Friday, January 30, 2015

"An Offender for a Word": Predation and Purgatory in Beaumont

Matthew Cherry was twenty-one years old when he found himself in a police interrogation room. At the time, he had the psychological maturity of a bright 12-year-old boy.  Thus it isn't surprising that Matthew was much too trusting when Beaumont Police Detective Mark Hogge assured the young man that they just needed to clear things up about a reported off-color remark Matthew made to a member of his church youth group after swimming at the local YMCA.

Nor should we be surprised that the June 2004 interrogation, conducted without the benefit of counsel, extracted a confession that would lead to Matthew’s conviction as a sexual offender -- and a decade of unalloyed
 misery for his family.

To be as specific as decorum permits, Matthew made a disparaging comment about the size of the younger boy's male member while the two of them were showering and getting dressed. Vulgar and offensive remarks of that kind are commonplace in junior high locker rooms. It's reasonable to believe that at some point in their lives the detectives who interrogated Matthew had indulged in off-color banter of that variety.

Matthew maintained that he never said or did anything to suggest that he was seeking to gratify a sexual impulse. While his behavior may have been considered deplorable, there was no evidence that it was predatory. However, no other word properly describes the conduct of the police interrogators. They had a criminal complaint and a compliant suspect – not a juvenile, but what the law in some jurisdictions considers a “vulnerable adult” – who didn't understand what his captors intended to do with him.

In addition to various learning disabilities and developmental delays, Matthew suffered from epilepsy and experienced Grand Mal seizures since the age of three. He was also diagnosed with Tourette's syndrome.
Matthew Cherry in his late 20s.
An examination by Dr. William Ondo at the Baylor College of Medicine found that Matthew had been afflicted with “progressive tics” – speech, muscular, and behavioral – “for 11 years” before his arrest. 

Those eccentricities would become more pronounced in stressful situations, and were known to include “outbursts of phrases that don't make sense or random thoughts that make others uncomfortable,” Dr. Ondo observed. Assuming that the doctor was correct in his analysis, Matthew's condition would explain why he would blurt out a puzzling and offensive remark about another young man's private anatomy.

No allegation was ever made that he touched the other young man in any way, or that his adolescent remark could be construed as a sexual overture. A court-ordered examination conducted in May 2005 by Dr. Edward Gripon, a widely respected psychiatrist, concluded that although Matthew was “emotionally immature [and] subject to poor judgment,” he “does not have a sexual orientation … toward pedophilia” and “does not pose any significant threat toward children.”

As a result of lengthy and detailed examination, both Dr. Gripon and licensed psychotherapist Ben Bell concluded that Matthew “fails to demonstrate any of the classic symptoms normally associated with ANY psychosexual disorder.”

Those findings, significantly, were made after Matthew had been charged with “lewd conduct” on the basis of his disclosures to the detectives.

There was no physical evidence of an assault. No eyewitnesses independently verified the accuser’s story. If an attorney had been present during the interrogation, Matthew would have been advised not to answer any questions. The same advice would have been offered by his father Bob Cherry, a retired fire fighter who worked for the City of Beaumont for 30 years, if he had been made aware of what was going on.

Without evidence beyond the unsupported word of a single accuser, Hogee and his partner needed a confession – or the case would have evaporated quickly. Matthew didn't understand the dangers of talking to the police, and his opportunistic captors weren't going to clue him in. 

Cast into the purgatory of probation

Over the course of two days, Hogee and his colleague skillfully groomed their subject, helping him overcome a “memory block” that prevented him from confirming the details of the accuser’s story. After the third interrogation, Matthew was handed a document and told to sign it.

“Your parents don’t have to know,” Hogee promised Matthew. “Sign it and it’s all over.”

Because of his dyslexia, he wasn't able to read and understand the “generic judicial confession that was written up by Hogee and presented to him.  The detectives who coaxed Matthew to sign his name soothingly assured him that the paper simply contained his story of what had happened. They didn't burden him with the knowledge that he was admitting to serious felonies.

Under questioning Matthew had repeatedly emphasized – albeit in unsophisticated language -- that he hadn't done anything to arouse or satisfy a sexual urge.  Just as he hadn't intended to commit a crime, he didn't mean to confess to one. But Matthew was skillfully misled into signing a confession, which meant that the “justice” system didn't have to prove the charges against him.

The methods used by police to lure Matthew into incriminating himself are quite common, and very effective.

“I had a case that was in many ways nearly identical to this one,” recalls Karyl Krug, a noted criminal defense attorney who now lives in Phoenix after many years of legal practice in Austin. “It involved a young Vietnamese refugee who spoke no English whatsoever and suffered from severe mental limitations. He brushed up against a young girl in a stairwell at the shelter where they lived, and social workers claimed that he had touched her breast. So he was taken in for questioning and signed a confession while being held in police custody without an attorney or translator present.”

Because of Krug’s timely and professional legal representation, that young man’s confession was thrown out and the charge against him was dismissed without even leaving a paper trail. Matthew Cherry didn’t enjoy similar good fortune. There was no attorney present during his questioning, and the attorney his family hired didn’t file a timely habeas corpus motion following his arrest.

“If the attorney had filed a habeas motion right away, the confession could have been challenged and may even have been suppressed,” Krug observes. However, on the basis of that fill-in-the-blank confession, Matthew was indicted by the Jefferson County Grand Jury.  He was given a $100,000 bond and “put into a cell full of inmates [with the guards] announcing that he was a child molester,” his father recalls. “We had a friend who worked [at the jail] who immediately pulled him out and put him into solitary confinement.”

Attorney Carl Parker (center).
This kept Matthew alive long enough for his family to arrange for bail and hire former state Senator Carl Parker as a defense attorney.

“When we took Matt to Carl Parker and showed him Matt’s case, he said it shouldn’t be anything to worry about; it was simply locker room horseplay and would probably be dismissed,” Bob Cherry related in a January 2008 letter to an attorney. “He told us not to discuss it with anyone, not even family…. We asked exactly what he was being charged with and were never told the charges.”

After six weeks had passed without hearing anything from the court or their attorney, Matthew’s parents found a job for their son as a security guard at an art museum.

A few days after Matthew started work, his parents heard a knock on the door and “a large group of police barged in the house with an arrest warrant for Matthew,” Bob continues. “By protocol, they were supposed to contact his attorney and he would bring him in.” At roughly the same time, another police contingent arrived at Matthew’s place of employment. The officers who arrested him announced within earshot of everyone that Matthew was facing a second charge of lewd conduct with a child.

