exceptionally strong variety Thoreau compared to finding “a trout in the milk.” Clinching evidence of coordination is found in the fact that Popkey contacted Mark about the outcome of the sheriff’s administrative hearing before Mark had heard about the results from his own attorney

“Popkey sent me an e-mail telling me that he wanted to discuss my `criminal past,’” Mark recalls. “I got that message from him even before my attorney gave me the news about the hearing.”

The November 10th piece Popkey published in the Statesman dutifully recited the accusations against Mark as found in the Tampa Police Department’s report. The accuser herself was described simply as “a 46-year-old mother of five.” Popkey carefully omitted any mention of the fact that the woman had surrendered custody of those children, who were scattered across the southeastern U.S.; that she was separated from her husband and living with another man; or that she had recently been released from a mental hospital. 

The clear purpose of Popkey’s article was to portray Patterson as a predator. The Statesman contributor – who, interestingly, began his career as a “police reporter” (“stenographer” would be a more honest designation) wasn’t interested in complicating the picture by presenting an accurate portrait of the accuser. His approach to the story was the journalistic equivalent of a corrupt prosecutor committing a Brady violation by withholding exculpatory evidence from the defense

While Popkey was eager to wring everything he could out of Mark Patterson, he was reticent to discuss how he had been made aware of a matter that was hidden in Mark’s legally protected NCIC file.

“Popkey called me on November 1 and told me that Mark had lied on his CWL application,” Rep. Judy Boyle told Pro Libertate in a recent interview. I asked him, `How did you get that? It’s illegally obtained information.’ He said, `Oh, this showed up in a background check.’ `No, it didn’t,’ I said, because it’s not subject to disclosure. Then he told me that `It was a tip.’ I pointed out that he really should publish a story about how he was given access to legally protected information, but he insisted that `I don’t reveal my sources.’” 

“The way [Popkey] tried to explain it was that somebody – simply out of a sense of civic duty, I suppose – called Sheriff Raney and told him that he knew Mark Patterson had lied on his CWL, and directed Raney to this specific 40-year-old case in Florida,” Boyle continued. “But this anonymous informant would have to be aware that Patterson had a CWL, a fact that is not made public, and have access to the NCIC file, which is confidential and protected by federal law and state law. The only people who would know these things are Raney and a few of the people in his office.”

The mythical informant described by Raney and Popkey would also have to be blessed with uncanny timing: Somehow, Sheriff Raney “learned” of the withheld judgment on the very day he could use it to retaliate against a state representative who was promoting a gun rights bill he hated, and making his life miserable by investigating potentially criminal misconduct in the sheriff’s efforts to defeat that bill. 

When contacted by Pro Libertate about the critical omissions in his coverage of the Mark Patterson case, Popkey insisted: “Our extensive reporting speaks for itself.” What Popkey and his editors chose to suppress says a great deal more than what they decided to disclose.
For his part, Sheriff Raney responded to my inquiry by “adamantly” stating that “the actions by the Sheriff’s Office followed the law, including protecting personal information relevant to concealed weapons permits. We had a duty and followed it. Any suggestion otherwise, and any suggestion that our actions were politically motivated, is blatantly false.” 

Raney likewise insists that he was honor-bound to file an ethics complaint against Rep. Judy Boyle on October 31, claiming that her request for clarification from the AG’s office about the CWL law constituted a “crime” of some kind. 

Raney told me that “enough evidence of misconduct existed that we felt obligated to forward that information to the Speaker of the House and allow their ethics system determine [sic] if any action was warranted.” 

“Nothing was ever done about the complaint – it was just filed against me as an act of retaliation that could be used to attack me in the press,” Rep. Boyle observed when I asked her about it. “This gave Popkey a chance to report that I was the subject of an ethics investigation, but nothing was ever done about Raney’s complaint because it was without merit.” 

Character assassination 

Rep. Boyle doesn’t equivocate in describing Raney’s actions toward Mark Patterson as purely retaliatory. Significantly, that assessment is shared with one of Mark’s critics in the Idaho Legislature, State Senator Fred Martin, who helped pressure Mark into resigning.