According to Bob Cherry, Joe Bluell -- the father of the accuser -- disseminated news of Matthew’s first charge within the church where Matthew was a youth counselor, and in short order a second “offense” was dredged up – this one involving an incident in which Matthew and a member of his youth group jointly used a restroom at a Chevron station during a church trip. A second charge was added to the indictment, and another $100,000 dollar bail bond was imposed.

The Cherry family somehow found the money to pay the second bail bond. Three days later, Matthew was arrested yet again, and a third $100,000 bond was inflicted on the already over-leveraged family. The judge later explained that the third arrest and bond were the result of a clerical error, but insisted that “we couldn’t get our money back,” Bob recounts.

Matthew was placed on a form of pre-trial probation and was ordered to undergo a psychological evaluation. His parents paid for four examinations by four different doctors, all of whom found confirmed that Matthew suffered from epilepsy, Tourette’s Syndrome, and other afflictions – but displayed no tendencies toward pedophilia.

Although the trial judge took judicial notice of the fact that Matthew was mentally and psychologically a minor, he ruled that the findings of those examinations would not be admissible in his defense. Meanwhile, the Jefferson County DA’s office was indicating its reluctance to try the case in court. The defense attorney hired by Matthew’s family spared the DA’s office the trouble of a trial.

In the weeks following Matthew’s conviction in August 2005, the family fired Parker and hired Joseph Hawthorn to represent him. As it turns out, Parker -- a former Democratic state senator described as a "political hack" by a Texas defense attorney who worked for two and a half years in Beaumont -- may have been compromised, as well as incompetent.

While serving in the Texas Senate in the mid-1980s, Parker was indicted by the Jefferson County Grand Jury on multiple narcotics, obscenity, and prostitution charges. No public record exists of any action taken either to prosecute those charges, or to drop them.

After taking over the case, Hawthorn immediately filed a motion to withdraw Matthew’s guilty plea. He also requested a continuance, since the sentencing hearing conflicted with a previously scheduled court appearance to represent defendants in the Enron case. Hawthorn was present in the courtroom when Matthew’s sentencing hearing took place on September 12, but was not permitted to represent his client. Judge Carver capriciously ruled that because Carl Parker had been Matthew’s defense attorney when he pleaded guilty, he could not hire a new attorney or withdraw his pleas.

The Jefferson County assistant prosecutor generously conceded that the sentence should be “weighed against the defendant’s prior criminal history, which is none,” and admitted that “on the scale of indecencies, if there is such a thing, that this is towards the lower end of that scale.”

He quickly recovered from that brief lapse, however, sternly insisting that the minimalist nature of the offense – stupid words spoken at an inappropriate time by a young man suffering from Tourette’s Syndrome – “does not excuse the defendant’s behavior nor does it provide him any time of lessening of what he did to these two victims.”
Judge Carver sentenced Matthew to 10 years of adjudicated probation and “community service.” He was required to pay fines and court fees, submit to expensive and open-ended “rehabilitation,” and register as a sex offender for two counts of “indecency with a child through exposure,” both of which related to incidents that involved neither physical contact nor lascivious language.

One condition of Matthew’s probation was the requirement that he stay more than 1000 feet from a school. The home Matthew shared with his parents was located near an elementary school. Like most registered sex offenders, he didn’t have the financial means to rent a home, even if he found a landlord willing to have a registered offender as a tenant.

The sentence imposed on Matthew was Judge Carver’s last official act before retiring. In January 2007, Matthew applied for a writ of habeas corpus, contending that Carver had violated his right to counsel during the sentencing hearing. That application was initially rejected. The Texas Court of Appeals reversed that ruling and ordered a second habeas corpus hearing. The Jefferson County DA replied with a motion of its own that gave the Appeals Court an excuse to overturn itself by denying Matthew’s habeas corpus application on the pretense that he could obtain “the requested relief by filing appeals,” rather than demanding that the State actually prove the charges against him.

The majority’s surrealistic argument prompted an acerbic retort from Chief Justice Steve McKeithen.

“The majority’s decision effectively forces Cherry to rely on an attorney he did not want to represent him” during the sentencing hearing to handle an appeal based on his own ineffectiveness, McKeithen pointed out. “Under the majority’s logic, even had Cherry perfected an appeal, he would be required to await the imposition of a sentence and the outcome of his appeal before he could enforce his right to counsel of his choice…. Even if his appeal proved successful, only after being forced to suffer a trial result procured by an attorney not of his choice, according to the majority, Cherry would … have the privilege of retrying his case.”

In other words: Matthew Cherry would have to allow himself to be convicted and sentenced without mounting a legal defense before he could hire a lawyer to defend himself.

Unremitting harassment

If things had gone relatively well for Matthew, his probation would have ended in August of last year. However, the probation system is designed to prevent positive outcomes. Today, Matthew – now 32 years old – is in federal custody. He awaits sentencing on additional charges after being arrested last summer by US marshals in Honduras, where he had fled in violation of his probation.

Matthew was arrested following an anonymous tip by someone who claimed that he was “grooming future victims.” Since the accuser, who remains unidentified, was aware of Matthew’s status as a registered sex offender, it is possible – perhaps even likely -- that the accusation refers to any contact he might have had with children, as opposed to genuinely predatory behavior.

At the time he fled to Honduras, Matthew had completed nine years of probation – only to be told that his sentence, like that of Sisyphus, would continue in perpetuity.

In compliance with court orders, Matthew tried to attend school and get a job, but found that probation “was like torture,” his father Bob wrote in a letter to a friend. Officers from Jefferson County Probation and Parole “would call him any time he had a final exam in college and they would never show up for his appointment. [They would] show up at his work trying to get him fired constantly. [Matt] wasn't allowed to attend family functions, church, shopping malls. [Probation officials would] show up at our home just to hassle him. No dating was allowed, he couldn't leave the county without permission. The police were even worse; they came to his work several times a month.”

Like many others in similar straits, Matthew took a guilty plea on a sex offender charge in order to avoid being sent to one of the government’s rape factories. This meant subjecting himself to invasive psychological scrutiny – at his own expense -- that was a form of sexual assault. It was a process akin to being charged a fee for the privilege of being raped. 

He was also assigned to a “treatment group” that functioned like a “struggle session” in Maoist China: He was expected, and required, to admit to things he didn’t do, and to sexual urges he consistently denied (and that hadn’t been identified in multiple clinical examinations). He was required to file a “Weekly Sexual Impulse Report” that was both a degrading inventory of his inner life and a handy instrument of self-incrimination. 

Because Matthew didn’t consider himself a pervert, and denied doing anything to gratify a deviant sexual impulse, he was thrown out of his treatment group and faced the prospect of being in permanent “rehabilitation” until he was willing to submit.

When a young man is placed on a parole and designated a sex offender, the entire family is often put on probation and treated like criminals, and this was certainly the case with Matthew's parents.

“The police would pull us over on the road, search us, hold us for an hour interrogating us,” Bob recounts. “They came at 2:30 am to our home several times a year. We dealt with constant threats and harassment. We found signs in our yard with a picture of Matt saying `Child molester lives here.’”
No relief: Former Texas AG, and incumbent Governor, Abbott.
For a decade Bob and his wife endured the pitiless scrutiny, and unremitting harassment, of local law enforcement alongside Matthew. For his part, Matthew dutifully underwent “programming” for his alleged pyschosexual disorder in the form of a Relapse Prevention Course for Sex Offenders. After completing nine years in that program, Matthew dared to indulge the fond hope that completion of the course would leave him free to lead a relatively normal life. 

That prospect was demolished by the instructor, who reportedly told Matthew that “they would see to it that more was in store for him for the next 10 years to follow,” recounted his father in a despairing letter to then-Texas Attorney General (now Governor) Greg Abbott.

In early 2012, a SWAT team from the Department of Homeland Security raided the Cherry family’s home.

“Our family was subjected to hours of armed restraint and interrogation while the officers searched our home and collected alleged evidence,” Bob informed Abbott. “Although we know computers, cell phones, and our family’s financial and business records were taken away, we have no idea what was otherwise removed in the two truckloads taken by the officers, or what, if anything, we will ever see again. Our son, Matthew, was left humiliated, spread-eagle in the front yard for friends and neighbors to see.”

Matthew wasn’t arrested, but the raid essentially ruined his prospects of continued employment with a nearby computer store, where just days earlier he had been given a promotion. A few weeks later, Beaumont Police officers came to the home to arrest Matthew for an alleged job-related probation violation – namely, accepting that promotion without getting permission to relocate to another store in a different part of the city.

“Matthew had told his probation officer about this change,” Bob Cherry explained, “but apparently it was not what they had wanted of him.”

The officers serving the arrest warrant didn’t find Matthew at home.

Denied any prospect of rebuilding his life, Matthew finally succumbed to despair and desperation. Without informing his probation officer, he simply left without providing any indication of where he was going. It isn’t clear how he managed to establish himself in Honduras, or why he chose a country that is in some ways a more overt (albeit less comprehensive) police state than the one that exists in the U.S.

The offenses for which Matthew was convicted are not covered by the U.S.-Honduran extradition treaty, which means that his arrest could be considered an extra-judicial abduction. Two of the counts in his federal indictment deal with “visual depictions of … a minor engaging in sexually explicit conduct” on computers that were confiscated in 2013. No details are listed in the indictment, and the charges will not be contested in court.

Last December 17, Matthew signed a plea agreement that was sealed by the court. On the same day, the “factual basis and stipulation by the USA as to Matthew Thomas Cherry” was sealed by court order. We will probably never know the nature of the “evidence” seized from Matthew’s computer, or the means used by the U.S. Attorney to extract a guilty plea. One very good possibility is that Matthew could have been threatened with consecutive sentences of 15-40 years – which would mean spending the rest of his life in prison.

Another important factor was Matthew’s desire to remain in federal custody, rather than being remanded to the “justice” system in Beaumont.

“Our attorney actually thinks that Matthew is safer in federal custody than he would be in jail here in Beaumont, or in the Texas prison system,” Bob said despairingly in an interview shortly before the plea agreement. The concerns behind that grim assessment may have more to do with the deal Matthew made than the evidence that would have been used against him in court.

“I’ll come up with something”

No law enforcement agency has ever claimed that Matthew was spirited away to Central America through an underground network of predators. Given his documented limitations it’s difficult to see how Matthew could have wound up in Honduras without help.
Matthew was persuaded to plead guilty by a false assurance that his probation would be brief and he would be spared lifetime sex offender status. After enduring nine years of suffocating surveillance and harassment, he learned that he would never be granted rehabilitation, or a semblance of a normal life, if he remained in Jefferson County. It’s reasonable to suspect that his decision to flee the country was supported by someone who cared about him and was desperate to help him – even if doing so meant breaking the “law.”

At some point, Matthew apparently concluded that violating his probation and fleeing the country was the best of the bad options available to him. However, that decision compounded his family’s suffering. Deprived of Matthew as a target, the local “criminal justice” system made Bob and his wife the focus of their undivided attention.

“They searched our house nine times, with officers and agents from several different departments – the Jefferson County Sheriff, the Beaumont Police, Homeland Security, the US Marshals Service, the State Department,” Bob Cherry told me in a telephone interview. “We were shadowed by police and constantly being stopped by Beaumont cops and Jefferson County deputies. We were frequently held at gunpoint during supposedly routine stops.”

On several occasions, Beaumont police “told me that my son was a horrible person, a `career criminal’ and menace to our entire society,” Bob continues. “One officer told me that Matthew had a lengthy rap sheet, and once supplied me with a printout that supposedly proved it. I knew this wasn’t true, because Matthew had no criminal record before any of this began. It turns out that the `Matthew Thomas Perry’ he referred to was a habitual offender from Washington State who was a different age and from a completely different background.”

On one regrettable evening Bob and his wife came home to find the gate to their property open and six armed men waiting for them – five heavily armed sheriff's deputies and Armando Robles of the State Department's Diplomatic Service. Robles demanded that Bob answer questions about Matt's whereabouts. When his wife, who was carrying an infant grandchild, tried to enter the house, Robles physically restrained her and told her that she was “in on this” and needed to “cooperate” or face possible arrest.