Last December 17, the Idaho GOP’s District 15th Committee, acting in closed “executive session,” approved a resolution calling for Rep. Patterson’s resignation. Six days earlier, the Statesman quoted Sen. Martin’s description of Patterson as “foul-mouthed,” “arrogant and very threatening,” a “misogynist” who “shouldn’t be in public office.”

“And that’s not coming from me,” Martin asserted. “That’s coming from women who have had encounters with him.” Eagerly transcribing and retailing these calumnies to the public, Dan Popkey did admit that Martin “declined to name the women” who had supposedly found Mark Patterson to be so objectionable. The story included the ominous note that “security has been arranged” for the Committee meeting because of “concerns” expressed by its members. 

On December 11 I contacted Sen. Martin to ask if he was concerned about the illegal disclosure of Patterson’s background information by Sheriff Raney. Martin responded that an investigation had been launched into Raney’s “possible misconduct.”

“In my heart of hearts,” Martin told me, “I think that he [Raney] got tired of what Patterson was doing to him, and did this [released the legally protected information] to get back at him.” 

What Rep. Patterson “was doing” to Raney, recall, was making entirely legitimate inquiries about the sheriff’s illegal lobbying activities. Like Rep. Boyle, Sen. Martin – who was decidedly not a friend or ally of Mark Patterson – was convinced that Raney has used his access to the confidential NCIC material to punish the representative by revoking his CWL and ruining his reputation. 

Rather than focusing on the offender, the party’s 15th District Committee directed its ire at the victim, approving the resolution claiming that Mark Patterson had “brought himself and the party into disrepute” and demanding his resignation. The Chairwoman of that committee is Sara Jane McDonald – the wife of former U.S. Marshal Patrick McDonald, Patterson’s would-be opponent in the Republican primary. 

Patterson resigned his seat in early January. House Speaker Scott Bedke – who had received illegally disclosed information from Patterson’s NCIC file in an October 31 email from Sheriff Raney – prevailed on Governor Butch Otter to appoint McDonald to fill the vacancy.

In this way, a boon companion of gun-grabbing ex-Sheriff Vaughn Killeen was installed to replace a state legislator who had sponsored a key piece of gun rights legislation – and had exposed the unethical actions of the rogue sheriff who had worked to defeat it. (Speaker Bedke did not respond to my request for a comment about his role in the appointment of McDonald as Patterson’s replacement.) 

Ironically, an attenuated version of HB219 was enacted by the Idaho legislature during its current session. The Statesman, after admitting in a November 15 house editorial that Raney’s actions were probably illegal, lost all interest in the matter after Rep. Patterson was forced to resign. (A member of the Statesman’s editorial collective, interestingly, briefly considered running for Patterson’s seat after his resignation.) Mark, who can now devote his undivided attention to productive pursuits, has filed a tort claim against Raney – and is trying to help his family deal with the irreparable harm that has been done to his name and reputation as a result of Raney’s vindictive and criminal behavior.

One ruinous arrest 

“People who had treated my wife as a close friend now ostracize her,” Mark told me. 
“Friends who once spent time with our daughters have been told to avoid them. When we go out to eat as a family, people who used to smile and wave at us, and talk to us, now make a point of ignoring us. People have been convinced that I’m a serial rapist – and I have never in my life done such a horrible thing, nor would I. The withheld judgment was not a conviction, which means I’ve never been convicted of a crime. I don’t even have a speeding ticket on my record.”

“I was promised that once my probation was over, this false charge would go away,” Mark laments. “The problem here is that federal agencies like the FBI keep all of these accusations and charges that have been dismissed or unproven in a file that never goes away, and that material is available to dishonest and corrupt officials, who can use it to blackmail or retaliate against their critics.”
Whatever one thinks of Mark Patterson, his experience compellingly illustrates that a single contact with the police is quite sufficient to ruin an innocent person’s life. 

My family and I are deeply grateful for the generous help we've received over the last week. As an independent journalist I depend entirely on readers for support -- and I am thankful to all of you who have helped us keep the lights on for another month. God bless! 

Dum spiro, pugno!