Without a warrant, and in defiance of Bob's explicit refusal to consent, the armed officers invaded his home and rummaged through the closets and dresser drawers. Out of concern for “officer safety,” Bob and his wife were detained outside their home for several hours. When Bob got up to stretch his legs, one of the officers drew his gun. With mingled astonishment and annoyance, Bob asked if this was necessary; the officer replied that threatening the victim with an unholstered weapon was “policy.”

Matthew had been lured into signing a confession he didn't understand by devious interrogators who promised the troubled young man that they were just trying to “help” him. Similar unctuous assurances came readily to the smirking lips of the people who had invaded the Cherry family's home. Unlike their tragically suggestible son, Matthew’s parents knew better than to cooperate in any way with officials who were trained and practiced liars.

“They kept saying Bob knew where Matt was and needed Bob to bring Matt in so they could `help' him,” Bob’s wife recalled. “They swore they could get Matt cleared. Then they told Bob he was being rude because he would not talk to them or answer their questions.”

Agent Robles “said he knew Matt was innocent and just want to help him by doing his job,” she continued. When Bob proved to be adamant in the face of their enticement, the predators dispensed with the pretense that they were there to help.

(For illustration only.)
“They told Bob they had a warrant on each of us,” Mrs. Cherry narrated. This was a lie, of
course: “Bob asked to see [the warrants] and they only had one for Matt in their hands.”

Attempting to play both roles in the good cop/bad cop routine simultaneously, Robles “told Bob he will issue a warrant for our arrest because we refused to participate, but he would not be there when we are arrested.”

“We didn't do anything wrong,” Bob pointed out.

“I'll come up with something,” Robles replied, in what might have been his only moment of unalloyed candor. (Robles didn’t respond to my requests for comments on this story.)

Matthew’s parents were not the only members of the Cherry family who suffered this variety of unwanted attention

 “They’ve gone after everyone we know,” Bob explained during an interview last October. “We’re living in a literal police state.”

Tolstoy famously said that every happy family is alike, and every unhappy family is unhappy in its own way. No family, however, happy and well-adjusted, can long withstand relentless hostile scrutiny and armed harassment by agents of the State. The family’s savings – which had been accrued over decades of hard work -- were quickly depleted. Bob and his wife found it all but impossible to make a living, and their marriage didn’t survive.

Even with Matthew in custody, the Jefferson County DA’s office and Beaumont-area law enforcement agencies have not relented in their pursuit of his family. Bob and his wife were forced to move – but this still didn’t bring an end to the harassment.

“The last time we came up [to Beaumont] for the weekend, the cops threatened to arrest us,” Bob wearily recalled. “They wouldn't leave the house alone in Beaumont. They raided here, threatened to arrest [his wife] as well as me. I came back twice – the police came back to the house both times.”

As is often the case, some of Bob’s immediate relatives have assumed the role of Job’s comforters, berating him for resisting the will of the Divine State rather than simply accepting whatever its agents saw fit to inflict on his son.

“One close relative insists that the whole thing is my fault because I wasn’t `submissive,’” Bob told me. “She said `You lost your family because you fought back.’”

For his part, Bob is living off-the-grid in a remote cabin. He has no access to his bank accounts and describes his status as “living off the land until next Spring.”

Where did it begin?

According to Bob, his family’s ordeal began more than a decade ago at a family gathering when he made a remark that offended Joe Bleuell, the father of Matthew’s first purported victim and a fellow firefighter.

“He claimed I embarrassed him in front of his wife and he would not rest until he destroyed me and my family,” Bob alleges. “He had a life-long mission, and I was it.” In Bob’s account, Bleuell, who briefly worked as a police officer, boasted that he had family connections in law enforcement and the courts through which he could “manipulate the system” in any way necessary to accomplish his designs. 

Assume the position: SWAT training in Beaumont.
Bleuell capitalized on the minor incident at the YMCA swimming pool as a way to realize his ambitions, Bob contends. Following a preliminary hearing in Matthew’s case, Bleuell said that “he would break us, and see our son would spend the rest of his life in prison,” Bob maintains.

In a November 8 telephone interview, Bleuell denied having that conversation, insisted that “I have no connection with Bob or Matt Cherry,” and said that “if you’ve talked to Bob you’ll figure out that Bob has some mental issues.”

Matthew, Bluell claims, “got involved in the youth ministry to groom people for homosexual activity.” Just as four psychologists failed to find evidence of such tendencies on Matthew’s part, nobody in the church saw evidence of Matthew’s supposedly predatory behavior – until after Bluell persuaded them it was there. He admitted to me that he after he discussed the matter with other members of the church “They told me `Oh, wow, we were blind. That’s what he was doing, getting involved in the youth ministry for perverted reasons.’”

It’s important to emphasize that the concerns that led to Matthew Cherry’s prosecution originated within a church – which means that they should have been dealt with, at least initially, under what Christians consider New Testament law.

The same chapter of the Book of Matthew that describes the dreadful fate of anyone who would harm a child (Matthew 18:6) prescribes the proper course of action for dealing with misbehavior of all kinds. First, the offended party is to approach the alleged offender in search of redress; if this overture is rebuffed, it is to be repeated in the presence of one or two witnesses. If justice remains elusive, the plaintiff and witnesses are to present the matter to the congregation. If the accusation is sustained, and the offender remains defiant, at this point he is to be considered fair game for Caesar’s “justice” (Matt. 18:15-17.)

In one of his anxious and occasionally despairing epistles to Christians residing in Corinth, the Apostle Paul rebuked the members of that failing church for “go[ing] to law before the unjust,” rather than following the private dispute resolution procedure taught by Christ Himself. (1 Cor. 6:1-6.) This approach doesn’t exempt Christians from appropriate punishment for crimes against persons and property, including grotesque offenses against children. It is very well-suited for dealing with a case like this one, in which redress could have been easily obtained without resort to the State’s “justice” system.

Matthew's un-embellished  account makes it fairly clear that he was ill-suited for the ministry he was given. In my admittedly limited experience, young men who suffer from Tourette's syndrome are generally not given supervision of children. 

Suspicion of misconduct would be sufficient reason to remove Matthew from his role in the church, and for parents to be wary about entrusting their children to his care. Church discipline operates on a different standard that the criminal justice system -- which is one of the reasons why professing Christians are taught to seek redress within the faith before "go[ing] to law with one another."

During his police interrogation, Matthew said that when learned of his offense, he contacted the father of his accuser and attempted to apologize, only to be rebuked for his “deviant behavior.” In a September 6, 2005 letter to Judge Carver prior to sentencing, Bluell claimed that although he initially “felt some compassion for the defendant and was open to some leniency and the hope of rehabilitation,” he insisted that Matthew had inflicted “further harm” through his “denial [and] attempt to prolong the justice system” – which is to say, his profession of innocence and invocation of his due process rights.

“I ask that there now not be any leniency due in large part because of Matt’s lies, deception, denial and unwillingness to accept responsibility,” Bluell demanded. “I believe any hope for Matt’s recovery is only possible if Matt truly repents and seeks the help that only God can offer.”

That pious exhortation offered a peculiar coda to a campaign that focused more on State-inflicted punishment than divine redemption.

Bluell maintains that he has “no animosity” toward Bob Cherry.

“I feel sorry for him,” Bluell asserts. “His son did something perverted, and over the past decade he has had some mental issues, but I feel sorry for him and his family.”

Asked if he was aware of any evidence of Matthew Cherry engaging in unambiguously predatory behavior, Bluell replied: “I went to court; all the evidence is out there.” That “evidence,” it bears repeating, consisted of a thoroughly dubious confession that was extracted by predatory police detectives from someone who was in some ways the equivalent of a vulnerable and trusting child.

The Beaumont Way

Bob Cherry is adamant in his belief that his family’s ordeal was in large measure a product of the corrupt and insular political and legal system that controls Beaumont and Jefferson County. That suspicion is abundantly justified, given the depth and extent of official corruption existing in the county.

In 2011, Jefferson County tax victims underwrote a $16 million civil judgment in favor of Christopher Roberts, who was severely beaten by Sheriff’s deputies after being arrested for an unpaid traffic ticket

The assailants in the 2007 incident, Deputies Rodney Cole and Johnny Vickery, were subsequently found guilty of “official oppression” – and “punished” by being forced out of the department. That episode apparently had no measurable impact on the corporate character of the Sheriff’s office, or the court system it serves.

In May 2013 – near the height of the Cherry family’s ordeal -- Stephen Hartman, a private investigator and licensed civil process server, was arrested while trying to serve papers to Layne Walker, a District Judge and member of a local political dynasty. Hartman had previously attempted to serve a subpoena at Walker’s home. The judge reacted by pulling a gun and having his son assault Hartman. Accordingly, Hartman decided it would be safer to serve the papers at Hartman’s place of employment.

While waiting for a break in the proceedings, Hartman was arrested without cause on the judge’s orders and confined for most of the day in a holding cell with his hands cuffed behind his back. When he asked why he was being arrested, the deputy in charge replied: “We’ll tell you later.” His captors confiscated his personal effects, including an “undercover recording pen” and his cellphone – both of which were illegally searched without a warrant.

When Hartman was released, his personal effects were returned – except for the undercover pen, which was replaced by a screwdriver. Deputy Steven Broussard, who seized the pen from Hartman, attempted – unsuccessfully -- to destroy the video recording of the courtroom incident. To their credit, the Beaumont PD – which has had an antagonistic relationship with Hartman’s employer, Klein Investigation and Consulting -- retrieved the evidence and made it available to Hartman.

On the basis of perjured affidavits filed by several Jefferson County Sheriff’s Deputies, Hartman was charged with “hindering a proceeding by disorderly conduct.” Judge Walker also had Hartman’s “private investigator license, personal protection officer license, and commissioned security guard license suspended for about three months,” he recalled in a lawsuit filed against the judge and several officials in the Jefferson County Sheriff’s Office. 

Targeted: Security entrepreneur Klein.
Walker also targeted Philip Klein, Hartman’s employer, for retaliation. In addition to operating a successful security firm, Klein is a very prominent political gadfly – and he had stung Judge Walker on more than a few occasions. Klein was understandably outspoken following the unlawful arrest of his employee – and Judge Walker responded by seeking an indictment against Klein for “witness tampering.” Klein countered with a lawsuit accusing the judge of violating his civil rights, which appears to have played a role in Walker’s decision not to seek a third term on the bench last year.

This is the Gothic legal environment in which Matthew Cherry and his family found themselves. We will probably never know what, if anything, was found on Matthew’s confiscated computer, or how he wound up in Honduras. No reasonable person, however, would conclude that a stupid and offensive remark in a locker room is tantamount to child molestation, or that Matthew Cherry received anything remotely resembling due process.

It’s similarly difficult to conclude that Matthew was a greater danger to the public than the detectives who manipulated him into a confession using the same grooming tactics employed by sexual predators who target teenagers. And it should also be remembered that Texas is a state in which public school officials recently molested sixth-graders by forcing them to undergo a strip-search in pursuit of a vandal who decorated the gym floor with feces. None of the officials responsible for violating those traumatized children will face criminal prosecution, in all probability.  

Whatever else can be said about Matthew Cherry’s behavior, there is no credible evidence that he molested anyone, or had any intent to do so. No other word than “molestation,” however, accurately describes what the “justice” system did to his family. 

If you can please contribute to help keep Pro Libertate online. Thank you, and God bless!

Dum spiro, pugno!

Monday, January 26, 2015

Games Road Pirates Play

David Conner, a 43-year-old resident of Redding, California, will spend at least three years in a government cage in Idaho because a State Trooper in Oregon spied an open can of Monster energy drink in Conner’s rental car. 

The presence of that foul but perfectly legal concoction, Trooper Ryan Mills insisted, is an “indicator” of criminal activity. The trooper also considered it suspicious that Conner was making a long trip in a rented car during the middle of the week. Owing to his “experience and training,” Mills insisted during his January 22nd testimony in Conner’s trial, he simply knew that Conner “wasn’t just driving to grandma’s house.” 

When Conner didn’t consent to a search, Mills said that he would call a K-9 handler to conduct a drug sweep of the car. Ten minutes later the officer told Conner that “there’s no local dog available” and wrote him a citation for driving on a suspended license. 

Rather than either impounding the car or having Conner contact a friend to drive it away – as Oregon law requires – Mills let him continue eastward on I-84. About fifteen minutes later Conner was ambushed just inside the state line by Idaho State Troopers Jason Cagle and Scott Tulleners, who acted on an “Attempt to Locate” call informing them that Conner was operating a vehicle without a valid driver’s license. 

Neither Cagle nor Tulleners actually observed any suspected criminal activity on Conner’s part. The only “evidence” in their possession consisted of double hearsay – Mills’ original report relayed to them second-hand through ISP Trooper Justin Klitch, whom Mills had contacted via cellphone. 

Ryan Mills

Mills conducted that back-channel conversation with an officer outside his jurisdiction while ignoring repeated radio calls from his own dispatcher. In doing so he altered the purpose of the stop – without probable cause – from traffic enforcement to drug interdiction. He artificially prolonged Conner’s detention while making arrangements for him to be stopped in a state with more draconian drug laws and a more permissive official attitude toward police misconduct.

The initial traffic stop occurred in the early morning hours of March 5, 2014 on the freeway just outside of Ontario, Oregon. While lurking in the freeway median, Mills saw a Red Nissan Ultima pass a large Semi trailer. In his trial testimony, Mills claimed to have “visually” confirmed that the Nissan was traveling at 70 miles an hour in a 65 MPH zone.

After noticing the unwelcome visual signature of a tax feeder in his rearview mirror, Conner pulled onto an off-ramp, leaving a buffer zone of about four feet on the driver’s side of the car. Rather than following standard procedure, Mills approached the vehicle from the passenger side, which allowed him an unimpeded view of the car’s interior. That choice may be unusual for a routine traffic stop, but makes perfect sense if the objective is to contrive “reasonable suspicion” to justify a search of the vehicle.

The trooper’s performance during the encounter was a masterpiece of sociopathic manipulation, coaxing information from his detainee through an interrogation disguised as a casual conversation. 

Within seconds of approaching the car, Mills spotted a beverage cooler in the seat next to Conner.

“Is it just water in that cooler?” asked Mills asked. “No alcohol, or anything like that?”
This question – like all of the others posed by the trooper in a voice oozing affected geniality -- was seen by the detainee as an opportunity to cooperate, rather than an invitation to self-incrimination. Like too many others in similar situations, Conner didn’t appreciate the trouble he made for himself by acting on that invitation.  

“There’s some Monster energy drink in there,” Conner volunteered, unaware of the fact that Mills and others in his disreputable occupation had been trained to pretend that consumption of an energy drink by a motorist is an “indicator” of drug smuggling.

All Conner was legally required to provide were his driver’s license, registration, and proof of insurance. He was under no obligation to answer any of the questions posed by Mills or consent to a search of his person or vehicle. Yet within minutes Mills extracted detailed information about the starting point of Conner’s trip, his destination (both the city and specific neighborhood), his occupation, his friends and associates, and his family background. 

Everything Mills said or did was intended to “build the stop” by devising an excuse to search the vehicle. Every supposedly innocuous detail wrung from Conner was presented by Mills during his January 22 testimony as justification the subsequent warrantless search of the car by his comrades in Idaho.

After briefly questioning Conner, Mills returned to his cruiser, ostensibly to run Conner’s license and registration. His actual purpose was to arrange a drug sweep of Conner’s vehicle. This probably explains why the trooper ignored two replies from his dispatcher while after turning up the radio in his cruiser so as to mask his back-channel cellphone conversation with ISP Trooper Klitch.

Two minutes later, Mills asked Conner to step out of the vehicle, which is never a good thing. He also continued the interrogation, which was even worse.

“Do you have any luggage?” Mills began. “Are you carrying any illegal drugs or large sums of cash?”

When Conner – who, once again, did himself no favors by talking to the officer– replied in the negative, Mills made the inevitable demand for a “consent” search of the vehicle. 

David Conner during a break from his trial.
“How come you don’t give me the ticket and let me go?” a plaintive Conner asked after denying permission. “Is it because I’m from California?”

Replying that“I’m not going to sit and debate” the matter, Mills declared: “At this point I’m going to get ahold of a drug dog” – which was what he had planned to do from the moment he decided to stop the vehicle.

For about ten minutes Conner was left seething in his car. Roughly seventeen minutes into the stop, Mills’ dispatcher finally succeeded in getting his attention, informing him that Conner’s license had been suspended over a five-year-old unpaid traffic ticket.

A few minutes later, Mills – this time in the company of a second officer who has never been identified – approached the car again to inform Conner that he was receiving a “warning” for speeding, and a citation for driving without a valid license.

Under Oregon state law, Mills was required to act in a “community caretaking function” by preventing an unlicensed driver from operating a vehicle on public roads.  A 2005 Ninth Circuit Court of Appeals ruling in a case out of Oregon decrees that “The state has the right to allow the driver to drive away with the vehicle only if he or she is able to do so in compliance with all regulations intended to ensure the vehicle’s safe operation.” (Emphasis added.)

Conner was less than a half-hour from his destination. It wouldn’t have been difficult to arrange for a friend to take over driving duties. If this didn’t work, Mills would have the option of calling for a tow operator to impound the vehicle. A subsequent custodial inventory would have found Conner’s luggage, which included a mummy-style sleeping bag in which he had concealed a 13-gallon kitchen trash bag containing a substantial quantity of marijuana.  

A custodial inventory is not a search for criminal evidence. Opening either the suitcase or the sleeping bag, or subjecting them to a drug sweep, would have required a search warrant. In the event his car had been impounded, Conner would most likely have taken his luggage with him. Under an Oregon Court of Appeals ruling handed down two years earlier, Mills would have had no authority to prevent Conner from taking his possessions with him, or to search it without a warrant once it had been removed from the impounded vehicle.

In 2009, an Oregon man named Christopher Ray Dimmick was stopped by a police officer who impounded his car after the driver produced an invalid insurance card. When Dimmick tried to retrieve a backpack from the rear of the vehicle, the officer refused to let him take it. A search of the backpack discovered a digital scale, paraphernalia, and several bags containing drug residue.

Dimmick filed a motion to suppress the drug evidence as the product of an illegal search. The Oregon Court of Appeals agreed that “the backpack and the evidence found therein should have been suppressed” and reversed the conviction arising from that discovery.

Conner admits that he was transporting marijuana. In California, he has a medical marijuana prescription issued by Dr. Howard Kerr Ragland allowing him to possess up to ten pounds of processed cannabis. That fact would avail him nothing in Oregon – where possession of several pounds of pot is still treated as a felony – or in Idaho, where marijuana use is seen as a practice akin to communing with the Devil.

If Trooper Ryan Mills had followed Oregon law, however, Conner would have escaped that encounter with little more than a fortified commitment to avoid answering a police officer’s questions.

Mills, however, made the cynical calculation that his diligent service of the lucrative prohibition racket would extenuate his violation of a law supposedly intended to protect public safety.

“I’m giving you a warning on your speed and giving you a citation for no operator’s license or suspended in California,” Mills told Conner, who was both relieved and puzzled. The driver was informed he had “an optional court appearance on April 9th at 10:00 a.m. at the Malheur County Justice Court. You’re not required to show up.”

After explaining how Conner could pay the extortion note without the hassle of a hearing, Mills handed the driver the paperwork.

“Take care,” the trooper said by way of a farewell, pivoting on his heel and striding back to his cruiser.

“I just wasn’t really sure of what was going on,” Conner recalled to me shortly after his trial. “I had no knowledge of the suspension [and] thought he would have warned me not to drive if I was not supposed to.”

After Conner drove away, Mills – once again using his personal cellphone – contacted Klitch to spring the trap.

With the lawsuit pending against him -- and at least one other being prepared -- Klitch was reassigned to desk duty at the time of Conner’s arrest. He has since been transferred from patrol duty and is now employed as an ISP detective.

Klitch relayed the information from Mills to his colleagues Jason Cagle and Scott Tulleners, who were lounging in their respective patrol cars by the side of I-84 near the Middleton exit. Upon spotting the Red Nissan the two predators assumed pursuit vectors, tailgating Conner until he pulled into a service station. 
Officer Cullen and "K-9 Officer."
Officer Chris Cullen from the Parma Police Department, who had also been contacted by Klitch, quickly arrived with a drug-detecting dog named Bosco. The canine “immediately alerted to the trunk of Conner’s vehicle,” Tulleners wrote in his incident report.

Six Ziploc bags containing suspected marijuana were confiscated from the rental car. Conner was arrested and offered an invitation to become a snitch.

 “They went right after me, promising that they could make the whole thing disappear if I were willing to cooperate with the DEA, informing on people and setting up buys,” Conner told me. “I wasn’t interested, and told them I would only be speaking with an attorney.”
The effort to browbeat Conner into becoming an informant continued once he was taken to jail.

“The intake deputy at the jail said to me, `How much were you caught with?’” Conner related to me. “I knew that I was being video-recorded, and I said I would only talk to a lawyer. So that officer and a couple of others tried to intimidate me, telling me that I would get `special treatment’ if I didn’t cooperate.”

Conner was able to raise bail the following day and leave the jail without enduring any further abuse. The “special treatment” was inflicted by Canyon County Prosecutor Bryan Taylor.

The DA initially offered Conner a deal in which he would serve a fixed sentence of one year in exchange for a guilty plea. That offer was revoked when Conner filed a motion to suppress the results of the search after his “driving without privileges” citation was thrown out by Justice of the Peace Margie Mahony after she watched the dashcam video.

Since the initial traffic stop was invalid, the evidence eventually obtained was the proverbial fruit of the poisoned tree. Furthermore, even if Mills’ traffic stop had been legitimate, there was no probable cause to justify the one Mills had arranged on the Idaho side of the border.

In his probable cause affidavit, ISP Trooper Scott Tulleners claimed that he had personally “observed” Conner break the law. This was a lie: As Tulleners admitted in his narrative, “Prior to stopping the vehicle, Oregon State Police informed us that the driver and sole occupant of the vehicle was suspended in California and also that the drive exhibited several indicators of trafficking controlled substances.”
Trooper Cagle poses with the loot.
Third-hand “knowledge” isn’t the product of direct observation; it’s actually more akin to rumor. When cross-examined in Conner’s trial, neither Trooper Tulleners nor Trooper Cagle could state specifically which of them had “observed” Conner breaking the law, or which of them first heard about his suspended license.

When Conner’s attorney pointed out that the officers were retailing hearsay, Judge Bradly Ford parried that objection with a meandering and unfocused ruling that meant, in substance, “It’s good enough for Canyon County.”

By that time, Ford had already ruled against Conner’s motion to suppress the drug evidence for the same reason. Conner’s trial was little more than an exercise in validating a pre-determined outcome: If he wouldn’t cooperate with the DA’s office, Conner was going to be convicted of possessing five pounds of marijuana – and the state would not be required to prove every element of that offense.

Under Idaho law, possession of more than five pounds of marijuana carries a sentence of up to fifteen years in prison with a three-year mandatory minimum. If Conner had cooperated with the DA, Taylor was willing to stipulate that he had been caught with just under five pounds of pot. When Conner insisted on asserting his rights, that amount suddenly increased to just over five pounds. 

The amount of marijuana used in the prosecution depends entirely on the interests of the prosecutor. 

The variable weight of the evidence used against Conner reflects a cunningly wrought ambiguity in Idaho law: The prosecutor wasn’t required to prove that Conner was actually in possession of five pounds of marijuana, but only that the tested portion extracted from the five pounds of “leafy substance” contained THC.

In her January 23 testimony, forensic investigator Keri Hogan recalled that the test sample she extracted weighed one-tenth of a gram. This minuscule amount was sufficient for a “qualitative analysis” of the material, she insisted. When asked during cross-examination why she didn’t conduct a quantitative analysis – that is, try to determine how much of that five-pound haul contained THC – Hogan replied that the Idaho crime lab doesn’t have a procedure for quantitative testing anywhere in the state.”

This systemic imprecision confers a significant advantage on the prosecutor: A cooperative defendant caught with fifty pounds of suspected marijuana can be offered a deal below the five-pound threshold, and one who intransigently defends his rights can be threatened with the theft of fifteen years of his life.  

It should also be acknowledged that the state crime lab that produces those conveniently imprecise test results employed technicians whoroutinely violated “policies and protocols” dealing with drug evidence over aperiod of several years, according to an internal audit conducted by the StatePolice in 2011. In some instances, lad technicians concealed drugs from auditors; in one particularly horrifying episode, an ISP scientistordered a large supply of GHB – the so-called “date rape drug” – and concealedat least some of it from inspectors

The Appellate Public Defender’s Office estimated that more than 1,000 drug cases – including many that had resulted in conviction and imprisonment – were affected by the scandal. Yet during Conner’s trial the prosecution insisted that the crime lab was irreproachable and its findings incontestable. 

During Conner’s trial, the assistant DA and prosecution witnesses repeatedly recited the familiar mantra about the “training and experience” of the investigating officers to justify the intuitive leaps and procedural shortcuts that resulted in Conner’s arrest. 

Troopers Cagle and Tulleners both testified that they had undergone extensive training through anarcotics enforcement consulting firm called Desert Snow.  Although both Mills and Klitch also testified about their extensive training and experience, neither specifically mentioned Desert Snow – but the routines they employed in their videotaped encounters make it clear that they were taught the same catechism. 

Desert Snow was founded in 1989 by former California Highway Patrol Officer Joe David. Thanks in no small part to a steady stream of federal subsidies and consulting fees paid by police agencies, Snow now enjoys a seigneurial lifestyle any drug lord would envy, including a yacht and a vacation condo in Cabo San Lucas. 

In 2004, with the help of grants provided by the Department of Homeland Security, Desert Snow established an unofficial police intelligence system called the Black Asphalt Electronic Networking and Notification System, which is accessible only to “registered law enforcement personnel.”

“Black Asphalt [serves] as a social hub for a new brand of highway interdictors, a group that one Desert Snow official has called `a brotherhood,’” reported the Washington Post. “Among other things, the site hosts an annual competition to honor police who seize the most contraband and cash on the highways. As part of the contest, Desert Snow encouraged state and local patrol officers to post seizure data along with photos of themselves with stacks of currency and drugs.”

This helps explain why Idaho State Troopers Cagle and Tulleners made a point of posing with the marijuana they had seized from Conner's rental car.

Winners of that annual Road Pirate competition “receive Desert Snow’s top honorific: Royal Knight,” continued the Post. “The next Royal Knight will be named at a national conference hosted in Virginia Beach” in March. 
The whole point of drug interdiction, explains Desert Snow marketing director Roy Hain (a former Kane County, Illinois Sheriff’s deputy) is to “pull in expendable cash hand over fist.”

“The drug trade has proven to be recession proof,” Hain exulted in his pseudonymously published book In Roads: A Working Solution to America’sWar on Drugs. “Americans have the assets to capitalize on this industry and handsomely support public services during times of strife.” Money confiscated through the government-licensed larceny called “asset forfeiture” can be spent on “just about anything under a law enforcement agency’s roof.”

America’s freeways are arties through which flow unimaginable amounts of money that can be diverted into law enforcement agencies, writes Hain. 

“The same techniques used by those very few drug trafficking interceptors for detecting bulk drug distribution can be used to interdict the laundering of drug cash,” he insists. All that is necessary is for police departments to pay Desert Snow to tutor their officers regarding the “identifiable and predictable profiles” of people who are carrying contraband or large amounts of cash – and to convince judges and juries that drug interdiction officers possess a Jedi-level facility for assessing the hidden thoughts and motivations of the people they encounter. 
Wouldn't a Skull and Crossbones be more appropriate?
“Desert Snow urges police to work toward what are known as `consensual encounters’ – beginning with asking drivers whether they mind chatting after a warning ticket has been issued,” observes the Post account. “The consensual chat gives police more time to look for indicators and mitigates later questions in court about unreasonably long traffic stops. They’re also instructed in how to make their stops and seizures more defensible to judges.

Desert Snow training sessions include units on “roadside conversational skills” and “when and how to seize currency.” The use of catch-and-release tactics involving officers in multiple jurisdictions also appears to be part of the Desert Snow curriculum.

In April of last year, reported the Post, a California Highway Patrol officer stopped a woman from Kentucky whose car was “littered with food wrappers and energy drinks.” Using the same grooming tactics Ryan Mills employed to draw David Conner into a self-incriminating conversation, the California officer learned that the woman had visited California to attend a funeral. Skeptical of that story, the officer asked the woman why she didn’t fly. Not satisfied with her answer, the trooper let her go – but used the Black Asphalt system to post her driver’s license number and a BOLO report (“be on the lookout”) to officers nation-wide. 

David Conner’s arrest was a textbook application of the Desert Snow model: A “highway interdictor” conducts a pretext stop, uses his practiced patter to engage in a “consensual encounter,” collects a few “indicators” to expand the stop into a drug search, and then sends out an intuition-based alert about the driver to fellow predators in another state. 

Once the case winds up in court, the Desert Snow alumni invoke their “training and experience” to trump objections about misconduct or violations of due process.

This routine will occasionally encounter difficulty when it is performed in front of a judge burdened with a modest respect for the Bill of Rights. The prosecutor in David Conner’s case had the tremendous advantage of presenting it before a judge in Canyon County, where the Fourth Amendment appears to be extinct.

Shortly before the trial ended, the prosecutor, Canyon County deputy district attorney Dallin Cresswell requested a jury instruction forbidding the panel to consider the legality of the traffic stop in Idaho. Judge Ford dutifully recited that instruction to the jury, which delivered the foreordained verdict.

“After the verdict was announced, two of the jurors apologized to my attorney,” Conner recalled to me. “They said that they really wanted to vote for acquittal because of the conduct of the police officers, but that they had to follow the judge’s instructions.”
That claim is untrue, of course – but it was good enough for Canyon County.

In an interview prior to the trial, Conner made it clear that he considered the trial a mere formality -- a prelude to at least three years behind bars waiting for his appeal to run its course. By the time he is up for parole, it's possible that Idaho will have joined several neighboring states in relaxing its "Midnight Express"-grade anti-marijuana laws.

Until then, Klitch, Cagle, Tulleners and their comrades will continue to prey upon Gem State motorists in search of cash and other valuables that can be plundered -- or contraband that can be seized in pursuit of a Desert Snow "Royal Knight" award, or some similarly trite bauble. 

Anybody driving a car bearing a license plate issued by a state with a less draconian marijuana law is fair game for a pretext stop; anybody found in possession of energy drinks can expect to be subjected to a "drug sweep." Every traffic stop will follow the "consensual encounter" script provided by Desert Snow, with the officer seeking to seduce the unwitting driver into a compromising conversation.

People who find themselves on the receiving end of such treatment should understand that they cannot win at the games road pirates play -- and shut up. If they choose to offer any reply to an officer's questions, one perfectly suitable response would be: "You should know better than to ask, and I certainly know better than to answer."

Click here to download or listen to the most recent Freedom Zealot Podcast.

If you can, please help keep Pro Libertate online. Thank you, and God bless!

Dum spiro, pugno!